HomeMy WebLinkAbout8491RESOLUTION NO. 8491
A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF
PUEBLO A MUNICIPAL CORPORATION AND THE ECONOMIC
DEVELOPMENT ADMINISTRATION (EDA) , FINANCIAL ASSISTANCE
AWARD, NO. 05 -01- 02935, TO CONSTRUCT INFRASTRUCTURE
IMPROVEMENTS ON THE HISTORIC ARKANSAS RIVERWALK OF
PUEBLO.
WHEREAS, the Economic Development Administration has approved a
financial Assistance Award in an amount not to exceed $1,200,000 in
response to the City of Pueblo's application for Federal assistance to
construct infrastructure improvments at the Historic Arkansas Riverwalk of
Pueblo; and
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF PUEBLO, COLORADO, that:
Section 1:
The Pueblo City Council hereby agrees to the terms and
conditions of the Financial Assistance Award Project No. 05 -01- 02935,
between the City of Pueblo, a Municipal Corporation, and the Economic
Development Administration, a copy of which is attached and incorporated
and having been approved as to form by the City Attorney, is hereby
approved.
Section 2:
The President of City Council is hereby authorized to execute
and deliver said agreement on behalf of the City of Pueblo, a Municipal
Corporation, and the City Clerk shall affix the Seal of the City thereto
and to attest same.
Section 3:
The City's recipient share of the total project cost of
$2,162,500, is $962,500. This recipient share will come from the
following two sources: (1) $250,000, from an Energy Impact Assistance
Grant from the Department of Local Affairs State of Colorado; and (2)
$712,500 wi l l come from the HARP Foundation.
INTRODUCED: August 10, 1998
ATTEST:
ITY CLERK
BY: R1 Ch Gnl pnda
COUNCILPERSON
APPR VED:
f
PRESIDENT OP CI COUNCIL
- %,PUU11V11 / 6 11MVII -WO
A RESOLUTION APPROVING AN AGREEME77BETWEEN THE CITY PUEBLO, A MUNICIPAL CORPORATION, AND THE
ECONOMIC DEVELOPMENT ADMINISTRATION (EDA) FINANCIAL ASSISTANCE AWARD NO. 05 -01- 02935, TO CONSTRUCT
INFRASTRUCTURE IMPROVEMENTS AT THE HISTORIC ARKANSAS
Title RIVERWALK OF PUEBLO. Agenda Item # 22
Department:
Date: AUGUST 10, 1998
ISSUE:
Should the Pueblo City Council agree to the terms and conditions of the
Economic Development Administration's Financial Assistance Award, thus
accepting the $1,200,000 to construct infrastructure improvements at the
Historic Arkansas Riverwalk of Pueblo.
BACKGROUND
The City of Pueblo has received notice from the Economic Development
Administration that it has approved a Financial Assistance Award in an
amount not to exceed $1,200,000 in response to the City's application for
federal assistance. This federal assistance will be used to construct
street and pedestrian lighting; four parking lots: (1) one on the south side
of Lake Elizabeth, (2) one on the north side of the channel between Victoria
and Union Avenues, (3) one adjoining City Hall, and (4) one on the north
side of San Angelo's Woodworking Shop; sidewalk and streetscape
improvements; and the Boat House /Public Rest Room Facility. A map
identifying the project area is attached.
The total project, including both hard (construction) and soft (design and
engineering) project costs is estimated to be $2,162,500. The City has
fifteen (15) days from the receipt of this letter to agree to the terms and
conditions of the award. The City Attorney's office has approved the EDA
Assistance Award as to form, subject to the following comments and
conditions:
1. The EDA project must be established, maintained and operated as a
separate and distinct project from any other phase of HARP construction
work or activities.
2. Our approval is based upon the assumption that the City fully
understands and will comply with all conditions, requirements and grant
award provisions including, but not limited to, all procurement_
requirements.
3. The City's $962,500 non - federal share of project costs is committed and
is available as needed for the EDA project (see paragraph 5 of Specific
Award Conditions).
4. Pueblo Conservancy District executing and delivering appropriate fees
transferring its interest in the HARP property to the City and the
issuance of a title insurance policy insuring good and marketable title
to all land, rights -of -way, and easements, necessary for the completion
of the EDA Project.
PLANNING & DEVELOPMENT
FORM CD 10-93 o U.S. DEPARTMENT OF COMMERCE
(REV
® GRANT El COOPERATIVE AGREEMENT
DAO 207 -25
ACCOUNTING CODE
FINANCIAL ASSISTANCE AWARD
RECIPIENT NAME
AWARD NUMBER
CITY OF PUEBLO
05 -01 -02935
STREET ADDRESS
FEDERAL SHARE OF COST
No. 1 CITY HALL PLACE
$1,200,000
CITY, STATE ZIP CODE
RECIPIENT SHARE OF COST
PUEBLO, COLORADO 81003
$962,500
AWARD PERIOD
TOTAL ESTIMATED COST
From date of approval to ?i months after approval
$2,162,500
DEPARTMENT OF COMMERCE OPERATING UNIT
Economic Development Administration
AUTHORITY (42 U.S.C. 3121, et. seq.)
Public Works and Economic Development Act of 1965, as amended
PROJECT TITLE: THE PROJECT WILL CONSTRUCT INFRASTRUCTURE IMPROVEMENTS AT THE HISTORIC RIVERWALK PROJECT.
This Award approved by the Grants Officer is issued in duplicate and constitutes an obligation of Federal funding. By
signing the two documents, the Recipient agrees to comply with the Award provisions checked below. Upon
acceptance by the Recipient, one signed Award document shall be returned to the Regional Director and the second
document shall be retained by the Recipient. If not signed and returned by the Recipient within 15 days of receipt, the
Grants Officer may declare this Award null and void.
N EDA Standard Terms and Conditions -- Construction Program, dated June 1997
N Special Award Conditions
N Line Item Budget
N 15 CFR Part 24, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local
Governments
N OMB Circular A -87, Cost Principles for State and Local Governments
❑ OMB Circular A -110, Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Nonprofit
Organizations Uniform Administrative Requirements
❑ OMB Circular A -122, Cost Principles for Nonprofit Organizations
❑ OMB Circular A -21, Cost Principles for Educational Institutions
❑ 15 CFR Part 29b, Audit Requirements for Institutions of Higher Education and Other Nonprofit Organizations
❑ 48 CFR Part 31, Contract Cost Principles and Procedures
N OMB Circular A -133, Audits of States, Local Governments, and Nonprofit Organizations
❑ Other(s):
SIGNATURE OF DEPARTMENT OF COMMER E GRANT O FICER
TITLE
DATE
JUL 2 4 1998
John D. Woodward
Regional Director
TYPED NAME AND SIGNATURE OF YUTHORIZED REC OFFICIAL
TITLE
DATE
Cathy A. Garcia �� a f 1��'
President of the Council
8/11/98
EXHIBIT "A"
U.S. DEPARTMENT OF COMMERCE
Economic Development Administration
Public Works and Development Facilities
RECIPIENT: CITY OF PUEBLO, CO
Project No.: 05 -01 -02935
SPECIAL AWARD CONDITIONS
Page 1 of 4
PROJECT DEVELOPMENT TIME SCHEDULE: The Recipient agrees to the
following Project development time schedule:
Time allowed after approval of Financial Assistance Award for:
Startof Construction .......... ............................... ............................270 days
ConstructionPeriod ........................................... .............................12 months
Project Closeout - All Project closeout documents including final financial information
and any required program reports shall be submitted to the Government not more
than 90 days after the date the Recipient accepts the completed Project from the
contractor(s).
The Recipient shall pursue diligently the development of the Project so as to ensure
completion of the Project and submission of closeout documents within this time
schedule. Moreover, the Recipient shall notify the Government in writing of any
event which could delay substantially the achievement of the Project within the
prescribed time limits. The Recipient further acknowledges that failure to meet the
development time schedule may result in the Government's taking action to
terminate the Award in accordance with the regulations set forth at 13 CFR
305.99(b) and 15 CFR 24.43 (53 Fed. Reg. 8048 -9, 8102, March 11, 1988).
2. GOALS FOR WOMEN AND MINORITIES IN CONSTRUCTION: Department of
Labor regulations set forth in 41 CFR 60 -4 establish goals and timetables for
participation of minorities and women in the construction industry. These regulations
apply to all Federally assisted construction contracts in excess of $10,000. The
Recipient shall comply with these regulations and shall obtain compliance with 41
CFR 60 -4 from contractors and subcontractors employed in the completion of the
Project by including such notices, clauses and provisions in the Solicitations for
Offers or Bids as required by 41 CFR 60 -4.
The goal for the participation of women in each trade. area shall be as follows:
From April 1, 1981, until further notice: 6.9 percent
Exhibit "A"
SPECIAL CONDITIONS
Page 2 of 4
Project No. 05 -01 -02935
All changes to this goal, as published in the Federal Register in accordance with the
Office of Federal Contract Compliance Programs regulations at 41 CFR 60 -4.6, or
any successor regulations, shall hereafter be incorporated by reference into these
Special Award Conditions.
Goals for minority participation shall be prescribed by Appendix B -80, Federal
Re ister, Volume 45, No. 194, October 3, 1980, or subsequent publications. The
Recipient shall include the "Standard Federal Equal Employment Opportunity
Construction Contract Specifications" (or cause them to be included, if appropriate)
in all Federally assisted contracts and subcontracts. The goals and timetables for
minority and female participation may not be less than those published pursuant to
41 CFR 60 -4.6.
3. RECIPIENT AFFIRMATION OF AWARD: This Financial Assistance Award, subject
to the other Special Conditions and the Standard Terms and Conditions, shall
constitute an obligation to make such Award. If the Recipient fails to affirm its
intention to use the Award in accordance with the terms and conditions of this
Financial Assistance Award, it will be terminated without further cause. By signing
and returning one of the original Award documents, within fifteen (15) days of
receipt, the Recipient affirms that it intends to use the Award in accordance with the
terms and conditions as above - referenced.
4. NEW RESTRICTIONS ON LOBBYING: This Award is subject to section 319 of
Public Law 101 -121, which added section 1352, regarding lobbying restrictions, to
chapter 13 of title 31 of the United States Code. The new section is explained by the
U.S. Department of Commerce in an "Interim Final Rule," 15 CFR Part 28 (55 FR
6736 -6748, 2/26/90). The Recipient and subrecipients are generally prohibited from
using Federal funds for lobbying the Executive or Legislative Branches of the
Federal Government in connection with this Award.
The Recipient shall require each person who requests or receives from the Recipient
a subgrant, contract, or subcontract exceeding $100,000 of Federal funds at any tier
under this Award, to file a "Certification Regarding Lobbying" and, if applicable, a
"Disclosure of Lobbying Activities" form regarding the use of any nonfederal funds
for lobbying. Certifications shall be retained by the next higher tier. All disclosure
forms, however, shall be forwarded from tier to tier until received by the Recipient,
who shall forward all disclosure forms to the Government.
The Recipient shall file and shall further require each subgrantee, contractor, or
subcontractor that is subject to the subrecipient Certification and Disclosure
Exhibit "A"
SPECIAL CONDITIONS
Page 3 of 4
Project No. 05 -01 -02935
provision of this Special Condition to file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires disclosure or that
materially affects the accuracy of the information contained in any disclosure form
previously filed by such person. Disclosure forms shall be handled as described
above.
An Indian tribe or organization that is seeking an exclusion from Certification and
Disclosure requirements must provide (preferably in an attorney's opinion) EDA with
the citation of the provision or provisions of Federal law upon which it relies to
conduct lobbying activities that would otherwise be subject to the prohibitions in and
to the Certification and Disclosure requirements of section 319 of Public Law No.
101 -121.
5. LOCAL SHARE: In affirming this Award, the Recipient certifies that the non - federal
share of project costs is committed and is available as needed for the project, that
the non - federal share is from sources which can be used as match for the EDA
project, and that the non - federal share will not affect ownership of, or title to, the
project facilities. The Recipient further acknowledges that, prior to award of any
construction contracts, it will be required to provide evidence satisfactory to the
Government that all funds necessary to complete the project are available.
6. EXPIRATION OF AVAILABILITY OF GRANT FUNDS: This Award is subject to
Public Law 101 -510, enacted November 5, 1990, Section 1405, amending
Subchapter IV of chapter 15, title 31, United States Code, which prescribes the rules
for determining the availability of appropriations. Accordingly, the grant funds
obligated for this Project will expire in five years from the fiscal year of the grant
award. This requires that the Project be physically and financially complete by
September 30, 2003.
7. ARCHITECT /ENGINEER AGREEMENT: Prior to the disbursement of funds by EDA,
the Recipient shall submit to the Government for approval, an architect /engineer
agreement which meets the requirements of Section I of the EDA publication,
"Requirements for Approved Projects" as well as the competitive procurement
standards of Department of Commerce Regulations at 15 CFR 24.36 or OMB
Circular A -110, as applicable. The fee for basic architect /engineer services shall be
a lump sum or an agreed maximum, and no part of the fees for other services shall
be based on a cost - plus -a- percentage -of -cost or a cost using a multiplier.
Exhibit "A"
SPECIAL CONDITIONS
Page 4of4
Project No. 05 -01 -02935
8. TITLE: Prior to disbursement of funds by EDA, the Recipient shall provide evidence
satisfactory to the Government that the Recipient has acquired good and
merchantable title, free from all mortgages or other foreclosable liens, to all land,
rights -of -way and easements necessary for the completion of the project.
Form ED -508 U.S. DEPARTMENT OF COMMERCE Attachment No. 1
(Rev. 4194) Economic Development
Administration
EDA Award No. PUBLIC WORKS PROJECT COST CLASSIFICATIONS
05 -01 -02935
State Colorado
County Pueblo
Cost Classification
Proposed
Approved
Administrative & legal expenses
$0
$1,000
(1)
Land, structures, right -of -way,
appraisals, etc.
0
100
(2)
Relocation expenses & payments
0
100
(3)
Architectural & engineering fees
126,409
126,500
(4)
Other Architectural &
engineering fees
0
1
(5)
Project inspection fees
127,530
127,600
(6)
Site Work
0
0
Demolition and removal
0
0
Construction
1,828,524
1,828,600
(7)
Equipment
0
0
Miscellaneous
0
0
Contingencies
79,965
77,600
(8)
TOTAL PROJECT COSTS
2,162,428
$2,162,500
(9)
Remarks:
(1) $1,000 added to open the line item.
(2) $100 added to open the line item.
(3) $100 added to open the line item.
(4) Rounded
(5) $1,000 added to open the line item.
(6) Rounded
(7) Rounded
(8) Adjusted to reflect changes made to budget.
(9) Rounded
U. S. DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
Title I Public Works and Development Facilities
and
Title IX Implementation Grant Construction Components
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JUNE 1997
Exhibit "B"
U. S. DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
Title I Public Works and Development Facilities
and
Title IB Implementation Grant Construction Components
Page
INTRODUCTION ....................... ............................... 1
A. STATUTORY AND EXECUTIVE ORDER REQUIREMENTS ................... 1
B. FINANCIAL REQUIREMENTS ........ ............................... 5
1. Financial Reports ........ ............................... 5
2. Award Payments ........... ............................... 6
3. Federal and Non - Federal Sharing ......................... 6
4. Budget Changes and Transfer of Funds Among Categories ... 7
5. Indirect Costs ........... ............................... 7
6. Incurring Costs or Obligating Federal Funds Beyond the
ExpirationDate ......................................... 8
7. Tax Refunds .............. ............................... 9
8. Incurring Costs Prior to Award .......................... 9
C. PROGRAMMATIC REQUIREMENTS ..... ............................... 9
1. Reporting Requirements ... ............................... 9
2. Unsatisfactory Performance .............................. 10
3. Programmatic Changes ..... ............................... 12
4. Other Federal Awards with Similar Programmatic Activities 13
5. Program Income ........... ............................... 13
6. Use of Third Parties to Solicit or Secure This Award .... 13
7. Consultant and Attorney's Fees .......................... 14
8. Member of Congress /Resident Federal Commissioner
Restriction .............. ............................... 14
9. Hold Harmless Requirement ............................... 14
10. Alienation Restriction ... ............................... 14
11. Taxpayer Identification Number Requirement .............. 14
D. NON - DISCRIMINATION REQUIREMENTS .............................. 15
1. Statutory Provisions ..................................... . 15
2. Other Provisions ......... ............................... 16
ii
E .
AUDITS .......................................................
16
1.
Organization -Wide and Project Audits ....................
16
2.
Audit Resolution Process . ...............................
17
F .
DEBTS
..................... ...............................
18
1.
Payment of Debts Owed the Federal Government ............
18
2 .
Late Payment Charges ..... ...............................
18
G .
NAME
CHECK .................... ...............................
19
1.
Results of Name Check .... ...............................
19
2.
Action(s) Taken as a Result of Name Check Review ........
20
H.
LOBBYING RESTRICTIONS ......... ...............................
20
1 .
Statutory Provisions ...................................
20
2.
Disclosure of Lobbying Activities .......................
20
3.
Subaward, Contract, and Subcontract .....................
21
I.
MINORITY AND WOMEN -OWNED BUSINESS ENTERPRISE .................
22
J.
SUBAWARD AND /OR CONTRACT TO A FEDERAL AGENCY .................
22
K.
PROPERTY MANAGEMENT ............ ...............................
22
1 .
Standards ...............................................
22
2.
Retention of Title ....... ...............................
23
3.
Disposal of Real Property ..............................
23
4.
EDA's Interest in Award Property ........................
24
5 .
Leasing Restrictions ..... ...............................
25
1
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
Title I Public Works and Development Facilities
and
Title IX Implementation Grant Construction Components
For the purpose of these Standard Terms and Conditions, unless the
context otherwise requires, (a) the term "Government" refers to the
Economic Development Administration (EDA); (b) the term "Recipient"
refers to the recipient of Government funds under the Agreement to
which this attachment is made a part; (c) the term "Department" and
"DoC" refer to the Department of Commerce; and (d) the term "regional
office" refers to the appropriate Regional Office of the Economic
Development Administration, i.e., the office administering the award.
The Public Works and Economic Development Act of 1965 and its
amendments (42 U.S.C. 3121, et seq.) are hereinafter referred to as
P.L. 89 -136.
A. Statutory and Executive Order Requirements
Some of the terms and conditions herein contain, by reference or
substance, a summary of the pertinent statutes, or regulations
published in the Federal Register or Code of Federal Regulations (CFR)
Executive Orders (EO) or OMB Circulars (Circular). To the extent that
it is a summary, such term or condition is not in derogation of, or an
amendment to, any such statute, regulation, EO or Circular. All
statutes, regulations, EOs or Circulars whether or not referenced
herein are to be applied as amended on the date they are administered.
1..The Recipient and any subrecipients shall, in addition to the
Assurances made as a part of the application, comply, and
require each of its contractors and subcontractors employed in
the completion of the project to comply, with all applicable
Federal, state, territorial, and local laws, and in particular
the following Federal Public Laws, the regulations issued
thereunder, and Executive Orders and Office of Management and
Budget (OMB) Circulars:
a. The Public Works and Economic Development Act of 1965, P.L.
89 -136, as amended (42 U.S.C. 3121, et seq.), and regulations
in 13 CFR, Chapter III;
b. The Davis -Bacon Act as amended (40 U.S.C. 276a to 276a (5);
42 U.S.C. 3222);
c. The Contract Work Hours Standards Act, as amended (40 U.S.C.
327 -333) ;
N
d. The Copeland "Anti- Kickback" Act, as amended (40 U.S.C.
276(c); 18 U.S.C. 874);
e. The Clean Air Act, as amended (42 U.S.C. 7401, et seq.);
f. The Federal Water Pollution Control Act, as amended (33
U.S.C. 1251, et seq.);
g. The Endangered Species Act of 1973, as amended (16 U.S.C.
1531, et seq.);
h. The Coastal Zone Management Act of 1972, as amended (16
U.S.C. 1451, et seq.);
i. The Safe Drinking Water Act of 1974, as amended (42 U.S.C.
300f -j26) ;
j. The Energy Conservation and Production Act (applicable to
construction of new residential and commercial structures)
(42 U.S.C. 6801, et seq.);
k. The Wild and Scenic Rivers Act, as amended, P.L. 90 -542, (16
U.S.C. 1271, et seq.);
1. The Historical and Archeological Data Preservation Act, as
amended (16 U.S.C. 469a -1, et seq.);
m. Executive Order 11990, Protection of Wetlands, May 24, 1977;
n. P.L. 90 -480, as amended (42 U.S.C. 4151, et seq.), and the
regulations issued thereunder, prescribing standards for the
design and construction of any building or facility intended
to be accessible to the public or that may result in the
employment of handicapped persons therein;
o. The Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, P.L. 91 -646, as amended (42
U.S.C. 4601, et seq.); and 15 CFR Part 11;
p. The Flood Disaster Protection Act of 1973, P.L. 93 -234,
as amended (42 U.S.C. 4002, et seq.), and regulations and
guidelines issued thereunder by the Federal Emergency
Management Administration (FEMA) or the Economic
Development Administration;
q. Executive Order 11988, Floodplain Management, May 24, 1977,
and regulations and guidelines issued thereunder by the
Economic Development Administration;
r. The National Environmental Policy Act of 1969, P.L. 91 -190
and 42 USC Sec 4321 et seq.;
3
s. The Lead -based Paint Poisoning Prevention Act (42 U.S.C.
4801 et seq.), P.L. 91 -695, as amended;
t. The Resource Conservation and Recovery Act of 1976, as
amended (42 U.S.C. 6901);
u. The Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended (42 U.S.C. 9601 et seq.)
Superfund Amendments and Reauthorization Act of 1988, P.L.
99 -499;
v. The Drug -Free Workplace Act of 1988, P.L. 100 -690, Title V,
Subtitle D, and 15 CFR Part 26 (55 F.R. 21678, May 25, 1990)
for projects approved on or after March 18, 1989.
w. Restrictions on Lobbying, section 319 of P.L. 101 -121, 15
CFR Part 28, (55 F.R. 6736 -6748, 2/26/90);
x. Executive Order 12549, Debarment and Suspension, and 15 CFR
Part 26, Governmentwide Debarment and Suspension
(Nonprocurement);
y. American Indian Religious Freedom Act, P.L. 96 -341 (42
U.S.C. Sec 1996);
z. Environmental Quality Improvement Act of 1970, P.L. 91 -244,
as amended (42 U.S.C. Sec 4371 - 4374);
aa. Executive Order 12088, Federal Compliance with Pollution
Control Standards;
bb. Executive Order 11514 Protection and Enhancement of
Environmental Quality, as amended;
cc. Executive Order 11593, Protection and Enhancement of the
Cultural Environment;
dd. Farmland Protection Policy Act, P.L. 97 -98;
ee. Fish and Wildlife Coordination Act, P.L. 92 -522, as amended
(16 U.S.C. Sec 661 et seq.);
ff. National Historic Preservation Act of 1966, P.L. 89 -665, as
amended and the Advisory Council on Historic Preservation
Guidelines (16 U.S.C. Sec 470 et seq.);
gg. Noise Control Act, P.L. 92 -574, as amended (42 U.S.C. Sec
4901 et seq.);
hh. Environmental Justice in Minority Populations and Low Income
Populations, Executive Order 12898 (February 11, 1994).
4
2. If the project includes sewer or other waste disposal
facilities, the Recipient will not request the Government to
approve final plans and specifications, to approve grant
disbursements, nor to authorize advertising for bids until the
Environmental Protection Agency has issued a certificate, as
required by Section 106, P.L. 89 -136 (42 U.S.C. 3136). In the
case of EPA delegation of certification authority to states,
such state certifications will be accepted in lieu of
certification by EPA.
3. The Recipient agrees that, for the expected useful life of the
facility assisted with this award, the project will be properly
and efficiently administered, operated and maintained, as
required by Section 604 of P.L. 89 -136 (42 U.S.C. 3204), for
the purpose authorized by this award and in accordance with the
terms, conditions, requirements and provisions of the award. If
the Government determines, at any time during the useful life
of the facility, that the project is not being properly and
efficiently administered, operated and maintained, the
Government will terminate the award for cause and require the
Recipient to repay the award.
4. This award is subject to Public Law 101 -510, enacted
November 5, 1990, section 1405, amending subchapter IV of
Chapter 15, Title 31, United States Code, which prescribes the
rules for determining the availability of appropriations.
Accordingly, the grant funds obligated for this project will
expire in five years from the end of the fiscal year of the
grant award.
5. Pursuant to EO 12899, the DoC is required to notify the owner
of any valid patent covering technology whenever the DoC or its
financial assistance Recipients, without making a patent
search, knows (or has demonstrable reasonable grounds to know)
that technology covered by a valid United States patent has
been or will be used without a license from the owner. To
ensure proper notification, if the Recipient uses or has used
patented technology under this Award without a license or
permission from the owner, the Recipient must notify the DoC
Patent Counsel at the following address, with a copy to EDA:
Department of Commerce
Office of Chief Counsel for Technology
Patent Counsel
14th Street and Constitution Avenue, NW, Room H -4610
Washington, D. C. 20230
5
6. For use for new building construction projects:
The Recipient is aware of and intends to comply with one of the
three model codes outlined by the Committee on Seismic Safety in
Construction (ICSSC):
1991 ICBO Uniform Building Code
1992 Supplement to the BOCA National Building Code
1991 Amendments to the SBCC Standard Building Code
7. When issuing statements, press releases, requests for
proposals, bid solicitations and other documents describing
projects or programs funded in whole or in part with Federal
money, all Recipients receiving Federal funds, including but
not limited to State and local governments and Recipients of
Federal research grants, shall clearly state (1) the percentage
of the total costs of the program or project which will be
financed with Federal money, (2) the dollar amount of Federal
funds for the project or program, and (3) the percentage and
dollar amount of the total costs of the project or program that
will be financed by nongovernmental sources.
8. Recipients are hereby notified that they are encouraged, to the
greatest extent practicable, to purchase American -made
equipment and products with funding provided under this Award.
9. The Recipient shall furnish evidence satisfactory to the
Government of a good and merchantable title, free of all
mortgages or other foreclosable liens, to all land, rights -of-
way and easements necessary for the completion of the project,
or of a long -term leasehold interest in accordance with 13 CFR
§ 314 except when a mortgage waiver has been granted by the
Assistant Secretary or his \her designee.
B. FINANCIAL REQUIREMENTS
1. Financial Reports
a. The Recipient shall submit an "SF -271, Outlay Report and
Request for Reimbursement" (ED -113) no more frequently than
quarterly to report outlays. A final SF -271 shall be
submitted within 90 days after the expiration date of the
award.
b. The Recipient shall submit a "Federal Cash Transactions
Report" (SF -272) for each award where funds are advanced to
Recipients. The SF -272 is due 15 working days following the
end of each calendar Quarter for awards under $1 million; or
15 working days following the end of each month for awards
over $1 million; or unless otherwise specified in a special
award condition.
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c. All financial reports shall be submitted to the regional
office.
2. Award Payments
a. Unless otherwise specified in a special award condition, the
method of payment for the award shall be through advance or
reimbursement.
b. The Recipient shall submit an "Outlay Report and Request for
Reimbursement, SF -271" (ED -113) no more frequently than
monthly to request payment. The SF -271 shall be submitted to
the regional office.
c. Payments will be made via electronic transfer which
transfers funds directly to a Recipient's bank account. The
Recipient must complete a payment information form and
return it to the regional office. The award number must
be included on the payment information form. Payments shall
be made at no greater rate than at the approximate rate of
completion of construction.
d. Advances shall be limited to the minimum amounts necessary
to meet immediate disbursement needs. Advanced funds not
disbursed in a timely manner will be promptly returned to
EDA. Advances shall be approved for periods not to exceed 30
days. The regional office determines the appropriate method
of payment. If a Recipient demonstrates an unwillingness or
inability to establish procedures which will minimize the
time elapsing between the transfer of funds and disbursement,
the regional office may change the method of payment to
reimbursement only.
3. Federal and Non- Federal Sharing
a. Awards which include Federal and non - Federal sharing
incorporate an estimated budget of shared allowable costs.
If actual allowable costs are less than the total approved
estimated budget, the Federal and non - Federal cost share
ratio as reflected in the approved estimated budget shall
apply. If actual allowable costs are greater than the total
approved estimated budget, the Federal share shall not
exceed the total Federal dollar amount as reflected in the
Financial Assistance Award (CD -450) or Amendment to
Financial Assistance Award (CD -451).
b. The non - Federal share, whether cash or in -kind, is expected
to be paid out at the same general rate as the Federal share
and must be readily available at the time of Award.
Exceptions to this requirement may be granted by EDA based on
sufficient documentation demonstrating previously determined
plans for or later commitment of cash or in -kind
contributions.
4. Budget Changes and Transfer of Funds Among Categories
a. Requests for budget changes to the approved estimated budget
in accordance with the provision noted below must be
submitted to the regional office. EDA shall make the
final determination on such requests and notify the
Recipient in writing.
b. Transfer of funds by the Recipient among direct cost
categories are permitted with the written approval of EDA.
Transfers will not be permitted if such transfers would cause
the Federal grant,.or part thereof, to be used for purposes
other than those intended.
c. The addition of a new line item to the approved budget is not
permitted.
d. The Recipient is not authorized at any time to transfer
amounts budgeted for direct costs to the indirect costs line
item and vice versa, except with the written prior approval
of EDA.
S. Indirect Costs
a. Indirect costs will not be allowable charges against the
award unless specifically included as a line item in the
approved budget incorporated into the award.
b. Any actual indirect costs incurred by the Recipient which
are greater than the indirect cost line item in the budget
will not be treated as a cost of the award by EDA for the
purpose of final cost settlement.
c. Excess indirect costs may not be used to offset unallowable
direct costs.
d. If the Recipient has not previously established an indirect
cost rate with a Federal agency, the negotiation and
approval of a rate is subject to the procedures in the
applicable cost principles and the following subparagraphs:
(1) The Office of Inspector General (OIG) is authorized to
negotiate indirect cost rates on behalf of EDA for
those organizations for which DoC is the cognizant
agency. The OIG will negotiate only fixed rates. The
Recipient shall submit to the OIG within 90 days of the
award start date, documentation (indirect cost proposal,
cost allocation plan, etc.) necessary to establish such
rates. The Recipient shall provide the EDA regional
office with a copy of the transmittal letter to the
OIG.
(2) When a cognizant Federal agency other than DoC has
responsibility for establishing an indirect cost rate,
8
the Recipient shall submit to that cognizant agency
within 90 days of the award start date the documentation
(indirect cost proposal, cost allocation plan, etc.)
necessary to establish such rates. The Recipient shall
provide both the regional office and the DoC OIG with a
copy of the transmittal letter to the cognizant Federal
agency.
(3) If the Recipient fails to submit the required
documentation to the OIG or other cognizant Federal
agency within 90 days of the award start date, the
EDA regional office shall amend the award to preclude
the recovery of any indirect costs under the award. If
the DoC OIG or EDA determines there is a finding of
good and sufficient cause to excuse the Recipient's
delay in submitting the documentation, an extension of
the 90 -day due date may be approved by EDA.
(4) Regardless of any approved indirect cost rate
applicable to the award at the time of award, the
maximum dollar amount of allocable indirect costs for
which EDA will reimburse the Recipient shall be the
lesser of:
(a) The line item amount for the Federal share of
indirect costs contained in the approved budget of
the award; or
(b) The Federal share of the total allocable indirect
costs of the award based on the negotiated rate
with the cognizant agency as established
by audit or negotiation.
6. Incurring Costs or Obligating Federal Funds Beyond the
Expiration Date
a. The Recipient shall not incur costs or obligate funds for
any purpose pertaining to the operation of the program or
activities beyond the expiration date stipulated in the
award. The only costs which are authorized for a period of
up to 90 days following the award expiration date are those
strictly associated with closeout activities. Closeout
activities are limited to the preparation of final reports.
b. Any extension of the award period can only be authorized by
the EDA Assistant Secretary or his /her designee. Verbal or
written assurances of funding from other than EDA's Assistant
Secretary or his /her designee shall not constitute authority
to obligate funds for programmatic activities beyond the
expiration date.
c. EDA has no obligation to provide any additional funding.
07
7. Tax Refunds
Refunds of FICA /FUTA taxes received by the Recipient during or
after the award period must be refunded or credited to EDA
where the benefits were financed with Federal funds under the
award. The Recipient agrees to contact the regional office
immediately upon receipt of these refunds. The Recipient
further agrees to refund portions of FICA /FUTA taxes determined
to belong to the Federal Government, including refunds received
after the expiration of the award.
8. Incurring Costs Prior to Award
EDA may, at its sole discretion, pay for project costs incurred
prior to grant award. Such costs must be allowable costs under
Federal cost principles and the grant award.
C. PROGRAMMATIC REQUIREMENTS
1. Reporting Requirements
a. Financial and performance (technical) reports must be
submitted in accordance with the procedures in 15 CFR Part
24 or OMB Circular A -110, as applicable, and the schedule
indicated below. Failure to submit required reports in a
timely manner may result in the withholding of payments
under this award or deferring the processing of new awards,
amendments, or supplemental funding pending the receipt of
the overdue report(s), and /or establishing an accounts
receivable for the difference between the total Federal
share of outlays last reported and the amount disbursed.
b. Project performance reports shall be submitted for each
calendar quarter. The project performance report will be due
not later than January 15, April 15, July 15 and October 15
for the immediate previous quarter. The report submission
dates are to be no more than 30 days after the due date, with
a due date of 90 days after expiration of the award. This
reporting requirement begins with the Recipient's acceptance
of the award and ends when the final project disbursement is
approved. The project performance report should be submitted
to the regional office.
c. Recipients of awards which involve both Federal financial
assistance valued at $500,000 or more and procurement of
supplies, equipment, construction, or services shall be
required to submit the SF -334, "Minority Business
Enterprise /Women Business Enterprise Utilization Under
Federal Grants, Cooperative Agreements, and Other Federal
Financial Assistance." Reports shall be submitted on a
quarterly basis for the period ending March 31, June 30,
September 30, and December 31. Reports are due no later than
thirty (30) days following the end of the reporting period
during which any procurement in excess of $10,000 is
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executed under this award. The report should be submitted in
duplicate to the regional office. Any questions concerning
this report should be directed to the regional office.
d. Performance Measures: Recipient acknowledges its
responsibility to submit to EDA:
(1) Prior to final disbursement, the following information
on performance and outcomes at project completion- -
(a) Was construction schedule met as to start and
finish dates?
(b) Private sector dollars invested in the EDA project
(as estimated, at time of approval).
(c) Private sector dollars invested in the EDA project
(actual, at time of completion).
(d) Other dollars (Federal, state and local) invested
in the EDA project.
(e) other dollars invested (nonfederal, local and
private) and directly related to, but not part of
the EDA project.
(f) Was local capacity improved: for example, were
intended beneficiary(ies) actually located,
retained or expanded in the community; and
(2) two years and four years thereafter, the following
information on project outcomes- -
(a) Jobs created and /or retained, as estimated at time
of approval.
(b) Jobs created and /or retained - actual.
(c) Additional private sector dollars invested in the
EDA project - actual.
(d) Additional dollars (Federal, state and local)
invested in the EDA project - actual.
(e) Additional dollars invested (nonfederal, local and
private) and directly related to, but not part of
the EDA project.
(f) Other dollars invested indirectly related to the
EDA project.
(g) Increase in local tax base (percentage) (actual or
based on recognized multiplier).
(h) Local capacity improved: Diversification of local
economy (extent to which plans were fulfilled).
EDA will advise the Recipient in writing, not less than 9C
days prior to the time for submission, in the event there are
any modifications in the information required to be
submitted.
2. Unsatisfactory Performance
a. Recipient shall comply with the administrative,
procedural and policy requirements contained in applicable
EDA regulations and with requirements in the current edition
of the EDA booklet, "Requirements for Approved Projects" in
11
effect at time of their application. In the event of any
inconsistencies or differences, EDA's regulations shall
be controlling.
b. The Government reserves the right to suspend the award and
withhold further payments, or prohibit the Recipient from
incurring additional obligations, pending corrective action
by the Recipient or a decision by the Government to
terminate the award unless the project is completed to the
satisfaction of the Government.
c. The Government shall have the right to.terminate for cause
all or any part of its obligation hereunder if:
(1) Any representation made by the Recipient to the
Government in connection with the application for
Government assistance shall be incorrect or incomplete
in any material respect.
(2) The intent and purpose and /or the economic feasibility
of the project is changed substantially so as to affect
significantly the accomplishment of the project as
intended.
(3) The Recipient has violated commitments it made in
its application and supporting documents or has
violated any of the terms and conditions of this award.
(4) Any official, employee or agent, member of immediate
family, partner, or an organization which employs or is
about to employ any of the above of the Recipient
becomes directly interested financially in the
acquisition of any materials or equipment, or in any
construction for the project, or in the furnishing of
any service to or in connection with the project, or any
benefit arising therefrom.
(5) The Recipient fails to report immediately to the
Government any change of authorized representative(s)
acting in lieu of or on behalf of the Recipient.
d. The obligations hereunder may be terminated for convenience
if:
(1) Both the Recipient and the Government agree that
continuation of the project would not produce
beneficial results commensurate with the further
expenditure of funds.
(2) Both the Recipient and the Government agree upon the
termination conditions, including the effective date,
and in the case of partial termination, the portion
to be terminated.
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(3) The Recipient agrees to incur no new obligations for
the terminated portion after the effective date and to
cancel or satisfy all outstanding obligations as of
that date.
e. The Recipient shall have the sole authority and full
responsibility, without recourse to the Federal Government
or any of its agencies, for the settlement and satisfaction
of all contractual and administrative issues arising out of
this award.
f. The Recipient hereby agrees that the Government may, at its
option, withhold disbursement of any award funds if the
Government learns or has knowledge, that the Recipient has
failed to comply in any manner with any provision of the
award. The Government will withhold funds until the
violation or violations have been corrected to the
Government's satisfaction. The Recipient further agrees to
reimburse the Government for any ineligible costs which were
paid from award funds, or if the Recipient fails to
reimburse the Government, the Government shall have the
right to offset the amount of such ineligible costs from any
undisbursed award funds held by the Government. The
Recipient agrees to repay the Government for all ineligible
costs incurred in connection with the project and paid from
the award including, but not limited to, those costs
determined to be ineligible if the Government learns of any
award violations after all award funds have been disbursed.
g. The Recipient hereby agrees, in the event a beneficiary of
the EDA assisted project fails to comply in any manner with
certifications, assurances, or agreements that such
beneficiary has entered into in accordance with EDA
requirements, that the Recipient will reimburse the
Government the award amount or an amount to be determined
the Government pursuant to 13 CFR Part 314. Where the
Government determines that the failure of the beneficiary
comply with EDA requirements affects a portion of the
property benefitted by the award, the Recipient will
reimburse the Government proportionately.
by
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h. Failure to comply with any or all of the provisions of the
award may be considered grounds for any or all of the
following actions: establishment of an account receivable,
withholding payments under any EDA or DoC awards to the
Recipient, changing the method of payment from advance to
reimbursement to reimburse only, termination of any DoC
active awards, and may have a negative impact on future
funding by DoC and EDA.
3. Programmatic Changes
a. The Recipient shall not make any programmatic changes to the
award without prior written approval by EDA.
13
b. Any requests by the Recipient for programmatic changes must
be submitted to the Government for review and approval. The
Assistant Secretary or his /her designee shall make the final
determination and notify the Recipient in writing.
4. Other Federal Awards with Similar Programmatic Activities
The Recipient shall immediately provide written notification to
the Government in the event that, subsequent to receipt of the
EDA award, other Federal financial assistance is received
relative to the scope of work of the EDA award.
5. Program Income
a. For projects that create long -term rental revenue, i.e.,
buildings or real property constructed or improved for the
purpose of renting or leasing space (e.g., building sites)
the Recipient agrees to use such income generated from the
rental or lease of the project facility(ies), in the
following order of priority:
(1) Administration, operation, maintenance and repair of
the project facilities for their useful life (as
determined by EDA) in a manner consistent with good
property management practice and in accord with the
established building codes. This shall include, where
applicable, repayment of indebtedness resulting from
any legal encumbrance (e.g., approved mortgage) on the
EDA assisted facility.
(2) Economic development activities that are authorized for
support by EDA, provided such activities are within the
EDA designated area.
b. Prior to the final disbursement of grant funds, the
Recipient will develop and furnish to EDA for approval, an
income reutilization plan that demonstrates that the funds
generated from the EDA project shall be expended for the
purposes established above. Any changes made to the plan
during the useful life of the project shall also be
submitted to EDA for its review and approval.
6. Use of Third Parties to Solicit or Secure This EDA Award
Unless otherwise specified in the Special conditions to the
EDA grant award, the Recipient warrants that no person or
selling agency has been employed or retained to solicit or
secure this award upon an agreement or understanding for a
commission, percentage, brokerage, or contingent fee,
excepting bona fide employees, or bona fide established
commercial or selling agencies maintained by the Recipient
for the purpose of securing business. For breach or
violation of the warrant, the Government shall have the
right to annul this award without liability, or at its
14
discretion, to deduct from the award sum, or otherwise
recover, the full amount of such commission, percentage,
brokerage, or contingent fee.
7. Consultant and Attorney's Fees
The Recipient hereby agrees that no funds made available from
this Award shall be used, directly or indirectly, for paying
attorneys' or consultants' fees in connection with securing
awards made by the Government, such as, for example, preparing
the application for this assistance. However, attorneys' and
consultants' fees incurred for meeting Award requirements, such
as, for example, conducting a title search or preparing plans
and specifications, may be eligible project costs and may be
paid out of the funds made available from this Award, provided
such costs are otherwise eligible.
8. Member of Congress /Resident Federal Commissioner Restriction
No member of or delegate to Congress or resident Federal
Commissioner shall be admitted to any share or part of this
award or to any benefit that may arise therefrom; but this
provision shall not be construed to extend to this award if
made to a corporation, education, or nonprofit institution for
its general benefit.
9. Hold Harmless Requirement
The Recipient agrees to indemnify and hold the Government
harmless from and against all liabilities that the Government
may incur as a result of providing an award to assist, directly
or indirectly, preparation of the project site or construction,
renovation, or repair of any facility on the project site, to
the extent that such liabilities are incurred because of toxic
or hazardous contamination or groundwater, surface, soil, or
other conditions caused by operations of the Recipient or any
of its predecessors on the property.
10. Alienation Restriction
Notwithstanding any other provision of the award, without the
prior approval of the Government, the Recipient shall not
transfer, pledge, mortgage, or otherwise assign the award, or
any interest therein, or any claim arising thereunder, to any
party or parties, bank trust companies, or other financing or
financial institutions.
11. Taxpayer Identification Number Requirement
A Recipient classified for tax purposes as an individual,
partnership, proprietorship, or medical corporation is required
to submit a taxpayer identification number (TIN) (either social
security number or employer identification number as
applicable) on Form W -9, "Payer's Request for Taxpayer
15
Identification Number." Tax - exempt organizations and
corporations (with the exception of medical corporations) are
excluded from this requirement. Form W -9 shall be submitted to
the regional office within 60 days of the award start date.
The TIN will be provided to the IRS by EDA on Form 1099 -G,
"Statement for Recipients of Certain Government Payments."
Applicable Recipients who either fail to provide their TIN or
provide an incorrect TIN may have funding suspended until the
requirement is met. Disclosure of a Recipient's TIN is
mandatory for Federal income tax reporting purposes under the
authority of 26 USC, Section 6011 and 6109(d), and 26 CFR,
Section 301.6109 -1. This is to ensure the accuracy of income
computation by IRS. This information.will be used to
identify an individual who is compensated with DoC funds or
paid interest under the Prompt Payment Act.
D. NONDISCRIMINATION REQUIREMENTS
No person in the United States shall, on the ground of race,
color, national origin, handicap, religion, or sex, be excluded
from participation in, be denied the benefits of, or be subject to
discrimination under any program or activity receiving Federal
financial assistance. The Recipient agrees to comply with the
nondiscrimination requirements below and any statutes, regulations,
and EOs whether or not referenced herein to be applied on the date
they are administered:
1. Statutory Provisions
a. Title VI of the Civil Rights Act of 1964 (42 USC §§ 2000d et
seq.) and DoC implementing regulations published at 15 CFR
Part 8 which prohibit discrimination on the grounds of race,
color, or national origin under programs or activities
receiving Federal financial assistance;
b. Title IX of the Education Amendments of 1972 (20 USC §§ 1681
et seq.) prohibiting discrimination on the basis of sex
under Federally assisted education programs or activities;
c. Section 504 of the Rehabilitation Act of 1973, as amended
(29 USC § 794) and DoC implementing regulations published at
15 CFR Part 8b prohibiting discrimination on the basis of
handicap under any program or activity receiving or
benefitting from Federal assistance;
d. The Age Discrimination Act of 1975, as amended (42 USC §§
6101 et seq.) and DoC implementing regulations published at
15 CFR Part 20 prohibiting discrimination on the basis of
age in programs or activities receiving Federal financial
assistance;
e. The Americans with Disabilities Act of 1990 (42 USC §§ 12101
et seq.) prohibiting discrimination on the basis of
disability under programs, activities, and services provided
16
or made available by state and local governments or
instrumentalities or agencies thereto, as well as public or
private entities that provide public transportation;
f. P.L. 92 -65, Section 112 (42 USC Sec 3123), prohibiting sex
discrimination in programs under PWEDA; and
g. Any other nondiscrimination provisions of statutory law.
2. Other Provisions
a. Executive Orders 11114, 11246, 11375, and 12086;
b. Construction Contractors Affirmative Action Requirements,
41 CFR Part 60 -4; and
c. 13 CFR Part 317, imposing civil rights requirements on
Recipients.
E. AUDITS
Under the Inspector General Act of 1978, as amended, 5 USC App. I,
section 1 et seq., an audit of the award may be conducted at any
time. The Inspector General of the DOC, or any of his or her duly
authorized representatives, shall have access to any pertinent
books, documents, papers and records of the Recipient, whether
written, printed, recorded, produced or reproduced by any
mechanical, magnetic or other process or medium, in order to make
audits, inspections, excerpts, transcripts or other examinations
as authorized by law. The OIG will usually make the arrangements
to audit the award, whether the audit is performed by OIG
personnel, an independent accountant under contract with the DOC,
or any other Federal, state or local audit entity.
1. Organization -Wide and Project Audits
a. Organization -wide audits shall be performed in accordance
with 15 CFR Part 29a, "Audit'Requirements for State and
Local Governments," for Recipients that are state or local
governments; and 15 CFR Part 29b, "Audit Requirements for
Institutions of Higher Education and Other Nonprofit
Organizations," for Recipients that are educational or
nonprofit institutions. Additionally, when required under a
special award condition, a project audit shall be performed
in accordance with Federal Government auditing standards.
b. The Recipient shall submit copies of audits to each Federal
agency that directly provides funds. Audits shall be
submitted to the DoC OIG at the following address with a
copy of the transmittal letter to the EDA regional office.
17
Office of Inspector General
U.S. Department of Commerce
Atlanta Regional Office
401 West Peachtree, NW, Room 2342
Atlanta, Georgia 30308
c. Recipients receiving Federal awards over
submit a copy of organization -wide audits
the Census, which has been designated by
clearinghouse. The address is:
Federal Audit Clearinghouse
Bureau of the Census
1201 E. 10th Street
Jeffersonville, IN 47132
2. Audit Resolution Process
$100,000 shall also
to the Bureau of
OMB as a central
a. An audit of the award may result in the disallowance of
costs incurred by the Recipient and the establishment of a
debt (account receivable) due EDA. For this reason, the
Recipient should take seriously its responsibility to
respond to all audit findings and recommendations with
adequate explanations and supporting evidence whenever
audit results are disputed.
b. A Recipient whose award is audited has the following
opportunities to dispute the proposed disallowance of costs
and the establishment of a debt:
(1) Unless the Inspector General determines otherwise, the
Recipient has 30 days from the date of the transmittal
of the draft audit report to submit written comments
and documentary evidence.
(2) The Recipient has 30 days from the date of the
transmittal of the final audit report to submit written
comments and documentary evidence. There will be no
extension of this deadline.
(3) EDA shall review the documentary evidence submitted
by the Recipient and shall notify the Recipient of the
results in an Audit Resolution Determination Letter
The Recipient has 30 days from the date of receipt of
the Audit Resolution Determination Letter to submit a
written appeal. There will be no extension of this
deadline. The appeal is the last opportunity for the
Recipient to submit written comments and documentary
evidence that dispute the validity of the audit
resolution determination. In addition, an appeal does
not preclude the Recipient's obligation to pay a debt
that may be established nor does the appeal preclude
the accrual of interest on a debt.
18
(4) EDA shall review the Recipient's appeal and notify the
Recipient of the results in an Audit Determination
Letter After the opportunity to appeal has expired or
after the appeal determination has been rendered, EDA
will not accept any further documentary evidence from
the Recipient. There will be no other administrative
appeals available in EDA.
F. DEBTS
I. Payment of Debts Owed the Federal Government
Any debts determined to be owed the Federal Government shall be
paid promptly by the Recipient. A debt will be considered
delinquent if it is not paid within 30 days of the due date.
Failure to pay a debt by the due date shall result in the
imposition of late payment charges as noted below. In
addition, failure to pay the debt or establish a repayment
agreement by the due date will also result in the referral of
the debt for collection action and may result in DoC taking
further action as specified in the standard term and condition
entitled "Unsatisfactory Performance." The Recipient may also
be suspended or debarred from further Federal financial and
non - financial assistance and benefits, as provided in 15 CFR
Part 26, "Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug -Free
Workplace (Grants)" until the debt has been paid in full or
until a repayment agreement has been approved and payments are
made in accordance with the agreement. Payment of a debt may
not come from other Federally sponsored programs. Verification
that other Federal funds have not been used will be made during
future program visits and audits.
2. Late Payment Charges
a. An interest charge shall be assessed on the delinquent debt
(over 30 days) as established by the Debt Collection Act of
1982. The minimum annual interest rate to be assessed is
the Department of the Treasury's Current Value of Funds
Rate. This rate is published in the Federal Register by the
Department of the Treasury. The assessed rate shall remain
fixed for the duration of the indebtedness.
b. A penalty charge shall be assessed on any portion of a debt
that is delinquent for more than 90 days, although the
charge will accrue and be assessed from the date the debt
became delinquent.
c. An administrative charge shall be assessed to cover
processing and handling the amount due.
d. State and local governments are not subject to penalty and
administrative charges.
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G. NAME CHECK
A name check review shall be performed by the OIG on key
individuals associated with nonprofit organizations, unless
an exemption has been authorized by the Inspector General. Both
officials of state and local governments and officials of
accredited colleges and universities who are acting on behalf of
their respective entities in applying for assistance are exempt
from the name check requirement. In addition, all elected
officials of state and local governments who are serving in
ex officio capacities when applying for assistance are exempt.
1. Results of Name Check
EDA reserves the right to take any of the actions described in
G.2. below if any of the following occurs as a result of the
name check review:
a. A key individual fails to submit the required form
"Identification - Applicant for Funding Assistance"
(CD -346). Key individuals include the following:
(1) Sole Proprietorship - the proprietor;
(2) Partnership - each partner (general and limited).
(For Certified Public Accounting Firms, only those
individuals who have the authority to speak for and /or
commit the Recipient in the management of the award
and /or expend funds are subject to the name check
review.);
(3) Corporation - each officer, each individual owning or
controlling at least 20 percent of the enterprise; the
chief financial manager; the project manager, and any
other person or entity who has the authority to speak
for and /or commit the Recipient in the management of
the award and /or to expend funds;
(4) Joint Venture - each officer of each company in the
joint venture; each individual owning or controlling at
least 20 percent of each company in the joint venture;
the chief financial officer of each company in the
joint venture; the project manager; and any other
person or entity who has authority to speak for and /or
commit the Recipient in the management of the award
and /or expend funds; and
(5) Nonprofit organization - executive director, project
manager, chief financial manager and any other person
or entity who has authority to speak for and /or commit
the Recipient in the management of the award and /or
expend funds.
MUG
b. A key individual made an incorrect statement or omitted a
material fact on the CD -346; or
c. The name check reveals significant adverse findings that
reflect on the integrity or responsibility of the Recipient
and /or key individual.
2. Action(s) Taken as a Result of Name Check Review
If any situation noted in G.1. above occurs, EDA, at its
discretion, may take one or more of the following actions:
a. Terminate the award immediately for cause;
b. Require the removal of any key individual from association
with the management of and /or implementation of the award;
and /or
c. Make appropriate provisions or revisions at EDA's discretion
with respect to the method of payment and /or financial
reporting requirements.
H. LOBBYING RESTRICTIONS
1. Statutory Provisions
The Recipient shall comply with the provisions of Section 319
of Public Law 101 -121, which added Section 1352 to Chapter 13
of Title 31 of the United States Code, and DoC implementing
regulations published at 15 CFR Part 28, "New Restrictions on
Lobbying." These provisions generally prohibit the use of
Federal funds for lobbying the Executive or Legislative
Branches of the Federal government in connection with the
award, and require the disclosure of the use of non - Federal
funds for lobbying.
2. Disclosure of Lobbying Activities
The Recipient receiving in excess of $100,000 in Federal
funding shall submit a completed "Disclosure of Lobbying
Activities" (SF -LLL) regarding the use of non - Federal funds for
lobbying. The SF -LLL shall be submitted within 30 days
following the end of the calendar quarter in which there occurs
any event that requires disclosure or that materially affects
the accuracy of the information contained in any disclosure
form previously filed. The Recipient must submit the SF -LLLs,
including those received from subrecipients, contractors, and
subcontractors, to the regional office.
An Indian tribe or organization that is seeking an exclusion
from Certification and Disclosure requirements must provide
(preferably in an attorney's opinion) EDA with the citation of
the provision or provisions of Federal law upon which it relies
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to conduct lobbying activities that would otherwise be subject
to the above provisions.
3. Subaward, Contract, and Subcontract
a. Applicability of Award Provisions to Subrecipients
The Recipient shall require all subrecipients,
including lower tier subrecipients, under the award to
comply with the provisions of the award including
applicable cost principles, administrative, and audit
requirements.
b. Applicability of Provisions to Subawards, Contracts, and
Subcontracts
(1) The Recipient shall include the following notice in
each request for applications or bids:
Applicants /bidders for a lower tier covered transaction
(except for goods and services under the $100,000 small
purchase threshold and where the lower tier Recipient
will have no critical influence on or substantive
control over the award) are subject to 15 CFR Part 26,
Subparts A through E, "Governmentwide Debarment and
Suspension (Nonprocurement). In addition, applicants/
bidders for a lower tier covered transaction for a
subaward, contract, or subcontract greater than $100,000
of Federal funds at any tier are subject to 15 CFR
Part 28, "New Restrictions on Lobbying." Applicants/
bidders should familiarize themselves with these
provisions, including the certification requirements.
Therefore, applications for a lower tier covered
transaction must include a "Certifications Regarding
Debarment, Suspension, Ineligibility and Voluntary
Exclusion - -Lower Tier Covered Transactions and Lobbying"
(CD -512) completed without modification.
(2) The Recipient shall include a statement in all lower
tier covered transactions (subawards, contracts, and
subcontracts), that the award is subject to Executive
Order 12549, "Debarment and Suspension" and DoC
implementing regulations published at 15 CFR Part 26,
Subparts A through E, "Governmentwide Debarment and
Suspension (Nonprocurement)."
(3) The Recipient shall include a statement in all lower
tier covered transactions ( subawards, contracts, and
subcontracts) exceeding $100,000 in Federal funds, that
the subaward, contract, or subcontract is subject to
Section 319 of Public Law 101 -121, which added Section
1352, regarding lobbying restrictions, to Chapter 13 of
Title 31 of the United States Code as implemented at 15
CFR Part 28, "New Restrictions on Lobbying." The
22
Recipient shall further require the subrecipient,
contractor, or subcontractor to submit a completed
"Disclosure of Lobbying Activities" (SF -LLL) regarding
the use of non - Federal funds for lobbying. The SF -LLL
shall be submitted within 15 days following the end of
the calendar quarter in which there occurs any event
that requires disclosure or that materially affects the
accuracy of the information contained in any disclosure
form previously filed. The SF -LLL shall be submitted
from tier to tier until received by the Recipient. The
Recipient must submit all disclosure forms received,
including those that report lobbying activity on its own
behalf, to the regional office within 30 days
following the end of the calendar quarter.
I. MINORITY AND WOMEN -OWNED BUSINESS ENTERPRISE
EDA encourages Recipients to utilize minority and women -owned
firms and enterprises in contracts awarded under financial
assistance awards. The Office of Program Development, Minority
Business Development Agency, will assist Recipients in matching
qualified minority and women -owned enterprises with contract
opportunities. For further information contact:
U.S. Department of Commerce
Minority Business Development Agency
Office of Program Development
Herbert C. Hoover Building
14th Street and Constitution Avenue, NW
Washington, D.C. 20230
J. SUBAWARD AND /OR CONTRACT TO A FEDERAL AGENCY
1. The Recipient, subrecipient, contractor, and /or
subcontractor shall not sub -grant or sub - contract any part
of the approved project to any agency of the DoC and /or
other Federal department, agency or instrumentality, without
the prior written approval of the Government.
2. Requests for approval of such action must be submitted to
the regional office which shall review and make the final
determination with the concurrence of legal counsel of EDA and
legal counsel of the other Federal department, agency or
instrumentality receiving the subaward and /or contract. The
Government will notify the Recipient in writing of the final
determination.
R. PROPERTY MANAGEMENT
1. Standards
The Recipient shall comply with the property standards as
stipulated in 15 CFR Part 24.31 or OMB Circular A -110 or any
DoC implementing regulation as applicable, and 13 CFR Part 314.
23
2. Retention of Title
a. The Government determines who retains title to all
nonexpendable personal property in accordance with 15 CFR
Part 24 and OMB Circular A -110, or any DoC regulation
implementing such circular in effect on the date requirement
is applied. Use, management, and disposition of the property
will be in accordance with the applicable OMB Circular or
Common Rule.
b. Title to real property (whether acquired partly or wholly
with Federal funds) shall vest with the Recipient subject to
the condition that the Recipient shall use the real property
for the authorized purpose of the project.
3. Disposal of Real Property
a. When the property is no longer needed for the purpose of the
original project, the Recipient shall obtain prior approval
from the Government for the use of real property in other
projects. Use in other projects shall be limited to those
other Federally funded projects which have purposes
consistent with those authorized for support by EDA.
b. When property is no longer required as provided above, the
Government determines final disposition which may include one
of the following:
(1) The Recipient will be permitted to retain title after it
compensates the Government in an amount computed by
applying the Federal percentage of participation in the
cost of the original project to the current fair market
value of the property.
(2) The Recipient will be permitted to sell the property and
pay the Government an amount computed by applying the
Federal percentage of participation in the cost of the
original project to the proceeds from sale, or the
appraised value, whichever is the higher (after
deducting actual and reasonable selling and fix -up
expenses, if any, from the sales proceeds). The
appraisal must be independent and conducted in
accordance with standards established by a nationally
recognized real estate appraisal association, such as
MAI. Proper sales procedures will be established that
provide for competition to the extent practicable and
result in the highest possible return.
(3) The Recipient will transfer title to the property to the
Government provided that in such cases the Recipient
shall be entitled to compensation computed by applying
the Recipient's percentage of participation in the cost
of the project to the current fair market value of the
property.
24
4. EDA's Interest in Award Property
a. Recording EDA's Interest in Property:
(1) For projects involving the acquisition, construction or
improvement of a building, the Recipient expressly
agrees to declare and furnish to the Government, prior
to initial Award disbursement, a statement of the
Government's interest in the property acquired or
improved in whole or in part with the funds made
available through this award.
(2) As used in this section K.4., "statement of the
Government's interest" means a first priority
unsubordinated lien, other security interest, or
declaration of trust, as appropriate to reflect the
Government's legal and equitable interest in the
property. For those projects as to which EDA determines
a legal impediment precludes the granting of a lien or
other security interest, or a declaration of trust, in
lieu thereof EDA may require a Covenant of Purpose, Use
and Ownership.
(3) This statement of the Government's interest must be
perfected and placed of record in accordance with local
law. EDA will, in its discretion, determine what form
of statement of interest is to be used, and whether the
document is satisfactory. EDA may require an opinion of
counsel for the Recipient to substantiate that the
document has been properly recorded.
(4) Facilities in which EDA investment is only a small part
of a large project, as determined by EDA, may be
exempted from the requirements of this paragraph a., but
the property remains subject to the remaining provisions
of section K.4.
b. The Recipient acknowledges that the Government retains an
equitable reversionary interest in the property acquired or
improved in whole or in part with the funds made available
through this Award throughout the useful life (as determined
by EDA) of the property.
c. The Recipient agrees that in the event it disposes of, or
alienates in any manner any interest in, the property during
its useful life, without EDA's written approval, the
Government shall be entitled to recover the Federal share of
the value of the property. When during its useful life
property is no longer needed for the purpose of the Award,
as determined by EDA, EDA may permit its use for other
acceptable purposes consistent with those authorized for
support by EDA.
25
d. For purposes of any lien or security interest, the amount of
the Government's share shall be the full amount of the EDA
Award. However, the Federal share to which the Government is
entitled (as stated in paragraph c., above) may be more or
less than the Award.
e. Alienation of Award property includes sale or other
conveyance of the Recipient's interest, leasing or
mortgaging the property, or granting an option for any of
the foregoing. During the useful life of the property, EDA
ordinarily will approve the alienation of Award property
without requiring recovery of the Federal share of its value
only where such alienation is intended in the original
Award, except that EDA may approve mortgaging of the
property as provided by regulation (13 CFR Part 314).
5. Leasing Restrictions
Leasing or renting of the facilities involved in this project
is prohibited unless specifically authorized by EDA. The
Recipient agrees that any leasing or renting of the facilities
involved in this project shall be subject to the following: that
said lease arrangement is consistent with the authorized general
and special purpose of the Award; that said lease arrangement is
consistent with EDA policies concerning, but not limited to,
nondiscrimination and adequate consideration; that the proposed
Lessee is providing market rate compensation to the Recipient
for said lease and that said lease arrangement shall include a
covenant prohibiting the use of such property for any purpose
other than the general and special purpose of the Award. Any
Lease Agreement entered into by the Recipient of said property
shall be subordinate, junior and inferior to the first priority
lien mentioned in Standard Condition K.4. above.
Background Paper for City Council
Department of Planning and Development
August 10, 1998
Page Two
Of these comments and conditions, the two that are unique to this project
are Items No. 3 and No. 4.
Item No. 3: The City's $962,500 non - federal share will come from two
sources. The first is the $250,000 Energy Impact Assistance Fund Grant from
the Department of Local Affairs (DOLA). The balance of the funds, $712,500,
will come from the HARP Foundation. The Foundation has received funds from
the E1 Pomar Foundation, the Coors Foundation, and several other small gifts
for trees which will be budgeted and used as match for the EDA grant. The
City will, as a part of this process, enter into separate agreements with
the Colorado Department of Local Affairs and the HARP Foundation.
Item No. 4: Involves ownership of the land. Prior to disbursement of funds
by EDA, the Pueblo Conservancy District must transfer the property to the
City. The Conservancy District has been made aware of this requirement and
will begin preparation for the appropriate documents.
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ARKANSAS RiVERWALK OF PUEBLO
EDA PROJECT AREA
FEBRUARY 1998