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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 00 M ,1 f 9 ��Oy 0 0 ,�p k, C �lftLOPMENI �pl� JUNE 1997 a �µENT OF Q O� i 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. ri 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 10 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. 12 (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 to 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. 19 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 21 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. 11 1 11 1 1, kpl, 11 1 11 - o pr HISTORIC r ............. Tn w ARKANSAS RiVERWALK OF PUEBLO EDA PROJECT AREA FEBRUARY 1998