HomeMy WebLinkAbout292-20 RESOLUTION113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 292-20
File Number: 2020-0944
ECONOMIC DEVELOPMENT ADMINISTRATION GRANT:
A RESOLUTION TO AUTHORIZE ACCEPTANCE OF AN 80/20 ECONOMIC DEVELOPMENT
ADMINISTRATION GRANT IN THE AMOUNT OF $2,000,000.00 FOR THE CONSTRUCTION
OF THE INDUSTRIAL DRIVE EXTENSION, AND TO APPROVE A BUDGET
ADJUSTMENT - 2019 ECONOMIC DEVELOPMENT BOND PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE,
ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the
acceptance of an 80/20 Economic Development Administration grant in the amount of
$2,000,000.00 to be used for the construction of the Industrial Drive Extension and further
authorizes Mayor Jordan to sign the grant agreement attached to this Resolution and any other
documents required to receive the funds.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget
adjustment, a copy of which is attached to this Resolution, appropriating $509,364.00 from the 2019
Economic Development Bond funds as the City's matching portion.
PASSED and APPROVED on 11 / 17/2020
Page 1 Printed on 11/19120
Resolution: 292-20
File Number: 2020-0944
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Page 2 Printed on 11119120
City of Fayetteville, Arkansas 113 West Mountain Street
j Fayetteville, AR 72701
( - (479) 575-8323
Text File
File Number: 2020-0944
Agenda Date: 11/17/2020 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: C.6
ECONOMIC DEVELOPMENT ADMINISTRATION GRANT:
A RESOLUTION TO AUTHORIZE ACCEPTANCE OF AN 80/20 ECONOMIC DEVELOPMENT
ADMINISTRATION GRANT IN THE AMOUNT OF $2,000,000.00 FOR THE CONSTRUCTION OF
THE INDUSTRIAL DRIVE EXTENSION, AND TO APPROVE A BUDGET ADJUSTMENT - 2019
ECONOMIC DEVELOPMENT BOND PROJECT
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS:
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the acceptance of an
80/20 Economic Development Administration grant in the amount of $2,000,000.00 to be used for the
construction of the Industrial Drive Extension and further authorizes Mayor Jordan to sign the grant agreement
attached to this Resolution and any other documents required to receive the funds.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby approves a budget adjustment, a
copy of which is attached to this Resolution, appropriating $509,364.00 from the 2019 Economic
Development Bond funds as the City's matching portion.
City of Fayetteville, Arkansas Page 1 Printed on 1111812020
Devin Howland
Submitted By
City of Fayetteville Staff Review Form
2020-0944
Legistar File ID
11/17/2020
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
10/28/2020 ECONOMIC DEVELOPMENT (050)
Submitted Date Division / Department
Action Recommendation:
Staff is recommending authorizing the acceptance of a $2,000,000.00 grant from the Economic Development
Administration and appropriating $509,364.00 in question six Economic Development Bond Funds for the 20%
match. Staff also recommends approval of a budget adjustment.
4601.860.7600-5809.00
4606.860.7600-5809.00
Account Number
46060.7600
Project Number
Budget Impact:
4601- Bond Program Grant Matching
4606 - Economic Development 2019 Bonds
Fund
Economic Development - 2019 Bonds
Commerce District Industrial Corridor
Budgeted Item? Yes Current Budget
Funds Obligated
Current Balance
Does item have a cost? No Item Cost
Budget Adjustment Attached? Yes Budget Adjustment
Remaining Budget
Purchase Order Number:
Change Order Number:
Original Contract Number:
Comments:
Project Title
$ 3,147,323.00
$ 3,147,323.0
$ 2,000,000.00
$ 5,147,3Z3.00
V20180321
Previous Ordinance or Resolution #
Approval Date:
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF NOVEMBER 17, 2020
TO: Mayor and City Council
THRU: Susan Norton, Chief of Staff
Paul Becker, Chief Financial Officer
FROM: Devin Howland, Director of Economic Vitality
DATE: October 28, 2020
CITY COUNCIL MEMO
SUBJECT: Acceptance of a $2,000,000 grant from the Economic Development
Administration and appropriating $509,364 in Question Six Economic Development Bond
funds for the 20% match for the construction of the Industrial Drive extension.
RECOMMENDATION:
Staff is recommending approval of a resolution appropriating $509,364 in question six economic
development bond funds and authorizing the acceptance of a grant from the Economic
Development Administration (EDA) of the U.S. Department of Commerce for $2,000,000 for the
extension of Industrial Drive.
BACKGROUND:
On January 1, 2021 the Fayetteville City Council passed Resolution 38-20, which authorized
Mayor Jordan to apply for an 80/20 matching grant with the Economic Development
Administration. Resolution 80/20 authorized up to $521,180 in question six bond funds to be
used with the application. City staff proceeded to apply for the grant, making the Council
Member requested adjustments of including a sidewalk on one side of the road.
On May 4, 2020, the City received a notice that the project would proceed through EDA's
competitive process for further consideration, with a preliminary notice of an award of
$2,000,000 ($200,000 less than the requested amount). Staff worked to adjust the project within
the target range, reducing the City's share of the project to $509,364.
On October 22, 2020, the Economic Development Administration held a grant announcement in
the Fayetteville Commerce District, officially announcing the award of $2,000,000, one of the
largest EDA grants received in Northwest Arkansas in recent memory. Per the grant award
letter from Jorge Ayala, Regional Director for the Economic Development Administration Region
Six, the City has 30 days from receipt (received on October 23'd) to accept the grant.
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
DISCUSSION:
The project is to construct 2,472 linear feet of road from Industrial Drive to City Lake Road. The
final project budget has been included below and can also be reviewed in attachment 'Special
Award Conditions':
Cost Classification
Proposed
Approved
Administrative
$75,000
$75,000
Architectural and Engineering Fees
$221,305
$211,941
Construction
$1,844,216
$1,844,216
Contingencies
$368,843
$368,843
Total Project Costs
$2,509,364
$2,500,000
Acceptance of the grant requires the recipient to adhere to the project development time
schedule outlined in attachment C 'Special Award Conditions':
Return of CD-450
30 calendars from receipt
Start of Construction
24 months from date of award
Construction Completed
36 months from date of award
Authorized Award End Date
60 months from date of award
Useful life
20 years from date of award
The purpose of the project is to unlock roughly 46 acres of City -owned commerce park land,
while keeping the road away from environmental sensitive parcels (Parcel: 765-16578-000 and
765-15271-000). As part of the application process, and Environmental Assessment was
completed by Cantique Consulting LLC (attached). The only item this revealed was the need to
conduct a Cultural Assessment, as requested by the Arkansas Department of Heritage (p. 38 of
Environmental Narrative), which will be completed should the City Council vote to accept the
grant.
Staff feels this project will contribute significantly to Fayetteville's Economic Vitality efforts for
the following reasons:
• The grant enables the City to accomplish a major goal of its Economic Development
Consulting Contractor, the Fayetteville Chamber of Commerce, for only 20% of the total
project cost and only 16% of question six bond funds;
• The grant generates an immediate 400% return -on -investment on the first use of
question six bond funds;
• The alignment of the road was designed to ensure it primarily benefited City -owned land
in the Commerce District, which can only be sold with authorization by the City Council;
• The road alignment steers clear of environmentally sensitive areas to the east;
• The City of Fayetteville is actively competing for projects with properties in other areas
which are 'shovel ready' and have minimal infrastructure requirements to make them
developable.
Moving forward with the City -owned commerce park land, staff plans on taking a different
approach that has been utilized in the past. Rather than waiting for a project to come to fruition
which could use the parcel, the sites should be marketed as ready and available for companies
who meet the following criteria:
• Are within a targeted industry sector as defined by the City's Economic Development
Plan;
• Pay a living wage of $22.43 cents, a wage that is defined by MIT's Living Wage
Calculator as what is needed for a single parent with a child to support themselves in
Northwest Arkansas.
Continuing with a focus on intentionality, staff feels it can successfully promote the property
once construction of the road is completed- taking a proactive approach towards selling the
property for its intended use. Furthermore, staffs work the Fayetteville Chamber of
Commerce's Chief Economic Development Officer, Zane Chenault, echo the view of pursuing
quality jobs for this land, and all of Fayetteville.
The proposed work on Industrial Drive extension also correlates with our future fiber conduit
map, which is an internal map to facilitate the connection of City facilities via fiber optic cable.
The Industrial Drive extension would be one portion of a fiber optic route to connect the water
and sewer building to the City's computer data center. City staff references the map while
reviewing large infrastructure projects and includes fiber conduit in projects that align with the
plan and is economically feasible. The City's goal is leverage infrastructure projects to connect
City facilities via fiber optic cable to improve network performance to support current and future
technology needs and decrease network connection monthly expenses.
BUDGET/STAFF IMPACT:
$509,364 of question six bond funds will be used to cover the City's 20% match. $2,000,000 will
be received from the Economic Development Administration to fund 80% of the project.
Award Attachments:
Fayetteville Grant Award Letter
Form CD-450
Special Award Conditions- U.S. Department of Commerce
ACH Vendor/Miscellaneous Payment Enrollment Form
Department of Commerce Financial Assistance Standard Terms and Conditions
Department of Commerce Standard Terms and Conditions for Construction Projects
Department of Commerce Summary of EDA Construction Standards
Title 13 of the Code of Federal Regulations- Economic Development Administration,
Department of Commerce
OIG Fraud Awareness Training
OIG Fraud Awareness Certificate of Completion
Application Attachments:
Resolution 38-20
2020-0318 (CD-511 Update and Preliminary Award Notification)
Affidavit for NEPA Ad
EDA Environmental Narrative
EDA Preliminary Engineering Report
Project Attachments:
Industrial Drive Project Exhibit
Budget Adjustment
Future Fiber Map
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September 28, 2020
The Honorable Lioneld Jordan
Mayor of Fayetteville
113 West Mountain Street
Fayetteville, TX 72701-6083
Dear Mayor Jordan:
UNITED STATES DEPARTMENT OF COMMERCE
Economic Development Administration
Austin Regional Office
903 San Jacinto Blvd., Suite 206
Austin, Texas 78701-2450
In Reply to
Investment No.: 08-79-05388
I am pleased to inform you that the Department Of Commerce's Economic Development Administration
(EDA) has approved your application for a $2,000,000 EDA investment, to support the Commerce District
Industrial Corridor.
Enclosed is the Financial Assistance Award. To accept the grant award, please sign the Financial Assistance
Award document. Your signature may be completed either electronically with a secured system or in ink.
The executed document must be returned electronically to Patricia Shorter at pshorter@eda.gov. Your
signature indicates your acceptance of the terms and conditions for the grant award. If not signed and
returned within 30 days of receipt, EDA may declare the Award null and void."
Please do not make any commitments in reliance on this award until you have carefully reviewed and
accepted the terms and conditions. Any commitments entered into prior to obtaining the approval of EDA
in accordance with its regulations and requirements will be at your own risk.
EDA's mission is to lead the Federal economic development agenda by promoting innovation and
competitiveness, preparing American regions for growth and success in the worldwide economy. EDA
implements this mission by making strategic investments in the nation's most economically distressed
regions that encourage private sector collaboration and the creation of jobs. EDA investments are results
driven, embracing the principles of technological innovation, entrepreneurship and regional development.
I share your expectations regarding the impact of this investment and look forward to working with you to
meet the economic development needs of your community.
Sincerely,
Jorge D. Ayala
Regional Director
Enclosures
cc: Northwest Arkansas Economic Development District
FORMCD-450 U.S. DEPARTMENT OF COMMERCE
(REV 04/17)
0 GRANT ❑ COOPERATIVE AGREEMENT
FINANCIAL ASSISTANCE AWARD
FEDERAL A ARDIDNUMBER 114587
RECIPIENT NAME
PERIOD OF PERFORMANCE
City of Fayetteville
60 Months from Date of Approval
STREETADDRESS
FEDERAL SHARE OF COST
113 West Mountain Street
$ 2,000,000.0
CITY, STATE, ZIP CODE
RECIPIENT SHARE OF COST
Fayetteville, AR 72701
$ 500,000.0
AUTHORITY
TOTAL ESTIMATED COST
PWEDA of 1965, as amended (42 U.S.C. § 3121 et. seq.) Title II, Sections 209 and 703
$ 2,500,000.0
CFDA NO. AND NAME
11.307, Economic Adjustment Assistance - Disaster Supplemental Assistance
PROJECT TITLE
Commerce District Industrial Corridor
This Award Document (Form CD-450) signed by the Grants Officer constitutes an obligation of Federal funding.
By signing this Form CD-450, the Recipient agrees to comply with the Award provisions checked below and
attached. Upon acceptance by the Recipient, the Form CD-450 must be signed by an authorized representative of
the Recipient and returned to the Grants Officer. If not signed and returned without modification by the Recipient
within 30 days of receipt, the Grants Officer may unilaterally withdraw this Award offer and de -obligate the funds.
W] DEPARTMENT OF COMMERCE FINANCIAL ASSISTANCE STANDARD TERMS AND CONDITIONS (30 April 2019)
❑ R & D AWARD
❑ FEDERAL -WIDE RESEARCH TERMS AND CONDITIONS, AS ADOPTED BY THE DEPT. OF COMMERCE
W] SPECIAL AWARD CONDITIONS
❑ LINE ITEM BUDGET
2 CFR PART 200, UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS,
AS ADOPTED PURSUANT TO 2 CFR § 1327.101
❑ 48 CFR PART 31, CONTRACT COST PRINCIPLES AND PROCEDURES
❑ MULTI -YEAR AWARD. PLEASE SEE THE MULTI -YEAR SPECIAL AWARD CONDITION.
❑✓ OTHER(S): EDA Standard Terms and Conditions for Construction Programs (February 2016)
EDA Regulations set forth at 13 CFR Chapter III (January 2015)
Summary of EDA Construction Standards (July 2018)
OIG Fraud Awareness Training and Certification
SIGNATURE OF DEPARTMENT OF COMMERCE GRANTS OFFICER
DATE
Jorge D. Ayala, Regional Direct
09/28/20
L
PRINTED NAME, PRINTED TITLE, AND SIGVA URE OF AUTHO IZED R::z
DATE
Lioneld Jordan, Mayor 1
-
:/1
0
II
SPECIAL AWARD CONDITIONS
U.S. DEPARTMENT OF COMMERCE
Economic Development Administration (EDA)
Economic Adjustment Assistance — Disaster Supplemental Assistance
Title II, Sections 209 and 703
PWEDA of 1965, as amended (42 U.S.C. § 3121 et. seq.)
CITY OF FAYETTEVILLE, ARKANSAS
Commerce District Industrial Corridor
EDA Investment No: 08-79-05388
The Recipient Contact's name, title, address, and telephone number are:
Authorized Representative
The Honorable Lioneld Jordan
Mayor of Fayetteville
113 West Mountain Street
Fayetteville, AR 72701-6083
Tel: 479-575-8330
Email: mayor@fayetteville-ar.gov
Point of Contact and
GrantAdministration
Mr. Jeremy Ragland
Deputy Director
Northwest Arkansas EDD
Tel: 870-741-5407
Email: jragland@nwaedd.org
The Grants Officer is authorized to award, amend, suspend, and terminate financial assistance awards.
The Grants Officer is:
Jorge D. Ayala Economic Development Administration
Regional Director Austin Regional Office
Tel: 512-381-8150 903 San Jacinto, Suite 206
Email: jayala@eda.gov Austin, TX 78701
The Federal Program Officer oversees the programmatic aspects of this Award. The Federal Program
Officer is:
Matthew Giannini Economic Development Administration
Area Director Austin Regional Office
Phone: 512-381-8144 903 San Jacinto, Suite 206
Email: mgiannnv@eda.gov Austin, TX 78701
The Project Officer is responsible for day-to-day administration and liaison with the Recipient and
receives all reports and payment requests. The Project Officer is:
Ms. Dana Phillips, Civil Engineer
and Regional Environmental Officer
Phone: 737-207-1465
Email: dphilhps@eda.gov
Economic Development Administration
Austin Regional Office
903 San Jacinto, Suite 206
Austin, TX 78701
Special Award Conditions I Page 2
City of Fayetteville, AR Award No 08-79-05388
5. INVESTMENT OVERVIEW: This EDA Award supports the work described in the approved
final scope of work, which is incorporated by reference into this Award, as the Authorized Scope
of Work. All work on this project should be consistent with this Authorized Scope of Work,
unless the Grants Officer has authorized a modification of the scope of work in writing through
an amendment memorialized through execution of a Form CD-451.
EDA funds will support the development of the Commerce District industrial corridor through the
construction of an approximately 2, 600 foot street extension to connect South Industrial Drive and
South City Lake Road. The proposed street section is approximately 40 feet in width including a 28-
foot wide asphalt street with concrete curb and gutter, and a 6-foot wide green space and a 5-foot
wide concrete sidewalk on one side. This extension will provide access to approximately 47 acres of
city -owned land, allowing the development offive parcels.
6. ADDITIONAL INCLUDED DOCUMENTS: In addition to the regulations, documents, or
authorities incorporated by reference on the Financial Assistance Award (Form CD-450), the
following additional documents are hereby incorporated by reference into this Award:
• EDA Construction Standard Terms and Conditions for Construction Projects (February 12,
2016); and
• The Recipient's application, including any attachments, project descriptions, schedules, and
subsequently submitted supplemental documentation.
Should there be a discrepancy among these documents, the Special Award Conditions (this
document), including any attachments, shall control.
7. PROJECT DEVELOPMENT TIME SCHEDULE: The Recipient agrees to the following
Project development time schedule:
a. Return of Signed CD-450 Financial Assistance Award ..............30 calendar days after receipt
b. Start of Construction.......................................................................24 Months from Date of Award
c. Construction Completed.................................................................36 Months from Date of Award
d. Authorized Award End Date..........................................................60 Months from Date of Award
e. Useful Life..........................................................................................20 Years from Date of Award
The Recipient shall diligently pursue the development of the Project so as to ensure completion
within this time schedule. Moreover, the Recipient shall promptly notify EDA in writing of any
event that could substantially delay meeting any of the proscribed time limits for the Project as set
forth above. The Recipient further acknowledges that failure to meet the development time
schedule may result in EDA's taking action to terminate the Award in accordance with the
regulations set forth at 2 C.F.R. § 200.339.
Construction Completion - In keeping with prudent grants management policy, EDA construction
projects must be completed within five (5) years from the date the Form CD-450 is signed by the
Recipient accepting the Award. If construction is not completed by this date and the Grants
Officer determines, after consultation with the Grant Recipient, that construction to completion
cannot reasonably be expected to proceed promptly and expeditiously, the grant may be
terminated. Extensions beyond the five-year project period are exceedingly rare and can only be
authorized by the Assistant Secretary. Nothing in this paragraph is intended to alter the Project
Development Time Schedule set forth above.
Special Award Conditions I Page 3
City of Fayetteville. AR Award No. 08-79-05388
Project Closeout — All Project closeout documents, including final financial reports (Form SF-425)
and any required program reports, shall be submitted to EDA not more than 90 calendar days
after the date the Recipient accepts the completed project from the contractor(s).
ALLOWABLE COSTS AND AUTHORIZED BUDGET: Total allowable costs will be
determined at the conclusion of the award period in accordance with 2 C.F.R. Part 200, after Final
Financial Documents are submitted.
Except as otherwise expressly provided for within these Special Award Conditions, the Investment
Rate for the award (see 13 C.F.R. §§ 300.3 and 301.4) shall apply to allowable costs incurred by the
Recipient in connection with the project. The Federal share in the allowable costs shall be based
upon the Investment Rate (see 2 C.F.R. § 200.43). In the event of an under run in total allowable
costs for this project, the Federal share of allowable costs shall be determined by the Investment
Rate established in the Form CD-450, or previously executed Form CD-451. The Federal share of
total allowable costs shall not exceed the dollar amount of the original Award and subsequent
amendments, if any, absent a determination by the Assistant Secretary (see 13 C.F.R § 308.1).
Line Item Budget -
A. Under the terms of the Award, the total approved authorized budget is:
Federal Share (EDA Amount) $ 2,000,000.00 ( 80.00%)
Non -Federal Matching Share $ 500,000.00 ( 20.00%)
Total Project Cost
$ 2,500,000.00 (100.00%)
B. Under the terms of this Award, the total approved line item budget is:
Cost Classification
Proposed ($)
Approved ($)
Administrative and legal expenses
$75,000.00
75,000.00
Land, structures, rights -of -way, etc.
0.00
0.00
Relocation expenses and payments
0.00
0.00
Architectural and engineering fees
221,305.00
211,941.00
Other architectural and engineering fees
0.00
0.00
Project inspection fees
0.00
0.00
Site work
0.00
0.00
Demolition and removal
0.00
0.00
Construction
1,844,216.00
1,844,216.00
Equipment
0.00
000
Contingencies
368,843.00
368,843.00
Miscellaneous
0.00
0.00
Total Project Costs
$2,509,364.00
$2,500,000.00
Explanation of Changes: (1) AE Fees line item adjusted for budget reconciliation.
9. FINANCIAL ASSISTANCE AWARD: This Financial Assistance Award, subject to the other
Special Award Conditions and the EDA Standard Terms and Conditions for Construction
Program, dated February 12, 2016 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
Notes
(1)
Special Award Conditions I Page 4
City of Fayetteville. AR Award No 08 79 05388
of this Special Award Conditions of this Financial Assistance Award, it will be terminated without
further cause. By signing and returning two of the three original Financial Assistance Award
documents within 30 calendar days from receipt, the Recipient hereby affirms that it intends to use
the Award in accordance with the and conditions as above referenced.
10. REAFFIRMATION OF APPLICATION: The Recipient acknowledges that the Recipient's
application for this Award may have been submitted to the Government and signed by the
Recipient, or by an authorized representative of the Recipient, electronically. Regardless of the
means by which the Recipient submitted its application to the Government or whether the
Recipient, or an authorized representative of the Recipient, submitted its application to the
Government, the Recipient hereby reaffirms and states that.
a. all data in said application and documents submitted with the application are true and
correct as of the date of this Award and were true and correct as of the date of said
submission;
b. said application was, as of the date of this Award and as of the date of said application,
duly authorized as required by local law by the governing body of the Recipient; and
c. the Recipient confirms that it will comply with the Assurances and Certifications
submitted with or attached to said application.
The term "application" includes all documentation and any information provided to the
Government as part of, and in furtherance to, the request for funding, including submissions made
in response to information requested by the Government after submission of the initial
application.
11. GRANT ADMINISTRATION PLAN: Within sixty (60) days of accepting the EDA Financial
Assistance Award, the Recipient shall provide to the Regional Office a Grant Administration Plan
which outlines how the Recipient will administer the EDA Award. The Plan must include the
following information.
a. Names, addresses, phone and facsimile numbers and email addresses for all personnel
responsible for all activities pertaining to the EDA Award. These activities include, but are
not limited to, compliance with grant conditions, processing payment requests to EDA,
engineering activities such as design, inspection, and legal services.
b. Proposed detailed project implementation schedule. The schedule shall contain as a
minimum, the following milestones:
- Request for Proposals for Engineering Services
- Award of Engineering Contract
- Start of Design Activities
- Completion of Final Plans and Specifications
- Date all Permits will be obtained
- Advertisement for Bids
- Bid Opening
- Construction Contract Award
- Pre -Construction Conference
- Issuance of Notice -to -Proceed
-Substantial Completion Date
- Final Completion Date/Acceptance by Owner
Special Award Conditions I Page 5
City of Fayetteville AR Award No. 08-79-05388
c. Project Financial Plan: EDA funds will not be disbursed until all special award terms and
conditions to the EDA Award are satisfied and all construction contracts are awarded.
The plan must address how expenses will be paid prior to the disbursement of funds by
EDA. The plan should explain who will be responsible for preparing payments requests
to EDA.
12. MATCHING SHARE: The Recipient agrees to provide the Recipient's non -Federal Matching
Share contribution for eligible project expenses in proportion to the Federal share requested for
such project expenses. (See 13 C.F.R. § 300.3) The Recipient also certifies that, in accepting the
Financial Assistance Award, the Recipient's Matching Share ($500,000 or twenty percent) of the
project costs is committed and unencumbered, from authorized sources, and shall be available as
needed for the project.
13. EVIDENCE OF GOOD TITLE: In accordance with Section L of the U.S. Department of
Commerce Standard Terms and Conditions, prior to the initial disbursement of funds by EDA,
the Recipient shall provide opinion of counsel, satisfactory to the Government, that the Recipient
has acquired good and marketable title to land, free of all encumbrances, as well as rights -of -way,
and easements necessary for the completion of the project, or of a long-term leasehold interest in
accordance with 13 C.F.R. § 314.
14. AWARD DISBURSEMENTS - REIMBURSABLE BASIS ONLY: EDA will make
disbursements under this Award on a reimbursement basis only, based on actual costs when
specific milestones have been met. The EDA Project Engineer will provide these milestones.
a. The "Request for Reimbursement" (Form SF-271) is used to request a disbursement,
which shall be approved in writing by the Post Approval Engineer.
b. Please note that prior to the initial disbursement, Recipients must complete Form SF-
3881, "ACH Vendor/Miscellaneous Payment Enrollment Form" and submit it to the
Austin Regional Office Project Engineer. The form must be completed by the
respective parties (EDA, Recipient Bank, and Recipient) at the start of each new award.
15. REFUND CHECKS, INTEREST, OR UNUSED FUNDS: Treasury has given the EDA
two options for having payments deposited to EDA's account:
a. The first one is Pay.Gov. This option allows the payee to pay EDA through the
Internet. The payee will have the option to make a one-time payment or to set up an
account to make regular payments.
b. The second option is Paper Check conversion. All checks must identify on their face
the name of the DOC agency funding the award, award number, and no more than a
two -word description to identify the reason for the refund or check. A copy of the
check should be provided to the EDA Project Officer. This option allows the payee to
send a check to NOAA's Accounting Office, who processes EDA's accounting
functions at the following address:
U.S. Department of Commerce
National Oceanic and Atmospheric Administration
Finance Office, AOD, EDA Grants
20020 Century Boulevard, Germantown, MD 20874
Special Award Conditions I Page 6
City of Fayetteville. AR Award No 08-79-05388
The accounting staff will scan the checks in to an encrypted file and transfer to the Federal
Reserve Bank, where the funds will be deposited in EDA's account. While this process will not be
an issue with most payees, there are occasionally issues for entities remitting funds to EDA via
check. If you are remitting funds to EDA via check, please make note of the following -
If a check is sent to EDA, it will be converted into an electronic funds transfer by copying the
check and using the account information to electronically debit your account for the amount of the
check. The debit from your account will usually occur within 24 hours and will appear on your
regular account statement.
EDA will not return your original check; the original will be destroyed, and a copy will be
maintained in our office. If the Electronic Funds Transfer (EFT) cannot be processed for technical
reasons, the copy will be processed in place of the original check. If the EFT cannot be completed
because of insufficient funds, EDA will charge you a one-time fee of $25.00, which will be
collected by EFT.
16. PERFORMANCE MEASURES: The Recipient agrees to report on program performance
measures and program outcomes in such a form and at such intervals as may be prescribed by
EDA in compliance with the Government Performance and Results Act (GPRA) of 1993, and the
Government Performance and Results Modernization Act of 2010.
At this time, all Awards for construction assistance require Recipients to report actual job
creation/retention and private investment leverage three (3), six (6), and nine (9) years after an
EDA investment. Recipients are to retain sufficient documentation so that they can submit these
required reports. Failure to submit this required report can adversely impact the ability of the
Recipient to secure future funding from EDA.
Performance measures and reporting requirements that apply to program activities funded by this
investment will be provided in a separate GPRA information collection document. EDA staff will
contact Recipients in writing within a reasonable period prior to the time of submission of the
reports with information on how this data should be submitted. Recipients should ensure
adequate and sufficient records are kept to support the methodology for computing initial job and
private investment estimates and all subsequent actual performance data calculations so that this
information can be made available to EDA in the event of an audits or performance site visits.
17. REPORTS:
a. Project Progress Reports: The Recipient shall submit project progress reports to the Project
Officer on a quarterly basis for the periods ending January 31, April 30, July 31, and October
30, or any portion thereof until the final grant payment is made by EDA. Reports should be
submitted using the approved EDA template, which will be provided by the Project Officer and
discussed during the project kick-off meeting. Reports are due no later than 1 month following
the end of the quarterly period.
b. Financial Reports: The Recipient shall submit a "Federal Financial Report" (Form SF-425)
on a semi-annual basis for the periods ending March 31 and September 30, or any portion
thereof, for the entire project period. Form SF-425 (and instructions for completing this form)
is available at: https://www.aants.gov/forms/post-award-reporting-forms.httnl.
c. Form SF-425: A final Form SF-425 must be submitted no more than 90 calendar days after the
expiration date of the Award. Final Financial reports should follow the guidance outlined by
the form instructions for submitting mid-term financial reports, but should ensure that all fields
accurately reflect the total outlays for the entire project period, and that all matching and
Special Award Conditions I Page 7
City of Fayetteville, AR Award No. 08-79-05388
program income (if applicable) is fully reported. Final grant rate and determinations of final
balances owed to the government will be determined by the information on the final Form SF-
425, so it is imperative that this final financial form is submitted in a timely and accurate
manner.
18. REPORTING UNLIQUATED OBLIGATIONS: All Recipients of an EDA Grant Award of
more than $100,000 whose grant has not been fully disbursed as of the end of each reporting
period are required to submit a financial report to EDA annually on the status of unreimbursed
obligations. The report will provide information on the amount of allowable Project expenses that
have been incurred by the Recipient but not claimed for reimbursement as of the end of the
reporting period. The report will be as of September 30 of each year and must be submitted
annually until the final grant payment is made to EDA. The report shall be submitted to EDA no
later than October 30 of each year. Noncompliance with this requirement may result in the
suspension of EDA grant disbursements. Standard Form SF-425 ("Federal Financial ReporeD or
Standard Form SF-425A ("Federal Financial Report Attachment" for reporting multiple grants),
whichever is applicable, will be used for this purpose.
19. PROCUREMENT: The Recipient agrees that all procurement transactions shall be in
accordance with Regulations at 2 C.F.R §§ 200.317-200.326, as applicable.
20. NONRELOCATION: In signing this award of financial assistance, the Recipient(s) attests that
the EDA funded project will not be used to induce the relocation or the movement of existing
jobs from one Region to another Region by a primary beneficiary of the Award. (See 13 C.F.R. §
300.3) In the event that EDA determines that its assistance was used for such relocation purposes,
EDA reserves the right to pursue all rights and remedies, including suspension of disbursements
and termination of the award for convenience or cause, and disallowance of any costs attributable,
directly or indirectly, to the relocation and the recovery of the Federal share thereof.
For purposes of ensuring that EDA assistance will not be used for relocation purposes, each
applicant must inform EDA of all employers that constitute primary beneficiaries of the project
assisted by EDA. EDA considers an employer to be a "primary beneficiary" if, in seeking EDA
assistance, the applicant estimates that such employer will create or save 100 or more permanent
jobs as a result of the investment assistance and specifically names the employer in its application
to EDA to make the Award. In smaller communities, EDA may consider a primary beneficiary to
be an employer of 50 or more jobs permanent jobs so identified.
21. GOALS FOR WOMEN AND MINORITIES IN CONSTRUCTION: Department of
Labor regulations set forth in 41 C.F.R. § 60-4 establishes 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 C.F.R. § 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 C.F.R. § 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.
All changes to this goal, as published in the Federal Register in accordance with the Office of
Federal Contract Compliance Programs regulations at 41 C.F.R. § 60-4.6, or any successor
regulations, shall hereafter be incorporated by reference into these Special Award Conditions.
Special Award Conditions I Page 8
City of Fayetteville. AR Award No 08 79 05388
Goals for minority participation shall be as prescribed by Appendix B-80, Federal Register,
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 C.F.R. § 60-4.6. The minority participation goal for this project is 3.3 percent.
22. ARCHITECT/ENGINEER AGREEMENT: Prior to initial disbursement of funds by EDA,
the Recipient must submit to the Government for approval, an Architect/Engineer Agreement
that meets the requirements in the EDA's "Summary of EDA Construction Standards," as well as
the competitive procurement standards of 2 C.F.R. Part 200, as applicable. The fee for basic
Architect/Engineer Services will be a lump sum or an agreed maximum, and no part of the fees
for other services will be based on a cost -plus -a -percentage -of -cost or a cost using a multiplier.
23. PROPERTY MANAGEMENT STANDARDS: The Recipient shall be responsible to ensure
that the real property acquired or improved by this Award as an industrial park is used only for the
authorized and specific purpose of an industrial park, and that the sell, lease, or conveyance parcels
of the improved property within the park shall serve that purpose of the Award in accordance its
terms and conditions and with 13 C.F.R. Part 314.
Since the authorized purpose of the project is to construct facilities to serve industrial or
commercial parks or sites owned by the Recipient for sale or lease to private parties, such sale or
lease is permitted so long as EDA requirements continue to be met. EDA requires evidence that
the Recipient has title to the park or site prior to such sale or lease.
24. WASTE, FRAUD AND ABUSE: Consistent with 2 CFR part 200, Recipient personnel
responsible for managing the Recipient's finances and overseeing any contractors, sub -contractors
or sub -grantees, will complete the training PowerPoint entitled "Compliance with EDA Disaster
Assistance Program Requirements" and return the signed Certificate of Training Completion (page
38 of the training) to EDA along with the signed CD-450 within 30 days of receipt.
Further, Recipient will monitor award activities for common fraud schemes, such as:
• false claims for materials and labor,
• bribes related to the acquisition of materials and labor,
• product substitution,
• mismarking or mislabeling on products and materials, and
• time and materials overcharging.
Should Recipient detect any suspicious activity, Recipient will contact EDA staff listed above and
the Office of Inspector General, as indicated at https://www.oig.doc.gov/Pages/Contact-Us.aspx,
as soon as possible.
25. PROJECT ADMINISTRATION SERVICE AGREEMENT: The Recipient, prior to any
Award disbursement, must submit to EDA for approval a Project Administration Service
Agreement for project administration services charged against the Award.
26. ARCHITECT/ENGINEER AGREEMENT: Prior to initial disbursement of funds by EDA,
the Recipient must submit to the Government for approval, an Architect/Engineer Agreement
that meets the requirements in the EDA's "Summary of EDA Construction Standards," as well as
Special Award Conditions I Page 9
City of Fayetteville. AR Award No. 08-79-05388
the competitive procurement standards of 2 C.F.R. Part 200, as applicable. The fee for basic
Architect/Engineer Services will be a lump sum or an agreed maximum, and no part of the fees
for other services will be based on a cost -plus -a -percentage -of -cost or a cost using a multiplier.
27. HISTORICAL PRESERVATION: Prior to ground disturbance or construction, the Recipient
shall provide evidence satisfactory to EDA that the State Historic Preservation Office has issued
final approval of the design plans and specifications for the historic preservation project. The
Recipient shall comply with any and all stipulations of the final SHPO approval. If the Recipient
cannot or does not provide final approval of SHPO as required by this Special Condition,
Recipient agrees, at the discretion of EDA, to terminate this award.
Additionally, Recipient agrees to and shall cause the following to be placed in the project plans and
specifications: "If Archeological Materials are encountered during construction, the procedures
codified at 33 C.F.R. 800.13(b) will apply and the Recipient shall contact EDA, the Arkansas State
Historic Preservation Office, and all tribes with a listed interest in the area. Archeological Materials
consist of any items, fifty years or older which were made or used by man. These items include,
but are not limited to, stone projectile points (arrowheads), ceramic shards, bricks, worked wood,
bone and stone, metal and glass objects, and human skeletal remains."
28. REQUIREMENT TO COMPLETE CULTURAL RESOURCES SURVEY: Prior to
advertisement for bids, Recipient shall provide evidence satisfactory to the cultural resources
survey requested by the State Historic Preservation Officer (SHPO) in the letter dated February
27, 2020, from the Arkansas SHPO has been performed, reviewed by SHPO, and that SHPO has
provided written final approval of the project. Recipient agrees to comply with any and all
conditions of the final SHPO approval. If the Recipient does not or cannot provide the SHPO
approval as required in this Special Award Condition, Recipient agrees, at the discretion of EDA,
to terminate this Award for convenience.
29. U.S. ARMY CORPS OF ENGINEERS PERMITTING CLEARANCE: Prior to
advertisement for bids, the Recipient shall provide a copy of a valid Section 404 permit from the
US Army Corps of Engineers (USACE) and satisfactory evidence that any mitigation set forth by
the permit has been completed. If no Section 404 permit is required, the Recipient shall provide
written verification from USACE that no Section 404 permit is required.
U.S. FISH AND WILDLIFE SERVICE (FWS): Prior to the advertisement of the construction
bid(s), the Recipient shall provide evidence satisfactory to the EDA that: 1) consultations under
the Endangered Species Act/Migratory Bird Treaty Act/Marine Mammal Protection Act have
been concluded with the FWS; and 2) all recommendations resulting from the consultations have
been incorporated into the construction plans and specifications.
30. REPORTING OF MATTERS RELATED TO RECIPIENT INTEGRITY &
PERFORMANCE:
a. Genera! Reporting Requirement
If the total value of your currently active grants, cooperative agreements, and procurement
contracts from all Federal awarding agencies exceeds $10,000,000 for any period of time during
the period of performance of this Federal award, then you as the recipient during that period of
time must maintain the currency of information reported to the System for Award Management
(SAM) that is made available in the designated integrity and performance system (currently the
Special Award Conditions I Page 10
City of Fayetteville. AR Award No 08 79 05388
Federal Awardee Performance and Integrity Information System (FAPIIS)) about civil, criminal,
or administrative proceedings described in paragraph B of this award term and condition. This is
a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C. 2313).
As required by section 3010 of Public Law 111-212, all information posted in the designated
integrity and performance system on or after April 15, 2011, except past performance reviews
required for Federal procurement contracts, will be publicly available.
B. Proceedings About Which You Must Report
Submit the information required about each proceeding that:
1. Is in connection with the award or performance of a grant, cooperative agreement, or
procurement contract from the Federal Government;
2. Reached its final disposition during the most recent five-year period; and
3. Is one of the following.
(a) A criminal proceeding that resulted in a conviction, as defined in paragraph E of this
award term and condition;
(b) A civil proceeding that resulted in a finding of fault and liability and payment of a
monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more;
(c) An administrative proceeding, as defined in paragraph E. of this award term and
condition, that resulted in a finding of fault and liability and your payment of either a
monetary fine or penalty of $5,000 or more or reimbursement, restitution, or damages in
excess of $100,000; or
(d) Any other criminal, civil, or administrative proceeding if-
(i) It could have led to an outcome described in paragraph B.3.(a), (b), or (c) of this
award term and condition;
(ii) It had a different disposition arrived at by consent or compromise with an
acknowledgment of fault on your part; and
(iii) The requirement in this award term and condition to disclose information about the
proceeding does not conflict with applicable laws and regulations.
C. Reporting Proceduros
Enter in the SAM Entity Management area the information that SAM requires about each
proceeding described in paragraph B of this award term and condition. You do not need to
submit the information a second time under assistance awards that you received if you already
provided the information through SAM because you were required to do so under Federal
procurement contracts that you were awarded.
D. Reporting Frequency
During any period of time when you are subject to the requirement in paragraph A of this award
term and condition, you must report proceedings information through SAM for the most recent
five-year period, either to report new information about any proceeding(s) that you have not
reported previously or affirm that there is no new information to report. Recipients that have
Federal contract, grant, and cooperative agreement awards with a cumulative total value greater
than $10,000,000 must disclose semiannually any information about the criminal, civil, and
administrative proceedings.
Special Award Conditions I Page 11
City of Fayetteville AR Award No. 08-79-05388
E. Definitions
For purposes of this award term and condition:
1. Administrative proceeding means a non -judicial process that is adjudicatory in nature in
order to make a determination of fault or liability (e.g., Securities and Exchange Commission
Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed
Services Board of Contract Appeals proceedings). This includes proceedings at the Federal
and State level but only in connection with performance of a Federal contract or grant. It
does not include audits, site visits, corrective plans, or inspection of deliverables.
2. Conviction, for purposes of this award term and condition, means a judgment or conviction
of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict
or a plea, and includes a conviction entered upon a plea of nolo contendere.
3. Total value of currently active grants, cooperative agreements, and procurement contracts
includes —
(a) Only the Federal share of the funding under any Federal award with a recipient cost share
or match; and
(b) The value of all expected funding increments under a Federal award and options, even if
not yet exercised.
C*M %a VID-Mm
AGH VENDORNISCELLANEOUS PAYMENT
ENROLLMENT FORM
This lbrM 15 WA-d for AUtDffladed Cle"q House (ACH) payments 011i an addendum record that contains
payment -related Inlormatlorl processed through U* Vendor Express Program. Recipients of these payments
should bring this Inibmiatlon to the attention of their financial IrtsIftutlon when presenting = TDIM RW
comptetton. See reverse W adoltional instructions.
PRNACY ACT STATEMENT
The INlowing Inrormallm Is provided to COMPty WtM the Privacy ACt of 1974 qP.L. 93-579j All
hformation collected on this form is required under ftwe provisions of 31 UZ-C, 3322 and 31 CFR 210-
This lnnxm,3MDn will be used by the Treasury Department to transmit payment data, by efectra=, means
I TO vendors Inartelal Institution_ Failure to provtdle the requested Wbrmation may delay or prevent the
n--CekUt Df payments thrDUgh the AUtonlated Clearing tWUSe Payment System-
4GENCY INFORMATION
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Make Uvee copies of Torun after comp4edng. Copy I Is the Agency Copy-, copy 2 Is the Payeel
Company Copy-, and copy 3 Is the Financial lnsUkdGn Copy-
1. Agency Information Section - Federal agency prints or types the name and address Of the
Federal program agency originating the vendoffmiscellaneous paymem agency IdentflTer,
agency location code, contact person name and te-feepnone number of the agency. Also, Ve
appropriate box for ACH format Is checXedL
2. RayeefCDMparry IntorniaMcin Section - Payee print& or types the name of the payeefcomparTy
and address that wit receNv ACH vendoMMceflaneDLIS payments, social security or
taxpayer ID number, and contact person narne and telephone number of the payewompany.
Payee also vertiles depcLsRDr account nurnber. account Ittle, and type Of a=unt entered by
ycour Irtanclal InstlWon In the financial institution Information Section_
3. Financial Insti-lution Information Section - Financial InG=on prints or Types the name and
addre&S Of the payestcomparys financial Institution Vio will recetwe Me ACH payment ACH
coordinator name and lerep1horte nurnber, nine -digit routing transit nurnber, depDS1ftW (payer
Mfnp;3r[y) account Utte and wcount number- Also, the box Tor type or account Is checked, and
Me signature, Me, and telephone number or the approptlate ftnancial Institution Wnclail are
licluded.
Barden Eatunate MaUrnent
The estmaded averagie burcim associated WM this coffectton or information Is 15 minutes per
respondent or recordkeepef, depending on Individual chmmsUnces. Comments cortoerning the
accuracy of Mls burden e6tknate and suggestions for reducing ttts burden should be directed to
tl* Financial Management Service, Facilities Managernimt DIldslon, Property and Supply Branch,
Room B-101, 3700,East West Highway, Hy=,Alfe, MD 24M2 and fte 0111ce of Management and
Budget Paperwork Reduollon Prqf-wt (1 510-DM6� Washington, DC 205W.
DEPARTMENT OF COMMERCE
FINANCIAL ASSISTANCE
STANDARD TERMS AND CONDITIONS
STgTE of
S
30 April 2019
DEPARTMENT OF COMMERCE
FINANCIAL ASSISTANCE STANDARD TERMS AND CONDITIONS
Table of Contents
PREFACE....................................................................................................................................... 5
A. PROGRAMMATIC REQUIREMENTS................................................................................
6
.01
Reporting Requirements..................................................................................................
6
.02
Revisions of Program Plans.............................................................................................
8
.03
Other Federal Awards with Similar Programmatic Activities .........................................
8
.04
Prohibition against Assignment by a Non -Federal Entity ...............................................
9
.05
Disclaimer Provisions.......................................................................................I..............
9
.06
Unsatisfactory Performance or Non -Compliance with Award Provisions ......................
9
B. FINANCIAL REQUIREMENTS..........................................................................................
10
.01
Financial Management...................................................................................................
10
.02
Award Payments............................................................................................................
10
.03
Federal and Non -Federal Sharing..................................................................................
11
.04
Budget Changes and Transfer of Funds among Categories ...........................................
12
.05
Program Income.............................................................................................................
12
.06
Indirect or Facilities and Administrative Costs.............................................................
13
.07
Incurring Costs or Obligating Federal Funds Before and After the Period of
Performance...................................................................................................................
15
.08
Tax Refunds...................................................................................................................
15
.09
Internal Controls............................................................................................................
16
C. PROPERTY STANDARDS..................................................................................................
16
.01
Standards........................................................................................................................16
.02
Real and Personal Property............................................................................................
16
.03
Intellectual Property Rights...........................................................................................
17
D. AUDITS
................................................................................................................................
18
.01
Organization -Wide, Program -Specific, and Project Audits ...........................................
19
.02
Audit Resolution Process...............................................................................................
20
E. DEBTS..................................................................................................................................
20
.01
Payment of Debts Owed to the Federal Government....................................................
20
.02
Late Payment Charges...................................................................................................
21
1 130 April 2019
.03 Barring Delinquent Federal Debtors from Obtaining Federal Loans or Loan Insurance
Guarantees......................................................................................................................
21
.04
Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs...........
22
F. CONFLICT OF INTEREST, CODE OF CONDUCT AND OTHER REQUIREMENTS
PERTAINING TO DOC FINANCIAL ASSISTANCE AWARDS, INCLUDING
SUBAWARDS AND PROCUREMENTS ACTIONS.........................................................
22
.01
Conflict of Interest and Code of Conduct......................................................................
22
.02
Nonprocurement Debarment and Suspension................................................................
23
.03
Requirements for Subawards.........................................................................................
23
.04
Requirements for Procurements.....................................................................................
23
.05
Whistleblower Protections.............................................................................................
23
.06
Small Businesses, Minority Business Enterprises and Women's Business Enterprises
24
G. NATIONAL POLICY REQUIREMENTS...........................................................................
24
.01
United States Laws and Regulations..............................................................................
24
.02
Non -Discrimination Requirements................................................................................
25
a.
Statutory Provisions.......................................................................................................
25
b.
Other Provisions.............................................................................................................
26
C.
Title VII Exemption for Religious Organizations.........................................................
26
.03
LOBBYING RESTRICTIONS......................................................................................
26
a.
Statutory Provisions.......................................................................................................
26
b.
Disclosure of Lobbying Activities.................................................................................
27
.04
Environmental Requirements.........................................................................................
27
a.
The National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.) ...........................
27
b.
The National Historic Preservation Act (16 U.S.C. §§ 470 et seq.) ..............................
28
C.
Executive Order 11988 (Floodplain Management) and Executive Order 11990
(Protection of Wetlands)................................................................................................
28
d.
Clean Air Act (42 U.S.C. §§ 7401 et seq.), Federal Water Pollution Control Act (33
U.S.C. §§ 1251 et seq.) (Clean Water Act), and Executive Order 11738 ("Providing for
administration of the Clean Air Act and the Federal Water Pollution Control Act with
respect to Federal contracts, grants or loans")...............................................................
28
e.
The Flood Disaster Protection Act (42 U.S.C. §§ 4002 et seq.)....................................
29
f.
The Endangered Species Act (16 U.S.C. §§ 1531 et seq.).............................................
29
g.
The Coastal Zone Management Act (16 U.S.C. §§ 1451 et seq.)..................................
29
h.
The Coastal Barriers Resources Act (16 U.S.C. §§ 3501 et seq.)..................................
29
i.
The Wild and Scenic Rivers Act (16 U.S.C. §§ 1271 et seq.).......................................
29
j.
The Safe Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300f et seq.).........
29
2 130 April 2019
k.
The Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.).................
29
1.
The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, commonly known as Superfund) (42 U.S.C. §§ 9601 et seq.) and the
Community Environmental Response Facilitation Act (42 U.S.C. § 9601 note et seq.)29
m.
Executive Order 12898 ("Federal Actions to Address Environmental Justice in
Minority Populations and Low Income Populations")..................................................
30
n.
The Magnuson -Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801
etseq.)............................................................................................................................
30
o.
Clean Water Act (CWA) Section 404 (33 U.S.C. § 1344)............................................
30
p.
Rivers and Harbors Act (33 U.S.C. § 407)....................................................................
30
q.
The Migratory Bird Treaty Act (16 U.S.C. §§ 703-712), Bald and Golden Eagle
Protection Act (16 U.S.C. § 668 et seq.), and Executive Order 13186 (Responsibilities
of Federal Agencies to Protect Migratory Birds, January 10, 2001) .............................
30
r.
Executive Order 13112 (Invasive Species, February 3, 1999)......................................
31
S.
Fish and Wildlife Coordination Act (16 U.S.C. § 661 et seq.)......................................
31
05
OTHER NATIONAL POLICY REQUIREMENTS.....................................................
31
a.
Buy -American Preferences............................................................................................
31
b.
Criminal and Prohibited Activities................................................................................
31
C.
Drug -Free Workplace....................................................................................................
32
d.
Foreign Travel................................................................................................................
32
e.
Increasing Seat Belt Use in the United States................................................................
33
f.
Federal Employee Expenses and Subawards or Contracts Issued to Federal Employees
orAgencies....................................................................................................................
34
g.
Minority Serving Institutions Initiative.........................................................................
34
h.
Research Misconduct.....................................................................................................
34
i.
Research Involving Human Subjects.............................................................................
35
j.
Care and Use of Live Vertebrate Animals.....................................................................
36
k.
Management and Access to Data and Publications.......................................................
36
1.
Homeland Security Presidential Directive.....................................................................
37
m.
Compliance with Department of Commerce Bureau of Industry and Security Export
Administration Regulations...........................................................................................
38
n.
The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as amended,
and the implementing regulations at 2 C.F.R. Part 175.................................................
40
o.
The Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. §
6101 note)......................................................................................................................
42
p.
Recipient Integrity and Performance Matters (Appendix XII to 2 C.F.R. Part 200).....
47
3 130 April 2019
Federal Financial Assistance Planning During a Funding Hiatus or Government
Shutdown....................................................................................................................... 49
4 130 April 2019
PREFACE
This document sets out the standard terms and conditions (ST&Cs) applicable to this U.S.
Department of Commerce (DOC or Commerce) financial assistance award (hereinafter referred
to as the DOC ST&Cs or Standard Terms). A non -Federal entity' receiving a DOC financial
assistance award must, in addition to the assurances made as part of the application, comply and
require each of its subrecipients, contractors, and subcontractors employed in the completion of
the project to comply with all applicable statutes, regulations, executive orders (E.O.$), Office of
Management and Budget (OMB) circulars, provisions of the OMB Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards (codified at 2 C.F.R.
Part 200) (OMB Uniform Guidance), provisions of these Standard Terms, and any other terms
and conditions incorporated into this DOC financial assistance award. In addition, unless
otherwise provided by the terms and conditions of this DOC financial assistance award, Subparts
A through E of 2 C.F.R. Part 200 and the Standard Terms are applicable to for -profit entities,
foreign public entities and to foreign organizations that carry out a DOC financial assistance
award.2
This award is subject to the laws and regulations of the United States. Any inconsistency or
conflict in terms and conditions specified in the award will be resolved according to the
following order of precedence: federal laws and regulations, applicable notices published in the
Federal Register, E.O.s, OMB circulars, DOC ST&Cs, agency standard award conditions (if
any), and specific award conditions.3 A specific award condition may amend or take precedence
over a Standard Term on a case -by -case basis, when indicated by the specific award condition.
Some of the Standard Terms herein contain, by reference or substance, a summary of the
pertinent statutes, regulations published in the Federal Register or Code of Federal Regulations
(C.F.R.), E.O.s, OMB circulars, or the certifications and assurances provided by applicants
through Standard Forms (e.g., SF-424, SF-424B, or SF-424D) or through DOC forms (e.g. Form
CD-511). To the extent that it is a summary, such Standard Term provision is not in derogation
' Please note that the OMB Uniform Guidance uses the term "non -Federal entity" to generally refer to an entity that
carries out a Federal award as a recipient or subrecipient. Because some of the provisions of these DOC ST&Cs
apply to recipients rather than subrecipients, or vice versa, for clarity, these DOC ST&Cs use the terms "non -Federal
entity," "recipient," and "subrecipient' consistent with their meanings in the OMB Uniform Guidance. In addition,
the OMB Uniform Guidance uses the term "pass -through entity" to refer to a non -Federal entity that makes a
subaward.
"Non -Federal entity" is defined at 2 C.F.R. § 200.69 as "a state, local government, Indian tribe, institution of higher
education (IHE), or nonprofit organization that carries out a Federal award as a recipient or subrecipient."
"Recipient" is defined at 2 C.F.R. § 200.86 as "a non -Federal entity that receives a Federal award directly from a
Federal awarding agency to carry out an activity under a Federal program. The term recipient does not include
subrecipients."
"Subrecipient" is defined at 2 C.F.R. § 200.93 as "a non -Federal entity that receives a subaward from a pass -
through entity to carry out part of a Federal program; but does not include an individual that is a beneficiary of such
program. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency."
"Pass -through entity" is defined at 2 C.F.R. § 200.74 as "a non -Federal entity that provides a subaward to a
subrecipient to carry out part of a Federal program."
2 See 2 C.F.R. § 200.46 for the definition of "foreign public entity" and 2 C.F.R. § 200.47 for the definition of
"foreign organization."
3 To match the terminology used in the OMB Uniform Guidance, the DOC now uses the phrase "specific award
condition' in lieu of "special award condition."
5 130 April 2019
of, or an amendment to, any such statute, regulation, E.O., OMB circular, certification, or
assurance.
DOC commenced implementation of the Research Terms and Conditions (RT&Cs) for Federal
awards effective October 1, 2017; the RT&Cs address and implement the Uniform Guidance
issued by OMB. For awards designated on the Form CD-450 (Financial Assistance Award) as
Research, both the ST&Cs and the RT&Cs as implemented by the Department apply to the
award. The RT&Cs as well as the Department's implementation statement, agency specific
requirements, prior approval matrix, and subaward requirements are posted on the National
Science Foundation's website — https://www.nsf.gov/awards/managing/rtc.jsp. The ST&Cs and
the RT&Cs are generally intended to harmonize with each other; however, where the ST&Cs and
the RT&Cs differ in a Research award, the RT&Cs prevail, unless otherwise indicated in a
specific award condition.
A. PROGRAMMATIC REQUIREMENTS
.01 Reporting Requirements
a. Recipients must submit all reports as required by DOC, electronically or, if unable to
submit electronically, in hard copy, as outlined below and as may be supplemented by the terms
and conditions of a specific DOC award.
b. Performance (Technical) Reports. Recipients must submit performance (technical)
reports to the Program Officer. Performance (technical) reports should be submitted in the same
frequency as the Form SF-425 (Federal Financial Report), unless otherwise directed by the
Grants Officer.
1. Performance (technical) reports must contain the information prescribed in 2 C.F.R. §
200.328 (Monitoring and reporting program performance), unless otherwise specified in the
award conditions.
2. As appropriate and in accordance with the format provided by the Program Officer (or
other OMB -approved information collections), recipients are required to relate financial data
to the performance accomplishments of this Federal award. When applicable, recipients
must also provide cost information to demonstrate cost effective practices (e.g., through unit
cost data). The recipient's performance will be measured in a way that will help DOC to
improve program outcomes, share lessons learned, and spread the adoption of best or
promising practices. As described in 2 C.F.R. § 200.210 (Information contained in a Federal
award), DOC will identify the timing and scope of expected performance by the recipient as
related to the outcomes intended to be achieved by the Federal program.
c. Financial Reports. In accordance with 2 C.F.R. § 200.327 (Financial reporting), the
recipient must submit a Form SF-425 (Federal Financial Report) or any successor form on a
semi-annual basis for the periods ending March 31 and September 30, or any portion thereof,
unless otherwise specified in a specific award condition. Reports must be submitted to DOC as
directed by the Grants Officer, in accordance with the award conditions and are due no later than
6 130 April 2019
30 calendar days following the end of each reporting period. A final Form SF-425 must be
submitted within 90 calendar days after the expiration of the period of performance. A recipient
may submit a final financial report in lieu of an interim financial report due at the end of the
period of performance (e.g., in lieu of submitting a financial report for the last semi-annual or
other reporting under an award, a recipient may submit a final (cumulative) financial report
covering the entire award period).
d. Real Property, Tangible Personal Property and Intangible Property Reports and Requests
for Dispositions. Unless otherwise required by the terms and conditions of a DOC financial
assistance award, where real property, tangible personal property or intangible property is
acquired or improved (in the case of real property or tangible personal property), or produced or
acquired (in the case of intangible property), pursuant to a DOC award, non -Federal entities are
required to submit the following real property, tangible personal property and intangible property
reports (as appropriate):
1. Real Property Status Reports and Requests for Dispositions: Non -Federal entities must
submit reports using Form SF-429 (Real Property Status Report) or any successor form,
including appropriate attachments thereto, at least annually disclosing the status of real
property that is Federally -owned property or real property in which the Federal Government
retains a Federal Interest, unless the Federal Interest in the real property extends 15 years or
longer. In cases where the Federal Interest attached is for a period of 15 years or more, the
DOC or pass -through entity, at its option, may require the non -Federal entity to report at
various multi -year frequencies (e.g., every two years or every three years, not to exceed a
five-year reporting period; or, the DOC or pass -through entity may require annual reporting
for the first three years of a Federal award and thereafter require reporting every five years).
In addition, DOC or a pass -through entity may require a non -Federal entity to submit Form
SF-429, with appropriate attachments, relating to a non -Federal entity's request to acquire,
improve or contribute real property under a DOC financial assistance award. Non -Federal
entities wishing to dispose of real property acquired or improved, in whole or in part,
pursuant to a DOC award must request disposition instructions, including the submission of
Form SF-429, with appropriate attachments, from the Grants Officer in accordance with the
requirements set forth in 2 C.F.R. § 200.311(c). See also the real property standards set forth
in Section C. of these Standard Terms (Property Standards).
2. Tangible Personal Property Status Reports and Requests for Dispositions: DOC or a
pass -through entity may also require a non -Federal entity to submit periodic reports using
Form SF-428 (Tangible Personal Property Report) or any successor form, including
appropriate attachments thereto, concerning tangible personal property that is Federally -
owned or tangible personal property in which the Federal Government retains an interest. In
addition, DOC or a pass -through entity may require a non -Federal entity to submit Form SF-
428 in connection with a non -Federal entity's request to dispose of, tangible personal
property acquired under a DOC financial assistance award. Non -Federal entities wishing to
dispose of tangible personal property acquired or improved, in whole or in part, pursuant to a
DOC award must request disposition instructions, including the submission of Form SF-428,
with appropriate attachments, from the Grants Officer in accordance with the requirements
7 130 April 2019
set forth in 2 C.F.R. § 200.313(e). See also the tangible property standards set forth in
Section C. of these Standard Terms (Property Standards).
3. Intangible Property Status Reports and Requests for Dispositions: The specific
requirements governing the development, reporting, and disposition of rights to intangible
property, including inventions and patents resulting from DOC awards, are set forth in 37
C.F.R. Part 401, which is hereby incorporated by reference into this award. Non -Federal
entities are required to submit their disclosures, elections, and requests for waiver from any
requirement for substantial U.S. manufacture, electronically using the Interagency Edison
extramural invention reporting system (iEdison) at www.iedison.gov. Non -Federal entities
may obtain a waiver of this electronic submission requirement by providing to the Grants
Officer compelling reasons for allowing the submission of paper reports. When no longer
needed for the originally authorized purpose, disposition of the intangible property must
occur in accordance with the provisions in 2 C.F.R. § 200.313(e). See also the intangible
property standards set forth in Section C. of these Standard Terms (Property Standards).
e. Subawards and Executive Compensation Reports. For reporting requirements on
subawards and Executive Compensation, see paragraph G.05.o of these Standard Terms (The
Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C. § 6101 note)).
f. Recipient Integrity and Performance Matters. For reporting requirements pertaining to
integrity and performance matters, see paragraph G.05.p of these Standard Terms (Recipient
Integrity and Performance Matters (Appendix XII to 2 C.F.R. Part 200)).
g. Research Performance Progress Reports. All research awards shall submit the Research
Performance Progress Report (RPPR) in accordance with instructions set forth in the following
link: RPPR Instructions.
.02 Revisions of Program Plans
In accordance with 2 C.F.R. § 200.308 (Revisions of budget and program plans) and 2 C.F.R.
§ 200.407 (Prior written approval (prior approval)), the recipient must obtain prior written
approval from the DOC Grants Officer for certain proposed programmatic change requests,
unless otherwise provided by the terms and conditions of a DOC award. Requests for prior
approval for changes to program plans must be submitted to the Federal Program Officer (or
electronically for awards administered through Grants Online). Requests requiring prior DOC
approval are not effective unless and until approved in writing by the DOC Grants Officer.
.03 Other Federal Awards with Similar Programmatic Activities
The recipient must immediately provide written notification to the DOC Program Officer and
the DOC Grants Officer if, subsequent to receipt of the DOC award, other financial assistance is
received to support or fund any portion of the scope of work incorporated into the DOC award.
DOC will not pay for costs that are funded by other sources.
8 130 April 2019
.04 Prohibition against Assignment by a Non -Federal Entity
A non -Federal entity must not transfer, pledge, mortgage, assign, encumber or hypothecate a
DOC financial assistance award or subaward, or any rights to, interests therein or claims arising
thereunder, to any party or parties, including but not limited to banks, trust companies, other
financing or financial institutions, or any other public or private organizations or individuals
without the express prior written approval of the DOC Grants Officer or the pass -through entity
(which, in turn, may need to obtain prior approval from the DOC Grants Officer).
.05 Disclaimer Provisions
a. The United States expressly disclaims all responsibility or liability to the non -Federal
entity or third persons (including but not limited to contractors) for the actions of the non -Federal
entity or third persons resulting in death, bodily injury, property damages, or any other losses
resulting in any way from the performance of this award or any subaward, contract, or
subcontract under this award.
b. The acceptance of this award or any subaward by the non -Federal entity does not in any
way constitute an agency relationship between the United States and the non -Federal entity or
the non -Federal entity's contractors or subcontractors.
.06 Unsatisfactory Performance or Non -Compliance with Award Provisions
a. Failure to perform the work in accordance with the terms of the award and maintain
satisfactory performance as determined by DOC may result in the imposition of additional award
conditions pursuant to 2 C.F.R. § 200.207 (Specific conditions) or other appropriate enforcement
action as specified in 2 C.F.R. § 200.338 (Remedies for noncompliance).
b. Failure to comply with the provisions of an award will be considered grounds for
appropriate enforcement action pursuant to 2 C.F.R. § 200.338 (Remedies for noncompliance),
including but not limited to: the imposition of additional award conditions in accordance with 2
C.F.R. § 200.207 (Specific conditions); temporarily withholding award payments pending the
convection of the deficiency; changing the payment method to reimbursement only; the
disallowance of award costs and the establishment of an accounts receivable; wholly or partially
suspending or terminating an award; initiating suspension or debarment proceedings in
accordance with 2 C.F.R. Parts 180 and 1326; and such other remedies as may be legally
available.
c. 2 C.F.R. §§ 200.339 (Termination) through 200.342 (Effects of suspension and
termination) apply to an award that is terminated prior to the end of the period of performance
due to the non-federal entity's material failure to comply with the award terms and conditions.
In addition, the failure to comply with the provisions of a DOC award may adversely impact the
availability of funding under other active DOC or Federal awards and may also have a negative
impact on a non -Federal entity's eligibility for future DOC or Federal awards.
9 130 April 2019
B. FINANCIAL REQUIREMENTS
.01 Financial Management
a. In accordance with 2 C.F.R. § 200.302(a) (Financial Management), each State must
expend and account for the Federal award in accordance with State laws and procedures for
expending and accounting for the State's own funds. In addition, the State's and any other non -
Federal entity's financial management systems, including records documenting compliance with
Federal statutes, regulations, and the terms and conditions of the Federal award, must be
sufficient to permit the preparation of reports required by general and program -specific terms
and conditions; and the tracing of funds to a level of expenditures adequate to establish that such
funds have been used in accordance with Federal statutes, regulations, and the terms and
conditions applicable to the Federal award. See also 2 C.F.R. § 200.450 (Lobbying) for
additional management requirements to verify that Federal funds are not used for unallowable
lobbying costs.
b. The financial management system of each non -Federal entity must provide all
information required by 2 C.F.R. § 200.302(b). See also 2 C.F.R. §§ 200.333 (Retention
requirements for records); 200.334 (Requests for transfer of records); 200.335 (Methods for
collection, transmission and storage of information); 200.336 (Access to records); and 200.337
(Restrictions on public access to records).
02 Award Payments
a. Consistent with 2 C.F.R. § 200.305(a) (Payment), for States, payments are governed by
Treasury -State Cash Management Improvement Act (CMIA) agreements and default procedures
codified at 31 C.F.R. Part 205 (Rules and Procedures for Efficient Federal -State Funds
Transfers) and Treasury Financial Manual Volume I, 4A-2000 (Overall Disbursing Rules for All
Federal Agencies).
b. Consistent with 2 C.F.R. § 200.305(b), for non -Federal entities other than States,
payment methods must minimize the amount of time elapsing between the transfer of funds from
the U.S. Treasury or the pass -through entity and the disbursement by the non -Federal entity.
1. The Grants Officer determines the appropriate method of payment and, unless otherwise
stated in a specific award condition, the advance method of payment must be authorized.
Advances must be limited to the minimum amounts needed and be timed to be in accordance
with the actual, immediate cash requirements of the non -Federal entity in carrying out the
purpose of the approved program or project. Unless otherwise provided by the terms and
conditions of a DOC award, non -Federal entities must time advance payment requests so that
Federal funds are on hand for a maximum of 30 calendar days before being disbursed by the
non -Federal entity for allowable award costs.
2. If a non -Federal entity demonstrates an unwillingness or inability to establish procedures
that will minimize the time elapsing between the transfer of funds and disbursement by the
non -Federal entity or if a non -Federal entity otherwise fails to continue to qualify for the
advance method of payment, the Grants Officer or the pass -through entity may change the
10 130 April 2019
method of payment to reimbursement only.
c. Unless otherwise provided for in the award terms, payments from DOC to recipients
under this award will be made using the Department of Treasury's Automated Standard
Application for Payment (ASAP) system. Under the ASAP system, payments are made through
preauthorized electronic funds transfers directly to the recipient's bank account, in accordance
with the requirements of the Debt Collection Improvement Act of 1996. To receive payments
under ASAP, recipients are required to enroll with the Department of Treasury, Financial
Management Service, Regional Financial Centers, which allows them to use the on-line and
Voice Response System (VRS) method of withdrawing funds from their ASAP established
accounts. The following information will be required to make withdrawals under ASAP:
1. ASAP account number — the Federal award identification number found on the cover
sheet of the award;
2. Agency Location Code (ALC); and
3. Region Code.
d. Recipients enrolled in the ASAP system do not need to submit a Form SF-270 (Request
for Advance or Reimbursement), for payments relating to their award. Awards paid under the
ASAP system will contain a specific award condition, clause, or provision describing enrollment
requirements and any controls or withdrawal limits set in the ASAP system.
e. When the Form SF-270 (Request for Advance or Reimbursement) or successor form is
used to request payment, the recipient must submit the request no more frequently than monthly,
and advances must be approved for periods to cover only expenses reasonably anticipated over
the next 30 calendar days. Prior to receiving payments via the Form SF-270, the recipient must
complete and submit to the Grants Officer, the Form SF-3881 (ACH Vendor Miscellaneous
Payment Enrollment Form) or successor form along with the initial Form SF-270. Form
SF-3881 enrollment must be completed before the first award payment can be made via a Form
SF-270 request.
f. The Federal award identification number must be included on all payment -related
correspondence, information, and forms.
g. Non -Federal entities receiving advance award payments must adhere to the depository
requirements set forth in 2 C.F.R. §§ 200.305(b)(7) through (b)(9). Interest amounts up to $500
per non -Federal entity's fiscal year may be retained by the non -Federal entity for administrative
expenses.
.03 Federal and Non -Federal Sharing
a. Awards that include Federal and non -Federal sharing incorporate a budget consisting of
shared allowable costs. If actual allowable costs are less than the total approved budget, the
Federal and non -Federal cost shares must be calculated by applying the approved Federal and
non -Federal cost share ratios to actual allowable costs. If actual allowable costs exceed the total
11 130 April 2019
approved budget, the Federal share must not exceed the total Federal dollar amount authorized
by the award.
b. The non -Federal share, whether in cash or third party in -kind contributions, is to be paid
out at the same general rate as the Federal share. Exceptions to this requirement may be granted
by the Grants Officer based on sufficient documentation demonstrating previously determined
plans for, or later commitment of, cash or third party in -kind contributions. In any case, the
recipient must meet its cost share commitment as set forth in the terms and conditions of the
award; failure to do so may result in the assignment of specific award conditions or other further
action as specified in Standard Term A.06 (Unsatisfactory Performance or Non -Compliance with
Award Provisions). The non -Federal entity must create and maintain sufficient records
justifying all non -Federal sharing requirements to facilitate questions and audits; see Section D
of these Standard Terms (Audits), for audit requirements. See 2 C.F.R. § 200.306 for additional
requirements regarding cost sharing.
.04 Budget Changes and Transfer of Funds among Categories
a. Recipients are required to report deviations from the approved project budget and request
prior written approval from DOC in accordance with 2 C.F.R. § 200.308 (Revision of budget and
program plans) and 2 C.F.R. § 200.407 (Prior written approval (prior approval)). Requests for
such budget changes must be submitted to the Grants Officer (or electronically for awards
serviced through Grants Online) who will notify the recipient of the final determination in
writing. Requests requiring prior DOC approval do not become effective unless and until
approved in writing by the DOC Grants Officer.
b. In accordance with 2 C.F.R. § 200.308(e), transfers of funds by the recipient among
direct cost categories are permitted for awards in which the Federal share of the project is
$250,000 or less. For awards in which the Federal share of the project exceeds $250,000,
transfers of funds among direct cost categories must be approved in writing by the Grants Officer
when the cumulative amount of such direct costs transfers exceeds 10 percent of the total budget
as last approved by the Grants Officer. The 10 percent threshold applies to the total Federal and
non -Federal funds authorized by the Grants Officer at the time of the transfer request. This is the
accumulated amount of Federal funding obligated to date by the Grants Officer along with any
non -Federal share. The same requirements apply to the cumulative amount of transfer of funds
among programs, functions, and activities. This transfer authority does not authorize the
recipient to create new budget categories within an approved budget without Grants Officer
approval. Any transfer that causes any Federal appropriation, or part thereof, to be used for an
unauthorized purpose is not and will not be permitted. In addition, this provision does not
prohibit the recipient from requesting Grants Officer approval for revisions to the budget. See 2
C.F.R. § 200.308 (Revision of budget and program plans) (as applicable) for specific
requirements concerning budget revisions and transfer of funds between budget categories.
.05 Program Income
Unless otherwise indicated in the award terms, program income may be used for any required
cost sharing or added to the project budget, consistent with 2 C.F.R. § 200.307 (Program
income).
12 130 April 2019
.06 Indirect or Facilities and Administrative Costs
a. Indirect costs (or facilities and administration costs (F&A)) for major institutions of
higher education and major nonprofit organizations can generally be defined as costs incurred for
a common or joint purpose benefitting more than one cost objective, and not readily assignable
to the cost objectives specifically benefitted, without effort disproportionate to the results
achieved. Indirect (F&A) costs will not be allowable charges against an award unless permitted
under the award and specifically included as a line item in the award's approved budget.
b. Unrecovered indirect costs, including unrecovered indirect costs on cost sharing or
matching, may be included as part of cost sharing or matching as allowed under 2 C.F.R. §
200.306(c) (Cost sharing or matching) or the terms and conditions of a DOC award.
c. Cognizant Agency for Indirect (F&A) Costs. OMB established the cognizant agency
concept, under which a single agency represents all others in dealing with non -Federal entities in
common areas. The cognizant agency for indirect costs reviews and approves non -Federal
entities' indirect cost rates. In accordance with Appendices III — VII to 2 C.F.R. Part 200 the
cognizant agency for indirect costs reviews and approves non -Federal entities' indirect cost rates.
With respect to for -profit organizations, the term cognizant Federal agency generally is defined
as the agency that provides the largest dollar amount of negotiated contracts, including options.
See 48 C.F.R. § 42.003. If the only Federal funds received by a commercial organization are
DOC award funds, then DOC becomes the cognizant Federal agency for indirect cost
negotiations.
1. General Review Procedures Where DOC is the Cognizant Agency.
i. Within 90 calendar days of the award start date the recipient must submit to the
Grants Officer any documentation (indirect cost proposal, cost allocation plan, etc.)
necessary to allow DOC to perform the indirect cost rate proposal review. Below are two
sources available for guidance on how to put an indirect cost plan together:
(A) Department of Labor: https://www.dol.gov/oasam/boc/dcd/np-comm-guide.htm
or
(B) Department of the Interior: https://www.doi.gov/ibc/services/finance/indirect-
Cost-Services/.
ii. The recipient may use the rate proposed in the indirect cost plan as a provisional rate
until the DOC provides a response to the submitted plan.
iii. The recipient is required to annually submit indirect cost proposals — no later than six
months after the recipient's fiscal year end, except as otherwise provided by 2 C.F.R. §
200.414(g).
2. When DOC is not the oversight or cognizant Federal agency, the recipient must provide
the Grants Officer with a copy of a negotiated rate agreement or a copy of the transmittal
letter submitted to the cognizant or oversight Federal agency requesting a negotiated rate
13 130 April 2019
agreement within 30 calendar days of receipt of a negotiated rate agreement or submission of
a negotiated rate proposal.
3. If the recipient is proposing indirect costs as part of a project budget, but is not required
to have a negotiated rate agreement pursuant to 2 C.F.R. Part 200, Appendix VII, Paragraph
D.l.b (Le., a governmental department or agency that receives $35 million or less in direct
Federal funding), the recipient may be required to provide the Grants Officer with a copy of
its Certificate of Indirect Costs as referenced in 2 C.F.R. Part 200, Appendix VII, Paragraph
D.3. or such other documentation, acceptable in form and substance to the Grants Officer,
sufficient to confirm that proposed indirect costs are calculated and supported by
documentation in accordance with 2 C.F.R. Part 200, Appendix VII. In cases where the
DOC is the recipient's cognizant Federal agency, the DOC reserves the right, pursuant to 2
C.F.R. Part 200, Appendix VII, Paragraph D.Lb, to require the recipient to submit its indirect
cost rate proposal for review by DOC.
d. If the recipient fails to submit required documentation to DOC within 90 calendar days of
the award start date, the Grants Officer may amend the award to preclude the recovery of any
indirect costs under the award. If the DOC, oversight, or cognizant Federal agency 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 the Grants Officer.
e. The maximum dollar amount of allocable indirect costs for which DOC will reimburse
the recipient is the lesser of:
1. The line item amount for the Federal share of indirect costs contained in the approved
award budget, including all budget revisions approved in writing by the Grants Officer; or
2. The Federal share of the total indirect costs allocable to the award based on the indirect
cost rate approved by the cognizant agency for indirect costs and applicable to the period in
which the cost was incurred, provided that the rate is approved on or before the award end
date.
f. In accordance with 2 CFR § 200.414(c)(3), DOC set forth policies, procedures, and
general decision -making criteria for deviations from negotiated indirect cost rates. These
policies and procedures are applicable to all Federal financial assistance programs awarded and
administered by DOC bureaus as Federal awarding agencies and may be found at
http://www.osec.doc.gov/oam/jzrants mana eg_ment/policy/documents/FAM%202015-02.pdf.
g. In accordance with 2 CFR § 200.414(g), any non -Federal entity that has a negotiated
indirect cost rate may apply to the entity's cognizant agency for indirect costs for a one-time
extension of a currently negotiated indirect cost rate for a period of up to four years, reducing the
frequency of rate calculations and negotiations between an institution and its cognizant agency.
h. In accordance with 2 CFR § 200.414(f), any non -Federal entity that has never received a
negotiated indirect cost rate, except for those non -Federal entities described in Paragraph D. Lb
14 130 April 2019
of Appendix VII to 2 CFR Part 200, may elect to charge a de minimis rate of 10 percent of
modified total direct costs.
.07 Incurring Costs or Obligating Federal Funds Before and After the Period
of Performance
a. In accordance with 2 C.F.R. § 200.309 (Period of performance) and the terms and
conditions of a DOC award, a non -Federal entity may charge to the Federal award only
allowable costs incurred during the period of performance, which is established in the award
document. As defined at 2 C.F.R. § 200.77, the "period of performance" is "the time during
which the non -Federal entity may incur new obligations to carry out the work authorized under
the Federal award." The period of performance may sometimes be referred to as the project
period or award period. This Standard Term is subject to exceptions for allowable costs
pertaining to: (i) pre -award costs (see 2 C.F.R. § 200.458); (ii) publication and printing costs (see
2 C.F.R. § 200.461); and administrative costs incurred relating to the close-out of an award (see
2 C.F.R. § 200.343).
b. Reasonable, necessary, allowable and allocable administrative award closeout costs are
authorized for a period of up to 90 calendar days following the end of the period of performance.
For this purpose, award closeout costs are those strictly associated with close-out activities and
are typically limited to the preparation of final progress, financial, and required project audit
reports, unless otherwise approved in writing by the Grants Officer. A non -Federal entity may
request an extension of the 90-day closeout period, as provided in 2 C.F.R. § 200.343 (Closeout).
c. Unless authorized by a specific award condition, any extension of the period of
performance may only be authorized by the Grants Officer in writing. This is not a delegable
authority. Verbal or written assurances of funding from anyone other than the Grants Officer
does not constitute authority to obligate funds for programmatic activities beyond the end of the
period of performance.
d. The DOC has no obligation to provide any additional prospective funding. Any
amendment of the award to increase funding and to extend the period of performance is at the
sole discretion of DOC.
.08 Tax Refunds
The non -Federal entity shall contact the Grants Officer immediately upon receipt of the
refund of any taxes, including but not limited to Federal Insurance Contributions Act (FICA)
taxes, Federal Unemployment Tax Act (FUTA) taxes, or Value Added Taxes (VAT) that were
allowed as charges to a DOC award, regardless of whether such refunds are received by the non -
Federal entity during or after the period of performance. The Grants Officer will provide written
disposition instructions to the non -Federal entity, which may include the refunded taxes being
credited to the award as either a cost reduction or a cash refund, or may allow the non -Federal
entity to use such refunds for approved activities and costs under a DOC award. See 2 C.F.R. §
200.470 (Taxes (including Value Added Tax)).
15 130 April 2019
.09 Internal Controls
Each recipient must comply with standards for internal controls described at 2 C.F.R. §
200.303 (Internal controls). The "Standards for Internal Control in the Federal Government"
issued by the Comptroller General of the United States referenced in § 200.303 are available
online at http://www.gao.gov/assets/80/76455.pdf and the "Internal Control Integrated
Framework" issued by the Committee of Sponsoring Organizations of the Treadway
Commission (COSO) is available online at http://www.coso.org/documents/Intemal%2OControl-
Integrated%20Framework.pdf.
C. PROPERTY STANDARDS
.01 Standards
Each non -Federal entity must comply with the Property Standards set forth in 2 C.F.R. §§
200.310 (Insurance coverage) through 200.316 (Property trust relationship).
.02 Real and Personal Property
a. In accordance with 2 C.F.R. § 200.316 (Property trust relationship), real property,
equipment, and other personal property acquired or improved with a Federal award must be held
in trust by the non -Federal entity as trustee for the beneficiaries of the project or program under
which the property was acquired or improved. This trust relationship exists throughout the
duration of the property's estimated useful life, as determined by the Grants Officer in
consultation with the Program Office, during which time the Federal Government retains an
undivided, equitable reversionary interest in the property (Federal Interest). During the duration
of the Federal Interest, the non -Federal entity must comply with all use and disposition
requirements and restrictions as set forth in 2 C.F.R. §§ 200.310 (Insurance coverage) through
200.316 (Property trust relationship), as applicable, and in the terms and conditions of the
Federal award.
b. The Grants Officer may require a non -Federal entity to execute and to record (as
applicable) a statement of interest, financing statement (form UCC-1), lien, mortgage or other
public notice of record to indicate that real or personal property acquired or improved in whole
or in part with Federal funds is subject to the Federal Interest, and that certain use and disposition
requirements apply to the property. The statement of interest, financing statement (form UCC-
1), lien, mortgage or other public notice must be acceptable in form and substance to the DOC
and must be placed of record in accordance with applicable State and local law, with
continuances re -filed as appropriate. In such cases, the Grants Officer may further require the
non -Federal entity to provide the DOC with a written statement from a licensed attorney in the
jurisdiction where the property is located certifying that the Federal Interest has been protected,
as required under the award and in accordance with applicable State and local law. The
attorney's statement, along with a copy of the instrument reflecting the recordation of the Federal
Interest, must be returned to the Grants Officer. Without releasing or excusing the non -Federal
entity from these obligations, the non -Federal entity, by execution of the financial assistance
award or by expending Federal financial assistance funds (in the case of a subrecipient),
16 130 April 2019
authorizes the Grants Officer and/or program office to file such notices and continuations as it
determines to be necessary or convenient to disclose and protect the Federal Interest in the
property. The Grants Officer may elect not to release any or a portion of the Federal award
funds until the non -Federal entity has complied with this provision and any other applicable
award terms or conditions, unless other arrangements satisfactory to the Grants Officer are made.
.03 Intellectual Property Rights
a. General. The rights to any work or other intangible property, produced or acquired under
a Federal award are determined by 2 C.F.R. § 200.315 (Intangible property). The non -Federal
entity owns any work produced or purchased under a Federal award subject to the DOC's
royalty -free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or otherwise use
the work or authorize others to receive, reproduce, publish, or otherwise use the work for
Government purposes.
b. Inventions. Unless otherwise provided by law, the rights to any invention made by a
non -Federal entity under a DOC financial assistance award are determined by the Bayh-Dole
Act, Pub. L. No. 96-517, as amended, and as codified in 35 U.S.C. § 200 et seq., and modified by
E.O. 12591 (52 FR 13414), as amended by E.O. 12618 (52 FR 48661). 35 U.S.C. § 201(h)
defines "small business firm" as "a small business concern as defined at section 2 of Public Law
85-536 (15 U.S.C. 632) and implementing regulations of the Administrator of the Small
Business Administration." Section 1(b)(4) of E.O. 12591 extended the Bayh-Dole Act to non -
Federal entities "regardless of size" to the extent permitted by law. The specific requirements
governing the development, reporting, and disposition of rights to inventions and patents
resulting from Federal awards are described in more detail in 37 C.F.R. Part 401, which
implements 35 U.S.C. 202 through 204 and includes standard patent rights clauses in 37 C.F.R. §
401.14, which is hereby incorporated by reference into this award.
The Bayh-Dole regulations set forth in 37 C.F.R. part 401 and 404 were amended by 83 FR
15954, with an effective date of May 14, 2018 (Amended Bayh-Dole Regulations). The
Amended Bayh-Dole Regulations apply to all new financial assistance awards issued on or after
May 14, 2018. The Amended Bayh-Dole Regulations do not apply to financial assistance
awards issued prior to May 14, 2018, including amendments made to such awards, unless an
award amendment includes a specific condition incorporating the Amended Bayh-Dole
Regulations into the terms and conditions of the subject award.
1. Ownership. A non -Federal entity may have rights to inventions in accordance with 37
C.F.R. Part 401. These requirements are technical in nature and non -Federal entities are
encouraged to consult with their Intellectual Property counsel to ensure the proper
interpretation of and adherence to the ownership rules. Unresolved questions pertaining to a
non -Federal entities' ownership rights may further be addressed to the Grants Officer.
2. Responsibilities - iEdison. The non -Federal entity must comply with all the requirements
of the standard patent rights clause and 37 C.F.R. Part 401, including the standard patent
rights clause in 37 C.F.R. § 401.14. Non -Federal entities are required to submit their
disclosures, elections, and requests for waiver from any requirement for substantial U.S.
manufacture, electronically using the Interagency Edison extramural invention reporting
17 130 April 2019
system (iEdison) at www.iedison.gov. Non -Federal entities may obtain a waiver of this
electronic submission requirement by providing the Grants Officer with compelling reasons
for allowing the submission of paper reports.
c. Patent Notification Procedures. Pursuant to E.O. 12889 (58 FR 69681), the DOC is
required to notify the owner of any valid patent covering technology whenever the DOC or a
non -Federal entity, 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 non -Federal entity
uses or has used patented technology under this award without a license or permission from the
owner, the non -Federal entity must notify the Grants Officer.
This notice does not constitute authorization or consent by the Government to any copyright or
patent infringement occurring under the award.
d. A non -Federal entity may copyright any work produced under a Federal award, subject to
the DOC's royalty -free, nonexclusive, and irrevocable right to obtain, reproduce, publish, or
otherwise use the work, or authorize others to do so for Government purposes. Works jointly
authored by DOC and non -Federal entity employees may be copyrighted, but only the part of
such works authored by the non -Federal entity is protectable in the United States because, under
17 U.S.C. § 105, copyright protection is not available within the United States for any work of
the United States Government. On occasion and as permitted under 17 U.S.C. § 105, DOC may
require the non -Federal entity to transfer to DOC a copyright in a particular work for
Government purposes or when DOC is undertaking primary dissemination of the work.
e. Freedom of Information Act (FOIA). In response to a FOIA request for research data
relating to published research findings (as defined by 2 C.F.R. § 200.315(e)(2)) produced under a
Federal award that were used by the Federal government in developing an agency action that has
the force and effect of law, the DOC will request, and the non -Federal entity must provide,
within a reasonable time, the research data so that they can be made available to the public
through the procedures established under the FOIA.
D. AUDITS
Under the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, §§ 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, must have the right to access any pertinent books,
documents, papers, and records of the non -Federal entity, whether written, printed, recorded,
produced, or reproduced by any electronic, mechanical, magnetic, or other process or medium, to
make audits, inspections, excerpts, transcripts, or other examinations as authorized by law. This
right also includes timely and reasonable access to the non -Federal entity's personnel for
interview and discussion related to such documents. See 2 C.F.R. § 200.336 (Access to records).
When the DOC Office of Inspector General (OIG) requires a program audit on a DOC award, 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 DOC, or any other Federal, State,
or local audit entity.
18 130 April 2019
.01 Organization -Wide, Program -Specific, and Project Audits
a. A recipient must, within 90 days of the end of its fiscal year, notify the Grants Officer of
the amount of Federal awards, including all DOC and non-DOC awards, that the recipient
expended during its fiscal year.
b. Recipients that are subject to the provisions of Subpart F of 2 C.F.R. Part 200 and that
expend $750,000 or more in a year in Federal awards during their fiscal year must have an audit
conducted for that year in accordance with the requirements contained in Subpart F of 2 C.F.R.
Part 200. Within the earlier of 30 calendar days after receipt of the auditor's report(s), or nine
months after the end of the audit period, unless a different period is specified in a program -
specific audit guide, a copy of the audit must be submitted electronically to the Federal Audit
Clearinghouse (FAC) through the FAC's Internet Data Entry System (IDES)
(https://harvester.census.gov/facideso. In accordance with 2 C.F.R. § 200.425, the recipient
may include a line item in the budget for the allowable costs associated with the audit, which is
subject to the approval of the Grants Officer.
c. Unless otherwise specified in the terms and conditions of the award, entities that are not
subject to Subpart F of 2 C.F.R. Part 200 (e.g., for -profit entities, foreign public entities and
foreign organizations) and that expend $750,000 or more in DOC funds during their fiscal year
(including both as a recipient and a subrecipient) must submit to the Grants Officer either: (i) a
financial related audit of each DOC award or subaward in accordance with Generally Accepted
Government Auditing Standards (GAGAS); or (ii) a project specific audit for each award or
subaward in accordance with the requirements contained in 2 C.F.R. § 200.507. Within the
earlier of 30 calendar days after receipt of the auditor's report(s), or nine months after the end of
the audit period, unless a different period is specified in a program -specific audit guide, a copy of
the audit must be submitted to the Grants Officer. In accordance with 2 C.F.R. § 200.425, the
recipient may include a line item in the budget for the allowable costs associated with the audit,
which is subject to the approval of the Grants Officer. Entities that are not subject to Subpart F
of 2 C.F.R. Part 200 and that expend less than $750,000 in DOC funds in a given fiscal year are
not required to submit an audit(s) for that year, but must make their award -related records
available to DOC or other designated officials for review and audit.
d. Recipients are responsible for compliance with the above audit requirements and for
informing the Grants Officer of the status of their audit, including when the relevant audit has
been completed and submitted in accordance with the requirements of this section. Failure to
provide audit reports within the timeframes specified above may result in appropriate
enforcement action, up to and including termination of the award, and may jeopardize eligibility
for receiving future DOC awards.
e. In accordance with 2 C.F.R. § 200.331(d)(3), pass -through entities are responsible for
issuing a management decision for any audit findings pertaining to the Federal award provided
by the pass -through entity to a subrecipient.
19 130 April 2019
.02 Audit Resolution Process
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 to DOC. 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. The recipient has 30 calendar days from the date of the transmittal of the draft audit
report to submit written comments and documentary evidence.
2. The recipient has 30 calendar days from the date of the transmittal of the final audit
report to submit written comments and documentary evidence.
3. The DOC will review the documentary evidence submitted by the recipient and will
notify the recipient of the results in an Audit Resolution Determination Letter. The recipient
has 30 calendar days from the date of receipt of the Audit Resolution Determination Letter to
submit a written appeal, unless this deadline is extended in writing by the DOC. The appeal
is the last opportunity for the recipient to submit written comments and documentary
evidence to the DOC to dispute the validity of the audit resolution determination.
4. An appeal of the Audit Resolution Determination does not prevent the establishment of
the audit -related debt nor does it prevent the accrual of applicable interest, penalties and
administrative fees on the debt in accordance with 15 C.F.R. Part 19. If the Audit Resolution
Determination is overruled or modified on appeal, appropriate corrective action will be taken
retroactively.
5. The DOC will review the recipient's appeal and notify the recipient of the results in an
Appeal Determination Letter. After the opportunity to appeal has expired or after the appeal
determination has been rendered, DOC will not accept any further documentary evidence
from the recipient. No other administrative appeals are available in DOC.
E. DEBTS
.01 Payment of Debts Owed to the Federal Government
a. The non -Federal entity must promptly pay any debts determined to be owed to the
Federal Government. Any funds paid to a non -Federal entity in excess of the amount to which
the non -Federal entity is finally determined to be entitled under the terms of the Federal award
constitute a debt to the Federal government. In accordance with 2 C.F.R. § 200.345 (Collection
of amounts due), if not paid within 90 calendar days after demand, DOC may reduce a debt owed
to the Federal Government by:
1. Making an administrative offset against other requests for reimbursement;
20 130 April 2019
2. Withholding advance payments otherwise due to the non -Federal entity; or
3. Taking any other action permitted by Federal statute.
The foregoing does not waive any claim on a debt that DOC may have against another entity,
and all rights and remedies to pursue other parties are preserved.
b. DOC debt collection procedures are set out in 15 C.F.R. Part 19. In accordance with 2
C.F.R. § 200.345 (Collection of amounts due) and 31 U.S.C. § 3717, failure to pay a debt owed
to the Federal Government must result in the assessment of interest, penalties and administrative
costs in accordance with the provisions of 31 U.S.C. § 3717 and 31 C.F.R. § 901.9. Commerce
entities will transfer any Commerce debt that is delinquent for more than 120 calendar days to
the U.S. Department of the Treasury's Financial Management Service for debt collection
services, a process known as cross -servicing, pursuant to 31 U.S.C. § 3711(g), 31 C.F.R. §
285.12, and 15 C.F.R. § 19.9. DOC may also take further action as specified in DOC ST&C
A.06 (Unsatisfactory Performance or Non -Compliance with Award Provisions). Funds for
payment of a debt must not come from other Federally -sponsored programs, and the DOC may
conduct on -site visits, audits, and other reviews to verify that other Federal funds have not been
used to pay a debt.
.02 Late Payment Charges
a. Interest will be assessed on the delinquent debt in accordance with section 11 of the Debt
Collection Act of 1982, as amended (31 U.S.C. § 3717(a)). The minimum annual interest rate to
be assessed is the U.S. Department of the Treasury's Current Value of Funds Rate (CVFR). The
CVFR is available online at https://www.fiscal.treasury.gov/fsreportL/rj2t/cvfr/cvfr home.htm
and also published by the Department of the Treasury in the Federal Register
(http://www.gpo. og v/fdsys/browse/collection.action?collectionCode=FR) and in the Treasury
Financial Manual Bulletin. The assessed rate must remain fixed for the duration of the
indebtedness.
b. Penalties will accrue at a rate of not more than six percent per year or such other higher
rate as authorized by law.
c. Administrative charges, i.e., the costs of processing and handling a delinquent debt, will
be determined by the Commerce entity collecting the debt, as directed by the Office of the Chief
Financial Officer and Assistant Secretary for Administration.
.03 Barring Delinquent Federal Debtors from Obtaining Federal Loans or
Loan Insurance Guarantees
Pursuant to 31 U.S.C. § 3720B and 31 C.F.R. § 901.6, unless waived by DOC, the DOC is
not permitted to extend financial assistance in the form of a loan, loan guarantee, or loan
insurance to any person delinquent on a nontax debt owed to a Federal agency. This prohibition
does not apply to disaster loans.
21 1 30 April 2019
.04 Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or
Programs
Pursuant to 28 U.S.C. § 3201(e), unless waived by the DOC, a debtor who has a judgment
lien against the debtor's property for a debt to the United States is not eligible to receive any
grant or loan that is made, insured, guaranteed, or financed directly or indirectly by the United
States or to receive funds directly from the Federal Government in any program, except funds to
which the debtor is entitled as beneficiary, until the judgment is paid in full or otherwise
satisfied.
F. CONFLICT OF INTEREST, CODE OF CONDUCT AND OTHER
REQUIREMENTS PERTAINING TO DOC FINANCIAL ASSISTANCE AWARDS,
INCLUDING SUBAWARDS AND PROCUREMENTS ACTIONS
.01 Conflict of Interest and Code of Conduct
a. DOC Conflict of Interest Policy. In accordance with 2 C.F.R. § 200.112 (Conflict of
interest), the non -Federal entity must disclose in writing any potential conflict of interest to the
DOC or pass -through entity. In addition, a non -Federal entity will establish and maintain written
standards of conduct that include safeguards to prohibit employees from using their positions for
a purpose that constitutes or presents the appearance of personal or organizational conflict of
interest, or personal gain in the administration of an award. It is the DOC's policy to maintain
the highest standards of conduct and to prevent real or apparent conflicts of interest in
connection with DOC financial assistance awards.
b. A conflict of interest generally exists when an interested party participates in a matter that
has a direct and predictable effect on the interested parry's personal or financial interests. A
financial interest may include employment, stock ownership, a creditor or debtor relationship, or
prospective employment with the organization selected or to be selected for a subaward. A
conflict also may exist where there is an appearance that an interested party's objectivity in
performing his or her responsibilities under the project is impaired. For example, an appearance
of impairment of objectivity may result from an organizational conflict where, because of other
activities or relationships with other persons or entities, an interested party is unable to render
impartial assistance, services or advice to the recipient, a participant in the project or to the
Federal Government. Additionally, a conflict of interest may result from non -financial gain to an
interested party, such as benefit to reputation or prestige in a professional field. For purposes of
the DOC Conflict of Interest Policy, an interested party includes, but is not necessarily limited to,
any officer, employee or member of the board of directors or other governing board of a non -
Federal entity, including any other parties that advise, approve, recommend, or otherwise
participate in the business decisions of the recipient, such as agents, advisors, consultants,
attorneys, accountants or shareholders. This also includes immediate family and other persons
directly connected to the interested party by law or through a business arrangement.
c. Procurement -related conflict of interest. In accordance with 2 C.F.R. § 200.318 (General
procurement standards), non -Federal entities must maintain written standards of conduct
22 130 April 2019
covering conflicts of interest and governing the performance of their employees engaged in the
selection, award and administration of contracts. See paragraph F.04 of these Standard Terms
(Requirements for Procurements).
.02 Nonprocurement Debarment and Suspension
Non -Federal entities must comply with the provisions of 2 C.F.R. Part 1326
(Nonprocurement Debarment and Suspension), which generally prohibit entities that have been
debarred, suspended, or voluntarily excluded from participating in Federal nonprocurement
transactions either through primary or lower tier covered transactions, and which set forth the
responsibilities of recipients of Federal financial assistance regarding transactions with other
persons, including subrecipients and contractors.
.03 Requirements for Subawards
The recipient or pass -through entity must require all subrecipients, including lower tier
subrecipients, to comply with the terms and conditions of a DOC financial assistance award,
including applicable provisions of the OMB Uniform Guidance (2 C.F.R. Part 200), and all
associated Terms and Conditions set forth herein. See 2 C.F.R. § 200.101(b)(1) (Applicability),
which describes the applicability of 2 C.F.R. Part 200 to various types of Federal awards and §§
200.330-332 (Subrecipient monitoring and management).
.04 Requirements for Procurements
a. States. Pursuant to 2 C.F.R. § 200.317 (Procurements by states), when procuring
property and services under this Federal award, a State must follow the same policies and
procedures it uses for procurements from its non -Federal funds. The State must comply with 2
C.F.R. § 200.322 (Procurement of recovered materials), and ensure that every purchase order or
other contract includes any clauses required by 2 C.F.R. § 200.326 (Contract provisions).
b. Other Non -Federal Entities. All other non -Federal entities, including subrecipients of a
State, must follow the requirements of 2 C.F.R. §§ 200.318 (General procurement standards)
through 200.326 (Contract provisions) which includes the requirement that non -Federal entities
maintain written standards of conduct covering conflicts of interest and governing the
performance of their employees engaged in the selection, award, and administration of contracts.
No employee, officer, or agent may participate in the selection, award, or administration of a
contract supported by a Federal award if he or she has a real or apparent conflict of interest.
.05 Whistleblower Protections
This award is subject to the whistleblower protections afforded by 41 U.S.C. § 4712
(Enhancement of contractor protection from reprisal for disclosure of certain information), which
generally provide that an employee or contractor (including subcontractors and personal services
contractors) of a non -Federal entity may not be discharged, demoted, or otherwise discriminated
against as a reprisal for disclosing to a person or body information that the employee reasonably
believes is evidence of gross mismanagement of a Federal award, subaward, or a contract under
a Federal award or subaward, a gross waste of Federal funds, an abuse of authority relating to a
23 130 April 2019
Federal award or subaward or contract under a Federal award or subaward, a substantial and
specific danger to public health or safety, or a violation of law, rule, or regulation related to a
Federal award, subaward, or contract under a Federal award or subaward. These persons or
bodies include:
a. A Member of Congress or a representative of a committee of Congress.
b. An Inspector General.
c. The Government Accountability Office.
d. A Federal employee responsible for contract or grant oversight or management at the
relevant agency.
e. An authorized official of the Department of Justice or other law enforcement agency.
f. A court or grand jury.
g. A management official or other employee of the contractor, subcontractor, or grantee
who has the responsibility to investigate, discover, or address misconduct.
Non -Federal entities and contractors under Federal awards and subawards must inform their
employees in writing of the rights and remedies provided under 41 U.S.C. § 4712, in the
predominant native language of the workforce.
.06 Small Businesses, Minority Business Enterprises and Women's Business
Enterprises
In accordance with 2 C.F.R. § 200.321 (Contracting with small and minority businesses,
women's business enterprises, and labor surplus area firms), the recipient must take all necessary
affirmative steps to assure that minority businesses, women's business enterprises, and labor
surplus areas firms are used when possible. DOC encourages non -Federal entities to use small
businesses, minority business enterprises and women's business enterprises in contracts under
financial assistance awards. The Minority Business Development Agency within the DOC will
assist non -Federal entities in matching qualified minority business enterprises with contract
opportunities. For further information visit MBDA's website at http://www.mbda.gov. If you
do not have access to the Internet, you may contact MBDA via telephone or mail:
U.S. Department of Commerce
Minority Business Development Agency
Herbert C. Hoover Building
14th Street and Constitution Avenue, N.W.
Washington, D.C. 20230
(202) 482-0101
G. NATIONAL POLICY REQUIREMENTS
01 United States Laws and Regulations
This award is subject to the laws and regulations of the United States. The recipient must
comply with all applicable requirements of all other Federal laws, executive orders, regulations
and policies governing this program.
24 130 April 2019
.02 Non -Discrimination Requirements
No person in the United States must, on the ground of race, color, national origin, handicap,
age, 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 non-discrimination requirements below:
a. Statutory Provisions
1. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and DOC
implementing regulations published at 15 C.F.R. Part 8 prohibiting discrimination on the
grounds of race, color, or national origin under programs or activities receiving Federal
financial assistance;
2. Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) prohibiting
discrimination on the basis of sex under Federally assisted education programs or activities;
3. The Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12101 et seq.) prohibiting
discrimination on the basis of disability under programs, activities, and services provided or
made available by State and local governments or instrumentalities or agencies thereto, as
well as public or private entities that provide public transportation;
4. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), and DOC
implementing regulations published at 15 C.F.R. Part 8b prohibiting discrimination on the
basis of handicap under any program or activity receiving or benefiting from Federal
assistance.
For purposes of complying with the accessibility standards set forth in 15 C.F.R. §
8b.I8(c), non-federal entities must adhere to the regulations, published by the U.S.
Department of Justice, implementing Title II of the Americans with Disabilities Act
(ADA) (28 C.F.R. part 35; 75 FR 56164, as amended by 76 FR 13285) and Title III of the
ADA (28 C.F.R. part 36; 75 FR 56164, as amended by 76 FR 13286). The revised
regulations adopted new enforceable accessibility standards called the "2010 ADA
Standards for Accessible Design" (2010 Standards), which replace and supersede the
former Uniform Federal Accessibility Standards for new construction and alteration
projects;
5. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and DOC
implementing regulations published at 15 C.F.R. Part 20 prohibiting discrimination on the
basis of age in programs or activities receiving Federal financial assistance; and
6. Any other applicable non-discrimination law(s).
25 130 April 2019
b. Other Provisions
1. Parts II and III of E.O. 11246 (Equal Employment Opportunity, 30 FR 12319),4 which
requires Federally assisted construction contracts to include the nondiscrimination provisions
of §§ 202 and 203 of E.O. 11246 and Department of Labor regulations implementing E.O.
11246 (41 C.F.R. § 60-1.4(b)).
2. E.O. 13166 (65 FR 50121, Improving Access to Services for Persons with Limited
English Proficiency), requiring Federal agencies to examine the services provided, identify
any need for services to those with limited English proficiency (LEP), and develop and
implement a system to provide those services so LEP persons can have meaningful access to
them. The DOC issued policy guidance on March 24, 2003 (68 FR 14180) to articulate the
Title VI prohibition against national origin discrimination affecting LEP persons and to help
ensure that non -Federal entities provide meaningful access to their LEP applicants and
beneficiaries.
C. Title VII Exemption for Religious Organizations
Generally, Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., provides
that it is an unlawful employment practice for an employer to discharge any individual or
otherwise to discriminate against an individual with respect to compensation, terms,
conditions, or privileges of employment because of such individual's race, color, religion,
sex, or national origin. However, Title VII, 42 U.S.C. § 2000e-1(a), expressly exempts from
the prohibition against discrimination based on religion, "a religious corporation, association,
educational institution, or society with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on by such corporation,
association, educational institution, or society of its activities."
.03 LOBBYING RESTRICTIONS
a. Statutory Provisions
Non -Federal entities must comply with 2 C.F.R. § 200.450 (Lobbying), which
incorporates the provisions of 31 U.S.C. § 1352; and OMB guidance and notices on lobbying
restrictions. In addition, non -Federal entities must comply with the DOC regulations
published at 15 C.F.R. Part 28, which implement the New Restrictions on Lobbying. These
provisions 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. Lobbying includes attempting to improperly influence,
meaning any influence that induces or tends to induce a Federal employee or officer to give
consideration or to act regarding a Federal award or regulatory matter on any basis other than
the merits of the matter, either directly or indirectly. Costs incurred to improperly influence
are unallowable. See 2 C.F.R. § 200.450(b) and (c).
'As amended by E.O. 11375(32 FR 14303), E.O. 11478 (34 FR 12985), E.O. 12086 (43 FR 46501), E.O. 12107 (44
FR 1055), E.O. 13279 (F67 FR 77141), E.O. 13665 (79 FR 20749), and E.O. 13672 (79 FR 42971).
26 130 April 2019
b. Disclosure of Lobbying Activities
Any recipient that receives more than $100,000 in Federal funding and conducts lobbying
with non-federal funds relating to a covered Federal action must submit a completed Form
SF-LLL (Disclosure of Lobbying Activities). The Form SF-LLL must be submitted within
30 calendar 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 any required Forms SF-
LLL, including those received from subrecipients, contractors, and subcontractors, to the
Grants Officer.
.04 Environmental Requirements
Environmental impacts must be considered by Federal decision makers in their decisions
whether or not to approve: (1) a proposal for Federal assistance; (2) the proposal with mitigation;
or (3) a different proposal having less adverse environmental impacts. Federal environmental
laws require that the funding agency initiate an early planning process that considers potential
impacts that projects funded with Federal assistance may have on the environment. Each
non -Federal entity must comply with all environmental standards, to include those prescribed
under the following statutes and E.O.s, and must identify to the awarding agency any impact the
award may have on the environment. In some cases, award funds can be withheld by the Grants
Officer under a specific award condition requiring the non -Federal entity to submit additional
environmental compliance information sufficient to enable the DOC to make an assessment on
any impacts that a project may have on the environment.
a. The National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.)
The National Environmental Policy Act (NEPA) and the Council on Environmental
Quality (CEQ) implementing regulations (40 C.F.R. Parts 1500 through 1508) require that an
environmental analysis be completed for all major Federal actions to determine whether they
have significant impacts on the environment. NEPA applies to the actions of Federal
agencies and may include a Federal agency's decision to fund non -Federal projects under
grants and cooperative agreements when the award activities remain subject to Federal
authority and control. Non -Federal entities are required to identify to the awarding agency
any direct, indirect or cumulative impact an award will have on the quality of the human
environment, and assist the agency in complying with NEPA. Non -Federal entities may also
be requested to assist DOC in drafting an environmental assessment or environmental impact
statement if DOC determines such documentation is required, but DOC remains responsible
for the sufficiency and approval of the final documentation. Until the appropriate NEPA
documentation is complete and in the event that any additional information is required during
the period of performance to assess project environmental impacts, funds can be withheld by
the Grants Officer under a specific award condition requiring the non -Federal entity to
submit the appropriate environmental information and NEPA documentation sufficient to
enable DOC to make an assessment on any impacts that a project may have on the
environment.
27 130 April 2019
b. The National Historic Preservation Act (16 U.S.C. §§ 470 et seq.)
Section 106 of the National Historic Preservation Act (NHPA) (16 U.S.C. § 470f) and the
Advisory Council on Historic Preservation (ACHP) implementing regulations (36 C.F.R.
Part 800) require that Federal agencies take into account the effects of their undertakings on
historic properties and, when appropriate, provide the ACHP with a reasonable opportunity
to comment. Historic properties include but are not necessarily limited to districts, buildings,
structures, sites and objects. In this connection, archeological resources and sites that may be
of traditional religious and cultural importance to Federally -recognized Indian Tribes,
Alaskan Native Villages and Native Hawaiian Organizations may be considered historic
properties. Non -Federal entities are required to identify to the awarding agency any effects
the award may have on properties included on or eligible for inclusion on the National
Register of Historic Places. Non -Federal entities may also be requested to assist DOC in
consulting with State or Tribal Historic Preservation Officers, ACHPs or other applicable
interested parties necessary to identify, assess, and resolve adverse effects to historic
properties. Until such time as the appropriate NHPA consultations and documentation are
complete and in the event that any additional information is required during the period of
performance in order to assess project impacts on historic properties, funds can be withheld
by the Grants Officer under a specific award condition requiring the non -Federal entity to
submit any information sufficient to enable DOC to make the requisite assessment under the
NHPA.
Additionally, non -Federal entities are required to assist the DOC in assuring compliance
with the Archeological and Historic Preservation Act of 1974 (54 U.S.C. § 312502 et seq.,
formerly 16 U.S.C. § 469a-1 et seq.); Executive Order 11593 (Protection and Enhancement
of the Cultural Environment, May 13, 1971); Executive Order 13006 (Locating Federal
Facilities on Historic Properties in Our Nation's Central Cities, May 21, 1996); and
Executive Order 13007 (Indian Sacred Sites, May 24, 1996).
c. Executive Order 11988 (Floodplain Management) and Executive Order 11990
(Protection of Wetlands)
Non -Federal entities must identify proposed actions in Federally defined floodplains and
wetlands to enable DOC to decide whether there is an alternative to minimize any potential
harm.
d. Clean Air Act (42 U.S.C. §§ 7401 et seq.), Federal Water Pollution Control Act
(33 U.S.C. §§ 1251 et seq.) (Clean Water Act), and Executive Order 11738 ("Providing
for administration of the Clean Air Act and the Federal Water Pollution Control Act
with respect to Federal contracts, grants or loans")
Non -Federal entities must comply with the provisions of the Clean Air Act (42 U.S.C. §§
7401 et seq.), Clean Water Act (33 U.S.C. §§ 1251 et seq.), and E.O. 11738 (38 FR 25161),
and must not use a facility on the Excluded Parties List (EPL) (located on the System for
Award Management (SAM) website, SAM.gov) in performing any award that is nonexempt
under 2 C.F.R. § 1532, and must notify the Program Officer in writing if it intends to use a
28130 April 2019
facility that is on the EPL or knows that the facility has been recommended to be placed on
the EPL.
e. The Flood Disaster Protection Act (42 U.S.C. §§ 4002 etseq.)
Flood insurance, when available, is required for Federally assisted construction or
acquisition in flood -prone areas. Per 2 C.F.R. § 200.447(a), the cost of required flood
insurance is an allowable expense, if it is reflected in the approved project budget.
f. The Endangered Species Act (16 U.S.C. §§ 1531 etseq.)
Non -Federal entities must identify any impact or activities that may involve a threatened
or endangered species. Federal agencies have the responsibility to ensure that no adverse
effects to a protected species or habitat occur from actions under Federal assistance awards
and conduct the reviews required under the Endangered Species Act, as applicable.
g. The Coastal Zone Management Act (16 U.S.C. §§ 1451 etseq.)
Funded projects must be consistent with a coastal State's approved management program
for the coastal zone.
h. The Coastal Barriers Resources Act (16 U.S.C. §§ 3501 etseq.)
Only in certain circumstances can Federal funding be provided for actions within a
Coastal Barrier System.
i. The Wild and Scenic Rivers Act (16 U.S.C. §§ 1271 etseq.)
This Act applies to awards that may affect existing or proposed components of the
National Wild and Scenic Rivers system.
j. The Safe Drinking Water Act of 1974, as amended, (42 U.S.C. §§ 300f et seq.)
This Act precludes Federal assistance for any project that the EPA determines may
contaminate a sole source aquifer so as to threaten public health.
k. The Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.)
This Act regulates the generation, transportation, treatment, and disposal of hazardous
wastes, and provides that non -Federal entities give preference in their procurement programs
to the purchase of recycled products pursuant to EPA guidelines.
1. The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA, commonly known as Superfund) (42 U.S.C. §§ 9601 etseq.) and the
Community Environmental Response Facilitation Act (42 U.S.C. § 9601 note et seq.)
These requirements address responsibilities related to hazardous substance releases,
threatened releases and environmental cleanup. There are also reporting and community
29 130 April 2019
involvement requirements designed to ensure disclosure of the release or disposal of
regulated substances and cleanup of hazards to state and local emergency responders.
m. Executive Order 12898 ("Federal Actions to Address Environmental Justice in
Minority Populations and Low Income Populations")
Federal agencies are required to identify and address the disproportionately high and
adverse human health or environmental effects of Federal programs, policies, and activities
on low income and minority populations.
n. The Magnuson -Stevens Fishery Conservation and Management Act (16 U.S.C. §
1801 et seq.)
Non -Federal entities must identify to DOC any effects the award may have on essential
fish habitat (EFH). Federal agencies which fund, permit, or carry out activities that may
adversely impact EFH are required to consult with the National Marine Fisheries Service
(NMFS) regarding the potential effects of their actions, and respond in writing to NMFS
recommendations. These recommendations may include measures to avoid, minimize,
mitigate, or otherwise offset adverse effects on EFH. In addition, NMFS is required to
comment on any state agency activities that would impact EFH. Provided the specifications
outlined in the regulations are met, EFH consultations will be incorporated into interagency
procedures previously established under NEPA, the ESA, Clean Water Act, Fish and
Wildlife Coordination Act, or other applicable statutes.
o. Clean Water Act (CWA) Section 404 (33 U.S.C. § 1344)
CWA Section 404 regulates the discharge of dredged or fill material into waters of the
United States, including wetlands. Activities in waters of the United States regulated under
this program include fill for development, water resource projects (such as levees and some
coastal restoration activities), and infrastructure development (such as highways and
airports). CWA Section 404 requires a permit from the U.S. Army Corps of Engineers
before dredged or fill material may be discharged into waters of the United States, unless the
activity is exempt from Section 404 regulation (e.g., certain farming and forestry activities).
p. Rivers and Harbors Act (33 U.S.C. § 407)
A permit may be required from the U.S. Army Corps of Engineers if the proposed
activity involves any work in, over or under navigable waters of the United States.
Recipients must identify any work (including structures) that will occur in, over or under
navigable waters of the United States and obtain the appropriate permit, if applicable.
q. The Migratory Bird Treaty Act (16 U.S.C. §§ 703-712), Bald and Golden Eagle
Protection Act (16 U.S.C. § 668 et seq.), and Executive Order 13186 (Responsibilities
of Federal Agencies to Protect Migratory Birds, January 10, 2001)
Many prohibitions and limitations apply to projects that adversely impact migratory birds
and bald and golden eagles. Executive Order 13186 directs Federal agencies to enter a
Memorandum of Understanding with the U.S. Fish and Wildlife Service to promote
30130 April 2019
conservation of migratory bird populations when a Federal action will have a measurable
negative impact on migratory birds.
r. Executive Order 13112 (Invasive Species, February 3, 1999)
Federal agencies must identify actions that may affect the status of invasive species and
use relevant programs and authorities to: (i) prevent the introduction of invasive species; (ii)
detect and respond rapidly to and control populations of such species in a cost-effective and
environmentally sound manner; (iii) monitor invasive species populations accurately and
reliably; (iv) provide for restoration of native species and habitat conditions in ecosystems
that have been invaded; (v) conduct research on invasive species and develop technologies to
prevent introduction and provide for environmentally sound control of invasive species; and
(vi) promote public education on invasive species and the means to address them. In
addition, an agency may not authorize, fund, or carry out actions that it believes are likely to
cause or promote the introduction or spread of invasive species in the United States or
elsewhere.
s. Fish and Wildlife Coordination Act (16 U.S.C. § 661 et seq.)
During the planning of water resource development projects, agencies are required to
give fish and wildlife resources equal consideration with other values. Additionally, the U.S.
Fish and Wildlife Service and fish and wildlife agencies of states must be consulted
whenever waters of any stream or other body of water are "proposed or authorized, permitted
or licensed to be impounded, diverted... or otherwise controlled or modified" by any agency
under a Federal permit or license.
.05 OTHER NATIONAL POLICY REQUIREMENTS
a. Buy -American Preferences
Strengthening Buy -American Preferences for Infrastructure Projects. Recipients of
covered programs (as defined in Executive Order 13858, 31 January 2019) are hereby
notified that they are encouraged to use, to the greatest extent practicable, iron and aluminum
as well as steel, cement, and other manufactured products produced in the United States in
every contract, subcontract, purchase order, or sub -award that is chargeable under this
Award.
b. Criminal and Prohibited Activities
1. The Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.), provides for the
imposition of civil penalties against persons who make false, fictitious, or fraudulent claims
to the Federal Government for money (including money representing grants, loans, or other
benefits).
2. The False Claims Amendments Act of 1986 and the False Statements Accountability Act
of 1996 (18 U.S.C. §§ 287 and 1001, respectively), provide that whoever makes or presents
any false, fictitious, or fraudulent statement, representation, or claim against the United
31 130 April 2019
States must be subject to imprisonment of not more than five years and must be subject to a
fine in the amount provided by 18 U.S.C. § 287.
3. The Civil False Claims Act (31 U.S.C. §§ 3729 - 3733), provides that suits can be
brought by the government, or a person on behalf of the government, for false claims made
under Federal assistance programs.
4. The Copeland Anti -Kickback Act (18 U.S.C. § 874), prohibits a person or organization
engaged in a Federally supported project from enticing an employee working on the project
from giving up a part of his compensation under an employment contract. The Copeland
Anti -Kickback Act also applies to contractors and subcontractors pursuant to 40 U.S.C. §
3145.
5. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970
(42 U.S.C. § 4601 et seq.) and implementing regulations issued at 15 C.F.R. Part 11, which
provides for fair and equitable treatment of displaced persons or of persons whose property is
acquired as a result of Federal or Federally -assisted programs. These requirements apply to
all interests in real property acquired for project purposes regardless of Federal participation
in purchases.
6. The Hatch Act (5 U.S.C. §§ 1501-1508 and 7321-7326), which limits the political
activities of employees or officers of state or local governments whose principal employment
activities are funded in whole or in part with Federal funds.
7. To ensure compliance with Federal law pertaining to financial assistance awards, an
authorized representative of a non -Federal entity may be required to periodically provide
certain certifications to the DOC regarding Federal felony and Federal criminal tax
convictions, unpaid federal tax assessments, delinquent Federal tax returns and such other
certifications that may be required by Federal law.
c. Drug -Free Workplace
The non -Federal entity must comply with the provisions of the Drug -Free Workplace Act
of 1988 (41 U.S.C. § 8102) and DOC implementing regulations published at 2 C.F.R. Part
1329 (Government wide Requirements for Drug -Free Workplace — Financial Assistance),
which require that the non -Federal entity take certain actions to provide a drug -free
workplace.
d. Foreign Travel
1. Each non -Federal entity must comply with the provisions of the Fly America Act (49
U.S.C. § 40118). The implementing regulations of the Fly America Act are found at 41
C.F.R. §§ 301-10.131 through 301-10.143.
2. The Fly America Act requires that Federal travelers and others performing U.S.
Government -financed air travel must use U.S. flag air carriers, to the extent that service by
such carriers is available. Foreign air carriers may be used only in specific instances, such as
32 130 April 2019
when a U.S. flag air carrier is unavailable or use of U.S. flag air carrier service will not
accomplish the agency's mission.
3. One exception to the requirement to fly U.S. flag carriers is transportation provided under
a bilateral or multilateral air transport agreement, to which the United States Government and
the government of a foreign country are parties, and which the Department of Transportation
has determined meets the requirements of the Fly America Act pursuant to 49 U.S.C. §
40118(b). The United States Government has entered into bilateral/multilateral "Open Skies
Agreements" (U.S. Government Procured Transportation) that allow federal funded
transportation services for travel and cargo movements to use foreign air carriers under
certain circumstances. There are multiple "Open Skies Agreements" currently in effect. For
more information about the current bilateral and multilateral agreements, visit the GSA
websitehttp://www.gsa.gov/portal/content/103191. Information on the Open Skies
agreements (U.S. Government Procured Transportation) and other specific country
agreements may be accessed via the Department of State's website
httv://www.state.gov/e/eeb/tra/.
4. If a foreign air carrier is anticipated to be used for any portion of travel under a DOC
financial assistance award the non -Federal entity must receive prior approval from the Grants
Officer. When requesting such approval, the non -Federal entity must provide a justification
in accordance with guidance provided by 41 C.F.R. § 301-10.142, which requires the non -
Federal entity to provide the Grants Officer with the following: name; dates of travel; origin
and destination of travel; detailed itinerary of travel; name of the air carrier and flight number
for each leg of the trip; and a statement explaining why the non -Federal entity meets one of
the exceptions to the regulations. If the use of a foreign air carrier is pursuant to a bilateral
agreement, the non -Federal entity must provide the Grants Officer with a copy of the
agreement or a citation to the official agreement available on the GSA website. The Grants
Officer must make the final determination and notify the non -Federal entity in writing (which
may be done through the recipient in the case of subrecipient travel). Failure to adhere to the
provisions of the Fly America Act will result in the non -Federal entity not being reimbursed
for any transportation costs for which any non -Federal entity improperly used a foreign air
carrier.
Note: When using code -sharing flights (two or more airlines having flight numbers
assigned to the same flight) involving U.S. flag carriers and non-U.S. flag carriers, the airline
symbol and flight number of the U.S. flag carrier must be used on the ticket to qualify as a
U.S. flag carrier (e.g. "Delta Airlines Flight,=,, operated by KLM" ). Conversely, if the
ticket shows "[Foreign Air Carrier] =,, operated by Delta," that travel is using a foreign
air carrier and is subject to the Fly America Act and must receive prior approval from the
Grants Officer as outlined in paragraph G.05.d.4.
e. Increasing Seat Belt Use in the United States
Pursuant to E.O. 13043 (62 FR 19217), non -Federal entities should encourage employees
and contractors to enforce on-the-job seat belt policies and programs when operating
company -owned, rented, or personally owned vehicles.
33 130 April 2019
f. Federal Employee Expenses and Subawards or Contracts Issued to Federal
Employees or Agencies
1. Use of award funds (Federal or non -Federal) or the non -Federal entity's provision of in -
kind goods or services for the purposes of transportation, travel, or any other expenses for
any Federal employee may raise appropriation augmentation issues. In addition, DOC policy
may prohibit the acceptance of gifts, including travel payments for federal employees, from
non -Federal entities regardless of the source. Therefore, before award funds may be used by
Federal employees, non -Federal entities must submit requests for approval of such action to
the Federal Program Officer who must review and make a recommendation to the Grants
Officer. The Grants Officer will notify the non -Federal entity in writing (generally through
the recipient) of the final determination.
2. A non -Federal entity or its contractor may not issue a subaward, contract or subcontract
of any part of a DOC award to any agency or employee of DOC or to other Federal
employee, department, agency, or instrumentality, without the advance prior written approval
of the DOC Grants Officer.
g. Minority Serving Institutions Initiative
Pursuant to E.O.s 13555 (White House Initiative on Educational Excellence for
Hispanics) (75 FR 65417), 13592 (Improving American Indian and Alaska Native
Educational Opportunities and Strengthening Tribal Colleges and Universities) (76 FR
76603), and 13779 (White House Initiative to Promote Excellence and Innovation at
Historically Black Colleges and Universities) (82 FR 12499), DOC is strongly committed to
broadening the participation of minority serving institutions (MSIs) in its financial assistance
programs. DOC's goals include achieving full participation of MSIs to advance the
development of human potential, strengthen the Nation's capacity to provide high -quality
education, and increase opportunities for MSIs to participate in and benefit from Federal
financial assistance programs. DOC encourages all applicants and non -Federal entities to
include meaningful participation of MSIs. Institutions eligible to be considered MSIs are
listed on the Department of Education website.
h. Research Misconduct
The DOC adopts, and applies to financial assistance awards for research, the Federal
Policy on Research Misconduct (Federal Policy) issued by the Executive Office of the
President's Office of Science and Technology Policy on December 6, 2000 (65 FR 76260).
As provided for in the Federal Policy, research misconduct refers to the fabrication,
falsification, or plagiarism in proposing, performing, or reviewing research, or in reporting
research results. Research misconduct does not include honest errors or differences of
opinion. Non -Federal entities that conduct extramural research funded by DOC must foster
an atmosphere conducive to the responsible conduct of sponsored research by safeguarding
against and resolving allegations of research misconduct. Non -Federal entities also have the
primary responsibility to prevent, detect, and investigate allegations of research misconduct
and, for this purpose, may rely on their internal policies and procedures, as appropriate, to do
so. Non -Federal entities must notify the Grants Officer of any allegation that meets the
34 130 April 2019
definition of research misconduct and detail the entity's inquiry to determine whether there is
sufficient evidence to proceed with an investigation, as well as the results of any
investigation. The DOC may take appropriate administrative or enforcement action at any
time under the award, up to and including award termination and possible suspension or
debarment, and referral to the Commerce OIG, the U.S. Department of Justice, or other
appropriate investigative body.
i. Research Involving Human Subjects
1. All proposed research involving human subjects must be conducted in accordance with
15 C.F.R. Part 27 (Protection of Human Subjects). No research involving human subjects is
permitted under this award unless expressly authorized by specific award condition, or
otherwise in writing by the Grants Officer.
2. Federal policy defines a human subject as a living individual about whom an investigator
(whether professional or student) conducting research (1) Obtains information or
biospecimens through intervention or interaction with the individual, and uses, studies, or
analyzes the information or biospecimens; or (2) Obtains, uses, studies, analyzes, or
generates identifiable private information or identifiable biospecimens. Research means a
systematic investigation, including research development, testing and evaluation, designed to
develop or contribute to generalizable knowledge.
3. DOC regulations at 15 C.F.R. Part 27 require that non -Federal entities maintain
appropriate policies and procedures for the protection of human subjects. In the event it
becomes evident that human subjects may be involved in this project, the non -Federal entity
(generally through the recipient) must submit appropriate documentation to the Federal
Program Officer for approval by the appropriate DOC officials. As applicable, this
documentation must include:
i. Documentation establishing approval of an activity in the project by an Institutional
Review Board (IRB) under a Federal wide Assurance issued by Department of Health
and Human Services or other Federal agency guidelines (see also 15 C.F.R. § 27.103);
ii. Documentation to support an exemption for an activity in the project under 15 C.F.R.
§ 27.104(d);
iii. Documentation of IRB approval of any modification to a prior approved protocol or
to an informed consent form;
iv. Documentation of an IRB approval of continuing review approved prior to the
expiration date of the previous IRB determination; and
v. Documentation of any reportable events, such as serious adverse events,
unanticipated problems resulting in risk to subjects or others, and instances of
noncompliance.
4. No work involving human subjects may be undertaken, conducted, or costs incurred
and/or charged for human subjects research, until the appropriate documentation is approved
35 130 April 2019
in writing by the Grants Officer. In accordance with 15 C.F.R. § 27.118, if research
involving human subjects is proposed after an award is made, the non -Federal entity must
contact the Federal Program Officer and provide required documentation. Notwithstanding
this prohibition, work may be initiated or costs incurred and/or charged to the project for
protocol or instrument development related to human subjects research.
j. Care and Use of Live Vertebrate Animals
Non -Federal entities must comply with the Laboratory Animal Welfare Act of 1966, as
amended, (Pub. L. No. 89-544, 7 U.S.C. §§ 2131 et seq.) (animal acquisition, transport, care,
handling, and use in projects), and implementing regulations (9 C.F.R. Parts 1, 2, and 3); the
Endangered Species Act (16 U.S.C. §§ 1531 et seq.); Marine Mammal Protection Act (16
U.S.C. §§ 1361 et seq.) (taking possession, transport, purchase, sale, export or import of
wildlife and plants); the Nonindigenous Aquatic Nuisance Prevention and Control Act (16
U.S.C. §§ 4701 et seq.) (ensure preventive measures are taken or that probable harm of using
species is minimal if there is an escape or release); and all other applicable statutes pertaining
to the care, handling, and treatment of warm-blooded animals held for research, teaching, or
other activities supported by Federal financial assistance. No research involving vertebrate
animals is permitted under any DOC financial assistance award unless authorized by the
Grants Officer.
k. Management and Access to Data and Publications
1. In General. The recipient acknowledges and understands that information and data
contained in applications for financial assistance, as well as information and data contained
in financial, performance and other reports submitted by recipients, may be used by the DOC
in conducting reviews and evaluations of its financial assistance programs. For this purpose,
recipient information and data may be accessed, reviewed and evaluated by DOC employees,
other Federal employees, Federal agents and contractors, and/or by non -Federal personnel,
all of who enter into appropriate or are otherwise subject to confidentiality and nondisclosure
agreements covering the use of such information. Recipients are expected to support
program reviews and evaluations by submitting required financial and performance
information and data in an accurate and timely manner, and by cooperating with DOC and
external program evaluators. In accordance with 2 C.F.R. § 200.303(e), recipients are
reminded that they must take reasonable measures to safeguard protected personally
identifiable information and other confidential or sensitive personal or business information
created or obtained relating to a DOC financial assistance award.
2. Scientific Data. Non -Federal entities must comply with the data management and access
to data requirements established by the DOC funding agency as set forth in the applicable
Notice of Funding Opportunity and/or in Specific Award Conditions.
3. Publications, Videos, and Acknowledgment of Sponsorship.
i. Publication of results or findings in appropriate professional journals and production
of video or other media is encouraged as an important method of recording, reporting and
otherwise disseminating information and expanding public access to federally -funded
36 130 April 2019
projects (e.g., scientific research). Non -Federal entities must comply with the data
management and access to data requirements established by the DOC funding agency as
set forth in the applicable Notice of Funding Opportunity and/or in Specific Award
Conditions.
ii. Non -Federal entities may be required to submit a copy of any publication materials,
including but not limited to print, recorded, or Internet materials, to the funding agency.
iii. When releasing information related to a funded project, non -Federal entities must
include a statement that the project or effort undertaken was or is sponsored by DOC and
must also include the applicable financial assistance award number.
iv. Non -Federal entities are responsible for assuring that every publication of material
based on, developed under, or otherwise produced pursuant to a DOC financial assistance
award contains the following disclaimer or other disclaimer approved by the Grants
Officer:
This [report/video%tc.] was prepared by [recipient name] using Federal funds under
award [number] from [name of operating unit], U.S. Department of Commerce. The
statements, findings, conclusions, and recommendations are those of the author(s) and do
not necessarily reflect the views of the [name of operating unit] or the U.S. Department
of Commerce.
1. Homeland Security Presidential Directive
If the performance of this DOC financial assistance award requires non -Federal entity
personnel to have routine access to Federally -controlled facilities and/or Federally -controlled
information systems (for purpose of this term "routine access" is defined as more than 180
calendar days), such personnel must undergo the personal identity verification credential
process. In the case of foreign nationals, the DOC will conduct a check with U.S.
Citizenship and Immigration Services' (USCIS) Verification Division, a component of the
Department of Homeland Security (DHS), to ensure the individual is in a lawful immigration
status and that he or she is eligible for employment within the United States. Any items or
services delivered under a financial assistance award must comply with DOC personal
identity verification procedures that implement Homeland Security Presidential Directive 12
(Policy for a Common Identification Standard for Federal Employees and Contractors),
Federal Information Processing Standard (FIPS) PUB 201, and OMB Memorandum M-05-
24. The recipient must ensure that its subrecipients and contractors (at all tiers) performing
work under this award comply with the requirements contained in this term. The Grants
Officer may delay final payment under an award if the subrecipient or contractor fails to
comply with the requirements listed in the term below. The recipient must insert the
following term in all subawards and contracts when the subaward recipient or contractor is
required to have routine physical access to a Federally -controlled facility or routine access to
a Federally -controlled information system:
The subrecipient or contractor must comply with DOC personal identity verification
procedures identified in the subaward or contract that implement Homeland Security
37 130 April 2019
Presidential Directive 12 (HSPD-12), Office of Management and Budget (OMB)
Guidance M-05-24, as amended, and Federal Information Processing Standards
Publication (FIPS PUB) Number 201, as amended, for all employees under this
subaward or contract who require routine physical access to a Federally -controlled
facility or routine access to a Federally -controlled information system.
The subrecipient or contractor must account for all forms of Government provided
identification issued to the subrecipient or contractor employees in connection with
performance under this subaward or contract. The subrecipient or contractor must
return such identification to the issuing agency at the earliest of any of the following,
unless otherwise determined by DOC: (1) When no longer needed for subaward or
contract performance; (2) Upon completion of the subrecipient or contractor employee's
employment; (3) Upon subaward or contract completion or termination.
m. Compliance with Department of Commerce Bureau of Industry and Security
Export Administration Regulations
1. This clause applies to the extent that this financial assistance award encompasses
activities that involve export -controlled items.
2. In performing this financial assistance award, a non -Federal entity may participate in
activities involving items subject to export control (export -controlled items) under the
Export Administration Regulations (EAR). The non -Federal entity is responsible for
compliance with all applicable laws and regulations regarding export -controlled items,
including the EAR's deemed exports and re-exports provisions. The non -Federal entity
must establish and maintain effective export compliance procedures at DOC and non-DOC
facilities, including facilities located abroad, throughout performance of the financial
assistance award. At a minimum, these export compliance procedures must include
adequate restrictions on export -controlled items, to guard against any unauthorized exports,
including in the form of releases or transfers to foreign nationals. Such releases or transfers
may occur through visual inspection, including of technology transmitted electronically,
and oral or written communications.
3. Definitions
i. Export -controlled items. Items (commodities, software, or technology), that
are subject to the EAR (15 C.F.R. §§ 730-774), implemented by the DOC's
Bureau of Industry and Security. These are generally known as "dual -use" items,
items with a military and commercial application. The export (shipment,
transmission, or release/transfer) of export -controlled items may require a license
from DOC.
ii. Deemed Export/Re-export. The EAR defines a deemed export as a release or
transfer of export -controlled items (specifically, technology or source code) to a
foreign person (foreign national) in the U.S. Such release is "deemed" to be an export
to the foreign person's most recent country of citizenship or permanent residency (see
15 C.F.R. § 734.13(a)(2) & (b)). A release may take the form of visual inspection or
38 130 April 2019
oral or written exchange of information. See 15 C.F.R. § 734.15(a). If such a release
or transfer is made abroad to a foreign person of a country other than the country
where the release occurs, it is considered a deemed re-export to the foreign person's
most recent country of citizenship or permanent residency. See 15 C.F.R. §
734.14(a)(2). Licenses from DOC may be required for deemed exports or re-exports.
An act causing the release of export -controlled items to a foreign person (e.g.,
providing or using an access key or code) may require authorization from DOC to the
same extent that an export or re-export of such items to the foreign person would. See
15 C.F.R. § 734.15(b).
4. The non -Federal entity must secure all export -controlled items that it possesses or that
comes into its possession in performance of this financial assistance award, to ensure that
the export of such items, including in the form of release or transfer to foreign persons, is
prevented, or licensed, as required by applicable Federal laws, E.O.s, and/or regulations,
including the EAR.
5. As applicable, non -Federal entity personnel and associates at DOC sites will be
informed of any procedures to identify and protect export -controlled items from
unauthorized export.
6. To the extent the non -Federal entity wishes to release or transfer export -controlled
items to foreign persons, the non -Federal entity will be responsible for obtaining any
necessary licenses, including licenses required under the EAR for deemed exports or
deemed re-exports. Failure to obtain any export licenses required under the EAR may
subject the non -Federal entity to administrative or criminal enforcement. See 15 C.F.R. part
764.
7. Nothing in the terms of this financial assistance award is intended to change, supersede,
or waive the requirements of applicable Federal laws, E.O.s or regulations.
8. Compliance with this term will not satisfy any legal obligations the non -Federal entity
may have regarding items that may be subject to export controls administered by other
agencies such as the Department of State, which has jurisdiction over exports and re-
exports of defense articles and services subject to the International Traffic in Arms
Regulations (ITAR) (22 C.F.R. §§ 120-130), including the release of defense articles to
foreign persons in the United States and abroad.
9. The non -Federal entity must include the provisions contained in this term in all lower
tier transactions (subawards, contracts, and subcontracts) under this financial assistance
award that may involve research or other activities that implicate export -controlled items.
39 130 April 2019
n. The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as
amended, and the implementing regulations at 2 C.F.R. Part 17S
The Trafficking Victims Protection Act of 2000 authorizes termination of financial assistance
provided to a private entity, without penalty to the Federal Government, if any non -Federal entity
engages in certain activities related to trafficking in persons. The DOC hereby incorporates the
following award term required by 2 C.F.R. § 175.15(b):
Trafficking in persons.
a. Provisions applicable to a recipient that is a private entity.
1. You as the recipient, your employees, subrecipients under this award, and subrecipients'
employees may not—
i. Engage in severe forms of tracking in persons during the period of time that the
award is in effect;
ii. Procure a commercial sex act during the period of time that the award is in effect; or
iii. Use forced labor in the performance of the award or subawards under the award.
2. We as the Federal awarding agency may unilaterally terminate this award, without
penalty, if you or a subrecipient that is a private entity —
i. Is determined to have violated a prohibition in paragraph a.I of this award term; or
ii. Has an employee who is determined by the agency official authorized to terminate the
award to have violated a prohibition in paragraph a I of this award term through conduct
that is either— (A) Associated with performance under this award; or (B) Imputed to you
or the subrecipient using the standards and due process for imputing the conduct of an
individual to an organization that are provided in 2 C.F.R. Part 180 (OMB Guidelines to
Agencies on Governmentwide Debarment and Suspension — Nonprocurement), as
implemented by DOC at 2 C.F.R. Part 1326 (Nonprocurement Debarment and
Suspension).
b. Provision applicable to a recipient other than a private entity. We as the Federal
awarding agency may unilaterally terminate this award, without penalty, if a subrecipient that is
a private entity—
1. Is determined to have violated an applicable prohibition in paragraph a.I of this award
term; or
2. Has an employee who is determined by the agency official authorized to terminate the
award to have violated an applicable prohibition in paragraph a.I of this award term
through conduct that is either-
40130 April 2019
i. Associated with performance under this award; or
ii. Imputed to the subrecipient using the standards and due process for imputing the
conduct of an individual to an organization that are provided in 2 C.F.R. Part 180 (OMB
Guidelines to Agencies on Governmentwide Debarment and Suspension —
Nonprocurement), as implemented by DOC at 2 C.F.R. Part 1326, (Nonprocurement
Debarment and Suspension).
c. Provisions applicable to any recipient.
1. You must inform us immediately of any information you receive from any source
alleging a violation of a prohibition in paragraph a.1 of this award term.
2. Our right to terminate unilaterally that is described in paragraph a.2 orb of this
section:
i. Implements section 106(g) of the Trafficking Victims Protection Act of 2000 (TVPA),
as amended (22 U.S.C. 7104(g)), and
ii. Is in addition to all other remedies for noncompliance that are available to us under
this award.
3. You must include the requirements of paragraph a.1 of this award term in any subaward
you make to a private entity.
d. Definitions. For purposes of this award term:
1. "Employee " means either:
i. An individual employed by you or a subrecipient who is engaged in the performance of
the project or program under this award, or
ii. Another person engaged in the performance of the projector program under this
award and not compensated by you including, but not limited to, a volunteer or individual
whose services are contributed by a third party as an in -kind contribution toward cost
sharing or matching requirements.
2. "Forced labor" means labor obtained by any of the following methods: the recruitment,
harboring, transportation, provision, or obtaining of a person for labor or services, through
the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude,
peonage, debt bondage, or slavery.
41 130 April 2019
3. "Private entity"
i. Means any entity other than a State, local government, Indian tribe, or foreign public
entity, as those terms are defined in 2 C.F.R. § 175.25;
ii. Includes: (A) A nonprofit organization, including any nonprofit institution of higher
education, hospital, or tribal organization other than one included in the definition of
Indian tribe at 2 C.F.R. § 175.25(b); and (B) A for profit organization.
4. "Severe forms of trafficking in persons," "commercial sex act," and "coercion" have the
meanings given at section 103 of the TVPA, as amended (22 U.S.C. § 7102).
o. The Federal Funding Accountability and Transparency Act (FFATA) (31 U.S.C.
§ 6101 note)
1. Reporting Subawards and Executive Compensation. Under FFATA, recipients of
financial assistance awards of $25,000 or more are required to report periodically on executive
compensation and subawards, as described in the following term from 2 C.F.R. Part 170,
Appendix A, which is incorporated into this award:
Reporting Subawards and Executive Compensation
a. Reporting of first -tier Subawards.
1. Applicability. Unless you are exempt as provided in paragraph d. of this award term,
you must report each action that obligates $25,000 or more in Federal funds that does not
include Recovery funds (as defined in section 1512(a)(2) of the American Recovery and
Reinvestment Act of 2009, Pub. L. No. 111-5) for a subaward to an entity (see definitions in
paragraph e. of this award term).
2. Where and when to report.
i. You must report each obligating action described in paragraph a.l. of this award term
to http://Wwwfsrs.gov.
ii. For subaward information, report no later than the end of the month following the
month in which the obligation was made. (For example, if the obligation was made on
November 7, 2010, the obligation must be reported by no later than December 31, 2010.)
3. What to report. You must report the information about each obligating action that the
submission instructions posted at http://www. srs.gov specify.
b. Reporting Total Compensation of Recipient Executives.
1. Applicability and what to report. You must report total compensation for each of your
five most highly compensated executives for the preceding completed fiscal year, if-
42 130 April 2019
i. the total Federal funding authorized to date under this award is $25, 000 or more;
ii. in the preceding fiscal year, you received —
(A) 80 percent or more of your annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance subject to the
Transparency A ct, as defined at 2 C.F.R. § 170.320 (and subawards); and
(B) $25, 000, 000 or more in annual gross revenues from Federal procurement contracts
(and subcontracts) and Federal financial assistance subject to the Transparency
Act, as defined at 2 C.F.R. § 170.320 (and subawards); and
iii. The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. § 78m(a), 78o(d)) or section 6104 of the Internal Revenue
Code of 1986 (To determine if the public has access to the compensation information, see
the U.S. Security and Exchange Commission total compensation filings at
http.Ilwww.sec.gov/answers/execomp. htm.)
2. Where and when to report. You must report executive total compensation described in
paragraph b.1. of this award term:
i. As part of your registration profile found at the System for Award Management (SAM)
website located at SAM.gov.
ii. By the end of the month following the month in which this award is made, and
annually thereafter.
c. Reporting of Total Compensation of Subrecipient Executives.
1. Applicability and what to report. Unless you are exempt as provided in paragraph d. of
this award term, for each first -tier subrecipient under this award, you must report the names
and total compensation of each of the subrecipient's five most highly compensated executives
for the subrecipient's preceding completed fiscal year, if—
i. in the subrecipient's preceding fiscal year, the subrecipient received —
(A) 80 percent or more of its annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 C.F.R. § 170.320 (and subawards); and
(B) $25, 000, 000 or more in annual gross revenues from Federal procurement contracts
(and subcontracts), and Federal financial assistance subject to the Transparency
Act (and subawards); and
43 130 April 2019
ii. The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (15 U.S.C. 78m(a), 78o(d)) or section 6104 of the Internal Revenue
Code of 1986 (To determine if the public has access to the compensation information, see
the US Security and Exchange Commission total compensation filings at
http. //www. sec. gov/answers/exe comp. him).
See also 2 C.F.R. § 200.300(b).
2. Where and when to report. You must report subrecipient executive total compensation
described in paragraph c.1. of this award term:
i. To the recipient.
ii. By the end of the month following the month during which you make the subaward.
For example, if a subaward is obligated on any date during the month of October of a
given year (i.e., between October I and 31), you must report any required compensation
information of the subrecipient by November 30 of that year.
d. Exemptions. If, in the previous tax year, you had gross income, from all sources, under
$300, 000, you are exempt from the requirements to report: i. Subawards, and ii. The total
compensation of the five most highly compensated executives of arty subrecipient.
e. Definitions. For purposes of this award term:
1. Entity means all of the following, as defined in 2 C.F.R. Part 25:
i. A Governmental organization, which is a State, local government, or Indian tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit organization;
iv. A domestic or foreign for profit organization; and
v. A Federal agency, but only as a subrecipient under an award or subaward to a non -
Federal entity.
2. Executive means officers, managing partners, or any other employees in management
positions.
3. Subaward:
i. This term means a legal instrument to provide support for the performance of any
portion of the substantive project or program for which you received this award and that
you as the recipient award to an eligible subrecipient.
44 130 April 2019
ii. The term does not include your procurement of property and services needed to carry
out the project or program. For further explanation, see Sec. —d Non -Profit
Organizations).
iii. A subaward may be provided through any legal agreement, including an agreement
that you or a subrecipient considers a contract.
4. Subrecipient means an entity that:
i. Receives a subaward from you (the recipient) under this award; and
ii. Is accountable to you for the use of the Federal funds provided by the subaward.
S. Total compensation means the cash and noncash dollar value earned by the executive
during the recipient's or subrecipient's preceding fiscal year and includes the following (for
more information see 17 C.F.R. § 229.402(c)(2)):
i. Salary and bonus.
ii. Awards of stock, stock options, and stock appreciation rights. Use the dollar amount
recognized for financial statement reporting purposes with respect to the fiscal year in
accordance with the Statement of Financial Accounting Standards No. 123 (Revised 2004)
(FAS 123R), Shared Based Payments.
iii. Earnings for services under non -equity incentive plans. This does not include group
life, health, hospitalization or medical reimbursement plans that do not discriminate in
favor of executives, and are available generally to all salaried employees.
iv. Change in pension value. This is the change in present value of defined benefit and
actuarial pension plans.
v. Above -market earnings on deferred compensation which is not tax -qualified.
vi. Other compensation, if the aggregate value of all such other compensation (e.g.
severance, termination payments, value of life insurance paid on behalf of the employee,
perquisites or property) for the executive exceeds $10, 000.
2. System for Award Management (SAM) and Unique Entity Identifier Requirements.
Under FFATA, recipients must obtain a unique entity identifier, currently known as the Data
Universal Numbering System (DUNS) number, maintain an active registration in the SAM
database, and notify potential first -tier subrecipients that no entity may receive a first -tier
subaward unless the entity has provided its DUNS number to the recipient, as described in 2
C.F.R. Part 25, Appendix A, which is incorporated into this award:
45 130 April 2019
System for Award Management (SAM) and Unique Entity Identifier Requirements
a. Requirement for SAM Registration. Unless you are exempted from this requirement
under 2 C.F.R. § 25.110, you as the recipient must maintain the currency of your information in
SAM until you submit the final financial report required under this award or receive the final
payment, whichever is later. This requires that you review and update the information at least
annually after the initial registration, and more frequently if required by changes in your
information or another award term.
b. Requirement for Unique Entity Identifier. If you are authorized to make subawards
under this award, you:
1. Must notify potential subrecipients that no entity (see definition in paragraph C of this
award term) may receive a subaward from you unless the entity has provided its Unique
Entity Identifier, currently known as the DUNS number, to you.
2. May not make a subaward to an entity unless the entity has provided its Unique Entity
Identifier, currently known as the DUNS number, to you.
c. Definitions for purposes of this tm,ard term:
1. SAM is the comprehensive system into which the Central Contractor Registration (CCR)
system was migrated and is part of the overall Integrated Award Environment (ME). The
information previously maintained in CCR is now contained within the Entity Management
area in SAM.gov.
2. DUNS number means the nine -digit number established and assigned by Dun and
Bradstreet, Inc. (D&B) to uniquely identify business entities. A DUNS number may be
obtained from D&B by telephone (currently 866-705-5711) or the Internet (currently at
http:/Led_gov.dnb.com/webform).
3. Entity, as it is used in this award term, means all of the following, as defined at 2 C.F.R.
part 25, subpart C:
i. A Governmental organization, which is a State, local government, or Indian Tribe;
ii. A foreign public entity;
iii. A domestic or foreign nonprofit organization;
iv. A domestic or foreign for profit organization; and
v. A Federal agency, but only as a subrecipient under an award or subaward to a
recipient.
46 130 April 2019
4. Subaward:
i. This term means a legal instrument to provide support for the performance of any
portion of the substantive project or program for which you received this award and that
you as the recipient award to an eligible subrecipient.
ii. The term does not include your procurement ofproperty and services needed to carry
out the project or program. For further explanation, see Sec. _.210 of the attachment to
OMB Circular A-133 (Audits of States, Local Governments, and Non -Profit
Organizations).
iii. A subaward may be provided through any legal agreement, including an agreement
that you consider a contract.
5. Subrecipient means an entity that:
i. Receives a subaward from you under this award, and
ii. Is accountable to you for the use of the Federal funds provided by the subaivard.
See also 2 C.F.R. § 200.300(b).
p. Recipient Integrity and Performance Matters (Appendix XII to 2 C.F.R. Part
200)
Reporting of Matters Related to Recipient Integrity and Performance
1. General Reporting Requirement. If the total value of your currently active grants,
cooperative agreements, and procurement contracts from all Federal awarding agencies
exceeds $10,000,000 for any period of time during the period of performance of this Federal
award, then you as the recipient during that period of time must maintain the currency of
information reported to the System for Award Management (SAM) that is made available in
the designated integrity and performance system (currently the Federal Awardee
Performance and Integrity Information System (FAPIIS)) about civil, criminal, or
administrative proceedings described in paragraph 2 of this award term and condition. This
is a statutory requirement under section 872 of Public Law 110-417, as amended (41 U.S.C.
2313). As required by section 3010 of Public Law 111-212, all information posted in the
designated integrity and performance system on or after April 15, 2011, except past
performance reviews required for Federal procurement contracts, will be publicly available.
2. Proceedings About Which You Must Report Submit the information required about each
proceeding that:
i. Is relating to the award or performance of a grant, cooperative agreement, or
procurement contract from the Federal Government;
ii. Reached its final disposition during the most recent five-year period; and
47 130 April 2019
iii. Is one of the following:
(A)A criminal proceeding that resulted in a conviction, as defined in paragraph 5 of this
award term and condition;
(B) A civil proceeding that resulted in a finding of fault and liability and payment of a
monetary fine, penalty, reimbursement, restitution, or damages of $5,000 or more;
(C) An administrative proceeding, as defined in paragraph 5. of this award term and
condition, that resulted in a finding of fault and liability and your payment of either
a monetary fine or penalty of $5,000 or more or reimbursement, restitution, or
damages in excess of $100,000; or
(D)Any other criminal, civil, or administrative proceeding if:
It could have led to an outcome described in paragraph 2.c.(1), (2), or (3) of this
award term and condition;
II. It had a different disposition arrived at by consent or compromise with an
acknowledgment of fault on your part; and
III. The requirement in this award term and condition to disclose information about
the proceeding does not conflict with applicable laws and regulations.
3. Reporting Procedures. Enter in the SAM Entity Management area the information that
SAM requires about each proceeding described in paragraph 2 of this award term and
condition. You do not need to submit the information a second time under assistance awards
that you received if you already provided the information through SAM because you were
required to do so under Federal procurement contracts that you were awarded.
4. Reporting Frequency. During any period when you are subject to the requirement in
paragraph I of this award term and condition, you must report proceedings information
through SAM for the most recent five-year period, either to report new information about any
proceeding(s) that you have not reported previously or affirm that there is no new
information to report. Recipients that have Federal contract, grant, and cooperative
agreement awards with a cumulative total value greater than $10,000,000 must disclose
semiannually any information about the criminal, civil, and administrative proceedings.
5. Definitions. For purposes of this award term and condition:
i. Administrative proceeding means a non judicial process that is adjudicatory in nature
to make a determination of fault or liability (e.g., Securities and Exchange Commission
Administrative proceedings, Civilian Board of Contract Appeals proceedings, and Armed
Services Board of Contract Appeals proceedings). This includes proceedings at the Federal
and State level but only in connection with performance of a Federal contract or grant. It
does not include audits, site visits, corrective plans, or inspection of deliverables.
48 130 April 2019
ii. Conviction, for purposes of this award term and condition, means a judgment or
conviction of a criminal offense by any court of competent jurisdiction, whether entered
upon a verdict or a plea, and includes a conviction entered upon a plea of nolo contendere.
iii. Total value of currently active grants, cooperative agreements, and procurement
contracts includes:
(A)Only the Federal share of the funding under any Federal award with a recipient cost
share or match; and
(B) The value of all expected funding increments under a Federal award and options,
even if not yet exercised.
q. Federal Financial Assistance Planning During a Funding Hiatus or Government
Shutdown
This term sets forth initial guidance that will be implemented for Federal assistance awards in
the event of a lapse in appropriations, or a government shutdown. The Grants Officer may issue
further guidance prior to an anticipated shutdown.
1. Unless there is an actual rescission of funds for specific grant or cooperative agreement
obligations, non -Federal entities under Federal financial assistance awards for which funds
have been obligated generally will be able to continue to perform and incur allowable
expenses under the award during a funding hiatus. Non -Federal entities are advised that
ongoing activities by Federal employees involved in grant or cooperative agreement
administration (including payment processing) or similar operational and administrative
work cannot continue when there is a funding lapse. Therefore, there may be delays,
including payment processing delays, in the event of a shutdown.
2. All award actions will be delayed during a government shutdown; if it appears that a
non -Federal entity's performance under a grant or cooperative agreement will require agency
involvement, direction, or clearance during the period of a possible government shutdown,
the Program Officer or Grants Officer, as appropriate, may attempt to provide such
involvement, direction, or clearance prior to the shutdown or advise non -Federal entities that
such involvement, direction, or clearance will not be forthcoming during the shutdown.
Accordingly, non -Federal entities whose ability to withdraw funds is subject to prior agency
approval, which in general are non -Federal entities that have been designated high risk, non -
Federal entities under construction awards, or are otherwise limited to reimbursements or
subject to agency review, will be able to draw funds down from the relevant Automatic
Standard Application for Payment (ASAP) account only if agency approval is given and
coded into ASAP prior to any government shutdown or closure. This limitation may not be
lifted during a government shutdown. Non -Federal entities should plan to work with the
Grants Officer to request prior approvals in advance of a shutdown wherever possible. Non -
Federal entities whose authority to draw down award funds is restricted may decide to
suspend work until the government reopens.
49 130 April 2019
3. The ASAP system should remain operational during a government shutdown. Non -
Federal entities that do not require any Grants Officer or agency approval to draw down
advance funds from their ASAP accounts should be able to do so during a shutdown. The
30-day limitation on the drawdown of advance funds will still apply notwithstanding a
government shutdown (see section B.02.b.1 of these terms).
50130 April 2019
U.S. DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
FOR CONSTRUCTION PROJECTS
Title II of the Public Works and
Economic Development Act of 1965
Public Works and Economic Development Facilities
and
Economic Adjustment Assistance Construction Components
w,q
February 12, 2016
TABLE OF CONTENTS
Contents
PREFACE...........................................................................................................................................................................
6
A. GENERAL REQUIREMENTS AND RESPONSIBILITIES....................................................................................7
1.
Purpose....................................................................................................................................................................7
2.
Authority and Policies.............................................................................................................................................
7
3.
Definitions...............................................................................................................................................................8
4.
Grant Recipient as Trustee......................................................................................................................................9
5.
Reaffirmation of Application and Award Acceptance............................................................................................9
6.
Noncompliance with Award Provisions................................................................................................................10
B. FINANCIAL
REQUIREMENTS.............................................................................................................................10
1.
Financial Reports...................................................................................................................................................10
2.
Disbursements.......................................................................................................................................................11
3.
Federal and Non -Federal Cost Sharing..................................................................................................................12
4.
Budget Revisions and Transfers of Funds Among Budget Categories..................................................................12
5.
Indirect Costs and Facilities and Administrative Costs.........................................................................................13
6.
Incurring Costs Prior to Award..............................................................................................................................15
7.
Incurring Costs or Obligating Federal Funds Beyond the Project Expiration Date...............................................15
8.
Time Extensions....................................................................................................................................................16
9.
Tax Refunds..........................................................................................................................................................16
10.
Program Income....................................................................................................................................................16
C. PROGRAMMATIC REQUIREMENTS..................................................................................................................17
1.
Project Progress and Performance Reporting........................................................................................................17
2.
Reporting on Real Property...................................................................................................................................18
3.
Interim Reporting of Significant Project Developments.......................................................................................18
4.
Government Performance and Results Act Reporting...........................................................................................18
5.
Unsatisfactory Performance...................................................................................................................................18
6.
Programmatic Changes..........................................................................................................................................18
7.
Other Federal Awards with Similar Programmatic Activities...............................................................................19
8.
Beneficiary Compliance........................................................................................................................................19
9.
Prohibition Against Assignment by the Recipient.................................................................................................19
10.
Disclaimer Provisions; Hold Harmless Requirement............................................................................................19
2
11.
Prohibition on Use of Third Parties to Secure Award...........................................................................................20
12.
Payment of Attorneys' or Consultants' Fees.........................................................................................................20
13.
Recipient's Duty to Refrain from Employing Certain Government Employees....................................................20
14.
Commencement of Construction and Project Sign................................................................................................21
15.
Efficient Administration of Project.......................................................................................................................21
16.
Conflicts -of -Interest Rules....................................................................................................................................
22
17.
Record -Keeping Requirements..............................................................................................................................
22
18.
Termination Actions..............................................................................................................................................
24
19.
Project Closeout Procedures..................................................................................................................................25
20.
Freedom of Information Act..................................................................................................................................
26
D. ADDITIONAL REQUIREMENTS RELATING TO CONSTRUCTION PROJECTS...........................................26
1.
The Davis -Bacon Act, as amended (40 U.S.C. §§ 3141-3144, 3146, 3147; 42 U.S.C. § 3212). .........................26
2.
The Contract Work Hours and Safety Standards Act, as amended (40 U.S.C. §§ 3701-3708) ............................27
3.
The National Historic Preservation Act of 1966, as amended (54 U.S.C. § 300101 et seq.), and the Advisory
Council on Historic Preservation Guidelines (36 CFR part 800)..........................................................................27
4.
The Historical and Archeological Data Preservation Act of 1974, as amended (16 U.S.C. § 469a-1 et seq.)......
27
5.
The Architectural Barriers Act of 1968, as amended (42 U.S.C. § 4151 et seq.)..................................................27
6.
The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (42 U.S.C.
§ 4601 et seq.).......................................................................................................................................................27
7.
The Energy Conservation and Production Act (42 U.S.C. § 6834 et seq.)...........................................................27
8.
Compliance with Local Construction Requirements.............................................................................................27
E. NONDISCRIMINATION REQUIREMENTS........................................................................................................27
1.
Statutory Provisions..............................................................................................................................................27
2.
Other Provisions....................................................................................................................................................
28
3.
Title VII Exemption for Religious Organizations.................................................................................................29
F. AUDITS....................................................................................................................................................................29
1.
Organization -Wide, Program -Specific, and Project Audits...................................................................................29
2.
Requirement to Submit a Copy of the Audit to EDA............................................................................................
31
3.
Audit Resolution Process......................................................................................................................................31
G. DEBTS......................................................................................................................................................................32
1.
Payment of Debts Owed the Federal Government................................................................................................32
2.
Late Payment Charges...........................................................................................................................................32
3.
Barring Delinquent Federal Debtors from Obtaining Federal Loans or Loan Insurance Guarantees ....................33
4.
Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs...................................................33
3
H.
GOVERNMENTWIDE DEBARMENT AND SUSPENSION(NONPROCUREMENT).....................................33
I.
DRUG -FREE WORKPLACE..................................................................................................................................33
J.
LOBBYING RESTRICTIONS................................................................................................................................33
K.
CODES OF CONDUCT AND SUBAWARD, CONTRACT, AND SUBCONTRACT PROVISIONS................34
1.
Code of Conduct for Recipients............................................................................................................................34
2.
Applicability of Award Provisions to Subrecipients.............................................................................................35
3.
Competition and Codes of Conduct for Subawards..............................................................................................36
4.
Applicability of Provisions to Subawards, Contracts, and Subcontracts...............................................................37
5.
Pilot Program for Enhancement of Employee Whistleblower Protections...........................................................
38
6.
Small Businesses, Minority Business Enterprises, and Women's Business Enterprises.......................................38
7.
Subaward to or Contract with a Federal Agency...................................................................................................39
8.
EDA Contracting Provisions for Construction Projects........................................................................................39
L.
PROPERTY..............................................................................................................................................................39
1.
Standards...............................................................................................................................................................39
2.
Title.......................................................................................................................................................................39
3.
EDA's Interest in Award Property ........................................................................................................................
40
4.
Insurance and Bonding..........................................................................................................................................42
5.
Leasing Restrictions..............................................................................................................................................42
6.
Eminent Domain....................................................................................................................................................43
7. Disposal of Real Property ......................................................................................................................................43
M. FEDERAL ENVIRONMENTAL REQUIREMENTS.............................................................................................43
1. The National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.)........................................................44
2. National Historic Preservation Act (54 U.S.C. § 300101 et seq.)..........................................................................44
3. Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. §§ 4371-4375)................................44
4. Clean Air Act (42 U.S.C. § 7401 et seq), Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq) (Clean
Water Act), and Executive Order 11738 ("Providing for Administration of the Clean Air Act and the Federal
Water Pollution Control Act with Respect to Federal Contracts, Grants or Loans")............................................44
5. The Safe Drinking Water Act of 1974, as amended (42 U.S.C. § 300f et seq.).....................................................45
6. Executive Order 11988 ("Floodplain Management") and Executive Order 11990 ("Protection of Wetlands")....45
7. The Flood Disaster Protection Act (42 U.S.C. § 4002 et seq.), and regulations and guidelines issued thereunder
by the U.S. Federal Emergency Management Administration ("FEMA") or by EDA..........................................45
8. The Coastal Zone Management Act (16 U.S.C. § 1451 et seq.)............................................................................45
9. The Coastal Barrier Resources Act (16 U.S.C. § 3501 et seq.).............................................................................45
10. The Wild and Scenic Rivers Act (16 U.S.C. § 1271 et seq.).................................................................................45
4
11.
The Fish and Wildlife Coordination Act (16 U.S.C. § 661 et seq.).......................................................................45
12.
The Endangered Species Act (16 U.S.C. § 1531 et seq.).......................................................................................45
13.
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, more commonly
known as Superfund) (42 U.S.C. § 9601 et seq.), and the Community Environmental Response Facilitation Act
(Pub. L. No. 102-426, 42 U.S.C. §§ 9601 note et seq. and 9620(h)(4).)...............................................................46
14.
The Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.)...........................................................
46
15.
Executive Order 12898 ("Environmental Justice in Minority Populations and Low -Income Populations") .........
46
16.
The Lead -Based Paint Poisoning Prevention Act (42 U.S.C. § 4821 et seq.)........................................................
46
17.
The Farmland Protection Policy Act (7 U.S.C. §§ 4201-4209)............................................................................46
18.
The Noise Control Act of 1972 (42 U.S.C. § 4901 et seq.)...................................................................................
46
19.
The Native American Graves Protection and Repatriation Act (25 U.S.C. § 3001 et seq.)...................................46
N. NOTICE AND EVIDENCE OF COMPLIANCE WITH ALL APPLICABLE ENVIRONMENTAL
REQUIREMENTS................................................................................................................................................
46
O. MISCELLANEOUS REQUIREMENTS..................................................................................................................47
1.
Criminal and Prohibited Activities........................................................................................................................47
2.
Foreign Travel.......................................................................................................................................................47
3.
American -Made Equipment and Products.............................................................................................................
48
4.
Intellectual Property Rights...................................................................................................................................
48
5.
Increasing Seat Belt Use in the United States........................................................................................................
50
6.
Research Involving Human Subjects.....................................................................................................................
50
7.
Federal Employee Expenses..................................................................................................................................
51
8.
Minority Serving Institutions Initiative.................................................................................................................51
9.
Research Misconduct.............................................................................................................................................
51
10.
Publications, Videos, and Acknowledgment of Sponsorship................................................................................52
11.
Care and Use of Live Vertebrate Animals.............................................................................................................
52
12.
Homeland Security Presidential Directive 12........................................................................................................52
13.
Compliance with Department of Commerce Bureau of Industry and Security Export Administration Regulations.
...............................................................................................................................................................................
53
14.
The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as Amended, and the Implementing
Regulationsat 2 CFR part 175..............................................................................................................................54
15.
The Federal Funding Accountability and Transparency Act of 2006 (Pub. L. No. 109-282, 31 U.S.C. § 6101
Note), as Amended by the Government Funding Transparency Act of 2008 (Pub. L. No. 110-252)...................56
16.
Federal Financial Assistance Planning During a Funding Hiatus or Government Shutdown...............................61
5
U.S. DEPARTMENT OF COMMERCE
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
FOR CONSTRUCTION PROJECTS
Title II of the Public Works and
Economic Development Act of 1965
Public Works and Economic Development Facilities
and
Economic Adjustment Assistance Construction Components
PREFACE
This document sets out the Standard Terms and Conditions for Construction Projects
(hereinafter referred to as the "Construction Standard Terms and Conditions" or
"Construction ST&Cs") applicable to Economic Development Administration ("EDA")
financial assistance awards. A Recipient of an EDA construction financial assistance award
must, in addition to the assurances made as part of the Application, comply and require each of
its subrecipients, contractors, and subcontractors employed in the completion of the Project to
comply with all applicable statutes, regulations, executive orders, Office of Management and
Budget ("OMB") circulars, provisions of the Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards (codified at 2 CFR part 200)
("Uniform Guidance"), provisions of these Construction ST&Cs, the EDA-approved Project
budget and scope of work, any other incorporated terms and conditions, and approved
Applications (collectively, "Terms and Conditions of the Award").
This Award is subject to the laws and regulations of the United States. Any inconsistency or
conflict in the Terms and Conditions specified in this Award will be resolved according to the
following order of precedence: public laws, regulations (including applicable notices published
in the Federal Register (Fed. Reg.)), executive orders, OMB circulars, EDA's Construction
ST&Cs, and special award conditions. A special award condition may amend or take precedence
on a case -by -case basis over a Construction ST&C when warranted by specific Project
circumstances.
Some of these Construction ST&Cs contain, by reference or substance, a summary of the
pertinent statutes or regulations published in the Federal Register or the Code of Federal
Regulations ("CFR"), executive orders, OMB circulars, or the certifications and assurances
provided by applicants through Standard Forms (e.g., Forms SF-424B and SF-424D). To the
extent that it is a summary, such provision is not in derogation of, or an amendment to, any such
statute, regulation, executive order, OMB circular, or assurance.
31
ECONOMIC DEVELOPMENT ADMINISTRATION
STANDARD TERMS AND CONDITIONS
FOR CONSTRUCTION PROJECTS
Public Works and Economic Development Facilities and
Economic Adjustment Assistance Construction Components
A. GENERAL REQUIREMENTS AND RESPONSIBILITIES.
1. Purpose.
The Economic Development Administration's ("EDA's") grants for (i) public works
(42 U.S.C. § 3141) and (ii) construction economic adjustment assistance (42 U.S.C. § 3149)
Projects awarded under the Public Works and Economic Development Act of 1965, as amended
(42 U.S.C. § 3121 et seq.) ("PWEDA") are designed to enhance regional competitiveness and
promote long-term economic development in regions experiencing substantial economic distress.
EDA provides construction, design, and engineering grants to assist distressed communities and
regions revitalize, expand, and upgrade their physical infrastructure to attract new industry,
encourage business expansion, diversify local economies, and generate or retain long-term
private sector jobs and investment. The requirements set forth in these Construction ST&Cs are
applicable to construction, design, and engineering Projects funded in whole or in part by EDA.
Any necessary modifications of these requirements will be addressed in special award conditions
to accommodate individual Projects. In addition, these Construction ST&Cs apply to
construction projects of revolving loan funds ("RLFs") awarded between January 1, 1975 and
February 10, 1999 under EDA's Title IX Economic Adjustment Assistance Program, as well as
to RLFs funded after February 11, 1999 under section 209 of PWEDA (42 U.S.C. § 3149).
2. Authority and Policies.
EDA is a bureau within the U.S. Department of Commerce ("DOC" or "Department")
established under PWEDA. See 13 CFR § 300.1 ("Overview of eligibility requirements"). As a
Federal agency, EDA is obligated to promulgate regulations and establish policies and
procedures to:
a. Ensure compliance with applicable Federal requirements;
b. Safeguard the public's interest in the grant assets; and
c. Promote the effective use of grant funds in accomplishing the purposes for which they were
awarded.
The Department or EDA may issue changes from time to time to the regulations and other
requirements and policies that apply to this Award. Such changes may upon occasion increase
administrative or programmatic flexibility in administering this Award in a manner that is
mutually beneficial to EDA and to the non -Federal entity. The implementation of any such
regulatory, administrative, or programmatic change in administering this Award requires EDA's
prior written approval.
EDA's policy is to administer all awards uniformly; however, there may be special
circumstances that warrant a variance. To accommodate these circumstances and to encourage
innovative and creative ways to address economic development problems, EDA will consider
7
requests for variances to the procedures set out in these Construction ST&Cs if they do not
conflict with applicable Federal statutory and regulatory requirements, are consistent with the
goals of EDA's programs, and make sound economic and financial sense.
3. Definitions.
Whenever used in these Construction ST&Cs, the following words and phrases shall have the
following meanings:
a. "Application" means all forms, documentation, and any information submitted to the
Government as part and in furtherance of a request for an Award and includes submissions
made in response to information requested by the Government after submission of the initial
Application;
b. "Assistant Secretary" refers to the Assistant Secretary of Commerce for Economic
Development;
c. "Award" refers to the Federal financial assistance that a Recipient receives directly from
EDA (see also 2 CFR § 200.38);
d. "Closeout" or "Project Closeout" refers to the process by which the Grants Officer
determines that all applicable administrative actions and all required work under the Award
have been completed by the Recipient and EDA (see also 2 CFR § 200.16);
e. "Contract" means a legal instrument by which a non -Federal entity purchases property or
services needed to carry out the Project or program under this Award. As defined at
2 CFR § 200.22, the term does not include a legal instrument, even if the non -Federal entity
considers it a contract, when the substance of the transaction meets the definition of a Federal
award or subaward (see also 2 CFR § 200.22);
f. "Contractor" means an entity that receives a contract as defined in this section and at
2 CFR § 200.22 (see also 2 CFR § 200.23);
g. "Department" or "DOC" refers to the U.S. Department of Commerce;
h. "Government" or "Federal Government" refers to EDA;
i. "Grants Officer" refers to the official responsible for all business management and
administrative aspects of this Award and, under these Construction ST&Cs, is the Regional
Director in the appropriate Regional Office;
j. "Non -Federal entity" is a State, local government, Indian tribe, institution of higher
education ("IHE"), or nonprofit organization that carries out a Federal award as a recipient or
subrecipient (see also 2 CFR § 200.69);
k. "Pass -through entity" is a non -Federal entity that provides a subaward to a subrecipient to
carry out part of a Federal program (see also 2 CFR § 200.74);
1. "Project" refers to the activity for which the EDA grant was awarded;
in. "Project Officer" refers to the EDA official responsible for technical or other programmatic
aspects of the Award. During the post -approval stage of the Award, EDA generally assigns
this role to an EDA Engineer/Construction Manager;
8
n. "Recipient" is a non -Federal entity that receives a Federal award directly from a Federal
awarding agency to carry out an activity under a Federal program. The term "Recipient" does
not include subrecipients (see also 2 CFR § 200.86);
o. "Regional Office" refers to an EDA Regional Office;
p. "Subaward" means an award provided by a pass -through entity to a subrecipient for the
subrecipient to carry out part of a Federal award received by the pass -through entity (see also
2 CFR § 200.92);
q. "Subrecipient" is a non -Federal entity that receives a subaward from a pass -through entity to
carry out part of a Federal program but does not include an individual that is a beneficiary of
such program. A subrecipient may also be a recipient.of other Federal awards directly from a
Federal awarding agency (see also 2 CFR § 200.92); and
r. "Terms and Conditions of the Award" is defined in the first paragraph of the Preface above.
Capitalized terms used but not otherwise defined in these Construction ST&Cs have the
meanings ascribed to them in EDA's regulations at 13 CFR §§ 300.3 ("Definitions"), 302.20
("Civil rights"), 307.8 ("Definitions"), and 314.1 ("Definitions").
4. Grant Recipient as Trustee.
The Recipient holds grant funds and any EDA-assisted Project property in trust for the purposes
for which the Award was made. The Recipient's obligation to the Federal Government continues
for the estimated useful life of the Project, as determined by EDA, during which EDA retains an
undivided equitable reversionary interest (the "Federal Interest") in property acquired or
improved, in whole or in part, with the EDA investment. See 13 CFR § 314.2
("Federal Interest").
If EDA determines that the Recipient fails or has failed to meet this obligation, the Government
may exercise any rights or remedies with respect to its Federal Interest in the Project. However,
EDA's forbearance in exercising any right or remedy in connection with the Federal Interest does
not constitute a waiver thereof.
The Recipient agrees to provide EDA with information and documentation necessary for EDA to
conduct due diligence to ensure the financial integrity and responsibility of the Recipient and key
individuals associated with the Recipient in the management or administration of this Award.
5. Reaffirmation of Application and Award Acceptance.
The Recipient acknowledges that the Recipient's Application for this Award may have been
submitted to the Government and signed by the Recipient, or by an authorized representative of
the Recipient, electronically without providing an original "wet" signature. In addition, the
Recipient, or an authorized representative of the Recipient, may have accepted the Award
electronically, which includes drawing down any funds at any time under this Award. Regardless
of who submitted the Application to the Government or the means by which the Recipient
submitted the Application or accepted the Award, the Recipient hereby reaffirms and states that:
a. All data in the Application were true and correct when the Application was submitted and
remain true and correct as of the date of this Award;
E
b. The Application was, as of the date of submission and the date of this Award, duly authorized
as required by local law by the governing body of the Recipient; and
c. The Recipient has read, understood, and will comply with all terms of this Award, including
the assurances and certifications submitted with, or attached to, the Application.
The Recipient agrees to immediately notify the Grants Officer of any material changes to the
Application within 30 calendar days of the date the Recipient becomes aware of such changes.
6. Noncompliance with Award Provisions.
Failure to comply with the provisions of this Award may be grounds for appropriate enforcement
action pursuant to 2 CFR § 200.338 ("Remedies for noncompliance"), including but not limited
to:
a. The imposition of additional Award conditions in accordance with 2 CFR § 200.207
("Specific conditions");
b. Temporarily withholding Award payments pending the correction of the deficiency;
c. The disallowance of Award costs and the establishment of an account receivable;
d. Wholly or partially suspending or terminating this Award;
e. Initiating suspension or debarment proceedings in accordance with 2 CFR parts 180
("OMB Guidelines to Agencies on Governmentwide Debarment and Suspension
(Nonprocurement)") and 1326 ("Nonprocurement Debarment and Suspension");
f. Withholding further Federal awards for the Project or program; and
g. Such other remedies as may be legally available. See also 2 CFR §§ 200.339 ("Termination")
through 200.342 ("Effects of suspension and termination").
In addition, failure to comply with the provisions of this Award may adversely impact the
availability of funding under other active EDA or Federal awards and may also have a negative
impact on the Recipient's eligibility for future EDA or other Federal awards.
B. FINANCIAL REQUIREMENTS.
1. Financial Reports.
a. During the period of performance, the Recipient shall submit financial reports as follows or
as otherwise specified in the special award conditions.
i. Reports on Award Reimbursements. In accordance with 2 CFR § 200.327 ("Financial
reporting"), the Recipient shall submit a "Federal Financial Report" (Form SF-425 or any
successor form) on a semi-annual basis for the periods ending March 31 and
September 30, or any portion thereof, unless otherwise specified in a special award
condition. Reports are due no later than 30 calendar days following the end of each
reporting period, and instructions for completing and submitting Form SF-425 will be
discussed during the Project kick-off meeting. Recipients may contact their EDA Project
Officer with questions on how to complete or submit the report, if necessary, but they are
required to submit reports on time and are encouraged to pose such questions sufficiently
10
before the deadline to allow for complete, accurate, and timely submission of required
reports.
ii. Reports on Award Advances. While EDA generally does not advance funds, when the
agency does so, the Recipient must submit Form SF-425 within 15 business days
following the end of each quarter for an award under $1 million, 15 business days
following the end of each month for an award totaling $1 million or more, or as otherwise
specified in a special award condition.
b. The Recipient must submit a final financial report using Form SF-425 within 90 calendar
days of the expiration date of the Award.
c. Noncompliance with the financial reporting requirements will result in appropriate
enforcement action under this Award, including but not limited to suspension of Award
payments or disallowance of costs.
d. Financial reports should be submitted to the Project Officer in electronic format, unless
otherwise specified in the special award conditions.
2. Disbursements.
a. Method of Payment. The Grants Officer determines the appropriate method of payment.
Unless otherwise specified in a special award condition, the method of payment under this
Award will be reimbursement. Payments will be made through electronic funds transfers
directly to the Recipient's bank account and in accordance with the requirements of the Debt
Collection Improvement Act of 1996 (31 U.S.C. § 3720B et seq.). The Award number shall
be included on all payment -related correspondence, information, and forms.
i. State Recipients. Consistent with 2 CFR § 200.305(a) ("Payment"), for States, payments
are governed by Treasury -State Cash Management Improvement Act agreements and
default procedures codified at 31 CFR part 205 ("Rules and Procedures for Efficient
Federal -State Funds Transfers") and Treasury Financial Manual Volume I, 4A-2000
("Overall Disbursing Rules for All Federal Agencies").
ii. Recipients Other than States. Consistent with 2 CFR § 200.305(b), for Recipients other
than States, payment methods must minimize the amount of time elapsing between the
transfer of funds from the U.S. Treasury or the pass -through entity and the disbursement
by the non -Federal entity.
b. Disbursement Requests. The Recipient shall use Form SF-271, "Outlay Report and Request
for Reimbursement for Construction Programs," to request reimbursement under the Award.
Substantiating invoices and/or vouchers also must be provided. Each request for the
disbursement of funds shall be made to the Project Officer. Form SF-271 can be downloaded
from OMB's website at www.whitehouse.gov/omb/grants/grants forms.html.
i. Initial Disbursement Request. For the initial disbursement only, the Recipient must
complete and submit Form SF-3881, "ACH Vendor/Miscellaneous Payment Enrollment
Form," along with Form SF-271, to the Project Officer.
ii. Interim Disbursement Requests. All requests for interim disbursement shall be submitted
using Form SF-271 and include substantiating invoices and/or vouchers.
11
iii. Final Disbursement Request. See section C.19 "Project Closeout Procedures" in these
Construction ST&Cs.
3. Federal and Non -Federal Cost Sharing.
a. For purposes of this Award, the Federal share is the amount of EDA funds invested under the
Award, while the non -Federal share, or "Matching Share," means non-EDA funds and any
in -kind contributions that are approved by EDA and provided by the Recipient or by third
parties as a condition of the Award. Awards that include a Federal and non -Federal share
incorporate an estimated budget consisting of shared allowable costs. If actual allowable
costs are less than the total approved estimated budget, the Federal share and Matching Share
shall be calculated by applying the approved Federal and non -Federal cost share ratios to
actual allowable costs. See 13 CFR §§ 305.10 ("Bid underrun and overrun") and 308.1
("Use of funds in projects constructed under projected cost"). As noted below in section BA
"Budget Revisions and Transfers of Funds Among Cost Categories" of these
Construction ST&Cs, if actual allowable costs are greater than the total approved estimated
budget, the Federal share shall not exceed the total Federal dollar amount authorized by this
Award.
b. The Matching Share, whether cash or in -kind, shall be paid out at the same general rate as
the Federal share. Exceptions to this requirement may be granted by the Grants Officer
based on sufficient documentation demonstrating previously determined plans for, or later
commitment of, cash or in -kind contributions. In any case, the Recipient must meet its non -
Federal cost share commitment over the Award period of performance; failure to do so may
result in the assignment of special award conditions or other further action as specified in
section A.6 "Noncompliance with Award Provisions" of these Construction ST&Cs.
c. The Recipient must create and maintain sufficient records justifying the required Matching
Share to facilitate questions, audits, and other inquiries necessary to meet EDA's
requirements to safeguard Federal funds, and must provide these records if requested by
EDA, auditors, or other Federal parties. See also section C.17 "Record -Keeping
Requirements" of these Construction ST&Cs. EDA may disallow undocumented costs.
See 2 CFR § 200.306 for additional requirements regarding cost sharing.
d. The Recipient shall show that the Matching Share is committed to the Project, available as
needed, and not conditioned or encumbered in any way that precludes its use consistent with
the requirements of EDA Investment Assistance. See 13 CFR § 301.5 ("Matching share
requirements").
4. Budget Revisions and Transfers of Funds Among Budget Categories.
The EDA-approved budget is the budget plan for the Project. The Recipient must notify EDA
of deviations from the budget or program plans in accordance with 2 CFR § 200.308 ("Revision
of budget and program plans"), including any change in scope of work or the objective of the
Project (even if there is no associated budget revision requiring prior written approval). If prior
written approval is not required under 2 CFR § 200.308, the Recipient may request the
Grants Officer's review of and guidance on proposed revisions to the budget.
12
a. Requests for budget revisions to the EDA-approved budget in accordance with the provisions
below must be submitted through the Project Officer to the Grants Officer, who shall make
the final determination on such requests and notify the Recipient in writing.
b. In accordance with 2 CFR § 200.308(g), EDA's prior written approval and an amendment
executed by the Grants Officer and the Recipient using Form CD-451 or any successor form
are required for budget revisions when:
i. The revision results from changes in the scope or the objective of the Project;
ii. The need arises for additional EDA funds to complete the Project;
iii. The Federal share exceeds $150,000 and the cumulative amount of transfers among
direct cost categories exceeds or is expected to exceed 10 percent of the total budget as
last approved by EDA; and
iv. A revision is desired that involves specific costs for which prior written approval
requirements may be imposed consistent with applicable cost principles listed in subpart E
of 2 CFR part 200 ("Cost Principles").
c. When an Award supports both construction and non -construction work, the Recipient must
obtain prior written approval from the Grants Officer before making any fund or budget
transfers from non -construction to construction or vice versa. See 2 CFR § 200.308(g)(5).
d. Transfers shall not be permitted if such transfers would cause any Federal appropriation, or
part thereof, to be used for purposes other than those intended. This transfer authority does
not authorize the Recipient to create new budget categories within an approved budget unless
the Grants Officer has provided prior written approval. See 2 CFR § 200.308.
e. Project Underrun Amounts. Underrun amounts shall be transferred to the contingencies line
item. Contingency funds are to be used to address situations resulting from unknown
conditions and changes required for the fulfillment of authorized activities under this Award.
EDA may approve the use of underrun funds to increase the Federal share of the Project or
further improve the Project, as long as EDA determines that the use is consistent with the
original purpose of the approved EDA investment. See 13 CFR § 308.1 ("Use of funds in
projects constructed under projected cost").
f. Additional EDA Funding in Case of Project Overrun Amounts. In accepting this Award, the
Recipient agrees to fund any overrun amounts from non -Federal sources. Additional EDA
assistance for the Project may not be approved.
5. Indirect Costs and Facilities and Administrative Costs.
a. Indirect costs, or facilities and administrative ("F&A") costs for educational institutions, are
generally not applicable under this Award. See the definition of indirect costs at
2 CFR § 200.56 ("Indirect (facilities & administrative (F&A)) costs").
b. When indirect costs are applicable, they will not be allowable charges against the Award
unless approved under the Award and specifically included as a line item in the Award's
approved budget.
c. Excess indirect costs may not be used to offset unallowable direct costs.
13
d. Under 2 CFR § 200.306(c) ("Cost sharing or matching"), unrecovered indirect costs,
including indirect costs on cost sharing or matching, may be included as part of cost sharing
or matching only with the prior written approval of EDA.
e. Cognizant Agency for Indirect (F&A) Costs. OMB established the cognizant agency concept,
under which a single agency represents all others in dealing with Recipients in common
areas, including reviewing and approving indirect cost rates applicable to Federal grants.
i. Determining the Cognizant Agency for Non -Commercial Organizations. In accordance
with 2 CFR § 200.19 ("Cognizant agency for indirect costs"), the cognizant agency for
indirect costs is the Federal agency responsible for reviewing, negotiating, and approving
cost allocation plans or indirect cost proposals on behalf of all Federal agencies.
Approved rates must be accepted by other agencies, unless a Federal statute or regulation
requires use of a different rate or a Federal agency awarding head or delegate approves a
different rate in accordance with 2 CFR § 200.414(c) ("Indirect (F&A) costs").
If indirect costs are permitted, but the Recipient has not previously established an
indirect cost rate with a Federal agency, the Recipient may consult Appendices III—VII to
2 CFR part 200 for information on determining the relevant cognizant agency and
developing and submitting indirect (F&A) cost rate proposals and cost allocation plans:
(1) Appendix III to 2 CFR part 200 — Indirect (F&A) Costs Identification and
Assignment, and Rate Determination for Institutions of Higher Education (IHEs);
(2) Appendix IV to 2 CFR part 200 — Indirect (F&A) Costs Identification and
Assignment, and Rate Determination for Nonprofit Organizations;
(3) Appendix V to 2 CFR part 200 — State/Local Government and Indian Tribe -Wide
Central Service Cost Allocation Plans;
(4) Appendix VI to 2 CFR part 200 — Public Assistance Cost Allocation Plans; and
(5) Appendix VII to 2 CFR part 200 — States and Local Government and Indian Tribe
Indirect Cost Proposals.
ii. General Review Procedures When DOC Is the Cognizant Agency.
(1) Within 90 days of the Award start date the Recipient shall submit to the Grants Officer
any documentation (indirect cost proposal, cost allocation plan, etc.) necessary to
allow the agency to perform the indirect cost rate proposal review.
(2) The Recipient may use the fixed rate proposed in the indirect cost plan as a provisional
rate until DOC provides a response to the submitted plan.
iii. When DOC Is Not the Oversight or Cognizant Agency. When the cognizant Federal
agency is not DOC, the non -Federal entity shall provide the Grants Officer with a copy of
a negotiated rate agreement or a copy of the transmittal letter submitted to the cognizant or
oversight Federal agency requesting a negotiated rate agreement.
f. If the Recipient entity fails to submit required documentation to DOC within 90 days of the
Award start date, the Grants Officer may amend the Award to preclude the recovery of any
indirect costs under the Award. If the DOC, oversight, or cognizant Federal agency
determines there is a finding of good and sufficient cause to excuse the Recipient's delay in
14
submitting the documentation, an extension of the 90-day due date may be approved by the
Grants Officer.
g. The maximum dollar amount of allocable indirect costs for which DOC will reimburse the
recipient shall be the lesser of:
i. The line item amount for the Federal share of indirect costs contained in the approved
Award budget, including all budget revisions approved in writing by the Grants Officer;
or
ii. The Federal share of the total indirect costs allocable to the Award based on the indirect
cost rate approved by the cognizant agency for indirect costs and applicable to the period
in which the cost was incurred, provided that the rate is approved on or before the Award
end date.
h. In accordance with 2 CFR § 200.414(g) ("Indirect (F&A) costs"), any Recipient that has a
negotiated indirect cost rate may apply to the entity's cognizant agency for indirect costs for a
one-time extension of a currently negotiated indirect cost rate for a period of up to four years,
reducing the frequency of rate calculations and negotiations between an institution and its
cognizant agency.
i. Any Recipient that has never received a negotiated indirect cost rate, except for those
Recipients described in Paragraph D.1.b of Appendix VII to 2 CFR part 200 (specifically, a
governmental department or agency that receives more than $35 million in direct Federal
funding), may elect to charge a de minimis rate of 10 percent of modified total direct costs.
See 2 CFR § 200.414(f).
6. Incurring Costs Prior to Award.
Project activities carried out prior to EDA's approval of this Award shall be carried out at the
sole risk of the Recipient. Such activity may result in the rejection of the Application, the
disallowance of costs, or other adverse consequences as a result of noncompliance with EDA or
Federal law, including but not limited to procurement requirements, civil rights requirements,
Federal labor standards, or environmental and historic preservation requirements. The
Grants Officer must authorize pre -award costs in writing, and such costs must also be allowable
under relevant Federal cost principles and the specific Award terms and be included in the
EDA approved budget. Pre -award costs not included in the authorized budget are not allowable
and may not be reimbursed. See 13 CFR § 302.8 ("Pre -approval Investment Assistance costs").
7. Incurring Costs or Obligating Federal Funds Beyond the Project Expiration Date.
a. The Recipient shall not incur costs or obligate funds for any purpose pertaining to the Project,
program, or activities beyond the authorized period of performance documented in the Award
agreement, unless a written time extension of this Award is granted by the Grants Officer.
The only costs that are authorized for a period of up to 90 calendar days following the end
date of the period of performance are those strictly associated with Closeout activities.
Closeout activities are generally limited to the preparation of final progress, financial, and
required Project audit reports unless otherwise approved in writing by the Grants Officer.
The Grants Officer may approve extensions of the 90 calendar -day Closeout period upon a
request by the Recipient as provided in 2 CFR § 200.343 ("Closeout"), as applicable.
15
b. The Recipient shall adhere to the development time schedule and time limits set out in the
special award conditions if they differ from those provided in these Construction ST&Cs.
c. Neither DOC nor EDA has any obligation to provide any additional prospective funding.
Any amendment of the Award to increase funding and to extend the period of performance
is at the sole discretion of DOC and/or EDA.
8. Time Extensions.
a. Unless otherwise authorized in 2 CFR § 200.308 ("Revision of budget and program plans"),
or a special award condition, any extension of the period of performance can only be
authorized by the Grants Officer in writing. A verbal or written assurance of funding from
other than the Grants Officer, including Regional Office staff other than the Grants Officer,
does not constitute authority to obligate funds for programmatic activities beyond the
expiration date of the period of performance.
b. The Recipient is responsible for implementing the Project in accordance with the
development time schedule contained in this Award. As soon as the Recipient becomes aware
that it will not be possible to meet the development time schedule, the Recipient must notify
the Grants Officer. The Recipient's notice to EDA must contain the following:
i. An explanation of the Recipient's inability to complete work by the specified date (e.g., a
lengthy period of unusual weather delayed the contractor's ability to excavate the site,
major re -engineering required in order to obtain State or Federal approvals, unplanned
environmental mitigation required);
ii. A statement that no other changes to the Project are contemplated;
iii. Documentation that demonstrates there is still a bona fide need for the Project; and
iv. A statement that no further delay is anticipated and that the Project can be completed
within the revised time schedule.
EDA reserves the right to withhold disbursements while the Recipient is not in compliance
with the time schedule and to suspend or terminate this Award if the Recipient fails to
proceed with reasonable diligence to accomplish the Project as intended.
9. Tax Refunds.
Refunds of Federal Insurance Contributions Act ("FICA") or Federal Unemployment Tax Act
("FUTA") taxes received by the Recipient during or after the period of performance must be
refunded or credited to DOC where the benefits were financed with Federal funds under the
Award. The Recipient agrees to contact the Grants Officer 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
period of performance.
10. Program Income.
For Projects that generate rental revenue (e.g., buildings or real property constructed or improved
for the purpose of renting or leasing space), the Recipient agrees, for the estimated useful life (as
16
determined by EDA) of the EDA-assisted facility, to use such income generated from the rental
or lease of any Project facility in the following order of priority:
a. Administration, operation, maintenance, and repair of Project facilities in a manner consistent
with good property management practice and in accordance with established building codes.
This includes, where applicable, repayment of indebtedness resulting from any
EDA approved encumbrance (e.g., approved mortgage) on the EDA-assisted facility.
b. Economic development activities that are authorized for support by EDA, provided such
activities meet the economic development purposes of PWEDA.
c. Any income in excess of paragraphs a. and b. of this section must be deducted from total
allowable Project costs in accordance with 2 CFR § 200.307(e).
See 2 CFR § 200.307 ("Program income")
C. PROGRAMMATIC REQUIREMENTS.
1. Project Progress and Performance Reporting.
a. Project progress reports must be submitted in accordance with the procedures set out in
2 CFR § 200.328 ("Monitoring and reporting program performance"), as applicable, and as
indicated below. Failure to submit required reports in a timely manner may result in the
withholding of payments under this Award; deferral of processing of new awards,
amendments, or supplemental funding pending the receipt of the overdue reports; or the
establishment of an account receivable for the difference between the total Federal share of
outlays last reported and the amount disbursed. See 13 CFR § 302.18 ("Post -approval
requirements").
b. Unless otherwise specified in this Award, the Project progress report will contain the
following information for each Project program, function, or activity:
i. A comparison of planned and actual accomplishments according to the timetable or list
of Project objectives in this Award;
ii. An explanation of any delays or failures to meet the Project timetable or Project goals;
and
iii. Any other pertinent information including, when appropriate, analysis and explanation
of cost overruns or high unit costs.
Project progress reports shall be submitted for each calendar quarter to the Project Officer.
Each Project progress report must be submitted in accordance with the deadlines outlined in
the special award conditions, or, where not otherwise specified, Project progress reports will
be due on a quarterly basis not later than January 31, April 30, July 31, and October 31 for
the immediate previous quarter. The final Project progress report shall be submitted to EDA
no more than 90 calendar days after the Project Closeout date. This reporting requirement
begins with the Recipient's acceptance of this Award and ends when EDA approves Project
Closeout.
The Recipient shall submit quarterly Project progress reports to the EDA Project Officer
electronically unless otherwise specified in the special award conditions.
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2. Reporting on Real Property.
The Recipient must submit reports (using Form SF-429 "Real Property Status Report" or any
successor form) at least annually on the status of real property in which EDA retains an interest,
unless the Federal interest in the real property extends 15 years or longer. When EDA's interest
extends for a period of 15 years or more, EDA, at its option, may require the Recipient to report
at various multi -year frequencies (e.g., every two years or every three years, not to exceed a
five-year reporting period; or annual reporting for the first three years of the Award and
thereafter every five years). See 2 CFR § 200.329 ("Reporting on real property") and
section L.3.h "EDA's Interest in Award Property" of these Construction ST&Cs.
3. Interim Reporting of Significant Project Developments.
The Recipient must report any event that will or may have a significant impact upon the Project,
including delays or adverse conditions that materially may affect the ability of the Recipient to
attain Project objectives within established time periods or meet the development time schedule.
The Recipient should report such events to the Project Officer in the most time -expedient way
possible and then, if the initial report was not in writing, report the event to the Project Officer in
writing. Such a report shall include a statement of the event or issue, a statement of the course of
action taken or contemplated to resolve the matter, and any Federal assistance needed to resolve
the situation. If budget changes are required, the Recipient must submit a written budget revision
request. See 2 CFR § 200.328(d) ("Monitoring and reporting program performance").
4. Government Performance and Results Act Reporting.
In addition to quarterly Project progress reports, EDA may require the Recipient to report on
Project performance beyond the Project Closeout date for Government Performance and Results
Act ("GPRA") purposes. In no case shall the Recipient be required to submit any report more
than ten years after the Project Closeout date. Data used by the Recipient in preparing reports
shall be accurate and, whenever possible, from independent sources. See 13 CFR § 302.16
("Accountability").
5. Unsatisfactory Performance.
Failure to perform the work in accordance with the Terms and Conditions of the Award and
maintain at least satisfactory performance may result, at EDA's discretion, in the assignment of
additional award conditions pursuant to 2 CFR § 200.207 ("Specific conditions") or other
appropriate enforcement actions as specified in 2 CFR § 200.338 ("Remedies for
noncompliance"). See also section A.6 "Noncompliance with Award Provisions" of these
Construction ST&Cs.
6. Programmatic Changes.
a. In accordance with 2 CFR § 200.308 ("Revisions of budget and program plans"), the
Recipient shall report programmatic changes, including all changes to the scope of the
Award, to the Project Officer. In accordance with section B.4 "Budget Revisions and
Transfers of Funds Among Budget Categories" of these Construction ST&Cs, certain budget
revisions require the prior written approval of EDA. In these cases, the Project Officer will
18
forward the request to the Grants Officer, who makes the final decision on approving the
request. In addition, the Recipient shall request prior written approvals for certain items of
cost in accordance with 2 CFR § 200.407 ("Prior written approval (prior approval)").
b. Any changes made to the Project without EDA's approval are made at the Recipient's risk of
nonpayment of costs, suspension, termination, or other EDA action with respect to the
Award. See 13 CFR § 302.7(b) ("Amendments and changes").
c. Contract Change Orders. After construction contracts for the Project have been executed, it
may become necessary to alter them, which requires a formal contract change order that must
be issued by the Recipient and accepted by the contractor. All contract change orders must be
reviewed by EDA, even if EDA is not participating in the cost of the change order or the
contract price is to be reduced. Work on the Project may continue pending EDA review and
approval of the change order, but all such work shall be at the Recipient's risk as to whether
the cost of the work is eligible for EDA participation until the Recipient receives EDA's
written approval for the change order. See 13 CFR § 305.13 ("Contract change orders").
7. Other Federal Awards with Similar Programmatic Activities.
The Recipient shall immediately notify the Project Officer and the Grants Officer in writing if,
after receipt of this Award, other financial assistance is received to support or fund any portion
of the scope of work incorporated into this Award. EDA will not pay for costs that are funded by
other sources.
8. Beneficiary Compliance.
In the event a beneficiary of the Project fails to comply in any manner with certifications,
assurances, or agreements that such beneficiary has entered into in accordance with EDA's
requirements, the Recipient will reimburse the Government the Award amount or an amount to
be determined by the Government pursuant to 13 CFR §§ 314.4 ("Unauthorized use of
property") and 314.5 ("Federal share"). Where the Government determines that the failure of a
beneficiary to comply with EDA requirements affects a portion of the property benefited by the
Award, the Recipient will reimburse the Government proportionately.
9. Prohibition Against Assignment by the Recipient.
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, banks, trust companies, or other
financing or financial institutions without the express prior written approval of the Grants
Officer, which approval may be provided in a special award condition.
10. Disclaimer Provisions; Hold Harmless Requirement.
a. The United States expressly disclaims any and all responsibility or liability to the Recipient,
subrecipient, or third persons for the actions of the Recipient, subrecipient, or third persons
resulting in death, bodily injury, property damages, or any other losses resulting in any way
from the performance of this Award or any subaward or subcontract under this Award.
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b. The acceptance of this Award or any subaward by the Recipient or subrecipient does not in
any way constitute an agency relationship between the United States and the Recipient or
subrecipient.
c. To the extent permitted by law, 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, in the 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
water, soil, or other conditions caused by operations of the Recipient or any of its
predecessors (other than the Government or its agents) on the property. See 13 CFR § 302.19
("Indemnification").
11. Prohibition on Use of Third Parties to Secure Award.
Unless otherwise specified in the special award conditions to this 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 this
warrant, the Government has the right to annul this Award without liability, or at its discretion, to
deduct from the Award sum, or otherwise recover, the full amount of such commission,
percentage, brokerage, or contingent fee.
12. Payment of Attorneys' or Consultants' Fees.
No Award funds shall be used, directly or indirectly, to reimburse attorneys' or consultants' fees
incurred in connection with obtaining Investment Assistance under PWEDA, such as, for
example, preparing the Application for EDA Investment Assistance. However, ordinary and
reasonable attorneys' and consultants' fees incurred for meeting Award requirements
(e.g., conducting a title search or preparing plans and specifications) may be eligible Project
costs and may be paid out of Award funds, provided such costs are otherwise eligible.
See 13 CFR § 302.10 ("Attorneys' and consultants' fees, employment of expediters, and
post -employment restriction").
13. Recipient's Duty to Refrain from Employing Certain Government Employees.
a. Pursuant to section 606(2) of PWEDA (42 U.S.C. § 3216), for the two-year period beginning
on the date EDA executes this Award, any Recipient that is a nonprofit organization, District
Organization, or for -profit entity agrees that it will not employ, offer any office or
employment to, or retain for professional services any person who:
i. On the date the Government executes this Award or within the one-year period ending on
that date, served as an officer, attorney, agent, or employee of the Department, and
ii. Occupied a position or engaged in activities that the Assistant Secretary determines
involved discretion with respect to the awarding of Investment Assistance under
PWEDA.
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b. In addition to the types of Recipients noted in paragraph a above, EDA may require another
Eligible Applicant to execute an agreement to abide by the above -described
post -employment restriction on a case -by -case basis —for example, when an institution of
higher education implements activities under or related to the Investment Assistance through
a separate nonprofit organization or association.
c. The two-year period and associated restrictions referenced above also shall apply beginning
on the date that EDA executes any cost amendment to this Award that provides additional
funds to the Recipient.
See also 13 CFR § 302.10 ("Attorneys' and consultants' fees, employment of expediters, and
post -employment restriction").
14. Commencement of Construction and Project Sign.
a. Delayed Construction Starts. If significant construction (as determined by EDA) is not
commenced within two years of the Award date or by the date estimated for start of
construction in this Award (or the expiration of any extension granted in writing by EDA),
whichever is later, this Award will be automatically suspended and may be terminated if
EDA determines, after consultation with the Recipient, that construction to completion
cannot reasonably be expected to proceed promptly and expeditiously.
b. Early Construction Starts. The Recipient shall make a written request to EDA for early
construction start permission (that is, after the date of Award, but before EDA gives formal
approval for construction to commence). For Project costs to be eligible for EDA
reimbursement, EDA must determine that the award of all contracts necessary for design and
construction of the Project facilities is in compliance with the Terms and Conditions of this
Award. If construction commences prior to EDA's determination, the Recipient proceeds at
its own risk until EDA's review and concurrence. See 13 CFR § 305.11 ("Contract awards;
early construction start").
c. Project Sign. The Recipient is responsible for constructing, erecting, and maintaining in
good condition throughout the construction period a sign (or signs) in a conspicuous place at
the Project site indicating that the Federal Government is participating in the Project. EDA
will provide specifications for the sign and may require more than one sign if site conditions
so warrant. If the EDA-recommended sign specifications conflict with State or local law, the
Recipient may modify such recommended specifications so as to comply with State or local
law. See 13 CFR § 305.12 ("Project sign").
15. Efficient Administration of Project.
The Recipient agrees to properly and efficiently administer, operate, and maintain the Project for
its estimated useful life, as required by section 504 of PWEDA (42 U.S.C. § 3194). If the
Government determines, at any time during the estimated useful life of the facility, that the
Project is not being properly and efficiently administered, operated, and maintained, the
Government may terminate this Award (if it is still active) and/or may take appropriate
enforcement action to protect the Federal Interest in the Project, including requiring the
Recipient to repay the Federal Share. See 13 CFR §§ 302.12 ("Project administration, operation
and maintenance"), 302.18 ("Post -approval requirements"), and 314.2 ("Federal interest")
through 314.5 ("Federal share").
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16. Conflicts -of -Interest Rules.
a. An "Interested Party" is defined in 13 CFR § 300.3 ("Definitions") as "any officer,
employee, or member of the board of directors or other governing board of the Recipient,
including any other parties that advise, approve, recommend, or otherwise participate in the
business decisions of the Recipient, such as agents, advisors, consultants, attorneys,
accountants, or shareholders." An Interested Party includes the Interested Party's
"Immediate Family" (defined in 13 CFR § 300.3 as "a person's spouse (or domestic partner
or significant other), parents, grandparents, siblings, children and grandchildren, but does not
include distant relatives, such as cousins, unless the distant relative lives in the same
household as the person") and other persons directly connected to the Interested Party by
law or through a business organization.
b. The Recipient must disclose in writing any potential conflicts of interest to EDA or the
pass -through entity. In addition, the Recipient must maintain written standards of conduct to
establish safeguards to prohibit an Interested Party from using its position for a purpose that
constitutes or presents the appearance of personal or organizational conflicts -of -interest or of
personal gain in the administration of an award. See 13 CFR § 302.17(a) and (b) ("Conflicts
of interest"), 2 CFR § 200.112 ("Conflict of interest"), as applicable, and Forms SF-424B
("Assurances — Non -Construction Projects") and SF-424D ("Assurances — Construction
Projects").
c. An Interested Party must not receive any direct or indirect financial or personal interests or
benefits in connection with this Award or its use for payment or reimbursement of costs by or
to the Recipient. A financial interest or benefit may include employment, stock ownership, a
creditor or debtor relationship, or prospective employment with the organization selected or
to be selected for a subaward. An appearance of impairment of objectivity could result from
an organizational conflict where, because of other activities or relationships with other
persons or entities, a person is unable or potentially unable to render impartial assistance,
services, or advice. It also could result from non -financial gain to the individual, such as
benefit to reputation or prestige in a professional field. See 13 CFR § 302.17(a) and (b).
d. Procurement -related conflicts of interest. In addition, in accordance with 2 CFR § 200.318(c)
("General procurement standards"), the Recipient must maintain written standards of conduct
covering conflicts of interest and governing the performance of its employees engaged in the
selection, award, and administration of contracts. See 2 CFR §§ 200.317-200.326
("Procurement Standards").
17. Record -Keeping Requirements.
a. Records. The Recipient must maintain records that document compliance with the Terms and
Conditions of this Award. At a minimum, the Recipient's records must fully disclose:
i. The amount and disposition of EDA investment assistance;
ii. All Project expenditures and procurement actions;
iii. The total cost of the Project that the Award funds;
iv. Copies of all reports and disbursement requests submitted to EDA;
22
v. The benefits/impacts of the Project, as reported through GPRA and other reports to
EDA;
vi. The amount and nature of the portion of Project costs provided by non-EDA sources;
vii. Contractor compliance with applicable Federal requirements; and
viii. Such other records as EDA determines will facilitate an effective audit.
b. Records Retention. In general and in accordance with 2 CFR § 200.333 ("Retention
requirements for records"), all records pertinent to this Award must be retained for a period
of three years from the date of submission of the final Project expenditure report (the final
Form SF-271 for disbursement). The only exceptions are the following:
i. If any litigation, claim, or audit is started before the expiration of the three-year period,
the records shall be retained until all litigation, claims, or audit findings involving the
records have been resolved and final actions taken.
ii. When the Recipient is notified in writing by EDA, the cognizant agency for either audit
or indirect costs, the oversight agency for audit, or the relevant pass -through entity to
extend the retention period, it must retain the records as directed.
iii. Records for real property and equipment acquired with Federal funds must be retained
for three years after final disposition of the relevant real property or equipment.
iv. When records are transferred or maintained by EDA, the three-year retention
requirement is not applicable to the Recipient.
v. Records for program income transactions after the period of performance. In some cases
Recipients must report program income after the period of performance. Where there is
such a requirement, the retention period for the records pertaining to the earning of the
program income starts from the end of the Recipient's fiscal year in which the program
income is earned.
vi. Indirect cost rate proposals and cost allocations plans. This paragraph applies to the
following types of documents and their supporting records: indirect cost rate
computations or proposals, cost allocation plans, and any similar accounting
computations of the rate at which a particular group of costs is chargeable (such as
computer usage chargeback rates or composite fringe benefit rates).
(1) If submitted for negotiation. If the proposal, plan, or other computation is required to
be submitted to the Federal Government (or to the pass -through entity) to form the
basis for negotiation of the rate, then the three-year retention period for its supporting
records starts from the date of such submission.
(2) If not submitted for negotiation. If the proposal, plan, or other computation is not
required to be submitted to the Federal Government (or to the pass -through entity) for
negotiation purposes, then the three-year retention period for the proposal, plan, or
computation and its supporting records starts from the end of the fiscal year (or other
accounting period) covered by the proposal, plan, or other computation.
c. Monitoring and Reporting Obligations. The Recipient is responsible for monitoring any
subrecipients and contractors to ensure their compliance with the records retention
requirements. The Recipient must immediately notify the Project Officer if records are lost,
23
destroyed, or are otherwise no longer available, or if the Recipient anticipates that it will not
be able to comply with the record retention requirements under the Award for the general
retention periods noted above. See 13 CFR § 302.14 ("Records"), as applicable.
18. Termination Actions.
a. In accordance with 2 CFR § 200.339 ("Termination"), this Award may be terminated in
whole or in part as follows:
i. Termination by EDA for the Recipient's Failure to Comply with the Terms and
Conditions of the Award. EDA may terminate this Award, in whole or in part, if the
Recipient fails to comply with the Terms and Conditions of the Award, including if:
(1) Any representation made by the Recipient to the Federal awarding agency in
connection with the Application for Federal assistance is incorrect or incomplete in
any material respect;
(2) The Project has changed substantially, without EDA approval, so as to affect
significantly the accomplishment of the Project as intended (including an
unauthorized use of property as provided in 13 CFR § 314.4 ("Unauthorized use of
property"));
(3) The Recipient has violated commitments it made in its Application and supporting
documents or has violated any of the Terms and Conditions of the Award;
(4) The conflicts -of -interest rules at 13 CFR § 302.17 ("Conflicts of interest") are
violated; or
(5) The Recipient fails to report immediately to the Federal awarding agency any change
of authorized representative acting in lieu of or on behalf of the Recipient.
ii. Termination by EDA for Cause. EDA may terminate this Award for cause if required by a
circumstance beyond EDA's control, such as a Congressional mandate.
iii. Termination by the Recipient. The Recipient may terminate this Award in whole or in
part upon sending the EDA Grants Officer written notification setting forth the reasons
for such termination, the effective date, and, in the case of partial termination, the portion
to be terminated. However, if EDA determines in the case of partial termination that the
reduced or modified portion of the EDA Award will not accomplish the purposes for
which the EDA Award was made, EDA may terminate the Award in its entirety.
iv. Termination Upon Mutual Agreement. EDA and the Recipient may mutually agree to
terminate this Award in whole or in part. In such cases, EDA and the Recipient must agree
upon the termination conditions, including the effective date and, in the case of partial
termination, the portion to be terminated.
b. If the Award is wholly or partially terminated, the Recipient remains responsible for
compliance with the requirements in 2 CFR §§ 200.343 ("Closeout") and 200.344
("Post -closeout adjustments and continuing responsibilities").
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19. Project Closeout Procedures.
As noted above in section C.15 "Efficient Administration of Project" of these
Construction ST&Cs, after construction is completed and the Project is closed out financially, the
Recipient has an ongoing responsibility to properly administer, operate, and maintain the Project
for its estimated useful life (as determined by EDA) in accordance with its original purpose.
See 13 CFR § 302.12 ("Project administration, operation and maintenance"). The Recipient must
comply with all Award requirements and maintain records to document such compliance, which
shall be made available for inspection by EDA or other Government officials as required.
a. Final Disbursement. When Project construction and final inspection have been completed,
or substantially completed as determined by EDA, and the Recipient has accepted the
Project from the contractor, the Recipient can begin the Closeout process by submitting the
following documentation to EDA:
i. A request for final disbursement on an executed Form SF-271;
ii. A written certification that all costs charged against this Award (Federal and non -Federal
shares) are for eligible activities and represent allowable costs, for which there is
documentation in the Recipient's records;
iii. An executed certificate of final acceptance signed by the Recipient and the Recipient's
architect/engineer;
iv. The Recipient's certification that its currently valid single or program -specific audit in
accordance with subpart F of 2 CFR part 200 ("Audit Requirements"), if applicable, does
not contain any material findings (if the Recipient's currently valid audit does contain
material findings, the Recipient shall submit the applicable audit preferably via e-mail to
the Project Officer, who will review with the Grants Officer);
v. The Recipient's certification that its currently valid audit (in accordance with subpart F of
2 CFR part 200), if applicable, has been submitted to the Federal Audit Clearinghouse;
and
vi. Other documentation as may be required by EDA.
EDA shall advise the Recipient of costs determined to be allowable and unallowable. If a
balance of this Award is due to the Recipient, the balance will be paid by wire transfer. If the
Recipient has received an amount in excess of the amount due the Recipient, the Recipient
must refund the excess to EDA. The Recipient shall contact the Project Officer for refund
instructions.
As noted above, if the Recipient's currently valid audit completed pursuant to subpart F of
2 CFR part 200 contains material findings, the Recipient shall submit the audit, preferably via
e-mail, to the Project Officer, who will review with the Grants Officer before final
disbursement. If e-mail is unavailable, the Recipient may submit a hardcopy version of the
audit to the Project Officer.
b. The Recipient shall submit, within 90 calendar days after the Project Closeout date, all
financial, performance, and other reports as required by the Terms and Conditions of this
Award. The Grants Officer may extend the 90 calendar day Closeout period upon a written
request from the Recipient.
25
c. As required under GPRA and in accordance with a schedule that will be provided by EDA,
the Recipient must submit additional Performance Measurement Reports, generally three,
six, and nine years after the date of the Award to accurately and completely report the
impacts of the Project, especially in terms of job creation and private investment leveraging.
d. Unless EDA authorizes an extension, the Recipient shall liquidate all obligations incurred
under this Award no later than 90 calendar days after acceptance of the Project from the
contractor or within 90 calendar days of the expiration date of this Award, whichever occurs
earlier.
e. In accordance with 2 CFR § 200.344 "Post -closeout adjustments and continuing
responsibilities," the Closeout of this Award does not affect any of the following:
i. The right of EDA to disallow costs and recover funds on the basis of a later audit or other
Project review;
ii. The Recipient's obligation to return any funds due as a result of later corrections or other
transactions;
iii. Audit requirements per subpart F of 2 CFR part 200; and
iv. Requirements for property management and disposition, records retention, and
performance measurement reports. See subpart D of 2 CFR part 200 ("Post Federal
Award Requirements"), as applicable.
20. Freedom of Information Act.
EDA is responsible for meeting its Freedom of Information Act ("FOIA") (5 U.S.C. § 552)
responsibilities for its records. DOC regulations at 15 CFR part 4 set forth the requirements and
procedures that EDA must follow in order to make the requested material, information, and
records publicly available. Unless prohibited by law and to the extent required under the FOIA,
contents of Applications and other information submitted by applicants and Recipients may be
released in response to a FOIA request. The Recipient should be aware that EDA may make
certain Application and other submitted information publicly available. Accordingly, as set forth
in 15 CFR § 4.9, the Recipient should identify in its Application any "business information" it
believes to be protected from disclosure pursuant to 5 U.S.C. § 552(b)(4).
D. ADDITIONAL REQUIREMENTS RELATING TO CONSTRUCTION PROJECTS.
The Recipient and any subrecipients must, in addition to other statutory and regulatory requirements
detailed in these Construction ST&Cs and the assurances made to EDA in connection with the
Award, 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 (and the regulations issued thereunder), executive orders,
OMB circulars, Uniform Guidance, and local law requirements.
1. The Davis -Bacon Act, as amended (40 U.S.C. §§ 3141-3144, 3146, 3147; 42 U.S.C. § 3212),
which requires minimum wages for mechanics and laborers employed on Federal Government
public works projects to be based on the wages that the Secretary of Labor determines to be
prevailing for the corresponding classes of laborers and mechanics employed on projects of a
character similar to the contract work in the civil subdivision of the State in which the Project is
to be performed, or in the District of Columbia if the Project is to be performed there.
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2. The Contract Work Hours and Safety Standards Act, as amended
(40 U.S.C. §§ 3701-3708), which provides work hour standards for every laborer and mechanic
employed by any contractor or subcontractor in the performance of a Federal public works
project.
3. The National Historic Preservation Act of 1966, as amended (54 U.S.C. § 300101 et seq.),
and the Advisory Council on Historic Preservation Guidelines (36 CFR part 800), which
require stewardship of historic properties in projects involving Federal funds.
4. The Historical and Archeological Data Preservation Act of 1974, as amended
(16 U.S.C. § 469a-1 et seq.), which requires appropriate surveys and preservation efforts if a
Federally licensed project may cause irreparable loss or destruction of significant scientific,
prehistorical, historical, or archeological data.
5. The Architectural Barriers Act of 1968, as amended (42 U.S.C. § 4151 et seq.), and the
regulations issued thereunder, which prescribe standards for the design and construction of any
building or facility intended to be accessible to the public or that may house handicapped
employees.
6. The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended (42 U.S.C. § 4601 et seq.), and implementing regulations issued at 49 CFR part 24
("Uniform Relocation Assistance and Real Property Acquisition for Federal and Federally
Assisted Programs"), which establish uniform policies for the fair and equitable treatment of
persons, businesses, or farm operations affected by the acquisition, rehabilitation, or demolition
of real property acquired for a project financed wholly or in part with Federal financial
assistance.
7. The Energy Conservation and Production Act (42 U.S.C. § 6834 et seq.), which establishes
energy efficiency performance standards for the construction of new residential and commercial
structures undertaken with Federal financial assistance.
8. Compliance with Local Construction Requirements. The Recipient will comply with current
local building codes, standards, and other requirements applicable to the Project.
E. NONDISCRIMINATION REQUIREMENTS.
No person in the United States shall, on the ground of race, color, national origin, handicap, age,
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.
1. Statutory Provisions.
a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) and DOC
implementing regulations published at 15 CFR part 8 ("Nondiscrimination in Federally
Assisted Programs of the Department of Commerce —Effectuation of Title VI of the Civil
Rights Act of 1964"), which prohibit discrimination on the grounds of race, color, or national
origin under programs or activities receiving Federal financial assistance. See the
Department's Title VI compliance provisions at 15 CFR §§ 8.7 ("Cooperation, compliance
reports and reviews and access to records") through 8.15 ("Effect on other laws;
supplementary instructions; coordination").
27
b. Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.), which prohibits
discrimination on the basis of sex under Federally assisted education programs or activities.
c. Pub. L. No. 92-65, 42 U.S.C. § 3123, which proscribes discrimination on the basis of sex in
EDA assistance provided under PWEDA; Pub. L. No. 94-369, 42 U.S.C. § 6709, which
proscribes discrimination on the basis of sex under the Local Public Works Program; and the
Department's implementing regulations at 15 CFR §§ 8.7 ("Cooperation, compliance reports
and reviews and access to records") -8.15 ("Effect on other laws; supplementary instructions;
coordination").
d. The Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA), which
prohibits discrimination on the basis of disability under programs, activities, and services
provided or made available by State and local governments or instrumentalities or agencies
thereof, as well as public or private entities that provide public transportation.
e. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), and DOC
implementing regulations published at 15 CFR part 8b ("Prohibition of Discrimination
Against the Handicapped in Federally Assisted Programs Operated by the Department of
Commerce"), which prohibit discrimination on the basis of handicap under any program or
activity receiving or benefiting from Federal assistance.
For purposes of complying with the accessibility standards set forth in 15 CFR § 8b.18(c)
("New construction"), Recipients must adhere to the regulations, published by the
U.S. Department of Justice, implementing Title II of the Americans with Disabilities Act
("ADA") (28 CFR part 35 ("Nondiscrimination on the Basis of Disability in State and Local
Government Services"); 75 Fed. Reg. 56164, as amended by 76 Fed. Reg. 13285) and Title
III of the ADA (28 CFR part 36 ("Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities"); 75 Fed. Reg. 56236, as amended by
76 Fed. Reg. 13286). The revised regulations adopted new enforceable accessibility
standards called the "2010 ADA Standards for Accessible Design" (2010 Standards), which
replace and supersede the former Uniform Federal Accessibility Standards for new
construction and alteration projects.
f. The Age Discrimination Act of 1975, as amended (42 U.S.C. § 6101 et seq.) and DOC
implementing regulations published at 15 CFR part 20 ("Nondiscrimination on the Basis of
Age in Programs or Activities Receiving Federal Financial Assistance"), which prohibit
discrimination on the basis of age in programs or activities receiving Federal financial
assistance.
g. Other applicable Federal statutes, regulations, and executive orders, and other applicable
nondiscrimination laws.
2. Other Provisions.
a. Parts II and III of Executive Order 11246 (30 Fed. Reg. 12319, 1965), as amended by
Executive Orders 11375 (32 Fed. Reg. 14303, 1967) and 12086 (43 Fed. Reg. 46501, 1978),
requiring Federally assisted construction contracts to include the nondiscrimination
provisions of sections 202 and 203 of that Executive Order and Department of Labor
regulations implementing Executive Order 11246 (41 CFR § 60-1.4(b) ("Equal Opportunity
Clause"), 1991).
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b. Executive Order 13166 (August 11, 2000), "Improving Access to Services for Persons With
Limited English Proficiency," requiring Federal agencies to examine the services provided,
identify any need for services to those with limited English proficiency ("LEP"), and
develop and implement a system to provide those services so that LEP persons can have
meaningful access to them. The DOC issued policy guidance on March 24, 2003 ("Guidance
to Federal Financial Assistance Recipients on the Title VI Prohibition Against National
Origin Discrimination Affecting Limited English Proficient Persons", 68 Fed. Reg. 14180) to
articulate the Title VI prohibition against national origin discrimination affecting LEP
persons and to help ensure that Recipients provide meaningful access to their LEP applicants
and beneficiaries.
3. Title VII Exemption for Religious Organizations.
Generally, Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) provides that it
shall be an unlawful employment practice for an employer to discharge any individual or
otherwise discriminate against an individual with respect to compensation, terms, conditions, or
privileges of employment because of such individual's race, color, religion, sex, or national
origin. However, Title VII, 42 U.S.C. § 2000e-1(a), expressly exempts from the prohibition
against discrimination on the basis of religion, a religious corporation, association, educational
institution, or society with respect to the employment of individuals of a particular religion to
perform work connected with the carrying on by such corporation, association, educational
institution, or society of its activities.
F. AUDITS.
Under the Inspector General Act of 1978, as amended (5 U.S.C. App. 3, § 1 et seq.), an audit of the
Award may be conducted at any time. The Department's Inspector General, 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 electronic,
mechanical, magnetic, or other process or medium, in order to make audits, inspections, excerpts,
transcripts, or other examinations as authorized by law. This right also includes timely and
reasonable access to the Recipient's personnel for the purpose of interview and discussion related to
such documents. See 2 CFR § 200.336 ("Access to records"). When the Office of the Inspector
General ("OIG") requires a program audit on a DOC Award, 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 DOC, or any other Federal, State, or local audit entity.
1. Organization -Wide, Program -Specific, and Project Audits.
a. Organization -wide or program -specific audits shall be performed in accordance with the
Single Audit Act Amendments of 1996, as implemented by subpart F of 2 CFR part 200
("Audit Requirements"). Recipients that expend $750,000 or more in Federal awards during
their fiscal year shall have an audit conducted for that year in accordance with the
requirements set forth in subpart F of 2 CFR part 200. Within the earlier of 30 calendar days
after receipt of the auditor's report, or nine months after the end of the audit period, a copy of
the audit shall be submitted electronically to the Federal Audit Clearinghouse website at
httn://harvester.census. p-ov/sac/.
If it is necessary to submit using paper, the address for submission is:
►F]
Federal Audit Clearinghouse
Bureau of the Census
1201 E. I Oh Street
Jeffersonville, IN 47132
Within 90 days of the end of the fiscal year of a Recipient subject to subpart F of
2 CFR part 200, the entity is responsible for notifying the Grants Officer of the amount of
Federal awards, including all DOC and non-DOC awards, the Recipient expended during its
fiscal year.
A Recipient that expends less than $750,000 in Federal awards during its fiscal year is
exempt from Federal audit requirements for that year, except as noted at 2 CFR § 200.503
("Relation to other audit requirements"), but records must be available for review and audit
by EDA, DOC, or other designated Government officials.
Failure to provide audit reports within the timeframes specified may result in appropriate
enforcement action, up to and including termination of the Award, and may jeopardize
eligibility for receiving future DOC awards.
b. Unless otherwise specified in the Terms and Conditions of this Award, for -profit hospitals,
commercials entities, and other organizations that are not subject to subpart F of
2 CFR part 200 ("Audit Requirements") shall have a program specific audit performed by an
independent auditor when the Federal share amount awarded is $750,000 or more over the
duration of the period of performance. An audit is required at least once every two years
using the following schedule for audit report submission:
i. For Awards where the period of performance is less than two years, an audit is required
within 90 calendar days of the end of the period of performance to cover the entire
Project (the Project Closeout period is included in the 90 days);
ii. For Awards with a two- or three-year period of performance, an audit is required within
90 calendar days after the end of the first year to cover Year 1, which is the period of time
when Federal funding is available for obligation by the Recipient, and within 90 calendar
days of the end of the period of performance to cover Year 2 and Year 3 (if applicable)
(the Project Closeout period is included in the 90 days); or
iii. For Awards with a four- to five-year period of performance, an audit is required within
90 calendar days after the end of the first year to cover Year 1, within 90 calendar days
after the end of the third year to cover Year 2 and Year 3, and within 90 calendar days of
the end of the period of performance to cover Year 4 and Year 5 (if applicable) (the
Project Closeout period is included in the 90 days).
c. EDA's Public Works and Economic Adjustment Assistance programs generally have
specific audit guidelines that will be incorporated into the Award and may be found in the
annual Compliance Supplement, which is Appendix XI to 2 CFR part 200 and is available on
OMB's website (https://www.whitehouse.gov/omb/circulars default). When DOC does not
have a program -specific audit guide available for the program, the auditor will follow the
requirements for a program -specific audit as described in 2 CFR § 200.507
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("Program -specific audits"). The Recipient may include a line item in the budget for the cost
of the audit for approval. A copy of the program -specific audit shall be submitted to the
Grants Officer.
d. Recipients are responsible for compliance with the above audit requirements and for
informing the Grants Officer of the status of their audit, including when the relevant audit has
been completed and submitted in accordance with the requirements of this section. In
accordance with 2 CFR § 200.331(d)(3) ("Requirements for pass -through entities"),
pass -through entities are responsible for issuing a management decision for any audit
findings pertaining to the Federal Award provided to a subrecipient.
2. Requirement to Submit a Copy of the Audit to EDA.
If the Recipient's currently valid audit required under subpart F of 2 CFR part 200 ("Audit
Requirements") contains material findings, the Recipient must submit a copy of the audit to the
Project Officer, who will review it with the Grants Officer. See also section C.19.a.iv "Project
Closeout Procedures" of these Construction ST&Cs.
3. Audit Resolution Process.
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 to 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. In accordance with the Federal Register notice dated January 27, 1989 (54 Fed. Reg. 4053),
a Recipient has the following opportunities to dispute the proposed disallowance of costs and
the establishment of a debt after an audit:
i. The Recipient has 30 business days from the date of the transmittal of the "Draft Audit
Report" to submit written comments and documentary evidence.
ii. The Recipient has 30 business 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.
iii. 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 business 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 Letter.
iv. An appeal of the Audit Resolution Determination Letter does not prevent the
establishment of the audit -related debt nor does it prevent the accrual of interest on such
debt. If the Audit Resolution Determination Letter is overruled or modified on appeal,
appropriate corrective action will be taken retroactively. An appeal will stay the offset of
funds owed by the auditee against funds due to the auditee.
v. The EDA or DOC, as applicable, shall review the Recipient's appeal. EDA shall notify
the Recipient of the results in an Appeal Determination Letter. After the opportunity to
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appeal has expired or after the appeal determination has been rendered, EDA or DOC
will not accept any further documentary evidence from the Recipient. No other EDA or
DOC administrative appeals are available.
G. DEBTS.
1. Payment of Debts Owed the Federal Government.
a. The Recipient must promptly pay any debts determined by the Federal Government to be
owed by the Recipient. Any funds paid to the Recipient in excess of the amount to which the
Recipient is finally determined to be entitled under the terms of the Award constitute a debt
to the Federal Government. In accordance with 2 CFR § 200.345 ("Collection of amounts
due"), if not paid within 90 calendar days after demand, DOC may reduce a debt owed to the
Federal Government by:
i. Making an administrative offset against other request for reimbursement;
ii. Withholding advance payments otherwise due to the Recipient; or
iii. Taking any other action permitted by Federal statute.
b. DOC debt collection procedures are set out in 15 CFR part 19. In accordance with
2 CFR § 200.345 ("Collection of amounts due"), failure to pay a debt owed to the Federal
Government shall result in the assessment of interest, penalties and administrative costs under
31 U.S.C. § 3717 and 31 CFR § 901.9. DOC entities will transfer any DOC debt that is more
than 180 calendar days delinquent to the U.S. Department of the Treasury's Financial
Management Service for debt collection services, a process known as "cross -servicing,"
pursuant to 31 U.S.C. § 3711(g), 31 CFR § 285.12, and 15 CFR § 19.9, and may take further
action as specified in section A.6 "Noncompliance with Award Provisions" of these
Construction ST&Cs. Funds for payment of a debt must not come from other Federally
sponsored programs, and DOC may conduct on -site visits, audits and other reviews to verify
that other Federal funds have not been used to pay a debt.
2. Late Payment Charges.
a. Interest shall be charged on the delinquent debt in accordance with section 3717(a) of the
Debt Collection Act, as amended (31 U.S.C. § 3701 et seq.). The minimum annual interest
rate to be assessed is the U.S. Department of the Treasury's Current Value of Funds Rate
("CVFR"). The CVFR is available online at http://www.fins.treas.gov/cvfr/index.html and
also published by the Department of the Treasury in the Federal Register
(http://www.gpo. ov/fdsys/browse/collection.action?collectionCode=FR) and in the
Treasury Financial Manual Bulletin. The assessed rate shall remain fixed for the duration of
the indebtedness.
b. Penalties shall accrue at a rate of not more than six percent per year or such other higher rate
as authorized by law.
c. Administrative charges (i.e., the costs of processing and handling a delinquent debt) shall be
determined by the DOC entity collecting the debt, as directed by the Office of the Chief
Financial Officer and Assistant Secretary for Administration.
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3. Barring Delinquent Federal Debtors from Obtaining Federal Loans or Loan Insurance
Guarantees.
Pursuant to 31 U.S.C. § 3720B and 31 CFR § 901.6, unless waived, DOC is not permitted to
extend financial assistance in the form of a loan, loan guaranty, or loan insurance to any person
delinquent on a non -tax debt owed to a Federal agency. This prohibition does not apply to
disaster loans.
4. Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs.
Pursuant to 28 U.S.C. § 3201(e), unless waived by DOC, a debtor who has a judgment lien
against the debtor's property for a debt to the United States shall not be eligible to receive any
grant or loan that is made, insured, guaranteed, or financed directly or indirectly by the United
States or to receive funds directly from the Federal Government in any program, except funds to
which the debtor is entitled as beneficiary, until the judgment is paid in full or otherwise
satisfied.
H. GOVERNMENTWIDE DEBARMENT AND SUSPENSION (NONPROCUREMENT).
The Recipient shall comply with the provisions of 2 CFR part 1326 ("Nonprocurement Debarment
and Suspension") (published in the Federal Register on December 21, 2006, 71 Fed. Reg. 76573),
which generally prohibit entities that have been debarred, suspended, or voluntarily excluded from
participating in Federal nonprocurement transactions through either primary or lower -tier covered
transactions, and which set forth the responsibilities of Recipients of Federal financial assistance
regarding transactions with other persons, including subrecipients and contractors. In addition, as
provided in section K.4.b "Applicability of Provisions to Subawards, Contracts, and Subcontracts"
of these Construction ST&Cs, in accordance with subpart C of 2 CFR part 1326, the Recipient must
include a term or condition in lower tier transactions (subawards, contracts, and subcontracts)
requiring lower tier participants to comply with subpart C (entitled "Responsibilities of Participants
Regarding Transactions Doing Business With Other Persons") of the OMB guidance in
2 CFR part 180 "OMB Guidelines to Agencies on Governmentwide Debarment and Suspension
(Nonprocurement)."
I. DRUG -FREE WORKPLACE.
The Recipient shall comply with the provisions of the Drug -Free Workplace Act of 1988
(41 U.S.C. § 8102), and DOC's implementing regulations found at 15 CFR part 29
("Governmentwide Requirements for Drug -Free Workplace (Financial Assistance)") which require
that the Recipient take steps to provide a drug -free workplace.
J. LOBBYING RESTRICTIONS.
1. Statutory and Regulatory Provisions. The Recipient shall comply with 2 CFR § 200.450
("Lobbying"), which incorporates the provisions of 31 U.S.C. § 1352; the "New Restrictions on
Lobbying" published at 55 Fed. Reg. 6736 (February 26, 1990); and OMB guidance and notices
on lobbying and restrictions. In addition, the Recipient must comply with the DOC's regulations
published at 15 CFR part 28, which implement the "New Restrictions on Lobbying." These
provisions prohibit the use of Federal funds for lobbying the executive or legislative branches of
the Federal government in connection with an award, and require disclosure of the use of
33
.w
non -Federal funds for lobbying. Lobbying includes attempting to improperly influence, meaning
any influence that induces or tends to induce a Federal employee or officer to give consideration
or to act regarding a Federal award or regulatory matter on any basis other than the merits of the
matter, either directly or indirectly. Costs incurred to improperly influence are unallowable.
See 2 CFR § 200.450(b) and (c).
2. Disclosure of Lobbying Activities. Any Recipient that receives more than $100,000 in Federal
funding shall submit a completed Form SF-LLL, "Disclosure of Lobbying Activities," regarding
the use of non -Federal funds for lobbying. The Form 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 any required Forms SF-LLL, including those
received from subrecipients, contractors, and subcontractors, to the Project Officer.
3. Special Provisions Relating to Indian Tribes. As set out in 31 U.S.C. § 1352, special provisions
are applicable to Indian tribes, tribal organizations, and other Indian organizations eligible to
receive Federal contracts, grants, loans, or cooperative agreements. In accordance with DOC
policy, EDA recognizes Tribal Employment Rights Ordinances ("TEROs"), which may provide
for preferences in contracting and employment, in connection with its financial assistance
awards. Federal awards granted to American Indian and Alaska Native tribal governments
generally may provide for preference in contracting, hiring, firing, and the payment of a TERO
fee. The payment of the TERO fee, which supports the tribal employment rights office to
administer the preferences, should generally be allowable as an expense that is "necessary and
reasonable for the performance of the Federal award," as provided under 2 CFR § 200.403
("Factors affecting allowability of costs").
K. CODES OF CONDUCT AND SUBAWARD, CONTRACT, AND SUBCONTRACT
PROVISIONS.
1. Code of Conduct for Recipients.
a. General conflicts -of -interest requirements. The Recipient must comply with EDA's
regulation at 13 CFR § 302.17 ("Conflicts of interest"), which articulates EDA's
requirements to prevent conflicts of interest, which generally exist when an Interested Party
participates in a matter that has a direct and predictable effected on the Interested Party's
personal or financial interests or there is an appearance that an Interested Party's objectivity
in performing his or her responsibilities under the Project is impaired. In addition, in
accordance with 2 CFR § 200.112 ("Conflict of interest"), the Recipient must disclose to
EDA in writing any potential conflict of interest. In addition, pursuant to the certification in
Form SF-424D, paragraph 7, the Recipient must maintain written standards of conduct to
establish safeguards to prohibit employees from using their positions for a purpose that
constitutes or presents the appearance of personal or organizational conflicts of interest or
personal gain in the administration of this Award.
b. Procurement -related conflicts of interest. In addition, in accordance with 2 CFR § 200.318
("General procurement standards"), the Recipient must maintain written standards of
conduct covering conflicts of interest and governing the performance of its employees
engaged in the selection, award and administration of contracts.
34
2. Applicability of Award Provisions to Subrecipients.
a. The Recipient or pass -through entity shall require all subrecipients, including lower tier
subrecipients, under the Award to comply with the provisions of this Award, including
applicable provisions of the Uniform Guidance (2 CFR part 200), and all associated terms and
conditions. See 2 CFR §§ 200.330 ("Subrecipient and contractor determinations") through
200.332 ("Fixed amount subawards") and 2 CFR § 200.101(b)(1) ("Applicability"), which
describes the applicability of 2 CFR part 200 to various types of Federal awards.
b. In accordance with 2 CFR § 200.331 ("Requirements for pass -through entities"), all
pass -through entities must:
i. Subaward Identification. Clearly identify every subaward to the subrecipient at the time
of the subaward, including subsequent subaward modification. In accordance with
2 CFR § 200.331(a), required information includes:
(1) All Award information data elements set out at 2 CFR § 200.33 1 (a)(1);
(2) All requirements imposed by the pass -through entity on the subrecipient so that the
Federal Award is used in accordance with Federal statutes, regulations and the Terms
and Conditions of the Award;
(3) Any additional requirements that the pass -through entity imposes on the subrecipient
in order for the pass -through entity to meet its own responsibility to the Federal
awarding agency, including identification of required financial and performance
reports;
(4) Indirect cost rate information in accordance with 2 CFR § 200.33 1 (a)(4);
(5) Access requirements for the subrecipient's records and financial statements in
accordance with 2 CFR § 200.3 3 1 (a)(5); and
(6) Appropriate terms and conditions concerning closeout of the subaward.
ii. Risk -Based Subrecipient Evaluation. Evaluate each subrecipient's risk of noncompliance
with Federal statutes, regulations, and the terms and conditions of the subaward for
purposes of determining the appropriate subrecipient monitoring in accordance with
2 CFR § 200.331(b).
iii. Subaward Conditions. Consider imposing specific subaward conditions upon a
subrecipient if appropriate as described in 2 CFR § 200.207 ("Specific conditions").
iv. Subrecipient Monitoring. In accordance with 2 CFR § 200.331(d), monitor the activities
of the subrecipient as necessary to ensure that the subaward is used for authorized
purposes, in compliance with Federal requirements, and that the subaward performance
goals are achieved. Subrecipient monitoring must include:
(1) Reviewing financial and programmatic reports required by the pass -through entity;
(2) Following up and ensuring that the subrecipient takes timely and appropriate action
on all deficiencies pertaining to the Award provided to the subrecipient from the
pass -through entity detected through audits, on -site reviews, and other means; and
35
(3) Issuing a management decision for audit findings pertaining to the Award provided
to the subrecipient from the pass -through entity as required by 2 CFR § 200.521
("Management decision").
v. Utilizing Risk -Based Monitoring Tools. In accordance with 2 CFR § 200.331(e),
depending on the Recipient's evaluation of each subrecipient's risk, utilize appropriate
monitoring tools, including training and technical assistance, performing on -site reviews,
and arranging agreed -upon -procedures engagements as described in 2 CFR § 200.425
("Audit services").
vi. Subrecipient Audits. Verify that every subrecipient is audited as required by subpart F of
2 CFR part 200 ("Audit Requirements") when it is expected that the subrecipient's
Federal awards expended during the fiscal year equaled or exceeded the threshold set
forth in 2 CFR § 200.501 ("Audit requirements").
vii. Necessary Adjustments to the Pass -Through Entity's Records. Consider whether the
results of the subrecipient's audits, on -site reviews, or other monitoring indicate
conditions that necessitate adjustments to the pass -through entity's own records.
viii. Enforcement Action. Consider taking enforcement action against noncompliant
subrecipients as described in 2 CFR § 200.338 ("Remedies for noncompliance") and in
applicable program regulations.
See also 2 CFR § 200.331 for the full text of requirements for pass -through entities.
3. Competition and Codes of Conduct for Subawards.
a. The Recipient must be alert to organizational conflicts of interest as well as other practices
among subrecipients that may restrict or eliminate competition.
b. The Recipient shall maintain written standards of conduct governing the performance of its
employees engaged in the award and administration of subawards. No employee, officer, or
agent shall participate in the selection, award, or administration of a subaward supported by
Federal funds if a real or apparent conflict of interest would be involved. Such a conflict
would arise when the employee, officer, or agent, any member of his or her immediate
family, his or her partner, or an organization in which he or she serves as an officer or which
employs or is about to employ any of the parties mentioned in this section, has a financial
interest or other interest in the organization selected or to be selected for a subaward. The
officers, employees, and agents of the Recipient shall neither solicit nor accept anything of
monetary value from subrecipients. However, the Recipient may set standards for situations
in which the financial interest is not substantial or the gift is an unsolicited item of nominal
value. The standards of conduct shall provide for disciplinary actions to be applied for
violations of such standards by officers, employees, or agents of the Recipient.
c. A financial interest may include employment, stock ownership, a creditor or debtor
relationship, or prospective employment with the organization selected or to be selected for a
subaward. An appearance of impairment of objectivity could result from an organizational
conflict where, because of other activities or relationships with other persons or entities, a
person is unable or potentially unable to render impartial assistance or advice. It could also
result from non -financial gain to the individual, such as benefit to reputation or prestige in a
professional field.
36
4. Applicability of Provisions to Subawards, Contracts, and Subcontracts.
a. The Recipient shall include the following notice in each request for applications or bids for a
subaward, contract, or subcontract, as applicable:
Applicants/bidders for a lower tier covered transaction (except procurement contracts for
goods and services under $25, 000 not requiring the consent of a DOC official) are subject to
subpart C of 2 CFR part 180, "OMB Guidelines to Agencies on 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 requirement. Therefore, Applications for a lower tier covered transaction must
include a Form CD-512, "Certification Regarding Lobbying —Lower Tier Covered
Transactions, " completed without modification.
b. The Recipient shall include a term or condition in all lower tier covered transactions
(subawards, contracts, and subcontracts) requiring lower tier participants to comply with
subpart C of 2 CFR part 180, "OMB Guidelines to Agencies on Governmentwide
Debarment and Suspension (Nonprocurement)."
c. Required subaward and contractual provisions:
i. 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 31 U.S.C. § 1352, as implemented at 15 CFR part 28
("New Restrictions on Lobbying"). The Recipient shall further require the subrecipient,
contractor, or subcontractor to submit a completed "Disclosure of Lobbying Activities"
(Form SF-LLL) regarding the use of non -Federal funds for lobbying. The Form 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 Form 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 Project Officer within 30 days following the end of the calendar quarter.
ii. In addition to other provisions required by the Federal agency or Recipient, in accordance
with 2 CFR § 200.326 ("Contract provisions"), all contracts made by the Recipient under
this Award must contain the applicable provisions set out in Appendix II to
2 CFR part 200 ("Contract Provisions for Non -Federal Entity Contracts Under Federal
Awards"), which address various contractual requirements including remedies,
termination for cause and convenience, Equal Employment Opportunity, the
Davis -Bacon Act, the Contract Work Hours and Safety Standards Act, rights to
inventions, environmental quality, energy efficiency, debarment and suspension, the Byrd
Anti -Lobbying Amendment, and procurement of recovered materials. See Appendix II to
2 CFR part 200 for a full explanation of these requirements.
37
5. Pilot Program for Enhancement of Employee Whistleblower Protections.
The National Defense Authorization Act ("NDAA") for Fiscal Year 2013 (Pub. L. No. 112-239,
enacted January 2, 2013 and codified at 41 U.S.C. § 4712) includes a pilot program for
whistleblower protection. It applies to all DOC awards, subawards, and contracts under awards
issued beginning July 1, 2013 through January 1, 2017. This term implements that law.
In accordance with 41 U.S.C. § 4712, an employee of a Recipient or contractor under a Federal
award or subaward may not be discharged, demoted, or otherwise discriminated against as a
reprisal for disclosing to a person or body information that the employee reasonably believes is
evidence of gross mismanagement of a Federal award or subaward or contract under a Federal
award or subaward, a gross waste of Federal funds, an abuse of authority related to a Federal
award or subaward or contract under a Federal award or subaward, a substantial and specific
danger to public health or safety, or a violation of law, rule, or regulation related to a Federal
award or subaward or contract under a Federal award or subaward. These persons or bodies
include:
a. A Member of Congress or a representative of a committee of Congress.
b. An Inspector General.
c. The Government Accountability Office.
d. A Federal employee responsible for contract or grant oversight or management at the
relevant agency.
e. An authorized official of the Department of Justice or other law enforcement agency.
f. A court or grand jury.
g. A management official or other employee of the contractor, subcontractor, or grantee who
has the responsibility to investigate, discover, or address misconduct.
Recipients and contractors under Federal awards and subawards shall inform their employees in
writing of the rights and remedies provided under 41 U.S.C. § 4712, in the predominant native
language of the workforce.
6. Small Businesses, Minority Business Enterprises, and Women's Business Enterprises.
In accordance with 2 CFR § 200.321 ("Contracting with small and minority businesses, women's
business enterprises, and labor surplus area firms"), the Recipient must take all necessary
affirmative steps to ensure that minority businesses, women's business enterprises, and labor
surplus area firms are used when possible. DOC encourages Recipients to utilize small
businesses, minority business enterprises, and women's business enterprises in contracts under
financial assistance awards. The Minority Business Development Agency ("MBDA") within DOC
will assist Recipients in matching qualified minority business enterprises with contract
opportunities. For further information, the Recipient may visit MBDA's website at
http://www.mbda.gov or contact MBDA via telephone or mail:
U.S. Department of Commerce
Minority Business Development Agency
Herbert C. Hoover Building
141h Street and Constitution Avenue, N.W.
38
Washington, D.C. 20230
(202)482-0101
7. Subaward to or Contract with a Federal Agency.
a. The Recipient, contractor and/or subcontractor shall not subgrant or subcontract any part of
the approved Project to any agency or employee of DOC or any other Federal department,
agency, or instrumentality without the prior written approval of the Grants Officer.
b. The Recipient must submit requests for approval of such action to the Project Officer, who
shall review and make a recommendation to the Grants Officer. The Grants Officer must
forward all requests to the Federal Assistance Law Division in the Office of the Department
of Commerce Assistant General Counsel for Administration and Transactions for review
prior to making the final determination. The Grants Officer will notify the Recipient in
writing of the final determination.
8. EDA Contracting Provisions for Construction Projects.
The Recipient shall use the "EDA Contracting Provisions for Construction Projects" as guidance
in developing all construction contracts. The "EDA Contracting Provisions for Construction
Projects" lists applicable EDA and other Federal requirements for construction contracts.
L. PROPERTY.
1. Standards.
With respect to any property acquired or improved in whole or in part with EDA investment
assistance under this Award, the Recipient shall comply with the Property Standards set forth at
2 CFR §§ 200.310 ("Insurance coverage") through 200.316 ("Property trust relationship"), and
EDA's regulations at 13 CFR part 314. Property acquired or improved in whole or in part by the
Recipient under this Award may consist of real property; personal property, including equipment
and supplies; and intangible property, such as money, notes, and security interests. Any property
reports required under 2 CFR §§ 200.310 through 200.316, such as periodic inventories and requests
for disposition instructions, must be submitted to the Grants Officer through the Project Officer on
Form SF-428 and/or SF-429, as applicable. See also section C.2 "Reporting on Real Property" of
these Construction ST&Cs.
2. Title.
a. Title to equipment, supplies, and intangible property acquired in whole or in part under this
Award generally vests upon acquisition in the Recipient. The use, management and
disposition of equipment, supplies, and intangible property acquired in whole or in part under
this Award shall be in accordance with 2 CFR §§ 200.313 ("Equipment"), 200.314
("Supplies"), and 200.315 ("Intangible property"), as applicable, and EDA regulations at
13 CFR part 314. See also section 0.4 "Intellectual Property Rights" of these
Construction ST&Cs.
b. Title to real property acquired in whole or in part under this Award generally vests upon
acquisition in the Recipient, subject to the condition that the Recipient uses the real property
39
for the authorized purpose of the Project. See 2 CFR § 200.311 ("Real property") and EDA
regulations at 13 CFR part 314.
3. EDA's Interest in Award Property.
a. General - Evidence of Title. As stated in section A.4 "Grant Recipient as Trustee" of these
Construction ST&Cs, real property, equipment, and intangible property acquired or improved
under this Award must be held in trust by the Recipient as trustee for the beneficiaries of the
Project for which the property was acquired or improved. This trust relationship exists
throughout the duration of the property's estimated useful life, as determined by the Grants
Officer in consultation with the Project Officer, during which time the Federal Government
retains an undivided, equitable reversionary interest in the property (Federal Interest).
Before advertising for construction bids or at such other time as EDA requires, the Recipient
must furnish evidence, satisfactory in form and substance to the Government, that title to real
property required for the Project (other than property of the United States and as provided in
13 CFR § 314.7(c) ("Title")) is vested in the Recipient and that such easements, rights -of -
way, State or local government permits, long-term leases, or other items required for the
Project have been or will be obtained by the Recipient within an acceptable time, as
determined by the Government. All liens, mortgages, other encumbrances, reservations,
reversionary interests, or other restrictions on title or the Recipient's interest in the property
must be disclosed to EDA. With limited exceptions set forth at 13 CFR § 314.6(b)
("Encumbrances") or as otherwise authorized by EDA, Recipient -owned property acquired or
improved in whole or in part with EDA investment assistance must not be used to secure a
mortgage or deed of trust or in any way otherwise encumbered. See 13 CFR § 314.6.
b. Recording EDA's Interest in Real Property.
For all Projects involving the acquisition, construction, or improvement of a building, as
determined by EDA, the Recipient shall execute and furnish to the Government, prior to
initial Award disbursement, a lien, covenant, or other statement, satisfactory to EDA in
form and substance, of EDA's interest in the property acquired or improved in whole or
in part with the funds made available under this Award. EDA may require such statement
after initial Award disbursement in the event that grant funds are being used to acquire
such property. The statement must specify the estimated useful life of the Project and
shall include but not be limited to the disposition, encumbrance, and the Federal Share
compensation requirements. See 13 CFR §§ 314.1 ("Definitions") and 314.8(a)
("Recorded statement for real property"). See also 2 CFR § 200.316 ("Property trust
relationship").
ii. This lien, covenant, or other statement of the Government's interest must be perfected
and placed of record in the real property records of the jurisdiction in which the property
is located, all in accordance with applicable law. EDA may require an opinion of counsel
for the Recipient to substantiate that the document was validly executed and properly
recorded. See 13 CFR § 314.8(b).
iii. Facilities in which the EDA investment is only a small part of a larger project, as
determined by EDA, may be exempted from the requirements listed in paragraphs L.3.b.i
and ii above. See 13 CFR § 314.8(c).
iv. In extraordinary circumstances and at EDA's sole discretion, EDA may choose to accept
another instrument to protect EDA's interest in the Project property, such as an escrow
agreement or letter of credit, provided that EDA determines such instrument is adequate
and a recorded statement in accord with section L.3.b.i above is not reasonably available.
The terms and provisions of the relevant instrument shall be satisfactory to EDA in
EDA's sole judgment. The costs and fees for escrow services or letters of credit shall be
paid by the Recipient. See 13 CFR § 314.8(d).
c. Recording EDA's Interest in Personal Property. For all Projects involving the acquisition or
improvement of significant items of personal property, including but not limited to ships,
machinery, equipment, removable fixtures, or structural components of buildings, the
Recipient shall execute a security interest, covenant, or other statement of EDA's reversionary
interest in the personal property acceptable in form and substance to EDA, which statement
must be perfected and placed of record in accordance with applicable law (usually
accomplished by filing a Uniform Commercial Code Financing Statement (Form UCC-I), as
provided by State law), with continuances re -filed as appropriate. EDA may require an
opinion of counsel for the Recipient to substantiate that the Form UCC-1 or other filing was
validly executed and properly recorded. See 13 CFR § 314.9 ("Recorded statement for
personal property").
d. The Recipient acknowledges that the Government retains an undivided equitable
reversionary interest in property acquired or improved in whole or in part with grant funds
made available through this Award throughout the estimated useful life (as determined by
EDA) of the Project, except in applicable instances set forth at 13 CFR § 314.7(c) ("Title").
See 13 CFR § 314.2(a) ("Federal interest").
e. The Recipient agrees that if any interest in property acquired or improved in whole or in part
with EDA investment assistance is disposed of, encumbered or alienated in any manner, or
no longer used for the authorized purposes of the Award during the Project's estimated
useful life without EDA's written approval, the Government will be entitled to recover the
Federal Share, as defined at 13 CFR § 314.5 ("Federal share"). If, during the Project's
estimated useful life, the property is no longer needed for the purposes of the Award, as
determined by EDA, EDA may permit its use for other acceptable purposes consistent with
those authorized by PWEDA and 13 CFR Chapter III. See 13 CFR § 314.3(b)
("Authorized use of property").
f. For purposes of any lien or security interest, the amount of the Federal Share shall be the
portion of the current fair market value of any property (after deducting any actual and
reasonable selling and repair expenses incurred to put the property into marketable condition)
attributable to EDA's participation in the Project. See 13 CFR § 314.5 ("Federal share").
g. The 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.
h. In accordance with 2 CFR § 200.329 ("Reporting on real property"), the Federal awarding
agency or pass through entity must require a non -Federal entity to submit reports (using
Form SF-429 "Real Property Status Report" or any successor form) at least annually on the
status of real property in which the Federal Government retains an interest, unless the Federal
Interest in the real property extends 15 years or longer. In those instances where the Federal
Interest attached is for a period of 15 years or more, the Federal awarding agency or
41
pass -through entity, at its option, may require the non -Federal entity to report at various
multi -year frequencies (e.g., every two years or every three years, not to exceed a five-year
reporting period; or annual reporting for the first three years and thereafter every five years).
The Federal awarding agency or pass -through entity may also require a non -Federal entity to
periodically submit reports (using Form SF-428 "Tangible Personal Property Report" or any
successor form) concerning tangible personal property in which the Federal Government
retains an interest. In addition, the Federal awarding agency or pass -through entity may
require a non -Federal entity to submit Form SF-429 and/or Form SF-428 in connection with
a non -Federal entity's request to acquire, encumber, dispose of, or take any other action
pertaining to real property or tangible personal property acquired or improved, in whole or in
part, under this Award or pertaining to Federally owned property under this Award.
See also section C.2 "Reporting on Real Property" of these Construction ST&Cs.
4. Insurance and Bonding.
a. Insurance. The Recipient shall, at a minimum, provide the equivalent insurance coverage for
real property and equipment acquired or improved with Federal funds as provided for
property owned by the Recipient. Federally owned property need not be otherwise insured
unless required by the Terms and Conditions of the Award. See 2 CFR § 200.310
("Insurance coverage").
b. Bonding. If the Award exceeds the simplified acquisition threshold as defined at
2 CFR § 200.88, EDA may accept the Recipient's or subrecipient's bonding policy and
requirements if EDA or the pass -through entity determines that the Federal Interest is
adequately protected. If not, the following minimum requirements shall apply:
i. A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid
guarantee" shall consist of a firm commitment such as a bid bond, certified check, or
other negotiable instrument accompanying a bid as assurance that the bidder will, upon
acceptance of the bid, execute such contractual documents as may be required within the
time specified.
ii. A performance bond on the part of the contractor for 100 percent of the contract price. A
"performance bond" is one executed in connection with a contract to secure fulfillment of
all the contractor's obligations under such contract.
iii. A payment bond on the part of the contractor for 100 percent of the contract price. A
"payment bond" is one executed in connection with a contract to ensure payment as
required by law of all persons supplying labor and material in the execution of the work
provided for in the contract. See 2 CFR § 200.325 ("Bonding requirements").
5. Leasing Restrictions.
Leasing or renting of facilities or property is prohibited unless specifically authorized by EDA.
The Recipient agrees that any leasing or renting of any facilities or property involved in this
Project will be subject to the following:
a. That said lease arrangement is consistent with the authorized general and special purpose of
the Award;
b. That said lease arrangement is for adequate consideration; and
42
c. That said lease arrangement is consistent with applicable EDA requirements concerning but
not limited to nondiscrimination and environmental compliance.
6. Eminent Domain.
The Recipient will use funds solely for the authorized purpose of the Project. Pursuant to
Executive Order 13406, "Protecting the Property Rights of the American People," the Recipient
agrees:
a. Not to exercise any power of eminent domain available to the Recipient (including the
commencement of eminent domain proceedings) for use in connection with the Project for
the purpose of advancing the economic interests of private parties; and
b. Not to accept title to land, easements, or other interests in land acquired by the exercise of
any power of eminent domain for use in connection with the Project for such purposes.
The Recipient agrees that any use of the power of eminent domain to acquire land, easements, or
interests in land, whether by the Recipient or any other entity that has the power of eminent
domain, in connection with the Project without the prior written consent of EDA is an
unauthorized use of the Project. If the Recipient puts the Project to an unauthorized use, the
Recipient shall compensate EDA for its fair share in accordance with 13 CFR §§ 314.4
("Unauthorized use of property") and 314.5 ("Federal share"), as the same may be amended from
time to time.
7. Disposal of Real Property.
a. During the estimated useful life of the Project, if EDA and the Recipient determine that
property acquired or improved in whole or in part with EDA investment assistance is no
longer needed for the original purposes of this Award, EDA may, in its sole discretion,
approve use of the property in other Federal grant programs or in programs that have
purposes consistent with those authorized by PWEDA and 13 CFR Chapter III.
See 13 CFR § 314.3(b) ("Authorized use of property").
b. When property is not disposed of as provided in section L.7.a above, the Government shall
determine final disposition and must be compensated by the Recipient for the Federal Share
of the value of the property, plus costs and interest, as provided in 13 CFR § 314.4
("Unauthorized use of property").
M. FEDERAL ENVIRONMENTAL REQUIREMENTS.
Environmental impacts must be considered by Federal decision -makers in their decisions whether or
not to approve: (i) a proposal for Federal assistance; (ii) the proposal with mitigation; or (iii) a
different proposal/grant having less adverse environmental impacts. Federal environmental laws
require that the funding agency initiate an early planning process that considers potential impacts of
the projects funded with Federal assistance on the environment. Each Recipient must comply with all
environmental standards, to include those prescribed under the following statutes and executive
orders, and shall identify to the awarding agency any impact a proposed project may have on the
environment. In some cases, Award funds can be withheld by the Grants Officer under a special
award condition requiring the Recipient to submit additional environmental compliance information
43
sufficient to enable the DOC to make an assessment on any impacts that a project may have on the
environment.
1. The National Environmental Policy Act of 1969 (42 U.S.C. § 4321 et seq.).
The National Environmental Policy Act ("NEPA") and the Council on Environmental Quality
("CEQ") implementing regulations (40 CFR parts 1500-1508) require that an environmental
analysis be completed for all major Federal actions significantly affecting the environment.
NEPA applies to the actions of Federal agencies and may include a Federal agency's decision to
fund non -Federal projects under grants and cooperative agreements when the Award activities
remain subject to Federal authority and control. Recipients are required to identify to the
awarding agency any impact an award will have on the quality of the human environment, and
assist the agency in complying with NEPA. Recipients may also be requested to assist EDA in
drafting an environmental assessment if EDA determines an assessment is required. Until the
appropriate NEPA documentation is complete, and if any additional information is required
during the period of performance to assess Project environmental impacts, funds can be withheld
by the Grants Officer under a special award condition requiring the Recipient to submit the
appropriate NEPA documentation sufficient to enable EDA to make an assessment on any
environmental impacts of a Project.
2. National Historic Preservation Act (54 U.S.C. § 300101 et seq.).
Section 106 of the National Historic Preservation Act ("NHPA") (54 U.S.C. § 300101 et seq.
(formerly codified at 16 U.S.C. § 470f)) and the Advisory Council on Historic Preservation
implementing regulations (36 CFR part 800) require that Federal agencies take into account the
effects of their undertakings on historic properties. Recipients are required to identify to the
awarding agency any effects the Award may have on properties included on or eligible for
inclusion on the National Register of Historic Places. Recipients may also be requested to assist
EDA in consulting with State or Tribal Historic Preservation Officers or other applicable
interested parties necessary to identify, assess and resolve adverse effects on historic properties.
Until the appropriate NHPA consultations and documentation are complete and if any additional
information is required during the period of performance in order to assess Project impacts on
historic properties, funds can be withheld by the Grants Officer under a special award condition
requiring the Recipient to submit any information sufficient to enable EDA to make the requisite
assessment under the NHPA.
3. Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. §§ 4371-4375).
Federally supported public works facilities and activities that affect the environment shall be
implemented in compliance with policies established under existing law.
4. Clean Air Act (42 U.S.C. § 7401 et seq.), Federal Water Pollution Control Act
(33 U.S.C. § 1251 et seq.) (Clean Water Act), and Executive Order 11738 ("Providing for
Administration of the Clean Air Act and the Federal Water Pollution Control Act with
Respect to Federal Contracts, Grants or Loans").
The Recipient must comply with the provisions of the Clean Air Act (42 U.S.C. § 7401 et seq.),
Clean Water Act (33 U.S.C. § 1251 et seq.), and Executive Order 11738 (38 Fed. Reg. 25161,
1973), and shall not use a facility on the Environmental Protection Agency's ("EPA's") List of
44
Violating Facilities (this list is incorporated into the Excluded Parties List System located at
https://www.sam.gov/portal/public/SAME in undertaking work that is nonexempt under
2 CFR § 1532, and shall notify the Project Officer in writing if it intends to use a facility that is
on the EPA's List of Violating Facilities or knows that the facility has been recommended to be
placed on the list.
5. The Safe Drinking Water Act of 1974, as amended (42 U.S.C. § 300f et seq.).
This Act precludes Federal assistance for any project that the EPA determines may contaminate
a sole source aquifer so as to threaten public health.
6. Executive Order 11988 ("Floodplain Management") and Executive Order 11990
("Protection of Wetlands").
Recipients must identify proposed actions in Federally defined floodplains and wetlands to
enable the agency to make a determination whether there is an alternative to minimize any
potential harm.
7. The Flood Disaster Protection Act (42 U.S.C. § 4002 et seq.), and regulations and guidelines
issued thereunder by the U.S. Federal Emergency Management Administration ("FEMA")
or by EDA.
Flood insurance, when available, is required for Federally assisted construction or acquisition in
flood -prone areas.
8. The Coastal Zone Management Act (16 U.S.C. § 1451 et seq.).
Funded projects must be consistent with a coastal State's approved management plan for the
coastal zone.
9. The Coastal Barrier Resources Act (16 U.S.C. § 3501 et seq.).
Only in certain circumstances can Federal funding be provided for actions within a Coastal
Barrier System.
10. The Wild and Scenic Rivers Act (16 U.S.C. § 1271 et seq.).
This Act applies to awards that may affect existing or proposed components of the National Wild
and Scenic Rivers system.
11. The Fish and Wildlife Coordination Act (16 U.S.C. § 661 et seq.).
This Act requires the evaluation of impacts to fish and wildlife from Federally assisted proposed
water resource development projects.
12. The Endangered Species Act (16 U.S.C. § 1531 et seq.).
The Recipient must identify any impact or activities that may involve a threatened or endangered
species. Federal agencies have the responsibility to ensure that no adverse effects to a protected
species or habitat occur from actions with Federal financial assistance and to conduct the
required reviews under the Endangered Species Act, as applicable.
:1.7
13. The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA,
more commonly known as Superfund) (42 U.S.C. § 9601 et seq.), and the Community
Environmental Response Facilitation Act (Pub. L. No. 102-426, 42 U.S.C. §§ 9601 note
et seq. and 9620(h)(4).).
These requirements address responsibilities related to hazardous substance releases, threatened
releases, and environmental cleanup. They also impose reporting and community involvement
requirements to ensure disclosure of the release or disposal of regulated substances and cleanup
of hazards to State and local emergency responders.
14. The Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.).
This Act regulates the generation, transportation, treatment, and disposal of hazardous wastes,
and also provides that Recipients give preference in their procurement programs to the purchase
of recycled products pursuant to EPA guidelines.
15. Executive Order 12898 ("Environmental Justice in Minority Populations and Low -Income
Populations").
Federal agencies are required to identify and address any disproportionately high adverse
human health or environmental effects of Federal programs, policies, and activities on low-
income and minority populations.
16. The Lead -Based Paint Poisoning Prevention Act (42 U.S.C. § 4821 et seq.).
Use of lead -based paint in residential structures constructed or rehabilitated by the
Federal Government or with Federal assistance is prohibited.
17. The Farmland Protection Policy Act (7 U.S.C. §§ 4201-4209).
Projects are subject to review under this Act if they may irreversibly directly or indirectly convert
farmland, including forest land, pastureland, cropland, or other land, to nonagricultural use.
18. The Noise Control Act of 1972 (42 U.S.C. § 4901 et seq.).
Federally supported facilities and activities shall comply with Federal, State, interstate, and local
requirements respecting control and abatement of environmental noise to the same extent that
any person is subject to such requirements.
19. The Native American Graves Protection and Repatriation Act (25 U.S.C. § 3001 et seq.).
This Act provides a process for returning certain Native American cultural items to lineal
descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations.
N. NOTICE AND EVIDENCE OF COMPLIANCE WITH ALL APPLICABLE
ENVIRONMENTAL REQUIREMENTS.
The Recipient agrees to promptly notify the Grants Officer in writing of any environmental
requirement or restriction, regulatory or otherwise, with which it must comply. Before Project
Closeout and final disbursement of Award funds, the Recipient further agrees to provide evidence
satisfactory to the Grants Officer that any required environmental remediation has been completed:
(1) in compliance with all applicable Federal, State and local regulations; and (2) as set forth in the
46
applicable lease, finding of suitability to lease ("FOSL"), lease in furtherance of conveyance,
quitclaim deed, or other conveyance instrument and any amendments, supplements, or succeeding
documents. Compliance with said laws or restrictions shall be included in any contract documents
for Project construction. The Recipient must certify compliance before final disbursement of grant
funds.
O. MISCELLANEOUS REQUIREMENTS.
1. Criminal and Prohibited Activities.
a. The Program Fraud Civil Remedies Act (31 U.S.C. § 3801 et seq.) provides for the
imposition of civil penalties against persons who make false, fictitious, or fraudulent claims
to the Federal Government for money (including money representing grants, loans, or other
benefits).
b. The False Claims Amendment Act of 1986 and the False Statements Accountability Act of
1996 (18 U.S.C. §§ 287 and 1001, respectively) provide that whoever makes or presents any
false, fictitious, or fraudulent statement, representation, or claim against the United States
shall be subject to imprisonment of not more than five years and shall be subject to a fine in
the amount provided by 18 U.S.C. § 287.
c. The Civil False Claims Act (31 U.S.C. §§ 3729-3733) provides that suits can be brought by
the Government, or a person on behalf of the Government, for false claims under Federal
assistance programs.
d. The Copeland "Anti -Kickback" Act (18 U.S.C. § 874) prohibits a person or organization
engaged in a Federally supported Project from enticing an employee working on the Project
from giving up a part of his or her compensation under an employment contract. The
Copeland "Anti -Kickback" Act also applies to contractors and subcontractors pursuant to
40 U.S.C. § 3145.
2. Foreign Travel.
a. The Recipient shall comply with the provisions of the Fly America Act (49 U.S.C. § 40118).
The implementing regulations of the Fly America Act are found at 41 CFR §§ 301-10.131
through 301-10.143.
b. The Fly America Act requires Federal travelers and others performing U.S. Government
financed air travel to use U.S. flag air carriers, to the extent that service by such carriers is
available. Foreign air carriers may be used only in specific instances, such as when a
U.S. flag air carrier is unavailable or when use of U.S. flag air carrier service will not
accomplish the agency's mission.
c. One exception to the requirement to fly U.S. flag carriers is transportation provided under a
bilateral or multilateral air transport agreement, to which the United States Government and
the government of a foreign country are parties, and which the Department of Transportation
has determined meets the requirements of the Fly America Act pursuant to
49 U.S.C. § 40118(b). The United States Government has entered into bilateral and
multilateral "Open Skies Agreements" (U.S. Government Procured Transportation) that
allow Federally funded transportation services for travel and cargo movements to use foreign
air carriers under certain circumstances. There are multiple Open Skies Agreements currently
47
in effect. For more information about the current bilateral and multilateral agreements, visit
the General Services Administration ("GSA") website at
http://www.gsa.gov/portal/content/1'03191. Information on the Open Skies Agreements
(U.S. Government Procured Transportation) and other specific country agreements may be
accessed via the Department of State's website at http://www.state.gov/e/eeb/tra/.
d. If a foreign air carrier is anticipated to be used for any portion of travel under this Award, the
Recipient must receive prior approval from the Grants Officer. When requesting such
approval, the Recipient must provide a justification in accordance with the guidance provided
by 41 CFR § 301-10.142, which requires the Recipient to provide the Grants Officer with the
following: (i) his or her name; (ii) dates of travel; (iii) the origin and destination of travel;
(iv) a detailed itinerary of travel; (v) the name of the air carrier and flight number for each leg
of the trip; and (vi) a statement explaining why the Recipient meets one of the exceptions to
the regulations. If the use of a foreign air carrier is pursuant to a bilateral agreement, the
Recipient must provide the Grants Officer with a copy of the agreement or a citation to the
official agreement available on the GSA website. The Grants Officer shall make the final
determination and notify the Recipient in writing. Failure to adhere to the provisions of the
Fly America Act will result in disallowance of any transportation costs for which any
Recipient improperly used a foreign air carrier.
3. American -Made Equipment and Products.
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.
4. Intellectual Property Rights.
a. General. The rights to any work produced or purchased under this Award are determined by
2 CFR § 200.315 ("Intangible property"). The Recipient owns any work produced or
purchased under a Federal award subject to the DOC's royalty -free, nonexclusive, and
irrevocable right to obtain, reproduce, publish, or use the work or authorize others to receive,
reproduce, publish, or otherwise use the work for Government purposes. In accordance with
2 CFR § 200.315(d), the Federal Government has the right to obtain, reproduce, publish, or
otherwise use the data produced under a Federal award and authorize others to receive,
reproduce, publish or otherwise use such data for Federal purposes.
b. Inventions. Unless otherwise provided by law, the rights to any invention made by a
Recipient under this Award are determined by the Bayh-Dole Act, Pub. L. No. 96-517, as
amended, and as codified at 35 U.S.C. § 200 et seq., except as otherwise required by law.
The specific requirements governing the development, reporting, and disposition of rights to
inventions and patents resulting from Federal awards are described in more detail at
37 CFR part 401 and, in particular, in the standard patent rights clause at 37 CFR § 401.14,
which is hereby incorporated by reference into this Award.
i. Ownership.
(1) Recipient. The Recipient has the right to elect to retain title to any invention it makes
(conceived or first actually reduced to practice) or that is made by its employees. A
Recipient that is a nonprofit organization, which includes a university or other
institution of higher learning, may not assign to a third party its rights to such an
48
invention without the permission of DOC unless that assignment is to a patent
management organization (e.g., a university's Research Foundation). The Recipient's
ownership rights are subject to the Government's nonexclusive, nontransferrable,
irrevocable, paid -up license and other rights.
(2) Department. If the Recipient elects not to retain title, fails to disclose the invention to
the agency within the required time limits, or does not file a patent application within
the time limits set forth in the standard patent rights clause, DOC may request an
assignment of all rights, which is normally subject to a limited royalty -free,
nonexclusive, revocable license for the Recipient. DOC owns any invention made
solely by its employees, but may license to the Recipient in accordance with the
procedures in 37 CFR part 404.
(3) Inventor/Employee. If neither the Recipient nor DOC is interested in owning an
invention by a Recipient employee, the Recipient, with the written concurrence of the
DOC, may allow the inventor/employee to retain ownership of the invention subject
to certain restrictions as described at 37 CFR § 401.9.
(4) Joint Inventions. Inventions made jointly by a Recipient and a DOC employee will be
owned jointly by the Recipient and DOC. However, DOC may transfer or license its
rights to the Recipient as authorized by 35 U.S.C. § 202(e) and 37 CFR § 401.10 if
the Recipient is willing to patent and license the invention, usually in exchange for a
share of "net" royalties based on the number of inventors (e.g., 50-50 if there is one
Recipient inventor and one DOC employee inventor). The agreement will be prepared
by DOC and may include other provisions, such as a royalty -free license to the
Government and certain other entities. The provision at 35 U.S.C. § 202(e) also
authorizes the Recipient to transfer its rights to the Government, which can agree to
share royalties similarly as described above.
ii. Responsibilities — iEdison. The Recipient has responsibilities and duties set forth in the
standard patent rights clause, which are described below. The Recipient is expected to
comply with all requirements of the standard patent rights clause and 37 CFR part 401
and is required to submit its disclosures, elections, and requests for waivers from any
requirement for substantial U.S. manufacture electronically using the Interagency Edison
extramural invention reporting system (iEdison) at www.iedison.gov. The Recipient may
obtain a waiver of this electronic submission requirement by providing DOC compelling
reasons for allowing the submission of paper copies of reports related to inventions.
c. Patent Notification Procedures. Pursuant to Executive Order 12889 (58 Fed. Reg. 69681,
1993), DOC is required to notify the owner of any valid patent covering technology
whenever DOC or a Recipient, 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 Grants Officer. This notice does not
constitute authorization or consent by the Government to any copyright or patent infringement
occurring under the Award.
d. Copyright. A Recipient may copyright any work produced under this Award subject to
DOC's royalty -free, nonexclusive, and irrevocable right to obtain, reproduce, publish or
otherwise use the work or authorize others to do so for Government purposes. Works jointly
authored by DOC and Recipient employees may be copyrighted, but only the part of such
works authored by the Recipient is protectable in the United States because, under
17 U.S.C. § 105, works produced by Government employees are not copyrightable in the
United States. On occasion and as permitted under 17 U.S.C. § 105, DOC may require the
Recipient to transfer to DOC a copyright in a particular work for Government purposes or
when DOC is undertaking the primary dissemination of the work.
5. Increasing Seat Belt Use in the United States.
Pursuant to Executive Order 13043, Recipients should encourage employees and contractors to
enforce on-the-job seat belt policies and programs when operating company -owned, rented, or
personally -owned vehicles.
6. Research Involving Human Subjects.
a. All proposed research involving human subjects must be conducted in accordance with
15 CFR part 27 ("Protection of Human Subjects"). No research involving human subjects is
permitted under this Award unless expressly authorized by special award condition or
otherwise authorized in writing by the Grants Officer.
b. Federal policy defines a human subject as a living individual about whom an investigator
conducting research obtains (i) data through intervention or interaction with the individual, or
(ii) identifiable private information. Research means a systematic investigation, including
research development, testing and evaluation, designed to develop or contribute to
generalizable knowledge.
c. DOC regulations at 15 CFR part 27 require that the Recipient maintain appropriate policies
and procedures for the protection of human subjects. In the event it becomes evident that
human subjects may be involved in this Project, the Recipient shall submit appropriate
documentation to the Project Officer for approval. This documentation may include:
i. Documentation establishing approval of the Project by an institutional review board
("M") approved for Federal -wide use under Department of Health and Human Services
guidelines (see 15 CFR § 27.103);
ii. Documentation to support an exemption for the Project under 15 CFR § 27.101(b); or
iii. Documentation of IRB approval of any modification to a prior approved protocol or to an
informed consent form.
d. No work involving human subjects may be undertaken, conducted, or costs incurred and/or
charged for human subjects research until the appropriate documentation is approved in
writing by the Grants Officer. In accordance with 15 CFR § 27.118, if research involving
human subjects is proposed after an award is made, the Recipient must contact the Grants
Officer and provide required documentation. Notwithstanding this prohibition, work may be
initiated or costs incurred and/or charged to the Project for protocol or instrument
development related to human subjects research.
50
7. Federal Employee Expenses.
Federal agencies are generally barred from accepting funds from a Recipient to pay
transportation, travel, or other expenses for any Federal employee. Use of Award funds (Federal
or non -Federal) or the Recipient's provision of in -kind goods or services for the purposes of
transportation, travel, or any other expenses for any Federal employee may raise appropriation
augmentation issues. In addition, DOC policy prohibits the acceptance of gifts, including travel
payments for Federal employees, from Recipients or applicants regardless of the source.
8. Minority Serving Institutions Initiative.
Pursuant to Executive Orders 13555 ("White House Initiative on Educational Excellence for
Hispanics") (75 Fed. Reg. 65417, 2010), 13592 ("Improving American Indian and Alaska Native
Educational Opportunities and Strengthening Tribal Colleges and Universities")
(76 Fed. Reg. 76603, 2011), and 13532 ("Promoting Excellence, Innovation, and Sustainability at
Historically Black Colleges and Universities") (75 Fed. Reg. 9749, 2010), DOC is strongly
committed to broadening the participation of minority serving institutions ("MSIs") in its
financial assistance programs.
DOC's goals include achieving full participation of MSIs in order to advance the development of
human potential, strengthen the nation's capacity to provide high -quality education, and increase
opportunities for MSIs to participate in and benefit from Federal financial assistance programs.
DOC encourages all applicants and recipients to include meaningful participation of MSIs.
Institutions eligible to be considered MSIs are listed on the Department of Education website at
https ://www2.ed. gov/about/offices/li st/ocr/edl ite-m inorityinst.htm 1.
9. Research Misconduct.
The DOC adopts, and applies to financial assistance for research, the Federal Policy on Research
Misconduct ("Federal Policy") issued by the Executive Office of the President's Office of
Science and Technology Policy on December 6, 2000 (65 Fed. Reg. 76260). As provided for in
the Federal Policy, research misconduct refers to the fabrication, falsification, or plagiarism in
proposing, performing, or reviewing research, or in reporting research results. Research
misconduct does not include honest errors or differences of opinion. Recipient organizations that
conduct extramural research funded by the DOC must foster an atmosphere conducive to the
responsible conduct of sponsored research by safeguarding against and resolving allegations of
research misconduct. Recipient organizations also have the primary responsibility to prevent,
detect, and investigate allegations of research misconduct and, for this purpose, may rely on their
internal policies and procedures, as appropriate, to do so. Recipients must notify the Grants
Officer of any allegation that meets the definition of research misconduct and detail the entity's
inquiry to determine whether there is sufficient evidence to proceed with an investigation, as
well as the result of any investigation. DOC may take appropriate administrative or enforcement
action at any time under the Award, up to and including Award termination and possible
suspension or debarment, and referral to the DOC Office of the Inspector General ("OIG"), the
U.S. Department of Justice, or other appropriate investigative body.
51
10. Publications, Videos, and Acknowledgment of Sponsorship.
a. Publication of results or findings in appropriate professional journals and production of video
or other media are encouraged as important methods of recording and reporting results of
Federally funded projects, such as scientific research, and expanding access to Federally
funded projects.
b. Recipients must submit a copy of any publication materials, including but not limited to
print, recorded or Internet materials, to their EDA Project Officer.
c. When releasing information related to a funded Project, Recipients must include a statement
that the Project or effort undertaken was or is sponsored by DOC.
d. Recipients are responsible for ensuring that every publication of material based on,
developed under, or produced under this Award, except scientific articles or papers appearing
in scientific, technical or professional journals, contains the following disclaimer:
This [report/video] was prepared by [Recipient name] using Federal funds under
award [number] from the Economic Development Administration, U.S. Department of
Commerce.
The statements, findings, conclusions, and recommendations are those of the author(s)
and do not necessarily reflect the views of the Economic Development Administration or
the U.S. Department of Commerce.
11. Care and Use of Live Vertebrate Animals.
Recipients must comply with the Laboratory Animal Welfare Act of 1966 (Pub. L. No. 89-544),
as amended (7 U.S.C. § 2131 et seq.) ("Animal acquisition, transport, care, handling, and use in
projects"), and the implementing regulations at 9 CFR parts 1, 2, and 3; the Endangered Species
Act (16 U.S.C. § 1531 et seq.); the Marine Mammal Protection Act (16 U.S.C. § 1361 et seq.)
("Taking possession, transport, purchase, sale, export or import of wildlife and plants"); the
Non -indigenous Aquatic Nuisance Prevention and Control Act (16 U.S.C. § 4701 et seq.)
("Ensure preventive measures are taken or that probable harm of using species is minimal if there
is an escape or release"); and all other applicable statutes pertaining to the care, handling, and
treatment of warm-blooded animals held for research, teaching, or other activities supported by
Federal financial assistance. No research involving vertebrate animals is permitted under any
DOC award unless authorized by the Grants Officer.
12. Homeland Security Presidential Directive 12.
If performance under the Award requires Recipient personnel to have routine access to Federally
controlled facilities and/or Federally controlled information systems (for purposes of this
condition, "routine access" is defined as more than 180 business days), such personnel must
undergo the personal identity verification credential process. In the case of foreign nationals, the
DOC will conduct a check with the U.S. Citizenship and Immigration Services ("USCIS")
Verification Division, a component of the Department of Homeland Security ("DHS"), to ensure
that the individual is in a lawful immigration status and that he or she is eligible for employment
within the U.S. Any items or services delivered under this Award shall comply with DOC
personal identity verification procedures that implement Homeland Security Presidential
Directive 12, "Policy for a Common Identification Standard for Federal Employees and
52
Contractors," Federal Information Processing Standards Publication ("FIPS PUB") Number 201,
and OMB Memorandum M-05-24. The Recipient shall ensure that its subrecipients and
contractors (at all tiers) performing work under this Award comply with the requirements
contained in this term. The Grants Officer may delay final payment under this Award if a
subrecipient or contractor fails to comply with the requirements listed below. The Recipient shall
insert the following term in all subawards and contracts when the subrecipient or contractor is
required to have routine physical access to a Federally controlled facility or routine access to a
Federally controlled information system:
The subrecipient or contractor shall comply with DOC personal identity verification
procedures identified in the subaward or contract that implement Homeland Security
Presidential Directive 12 (HSPD-12), Office of Management and Budget (OMB) Guidance
M-05-24, as amended, and Federal Information Processing Standards Publication (FIPS
PUB) Number 201, as amended, for all employees under this subaward or contract who
require routine physical access to a Federally controlled facility or routine access to a
Federally controlled information system.
The subrecipient or contractor shall account for all forms of Government provided
identification issued to the subrecipient or contractor employees in connection with
performance under this subaward or contract. The subrecipient or contractor shall return
such identification to the issuing agency at the earliest of any of the following, unless
otherwise determined by DOC: (1) When no longer needed for subaward or contract
performance; (2) Upon completion of the subrecipient or contractor employee's
employment; (3) Upon subaward or contract completion or termination.
13. Compliance with Department of Commerce Bureau of Industry and Security Export
Administration Regulations.
a. This term applies to the extent that this Award involves access to export -controlled items.
b. In performing under this Award, the Recipient may gain access to export -controlled
information or technology. The Recipient is responsible for compliance with all applicable
laws and regulations regarding export -controlled information and technology, including the
deemed exports and reexports provisions of the Export Administration Regulations ("EAR").
The Recipient shall establish and maintain throughout performance of this Award effective
export compliance procedures at non-DOC facilities. At a minimum, these export compliance
procedures must include adequate controls of physical, verbal, visual, and electronic access
to export -controlled information and technology.
c. Definitions.
i. Export -controlled items. Items (commodities, software, or technology) that are subject to
the EAR (15 CFR §§ 730-774), implemented by the DOC's Bureau of Industry and
Security. These are generally known as "dual -use" items —that is, items with a military
and commercial application.
ii. Deemed export/reexport. The EAR defines a deemed export as a release of export -
controlled items (specifically, technology or source code) to a foreign national in the U.S.
Such release is "deemed" to be an export to the home country of the foreign national.
15 CFR § 734.2(b)(2)(ii). A release may take the form of visual inspection, oral exchange
53
of information, or the application abroad of knowledge or technical experience acquired
in the U.S. If such a release occurs abroad, it is considered a deemed reexport to the
foreign national's home country. Licenses from DOC may be required for deemed
exports or reexports.
d. The Recipient shall control access to all export -controlled information and technology that it
possesses or that comes into its possession in performance of this Award, to ensure that
access is restricted, or licensed, as required by applicable Federal laws, executive orders, or
regulations, including the EAR.
e. As applicable, Recipient personnel and associates at DOC sites will be informed of any
procedures to identify and protect export -controlled items.
f. Nothing in the Terms and Conditions of this Award is intended to change, supersede or
waive the requirements of applicable Federal laws, executive orders, or regulations.
g. The Recipient shall include this subsection entitled "Compliance with Department of
Commerce Bureau of Industry and Security Export Administration Regulations," including
this subparagraph g, in all lower -tier transactions (subawards, contracts, and subcontracts)
under this Award that may involve access to export -controlled information technology.
14. The Trafficking Victims Protection Act of 2000 (22 U.S.C. § 7104(g)), as Amended, and the
Implementing Regulations at 2 CFR part 175.
The Trafficking Victims Protection Act of 2000 authorizes termination of financial assistance
provided to a private entity, without penalty to the Federal Government, if the Recipient engages
in certain activities related to trafficking in persons. The Department hereby incorporates the
following Award term required by 2 CFR § 175.15(b). See http://www.gpo. og v/fdsys/pk CFR-
2012-title2-vol 1 /ndf/CFR-2012-title2-vol l -sec l 75-15.pdf
a. Provisions applicable to a Recipient that is a private entity.
i. The Recipient, its employees, subrecipients under this Award, and subrecipients'
employees may not:
(1) Engage in severe forms of trafficking in persons during the period of time that the
Award is in effect;
(2) Procure a commercial sex act during the period of time that the Award is in effect; or
(3) Use forced labor in the performance of the Award or subawards under the Award.
ii. EDA, as the Federal awarding agency, may unilaterally terminate this Award, without
penalty, if the Recipient or a subrecipient that is a private entity:
(1) Is determined to have violated a prohibition in paragraph a.i of this Award term; or
(2) Has an employee who is determined by the Grants Officer to have violated a
prohibition in paragraph a.i of this Award term through conduct that is either:
(A) associated with performance under this Award; or (B) imputed to the Recipient or
a subrecipient using the standards and due process for imputing the conduct of an
individual to an organization that are provided at 2 CFR part 180 ("OMB Guidelines
to Agencies on Govemmentwide Debarment and Suspension (Nonprocurement)") as
54
implemented by DOC at 2 CFR part 1326 ("Nonprocurement Debarment and
Suspension").
b. Provision applicable to a Recipient other than a private entity. EDA, as the Federal awarding
agency, may unilaterally terminate this Award, without penalty, if a subrecipient that is a
private entity:
Is determined to have violated an applicable prohibition in paragraph a.i of this Award
term; or
ii. Has an employee who is determined by the Grants Officer to have violated an applicable
prohibition in paragraph a.i of this Award term through conduct that is either:
(1) Associated with performance under this Award; or
(2) Imputed to the subrecipient using the standards and due process for imputing the
conduct of an individual to an organization that are provided at 2 CFR part 180
("OMB Guidelines to Agencies on Governmentwide Debarment and Suspension
(Nonprocurement)"), as implemented by DOC at 2 CFR part 1326 ("Nonprocurement
Debarment and Suspension").
c. Provisions applicable to any Recipient.
i. The Recipient must inform EDA immediately of any information it receives from any
source alleging a violation of a prohibition in paragraph a.i of this Award term.
ii. EDA's right to terminate this Award unilaterally, as described in paragraph a.ii or b of
this section:
(1) Implements section 106(g) of the Trafficking Victims Protection Act of 2000
("TVPA"), as amended (22 U.S.C. § 7104(g)), and
(2) Is in addition to all other remedies for noncompliance that are available to EDA under
this Award.
iii. The Recipient must include the requirements of paragraph a.i of this Award term in any
subaward made to a private entity.
d. Definitions. For purposes of this Award term:
i. "Employee" means either:
(1) An individual employed by the Recipient or a subrecipient who is engaged in the
performance of the Project under this Award; or
(2) Another person engaged in the performance of the Project under this Award and not
compensated by the Recipient including, but not limited to, a volunteer or individual
whose services are contributed by a third party as an in -kind contribution toward
Matching Share requirements.
ii. "Forced labor" means labor obtained by any of the following methods: the recruitment,
harboring, transportation, provision, or obtaining of a person for labor or services,
through the use of force, fraud, or coercion for the purpose of subjection to involuntary
servitude, peonage, debt bondage, or slavery.
iii. "Private entity":
55
(1) Means any entity other than a State, local government, Indian tribe, or foreign public
entity, as those terms are defined at 2 CFR § 175.25;
(2) Includes: (A) a nonprofit organization, including any nonprofit institution of higher
education, hospital, or tribal organization other than one included in the definition of
"Indian tribe" at 2 CFR § 175.25(b); and (B) a for -profit organization.
iv. "Severe forms of trafficking in persons," "commercial sex act," and "coercion' have the
meanings given in section 103 of the TVPA, as amended (22 U.S.C. § 7102).
15. The Federal Funding Accountability and Transparency Act of 2006 (Pub. L. No.109-282,
31 U.S.C. § 6101 Note), as Amended by the Government Funding Transparency Act of
2008 (Pub. L. No. 110-252).
Searchable Website Requirements. The Federal Funding Accountability and Transparency
Act of 2006 ("FFATA" or "Transparency Act") requires that information on Federal awards
(Federal financial assistance and expenditures) be made available to the public via a single,
searchable website. This information is available at www.USASpending.gov. To meet these
requirements, Recipients and subrecipients must include the following data elements in their
Application:
i. Name of entity receiving Award;
ii. Award amount;
iii. Transaction type, funding agency, Catalog of Federal Domestic Assistance Number, and
descriptive Award title;
iv. Location of entity and primary location of performance (city, State, Congressional
District, and country); and
v. Unique identifier of entity.
See also 2 CFR § 200.211 ("Public access to Federal award information')
b. Subaward and Executive Compensation Data Reporting Requirements. A Recipient
awarded a new Federal grant greater than or equal to $25,000 on or after October 1, 2010,
other than those funded by the American Recovery and Reinvestment Act of 2009
(Pub. L. No. 111-5) ("Recovery Act"), are subject to FFATA subaward reporting
requirements as outlined in the OMB guidance issued August 27, 2010. The Recipient is
required to file a FFATA subaward report by the end of the month following the month in
which the Recipient awards any subgrant greater than or equal to $25,000.
See Pub. L. No. 109-282, as amended by section 6202(a) of Pub. L. No. 110-252
(see 31 U.S.C. § 6101 note). The reporting requirements are located in Appendix A of 2 CFR
part 170 and are available at https://www.gpo.gov/fdsys/pkg/CFR-2015-title2-voll/ndf/CFR-
2015-title2-vol 1-part 170.pdf.
i. Reporting of first -tier subawards.
(1) Applicability. Unless exempt as provided in paragraph b.iv of this Award term, the
Recipient must report each action that obligates $25,000 or more in Federal funds that
does not include Recovery Act funds (as defined in section 1512(a)(2) of the
56
Recovery Act, Pub. L. No. 111-5) for a subaward to an entity (see definitions in
paragraph b.v of this Award term).
(2) Where and when to report.
(a) The Recipient must report each obligating action described in paragraph b.i(1) of
this Award term to http://www.fsrs.gov.
(b) For subaward information, the Recipient must report no later than the end of the
month following the month in which the obligation was made. (For example, if
the obligation was made on November 7, 2015, the obligation must be reported by
no later than December 31, 2015.)
(3) What to report. The Recipient must report information about each obligating action
that the submission instructions posted at http://www.fsrs.gov specify.
ii. Reporting total compensation of Recipient executives.
(1) Applicability and what to report. The Recipient must report total compensation for
each of its five most highly compensated executives for the preceding completed
fiscal year, if.
(a) The total Federal funding authorized to date under this Award is $25,000 or more;
(b) In the preceding fiscal year, the Recipient received:
(i) 80 percent or more of its annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 CFR § 170.320 (and subawards); and
(ii) $25,000,000 or more in annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 CFR § 170.320 (and subawards); and
(c) The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. § 78m(a), 78o(d)) or section 6104 of
the Internal Revenue Code of 1986. (To determine if the public has access to the
compensation information, see the U.S. Securities and Exchange Commission
total compensation filings at http://www.sec.gov/answers/execomp.htm.)
(2) Where and when to report. The Recipient must report executive total compensation
described in paragraph b.ii of this Award term:
(a) As part of its registration profile at httv://www.ccr.aov.
(b) By the end of the month following the month in which this Award is made, and
annually thereafter.
iii. Reporting total compensation of subrecipient executives.
(1) Applicability and what to report. Unless the subrecipient is exempt as provided in
paragraph b.iv of this Award term, each first -tier subrecipient under this Award shall
report the names and total compensation of each of the subrecipient's five most
highly compensated executives for the subrecipient's preceding completed fiscal year,
if
57
(a) In the subrecipient's preceding fiscal year, the subrecipient received:
(i) 80 percent or more of its annual gross revenues from Federal procurement
contracts (and subcontracts) and Federal financial assistance subject to the
Transparency Act, as defined at 2 CFR § 170.320 (and subawards); and
(ii) $25,000,000 or more in annual gross revenues from Federal procurement
contracts (and subcontracts), and Federal financial assistance subject to the
Transparency Act (and subawards); and
(b) The public does not have access to information about the compensation of the
executives through periodic reports filed under section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (15 U.S.C. § 78m(a), 78o(d)) or section 6104 of
the Internal Revenue Code of 1986. (To determine if the public has access to the
compensation information, see the U.S. Securities and Exchange Commission
total compensation filings at http://www.sec.gov/answers/execomp.htm.)
See also 2 CFR § 200.300(b) ("Statutory and national policy requirements").
(2) Where and when to report. The subrecipient must report its executive total
compensation described in paragraph b.iii of this Award term:
(a) To the Recipient.
(b) By the end of the month following the month during which the subaward is made.
For example, if a subaward is obligated on any date during the month of October
of a given year (Le., between October 1 and 31), the required compensation
information of the subrecipient must be reported by November 30 of that year.
iv. Exemptions. If, in the previous tax year, the Recipient had gross income, from all
sources, under $300,000, it is exempt from the requirements to report:
(1) Subawards, and
(2) The total compensation of the five most highly compensated executives of any
subrecipient.
v. Definitions. For purposes of this Award tern:
(1) "Entity" means all of the following, as defined at 2 CFR part 25:
(a) A Governmental organization, which is a State, local government, or Indian tribe;
(b) A foreign public entity;
(c) A domestic or foreign nonprofit organization;
(d) A domestic or foreign for -profit organization; and
(e) A Federal agency, but only as a subrecipient under an award or subaward to a
Recipient.
(2) "Executive" means officers, managing partners, or any other employees in
management positions.
(3) "Subaward":
58
(a) This term means a legal instrument to provide support for the performance of any
portion of the substantive Project or program for which the Recipient received this
Award and that the Recipient awards to an eligible subrecipient.
(b) The term does not include the Recipient's procurement of property and services
needed to carry out the Project or program (for further explanation,
see 2 CFR § 200.330).
(c) A subaward may be provided through any legal agreement, including an
agreement that the Recipient or a subrecipient considers a contract.
(4) "Subrecipient" means an entity that:
(a) Receives a subaward from the Recipient under this Award; and
(b) Is accountable to the Recipient for the use of the Federal funds provided by the
subaward.
(5) "Total compensation" means the cash and noncash dollar value earned by the
executive during the Recipient's or subrecipient's preceding fiscal year and includes
the following (for more information, see 17 CFR § 229.402(c)(2)):
(a) Salary and bonus.
(b) Awards of stock, stock options, and stock appreciation rights. Use the dollar
amount recognized for financial statement reporting purposes with respect to the
fiscal year in accordance with the Statement of Financial Accounting Standards
No. 123 (Revised 2004) (FAS 123R), Share Based Payments.
(c) Earnings for services under non -equity incentive plans. This does not include
group life, health, hospitalization or medical reimbursement plans that do not
discriminate in favor of executives and are available generally to all salaried
employees.
(d) Change in pension value. This is the change in present value of defined benefit
and actuarial pension plans.
(e) Above -market earnings on deferred compensation which is not tax -qualified.
(f) Other compensation, if the aggregate value of all such other compensation
(e.g., severance, termination payments, value of life insurance paid on behalf of
the employee, perquisites or property) for the executive exceeds $10,000.
c. Central Contractor Registration (11CCR11) and Universal Identifier Requirements.
In accordance with 2 CFR part 25, the Recipient must obtain a Data Universal
Numbering System ("DUNS") number and maintain an active registration in the CCR
database. In addition, the Recipient must notify potential first -tier subrecipients that no
entity may receive a first -tier subaward unless the entity has provided its DUNS number
to the Recipient. The requirements are located in Appendix A of 2 CFR part 25 and are
available at http://www.gpo. ov/fdsys/pkg/CFR-2015-title2-vol l/pdf/CFR-2015-title2-
vol 1-part25.pdf.
i. Requirement for CCR. Unless exempted from this requirement under
2 CFR § 25.110, the Recipient must maintain the currency of its information in the
59
CCR until it submits the final financial report required under this Award or receives
the final payment, whichever is later. This requires that the Recipient review and
update the information at least annually after the initial registration, and more
frequently if required by changes in its information or another Award term.
ii. Requirement for DUNS Numbers. If authorized to make subawards under this Award,
the Recipient:
(1) Must notify potential subrecipients that no entity (see definition in paragraph b.v
of this Award term) may receive a subaward from the Recipient unless the entity
has provided its DUNS number to the Recipient.
(2) May not make a subaward to an entity unless the entity has provided its DUNS
number to the Recipient.
iii. Definitions for purposes of this Award term:
(1) "Central Contractor Registration ("CCR")" means the Federal repository into
which an entity must provide information required for the conduct of business as a
Recipient. Additional information about registration procedures may be found at
the System for Award Management website (currently at
https://www.sam.gov/portal/public/SAMn.
(2) "Data Universal Numbering System ("DUNS")" number means the nine -digit
number established and assigned by Dun and Bradstreet, Inc. (D&B) to uniquely
identify business entities. A DUNS number may be obtained from D&B by
telephone (currently 866-705-5711) or the Internet (currently at
http://fedgov.dnb.com/webform).
(3) "Entity," as it is used in this Award term, means all of the following, as defined at
2 CFR part 25, subpart C:
(a) A Governmental organization, which is a State, local government, or Indian
Tribe;
(b) A foreign public entity;
(c) A domestic or foreign nonprofit organization;
(d) A domestic or foreign for -profit organization; and
(e) A Federal agency, but only as a subrecipient under an award or subaward to
a Recipient.
(4) "Subaward":
(a) This term means a legal instrument to provide support for the performance of
any portion of the substantive Project or program for which the Recipient
received this Award and that the Recipient awards to an eligible subrecipient.
(b) The term does not include the Recipient's procurement of property and
services needed to carry out the Project or program (for further explanation,
see 2 CFR § 200.330).
(c) A subaward may be provided through any legal agreement, including an
agreement that the Recipient considers a contract.
(5) "Subrecipient" means an entity that:
(a) Receives a subaward from the Recipient under this Award; and
(b) Is accountable to the Recipient for the use of the Federal funds provided by the
subaward.
See also 2 CFR § 200.300(b) ("Statutory and national policy requirements").
16. Federal Financial Assistance Planning During a Funding Hiatus or Government Shutdown.
This term sets forth initial guidance that will be implemented for Federal financial assistance
awards in the event of a lapse in appropriations, or a Government shutdown. The Grants Officer
may issue further guidance prior to an anticipated shutdown.
a. Unless there is an actual rescission of funds for specific grant obligations, Recipients under
Federal financial assistance awards for which funds have been obligated generally will be
able to continue to perform and incur allowable expenses under the Award during a funding
hiatus. Recipients are advised that ongoing activities by Federal employees involved in grant
administration (including payment processing) or similar operational and administrative work
cannot continue when there is a funding lapse. Therefore, there may be delays, including
payment processing delays, in the event of a shutdown.
b. All Award actions will be delayed during a Government shutdown; if it appears that a
Recipient's performance under a grant or cooperative agreement will require agency
involvement, direction, or clearance during the period of a possible Government shutdown,
the Project Officer or Grants Officer, as appropriate, may attempt to provide such
involvement, direction, or clearance prior to the shutdown or advise the Recipient that such
involvement, direction, or clearance will not be forthcoming during the shutdown.
Accordingly, Recipients whose ability to withdraw funds is subject to prior agency approval,
which in general are Recipients that have been designated high risk, Recipients under
construction awards, and other Recipients limited to reimbursements or subject to agency
review, will be able draw funds down from the relevant Automatic Standard Application for
Payment ("ASAP") account only if agency approval is given and coded into ASAP prior to
any Government shutdown or closure. This limitation may not be lifted during a Government
shutdown. Recipients should plan to work with the Grants Officer to request prior approvals
in advance of a shutdown wherever possible. Recipients whose authority to draw down award
funds is restricted may decide to suspend work until the Government reopens.
c. The ASAP system should remain operational during a Government shutdown. Recipients that
do not require any Grants Officer or agency approval to draw down advance funds from their
ASAP accounts should be able to do so during a shutdown. The 30-day limitation on the
drawdown of advance funds will still apply notwithstanding a Government shutdown and
advanced funds held for more than 30 days will have to be returned with interest.
61
APPENDIX
The following reference materials and forms are available online:
1. 2 CFR part 200, "Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards "
2. 2 CFR part 1326, "Nonprocurement Debarment and Suspension"
3. 13 CFR Chapter III (EDA's regulations)
4. 15 CFR part 4, "Disclosure of Government Information"
5. 15 CFR part 27, "Protection of Human Subjects"
6. 15 CFR part 28, "New Restrictions on Lobbying"
7. 15 CFR part 29, "Governmentwide Requirements for Drug -Free Workplace (Financial
Assistance)"
8. 48 CFR part 31, "Contract Cost Principles and Procedures"
9. Code of Federal Regulations (CFR): Government Printing Office's Federal Digital System
(FDSYS) at https://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR
10. EDA's regulations:
http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR); search for
Title 13, Chapter III after selecting the relevant year
11.OMB Circulars: www.whitehouse.gov/omb/circulars/index.html
12. Davis -Bacon wage rate determinations: http://www.wdol.gov/dba.aspx
Governmentwide and DOC-Specific Forms:
1. Form CD-281, "Report of Government Property in Possession of Contractor"
2. Form CD-450, "Financial Assistance Award"
3. Form CD-451, "Amendment to Financial Assistance Award"
4. Form SF-425, "Federal Financial Report"
5. Form SF-428, "Tangible Personal Property"
6. Form SF-429, "Real Property Status Report"
7. Form SF-271, "Outlay Report and Request for Reimbursement for Construction Programs"
8. Form SF-272, "Federal Cash Transaction Report"
9. Form SF-LLL, "Disclosure of Lobbying Activities"
Commerce Department ("CD") forms:
http://ocio.os.doc.gov/ITPolicvandProizrams/Electronic Forms/index.htm
Govemmentwide Standard Forms ("SF"): https://www.whitehouse.gov/omb/grants forms
62
Title 13 of the Code of Federal Regulations
Chapter III —Economic Development Administration,
Department of Commerce
This version of 13 CFR chapter III is a work product of the Economic Development
Administration (EDA) and is provided for convenience only. It should not be relied upon and
EDA accepts no responsibility for any errors or omissions herein. For an official version of 13
CFR chapter III, please consult the Code of Federal Regulations published by the Office of the
Federal Register.
SHORT TABLE OF CONTENTS
PART 300—GENERAL INFORMATION.................................................................................... 9
PART 301—ELIGIBILITY, INVESTMENT RATE AND APPLICATION REQUIREMENTS
................................................................................................................................. 14
PART 302—GENERAL TERMS AND CONDITIONS FOR INVESTMENT ASSISTANCE. 23
PART 303—PLANNING INVESTMENTS AND COMPREHENSIVE ECONOMIC
DEVELOPMENT STRATEGIES.......................................................................... 32
PART 304—ECONOMIC DEVELOPMENT DISTRICTS........................................................ 38
PART 305—PUBLIC WORKS AND ECONOMIC DEVELOPMENT INVESTMENTS ........ 41
PART 306—TRAINING, RESEARCH AND TECHNICAL ASSISTANCE INVESTMENTS 47
PART 307—ECONOMIC ADJUSTMENT ASSISTANCE INVESTMENTS ........................... 50
PART 308—PERFORMANCE INCENTIVES........................................................................... 71
PART 309—REDISTRIBUTIONS OF INVESTMENT ASSISTANCE .................................... 73
PART 310—SPECIAL IMPACT AREAS................................................................................... 74
PART311 [RESERVED]............................................................................................................. 75
PART 312—REGIONAL INNOVATION PROGRAM.............................................................. 75
PART313 [Reserved]................................................................................................................... 82
PART 314—PROPERTY............................................................................................................. 82
PART 315—TRADE ADJUSTMENT ASSISTANCE FOR FIRMS .......................................... 95
PARTS 316-399 [RESERVED]................................................................................................. 108
FULL TABLE OF CONTENTS
PART 300—GENERAL INFORMATION.................................................................................... 9
§300.1 Introduction and mission........................................................................................... 9
§300.2 EDA Headquarters and regional offices.................................................................... 9
§300.3 Definitions.................................................................................................................9
PART 301—ELIGIBILITY, INVESTMENT RATE AND APPLICATION REQUIREMENTS
................................................................................................................................. 14
SubpartA --General ..................................................................................................................
14
§301.1
Overview of eligibility requirements.......................................................................
14
Subpart B—Applicant Eligibility..............................................................................................
14
§301.2
Applicant eligibility.................................................................................................
14
Subpart C—Economic Distress Criteria...................................................................................
15
§301.3
Economic distresslevels..........................................................................................
15
Subpart D—Investment Rates and Matching Share Requirements ..........................................
17
§301.4
Investment rates.......................................................................................................
17
§301.5
Matching share requirements..................................................................................
20
§301.6
Supplementary Investment Assistance....................................................................
20
Subpart E—Application
Requirements; Evaluation Criteria ....................................................
21
§301.7
Investment Assistance application..........................................................................
21
§301.8
Application evaluation criteria................................................................................
21
§301.9
Application selection criteria...................................................................................
21
§301.10
Formal application requirements...........................................................................
22
§301.11
Infrastructure.........................................................................................................
22
PART 302—GENERAL TERMS AND CONDITIONS FOR INVESTMENT ASSISTANCE.
23
§302.1 Environment............................................................................................................24
§302.2 Procedures in disaster areas..................................................................................... 24
§302.3 Project servicing for loans, loan guaranties and Investment Assistance ................. 24
§302.4 Public information................................................................................................... 25
§302.5 Relocation assistance and land acquisition policies ................................................ 25
§302.6 Additional requirements; Federal policies and procedures ..................................... 25
§302.7 Amendments and change.. ...................................................................................... 26
§302.8 Pre -approval Investment Assistance costs............................................................... 26
§302.9 Inter -governmental review of projects.................................................................... 26
§302.10 Attorneys' and consultants' fees, employment of expediters, and post -employment
restriction............................................................................................................... 27
§302.11
Economic development information clearinghouse ..............................................
27
§302.12
Project administration, operation and maintenance ...............................................
27
§302.13
Maintenance of standards......................................................................................
28
§302.14
Records..................................................................................................................28
§302.15
Acceptance of certifications made by Eligible Applicants ....................................
28
§302.16
Accountability.......................................................................................................28
§302.17
Conflicts of interest...............................................................................................
29
§302.18
Post -approval requirements...................................................................................
30
§302.19
Indemnification......................................................................................................
31
§302.20
Civil rights.............................................................................................................
31
PART 303—PLANNING
INVESTMENTS AND COMPREHENSIVE ECONOMIC
DEVELOPMENT STRATEGIES..........................................................................
32
SubpartA --General ..................................................................................................................
32
§303.1
Overview of EDA's Planning Program...................................................................
32
§303.2
Definitions...............................................................................................................33
§303.3
Application requirements and evaluation criteria ....................................................
33
§303.4
Award requirements................................................................................................
34
§303.5
Eligible administrative expenses.............................................................................
34
Subpart B—Partnership
Planning Assistance...........................................................................
34
§303.6
Partnership Planning and the EDA-funded CEDS process .....................................
34
§303.7
Requirements for Comprehensive Economic Development Strategies ...................
36
Subpart C—State
and Short -Term Planning Assistance...........................................................
37
§303.8
Requirements for State plans...................................................................................
37
§303.9
Requirements for short-term Planning Investments ................................................
37
PART 304—ECONOMIC DEVELOPMENT DISTRICTS........................................................
38
§304.1
Designation of Economic Development Districts: Regional eligibility ..................
38
§304.2
District Organizations: Formation, organizational requirements and operations....
38
§304.3
District modification and termination.....................................................................
40
§304.4
Performance evaluations.........................................................................................
41
PART 305—PUBLIC
WORKS AND ECONOMIC DEVELOPMENT INVESTMENTS ........
41
SubpartA --General ..................................................................................................................
41
§305.1
Purpose and scope...................................................................................................
41
§305.2
Award requirements................................................................................................
42
§305.3
Application requirements........................................................................................ 42
§305.4
Projects for design and engineering work...............................................................
43
Subpart B—Requirements
for Approved Projects....................................................................
43
§305.5
Project administration by District Organization......................................................
43
§305.6
Allowable methods of procurement for construction services ................................
44
§305.7
Services performed by the Recipient's own forces ..................................................
44
§305.8
Recipient -furnished equipment and materials.........................................................
45
§305.9
Project phasing and Investment disbursement........................................................
45
§305.10
Bid underrun and overrun......................................................................................
46
§305.11
Contract awards; early construction start..............................................................
46
§305.12
Project sign............................................................................................................
46
§305.13
Contract change orders..........................................................................................
47
§305.14
Occupancy prior to completion.............................................................................
47
PART 306—TRAINING, RESEARCH AND TECHNICAL ASSISTANCE INVESTMENTS 47
Subpart A
—Local and National Technical Assistance.............................................................
47
§306.1
Purpose and scope...................................................................................................
47
§306.2
Award requirements................................................................................................
48
§306.3
Application requirements........................................................................................
49
Subpart B—University
Center Economic Development Program ............................................
49
§306.4
Purpose and scope...................................................................................................
49
§306.5
Award requirements................................................................................................
49
§306.6
Application requirements........................................................................................
50
§306.7
Performance evaluations of University Centers ......................................................
50
PART 307ECONOMIC
ADJUSTMENT ASSISTANCE INVESTMENTS ...........................
50
SubpartA—General.................................................................................................................. 51
§307.1 Purpose....................................................................................................................51
§307.2 Criteria for Economic Adjustment Assistance Investments .................................... 51
§307.3 Use of Economic Adjustment Assistance Investments ........................................... 52
§307.4 Award requirements .............................................
§307.5 Application requirements .....................................
Subpart B—Revolving Loan Fund Program ..........................
§307.6 Revolving Loan Funds established for lending....
§307.7 Revolving Loan Fund award requirements..........
§307.8 Definitions............................................................
............................................. 52
............................................. 53
............................................... 53
............................................... 53
53
......... 54
§307.9
Revolving Loan Fund Plan......................................................................................
56
§307.10
Pre -loan requirements............................................................................................
57
§307.11
Pre -disbursement requirements and disbursement of funds to Revolving Loan
Funds.....................................................................................................................
58
§307.12
Revolving Loan Fund Income requirements during the Revolving Phase;
payments on defaulted and written off Revolving Loan Fund loans; Voluntarily
ContributedCapital...............................................................................................
60
§307.13
Records and retention............................................................................................
62
§307.14
Revolving Loan Fund report .................................................................................
63
§307.15
Prudent management of Revolving Loan Funds ...................................................
63
§307.16
Risk Analysis System............................................................................................
64
§307.17
Requirements for Revolving Loan Fund Cash Available for Lending ..................
65
§307.18
Addition of lending areas; consolidation and merger of RLFs .............................
66
§307.19
RLF loan portfolio Sales and Securitizations........................................................
68
§307.20
Noncompliance......................................................................................................68
§307.21
Remedies for noncompliance................................................................................
69
§307.22
Variances...............................................................................................................71
PART 308—PERFORMANCE INCENTIVES...........................................................................
71
§308.1 Use of funds in Projects constructed under projected cost ...................................... 71
§308.2 Performance awards................................................................................................ 72
§308.3 Planning performance awards................................................................................. 72
PART 309—REDISTRIBUTIONS OF INVESTMENT ASSISTANCE .................................... 73
§309.1 Redistributions under parts 303, 305 and 306......................................................... 73
§309.2 Redistributions under part 307................................................................................ 73
PART 310—SPECIAL IMPACT AREAS................................................................................... 74
§310.1 Special Impact Area................................................................................................ 74
§310.2 Pressing need; alleviation of unemployment or underemployment ........................ 74
PART311 [RESERVED]............................................................................................................. 75
PART 312—REGIONAL INNOVATION PROGRAM.............................................................. 75
Subpart A --General Provisions................................................................................................ 75
§312.1 Purpose and scope of the Regional Innovation Program ......................................... 75
§312.2 General definitions from Public Works and Economic Development Act regulations
inapplicable to this part ........................................................................................... 76
§312.3 General definitions.................................................................................................. 76
Subpart B—Regional Innovation Strategies Program.............................................................. 79
§312.4 Purpose and scope of the Regional Innovation Strategies Program ........................ 79
§312.5 Regional Innovation Strategies Program definitions ............................................... 79
§312.6 Eligible recipients.................................................................................................... 80
§312.7 Eligible project activities......................................................................................... 80
§312.8 Investment rates....................................................................................................... 81
§312.9 Matching share requirements.................................................................................. 81
§312.10 Application components........................................................................................ 81
§312.11 Application evaluation and selection criteria........................................................ 82
§312.12 General terms and conditions for investment assistance ....................................... 82
Subpart C—Regional Innovation Research and Information Program [Reserved] .................. 82
§§312.13-312.17 [Reserved]............................................................................................... 82
PART313 [Reserved]................................................................................................................... 82
PART314—PROPERTY............................................................................................................. 82
§314.1
Definitions...............................................................................................................83
§314.2
Federal Interest........................................................................................................84
§314.3
Authorized use of Project Property.........................................................................
84
§314.4
Unauthorized Use of Project Property .....................................................................
85
§314.5
Federal Share...........................................................................................................
86
§314.6
Encumbrances..........................................................................................................87
§314.7
Title..........................................................................................................................89
§314.8
Recorded statement for Project Real Property ........................................................
92
§314.9
Recorded statement for Project Personal Property ..................................................
93
§314.10
Procedures for release of the Federal Interest.......................................................
93
PART 315—TRADE
ADJUSTMENT ASSISTANCE FOR FIRMS ..........................................
95
Subpart A —General Provisions................................................................................................
95
§315.1
Purpose and scope...................................................................................................
95
§315.2
Definitions...............................................................................................................95
§315.3
Confidential Business Information..........................................................................
98
§315.4
Eligible applicants...................................................................................................
98
§315.5
TAAC scope, selection, evaluation and awards ......................................................
99
§315.6
Firm eligibility for Adjustment Assistance...........................................................
100
Subpart B—Certification of Firms..........................................................................................
101
§315.7
Certification requirements.....................................................................................
101
§315.8
Processing petitions for certification.....................................................................
103
§315.9 Hearings.................................................................................................................104
§315.10 Loss of certification benefits...............................................................................
105
§315.11 Appeals, final determinations and termination of certification ...........................
106
Subpart C—Protective Provisions...........................................................................................
106
§315.12 Recordkeeping.....................................................................................................106
§315.13 Audit and examination........................................................................................
106
§315.14 Certifications.......................................................................................................106
§315.15 Conflicts of interest.............................................................................................
107
Subpart D—Adjustment Proposals.........................................................................................
107
§315.16 Adjustment proposal requirements......................................................................
107
Subpart E—Assistance to Industries.......................................................................................
108
§315.17 Assistance to firms in import -impacted industries ..............................................
108
PARTS316-399 [RESERVED].................................................................................................
108
PART 300—GENERAL INFORMATION
Authority: 42 U.S.C. 3121; 42 U.S.C. 3122; 42 U.S.C. 321 1; 15 U.S.C. 3701; Department of
Commerce Organization Order 10-4.
Source: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
§300.1 Introduction and mission.
EDA was created by Congress pursuant to the Public Works and Economic Development Act of
1965 to provide financial assistance to both rural and urban distressed communities. EDA's
mission is to lead the Federal economic development agenda by promoting innovation and
competitiveness, preparing American regions for growth and success in the worldwide economy.
EDA will fulfill its mission by fostering entrepreneurship, innovation and productivity through
Investments in infrastructure development, capacity building and business development in order
to attract private capital investments and new and better jobs to Regions experiencing substantial
and persistent economic distress. EDA works in partnership with distressed Regions to address
problems associated with long-term economic distress as well as to assist those Regions
experiencing sudden and severe economic dislocations, such as those resulting from natural
disasters, conversions of military installations, changing trade patterns and the depletion of
natural resources. EDA Investments generally take the form of Grants to or Cooperative
Agreements with Eligible Recipients.
[79 FR 76123, Dec. 19, 2014]
§300.2 EDA Headquarters and regional offices.
(a) EDA's Headquarters Office is located at: U.S. Department of Commerce, Economic
Development Administration, 1401 Constitution Avenue NW., Washington, DC 20230.
(b) EDA has regional offices throughout the United States and each regional office's contact
information may be found on EDA's Internet Web site at http://www.eda.gov or in the
applicable announcement of Federal Funding Opportunity issued by EDA. Please contact the
appropriate regional office to learn about EDA Investment opportunities in your Region.
[79 FR 76123, Dec. 19, 2014]
§300.3 Definitions.
As used in this chapter, the following terms shall have the following meanings:
Assistant Secretary means the Assistant Secretary for Economic Development within the
Department.
Comprehensive Economic Development Strategy or CEDS means a strategy that meets the
requirements of §303.7 of this chapter.
Cooperative Agreement means the financial assistance award of EDA funds to an Eligible
Recipient where substantial involvement is expected between EDA and the Eligible Recipient in
carrying out a purpose or activity authorized under PWEDA or another statute. See 31 U.S.C.
6305.
Co -Recipient means one of multiple Recipients awarded Investment Assistance under a single
award. Unless otherwise provided in the terms and conditions of the Investment Assistance, each
Co -Recipient is jointly and severally liable for fulfilling the terms of the Investment Assistance.
Department means the U.S. Department of Commerce.
District Organization means an organization meeting the requirements of §304.2 of this chapter.
Economic Development District or District or EDD means any Region in the United States
designated by EDA as an Economic Development District under §304.1 of this chapter (or such
regulation as was previously in effect before the effective date of this section) and also includes
any economic development district designated as such under section 403 of PWEDA, as in effect
on February 10, 1999.
EDA means the Economic Development Administration within the Department.
Eligible Applicant means an entity qualified to be an Eligible Recipient or its authorized
representative.
Eligible Recipient means any of the following:
(1) City or other political subdivision of a State, including a special purpose unit of State or local
government engaged in economic or infrastructure development activities, or a consortium of
political subdivisions;
(2) State;
(3) Institution of higher education or a consortium of institutions of higher education;
(4) Public or private non-profit organization or association, including a community or faith -
based non-profit organization, acting in cooperation with officials of a political subdivision
of a State;
(5) District Organization;
(6) Indian Tribe or a consortium of Indian Tribes; or
(7) Private individual or for -profit organization, but only for Training, Research and Technical
Assistance Investments pursuant to §306.1(d)(3) of this chapter.
Federal Agency means a department, agency or instrumentality of the United States government.
Federal Funding Opportunity or FFO means an announcement EDA publishes during the fiscal
year at http://www.grants.gov and on EDA's Internet Web site at hitp://www.eda.gov that
provides the funding amounts, application and programmatic requirements, funding priorities,
special circumstances, and other information concerning a specific competitive solicitation for
EDA's economic development assistance programs. EDA also may periodically publish FFOs on
specific programs or initiatives.
Federally Declared Disaster means a Presidentially Declared Disaster, a fisheries resource
disaster pursuant to section 312(a) of the Magnuson -Stevens Fishery Conservation and
Management Act, as amended (16 U.S.C. 186la(a)), or other Federally declared disasters
pursuant to applicable law.
Grant means the financial assistance award of EDA funds to an Eligible Recipient, under which
the Eligible Recipient bears responsibility for carrying out a purpose or activity authorized under
PWEDA or another statute. See 31 U.S.C. 6304.
Immediate Family means a person's spouse (or domestic partner or significant other), parents,
grandparents, siblings, children and grandchildren, but does not include distant relatives, such as
cousins, unless the distant relative lives in the same household as the person.
In -Kind Contribution(s) means non -cash contributions, which may include contributions of
space, equipment, services and assumptions of debt that are fairly evaluated by EDA and that
satisfy applicable Federal uniform administrative requirements and cost principles as set out in 2
CFR part 200.
Indian Tribe means an entity on the list of recognized tribes published pursuant to the Federally
Recognized Indian Tribe List Act of 1994, as amended (Pub. L. 103454) (25 U.S.C. 479a et
seq.), and any Alaska Native Village or Regional Corporation (as defined in or established under
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.). This term includes the
governing body of an Indian Tribe, non-profit Indian corporation (restricted to Indians), Indian
authority, or other non-profit Indian tribal organization or entity; provided that the Indian tribal
organization or entity is wholly owned by, and established for the benefit of, the Indian Tribe or
Alaska Native Village.
Interested Party means any officer, employee or member of the board of directors or other
governing board of the Recipient, including any other parties that advise, approve, recommend or
otherwise participate in the business decisions of the Recipient, such as agents, advisors,
consultants, attorneys, accountants or shareholders. An Interested Party also includes the
Interested Party's Immediate Family and other persons directly connected to the Interested Party
by law or through a business arrangement.
Investment or Investment Assistance means a Grant or Cooperative Agreement entered into by
EDA and a Recipient.
Investment Rate means, as set forth in §301.4 of this chapter, the amount of the EDA Investment
in a particular Project expressed as a percentage of the total Project cost.
Local Share or Matching Share means the non-EDA funds and any In -Kind Contributions that
are approved by EDA and provided by a Recipient or third party as a condition of an Investment.
The Matching Share may include funds from another Federal Agency only if authorized by
statute that allows such use, which may be determined by EDA's reasonable interpretation of
such authority.
Presidentially Declared Disaster means a major disaster or emergency declared under the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5121 et seq.).
Project means the proposed or authorized activity (or activities) the purpose of which fulfills
EDA's mission and program requirements as set forth in PWEDA or Stevenson-Wydler and this
chapter and which may be funded in whole or in part by EDA Investment Assistance.
PWEDA means the Public Works and Economic Development Act of 1965, as amended (42
U.S.C. 3121 et seq.).
Recipient means an entity receiving EDA Investment Assistance, including any EDA-approved
successor to the entity.
Region or Regional means an economic unit of human, natural, technological, capital or other
resources, defined geographically. Geographic areas comprising a Region need not be
contiguous or defined by political boundaries, but should constitute a cohesive area capable of
undertaking self -sustained economic development. For the limited purposes of determining
economic distress levels and Investment Rates pursuant to part 301 of this chapter, a Region also
may comprise a specific geographic area defined solely by its level of economic distress, as set
forth in §§301.3(a)(2) and 301.3(a)(3) of this, chapter.
Regional Commission means any of the following:
(1) The Appalachian Regional Commission established under chapter 143 of title 40, United
States Code;
(2) The Delta Regional Authority established under subtitle F of the Consolidated Farm and
Rural Development Act (7 U.S.C. 2009aa et seq.);
(3) The Denali Commission established under the Denali Commission Act of 1998 (42 U.S.C.
3121 note; 112 Stat. 2681-637 et seq.); or
(4) The Northern Great Plains Regional Authority established under subtitle G of the
Consolidated Farm and Rural Development Act (7 U.S.C. 2009bb et seq.).
Regional Innovation Clusters or RICs means networks of similar, synergistic, or complementary
entities that support a single industry sector and its various supply chains. In general, RICs:
(1) Are based on a geographic area that may cross municipal, county, and other jurisdictional
boundaries;
(2) May include catalysts of innovation and drivers of Regional economic growth, such as
universities, government research centers, and other research and development resources;
(3) Have active channels for business transactions and communication; and
(4) Depend upon specialized infrastructure, labor markets, and services that build on the unique
competitive assets of a location, including talent, technology, services, and hard and soft
infrastructure, to spur innovation, job creation, and business expansion.
Special Impact Area means a Region served by a Project for which the requirements of section
302 of PWEDA and §303.7 of this chapter have, upon an application filed by an Eligible
Recipient pursuant to section 214 of PWEDA and part 310 of this chapter, been waived in whole
or in part by the Assistant Secretary.
Special Need means a circumstance or legal status arising from actual or threatened severe
unemployment or economic adjustment problems resulting from severe short-term or long-term
changes in economic conditions, including:
(1) Substantial outmigration or population loss;
(2) Underemployment; that is, employment of workers at less than full-time or at less skilled
tasks than their training or abilities permit;
(3) Military base closures or realignments, defense contractor reductions -in -force, or U.S.
Department of Energy defense -related funding reductions;
(4) Natural or other major disasters or emergencies;
(5) Extraordinary depletion of natural resources;
(6) Closing or restructuring of an industrial firm or loss of a major employer;
(7) Negative effects of changing trade patterns; or
(8) Other circumstances set forth in an FFO.
State means a State of the United States, the District of Columbia, the Commonwealth of Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, the Republic of the Marshall Islands, the Federated States of Micronesia, and
the Republic of Palau.
Stevenson-Wydler, for purposes of EDA, means the Stevenson-Wydler Technology Innovation
Act of 1980, as amended (15 U.S.C. 3701 et seq.).
Subrecipient means an Eligible Recipient that receives a redistribution of Investment Assistance
in the form of a subgrant, under part 309 of this chapter, from another Eligible Recipient to carry
out part of a Federal program.
Trade Act, for purposes of EDA, means title II, chapters 3, 4 and 5, of the Trade Act of 1974, as
amended (19 U.S.C. 2341 et seq.).
United States means all of the States.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62865, Oct. 22, 2008; 79 FR 76123, Dec.
19, 2014; 82 FR 57052, Dec. 1, 20171
PART 301—ELIGIBILITY, INVESTMENT RATE AND APPLICATION
REQUIREMENTS
Authority: 42 U.S.C. 3121; 42 U.S.C. 3141-3147; 42 U.S.C. 3149; 42 U.S.C. 3161; 42 U.S.C.
3175; 42 U.S.C. 3192; 42 U.S.C. 3194; 42 U.S.C. 3211; 42 U.S.C. 3233; Department of
Commerce Delegation Order 10-4.
Source: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
Subpart A —General
§301.1 Overview of eligibility requirements.
In order to receive EDA Investment Assistance, the following requirements must be met:
(a) The applicant must be an Eligible Applicant as set forth in subpart B of this part;
(b) The Region in which the Project will be located must meet the economic distress criteria set
forth in subpart C of this part;
(c) The sources of funding for the Project must fulfill the Investment Rate and Matching Share
requirements set forth in subpart D of this part;
(d) The Eligible Applicant must satisfy the formal application requirements set forth in subpart E
of this part;
(e) The Project must meet the general requirements set forth in part 302 (General Terms and
Conditions for Investment Assistance) and the specific program requirements (as applicable)
set forth in part 303 (Planning Investments and Comprehensive Economic Development
Strategies), part 304 (Economic Development Districts), part 305 (Public Works and
Economic Development Investments), part 306 (Training, Research and Technical
Assistance Investments), or part 307 (Economic Adjustment Assistance Investments) of this
chapter; and
(f) EDA must select the Eligible Applicant's proposed Project.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76124, Dec. 19, 2014]
Subpart B—Applicant Eligibility
§301.2 Applicant eligibility.
(a) An Eligible Applicant for EDA Investment Assistance is defined in §300.3 of this chapter.
(b) An Eligible Applicant that is a non-profit organization must include in its application for
Investment Assistance a resolution passed by (or a letter signed by) an authorized
representative of a general purpose political subdivision of a State, acknowledging that it is
acting in cooperation with officials of such political subdivision. EDA, at its sole discretion,
may waive this cooperation requirement for certain Projects of a significant Regional or
national scope under part 306 or 307 of this chapter. See §§306.3(b), 306.6(b), and 307.5(b)
of this chapter.
[71 FR 56675, Sept. 27, 2006, as amended at 82 FR 57053, Dec. 1, 2017]
Subpart C—Economic Distress Criteria
§301.3 Economic distress levels.
(a) Part 305 (Public Works and Economic Development Investments) and part 307 (Economic
Adjustment Assistance Investments).
(1) Except as otherwise provided by this paragraph (a), for a Project to be eligible for
Investment Assistance under parts 305 or 307 of this chapter, the Project must be located
in a Region that, on the date EDA receives an application for Investment Assistance, is
subject to one or more of the following economic distress criteria:
(i) An unemployment rate that is, for the most recent 24-month period for which data are
available, at least one percentage point greater than the national average
unemployment rate;
(ii) Per capita income that is, for the most recent period for which data are available, 80
percent or less of the national average per capita income; or
(iii)A Special Need, as determined by EDA.
(2) A Project located within an Economic Development District, which is located in a Region
that does not meet the economic distress criteria described in paragraph (a)(1) of this
section, also is eligible for Investment Assistance under parts 305 or 307 of this chapter if
EDA determines that the Project will be of "substantial direct benefit" to a geographic
area within the District that meets the criteria of paragraph (a)(1) of this section. For this
purpose, a Project provides a "substantial direct benefit" if it provides significant
employment opportunities for unemployed, underemployed or low-income residents of
the geographic area within the District.
(3) A Project located in a geographic area of poverty or high unemployment that meets the
requirements of paragraph (a)(1) of this section, but which is located in a Region that
overall does not meet the requirements of paragraph (a)(1) of this section, is eligible for
Investment Assistance under parts 305 or 307 of this chapter without regard to political or
other subdivisions or boundaries.
(4) Data requirements to demonstrate economic distress levels. EDA will determine the
economic distress levels pursuant to this subsection at the time EDA receives an
application for Investment Assistance as follows:
(i) For economic distress levels based upon per capita income requirements, EDA will
base its determination upon the most recent American Community Survey ("ACS")
published by the U.S. Census Bureau. For economic distress levels based upon the
unemployment rate, EDA will base its determination upon the most recent data
published by the Bureau of Labor Statistics ("BLS"), within the U.S. Department of
Labor. For eligibility based upon either per capita income requirements or the
unemployment rate, when the ACS or BLS data, as applicable, are not the most recent
Federal data available, EDA will base its decision upon the most recent Federal data
from other sources (including data available from the Census Bureau and the Bureaus
of Economic Analysis, Labor Statistics, Indian Affairs, or any other Federal source
determined by EDA to be appropriate). If no Federal data are available, an Eligible
Applicant must submit to EDA the most recent data available from the State. The
required data must be for the Region where the Project will be located (paragraph
(a)(1) of this section), the geographic area where substantial direct Project benefits
will occur (paragraph (a)(2) of this section), or the geographic area of poverty or high
unemployment (paragraph (a)(3) of this section), as applicable.
(ii) For economic distress based upon a Special Need, EDA will conduct the independent
analysis it deems necessary under the facts and circumstances of a given case.
Eligible Applicants are encouraged to submit reliable data substantiating their claim
of a Special Need.
(b) Part 303 (Planning Investments) and part 306 (Training, Research and Technical Assistance
Investments). There are no minimum economic distress level requirements for Investment
Assistance awarded to Projects under parts 303 or 306 of this chapter.
(c) Part 304 (Economic Development Districts). For EDA to designate a Region as an Economic
Development District under part 304 of this chapter, such Region must:
(1) Contain at least one geographic area that fulfills the economic distress criteria set forth in
paragraph (a)(1) of this section and is identified in an approved CEDS; and .
(2) Meet the Regional eligibility requirements set forth in §304.1 of this chapter.
(d) EDA reserves the right to reject any documentation of Project eligibility that it determines is
inaccurate or otherwise unreliable.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62865, Oct. 22, 2008; 79 FR 76124, Dec.
19, 20141
Subpart D—Investment Rates and Matching Share Requirements
§301.4 Investment rates.
(a) Minimum Investment Rate. There is no minimum Investment Rate for a Project.
(b) Maximum Investment Rate—
(1) General rule. Except as otherwise provided by this paragraph (b) or paragraph (c) of this
section, the maximum EDA Investment Rate for all Projects shall be determined in
accordance with Table 1 in paragraph (b)(1)(ii) of this section. The maximum EDA
Investment Rate shall not exceed the sum of 50 percent, plus up to an additional 30
percent based on the relative needs of the Region in which the Project is located, as
determined by EDA.
(i) (A) Relative needs. In determining the relative needs of the Region in which the
Project is located, EDA will prioritize allocations of its Investment Assistance to
ensure that the level of economic distress of a Region, rather than a preference for
a specific geographic area or a specific type of economic distress, is the primary
factor in allocating its Investment Assistance. In making this determination, EDA
will take into consideration the following measures of economic distress:
(1) The severity of the unemployment rate and the duration of the unemployment
in the Region;
(2) The per capita income levels and the extent of underemployment in the
Region;
(3) The outmigration of population and the extent to which such outmigration is
causing economic injury in the Region; and
(4) Such other factors as EDA deems relevant in determining the relative needs of
the Region in which the Project is located.
(B) A Project is eligible for the maximum allowable Investment Rate as determined
by EDA between the time EDA receives the application for Investment
Assistance and the time that EDA awards Investment Assistance to the Project;
however, the burden is on the Eligible Applicant to establish the relative needs of
the Region in which the Project is located.
(ii) Table 1. Table 1 of this paragraph sets forth the maximum allowable Investment Rate
for Projects located in Regions subject to certain levels of economic distress. In cases
where Table 1 produces divergent results (i.e., where Table 1 produces more than one
maximum allowable Investment Rate based on the Region's levels of economic
distress), the higher Investment Rate produced by Table 1 shall be the maximum
allowable Investment Rate for the Project.
Table 1
Maximum
allowable
Projects located in regions in which:
investment
rates
(percentage)
(A) The 24-month unemployment rate is at least 225% of the national average;
80
or
(B) The per capita income is not more than 50% of the national average
80
(C) The 24-month unemployment rate is at least 200% of the national average;
70
or
(D) The per capita income is not more than 60% of the national average
70
(E) The 24-month unemployment rate is at least 175% of the national average;
60
or
(F) The per capita income is not more than 65% of the national average
60
(G) The 24-month unemployment rate is at least one percentage point greater
50
than the naional average; or
t
(H) The per capita income is not more than 80% of the national average
50
(2) Projects subject to a Special Need. EDA shall determine the maximum allowable
Investment Rate for Projects subject to a Special Need (as determined by EDA pursuant
to §301.3(a)(1)(iii)) based on the actual or threatened overall economic situation of the
Region in which the Project is located. However, unless the Project is eligible for a
higher Investment Rate pursuant to paragraph (b)(5) of this section, the maximum
allowable Investment Rate for any Project subject to a Special Need shall be 80 percent.
(3) Projects underpart 303.
(i) The minimum Investment Rate for Projects under part 303 of this chapter shall be 50
percent.
(ii) Except as otherwise provided in paragraph (b)(3)(iii) of this section or in paragraph
(b)(5) of this section, the maximum allowable Investment Rate for Projects under part
303 of this chapter shall be the maximum allowable Investment Rate set forth in
Table 1 for the most economically distressed county or other equivalent political unit
(e.g., parish) within the Region. The maximum allowable Investment Rate shall not
exceed 80 percent.
(iii)In compelling circumstances, the Assistant Secretary may waive the application of the
first sentence in paragraph (b)(3)(ii) of this section.
(4) Projects underpart 306. Except as otherwise provided in paragraph (b)(5) of this section,
the maximum allowable Investment Rate for Projects under part 306 of this chapter shall
generally be determined based on the relative needs (as determined under paragraph
(b)(1) of this section) of the Region which the Project will serve. As specified in section
204(c)(3) of PWEDA, the Assistant Secretary has the discretion to establish a maximum
Investment Rate of up to 100 percent where the Project:
(i) Merits, and is not otherwise feasible without, an increase to the Investment Rate; or
(ii) Will be of no or only incidental benefit to the Eligible Recipient.
(5) Special Projects. Table 2 of this paragraph sets forth the maximum allowable Investment
Rate for certain special Projects as follows:
Table 2
Maximum
allowable
Projects
investment
rates
(percentage)`
Projects that involve broad Regional planning and coordination with other
entities outside the Eligible Applicant's political jurisdiction or area of authority,
80
under special circumstances determined by EDA, and Projects that effectively
leverage other Federal Agency resources
Projects of Indian Tribes
100
Projects for which EDA receives appropriations under section 703 of PWEDA
(42 U.S.C. 3233) and Projects to address and implement post -disaster economic
100
recovery efforts in Presidentially Declared Disaster areas in a timely manner
Projects of States or political subdivisions of States that the Assistant Secretary
determines have exhausted their effective taxing and borrowing capacity, or
100
Projects of non-profit organizations that the Assistant Secretary determines have
exhausted their effective borrowing capacity
Projects under parts 305 or 307 that receive performance awards pursuant to
100
§308.2 of this chapter
Projects located in a District that receive planning performance awards pursuant
to §308.3 of this chapter
FO
(c) Federal Funding Opportunity announcements may provide additional Investment Rate
criteria and standards to ensure that the level of economic distress of a Region, rather than a
preference for a geographic area or a specific type of economic distress, is the primary factor
in allocating Investment Assistance.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62865, Oct. 22, 2008; 75 FR 4262, Jan. 27,
2010; 79 FR 76125, Dec. 19, 2014]
§301.5 Matching share requirements.
The required Matching Share of a Project's eligible costs may consist of cash or In -Kind
Contributions. In addition, the Eligible Applicant must provide documentation to EDA
demonstrating that the Matching Share is committed to the Project, will be available as needed
and is not or will not be conditioned or encumbered in any way that would preclude its use
consistent with the requirements of the Investment Assistance. EDA shall determine at its sole
discretion whether the Matching Share documentation adequately addresses the requirements of
this section.
[82 FR 57053, Dec. 1, 2017]
§301.6 Supplementary Investment Assistance.
(a) Pursuant to a request made by an Eligible Applicant, EDA Investment Assistance may
supplement a grant awarded in another "designated Federal grant program," if the Eligible
Applicant qualifies for financial assistance under such program, but is unable to provide the
required non -Federal share because of the Eligible Applicant's economic situation. For
purposes of this section, a "designated Federal grant program" means a Federal grant
program that:
(1) Provides assistance in the construction or equipping of public works, public service or
development facilities;
(2) Is designated by EDA as eligible for supplementary Investment Assistance under this
section; and
(3) Assists Projects that are otherwise eligible for Investment Assistance and consistent with
the Eligible Applicant's CEDS.
(b) For a Project that meets the economic distress criteria provided in §301.3(a), the Investment
Assistance, combined with funds from a designated Federal grant program, may be at the
maximum allowable Investment Rate, even if the designated Federal grant program has a
lower grant rate. If the designated Federal grant program has a grant rate higher than the
maximum EDA Investment Rate, the EDA Investment and other Federal funds together may
exceed the EDA Investment Rate, provided that the EDA share of total funding does not
exceed the maximum allowable Investment Rate.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76126, Dec. 19, 2014]
Subpart E—Application Requirements; Evaluation Criteria
§301.7 Investment Assistance application.
(a) For all EDA Investment Assistance programs, including the Public Works, Economic
Adjustment Assistance, Planning, Local Technical Assistance, Research and National
Technical Assistance, and University Center programs, EDA will publish an FFO that
specifies application submission requirements and evaluation procedures and criteria. Each
FFO will be published on the EDA Web site and at http://www.grants.gov. All forms
required for EDA Investment Assistance may be obtained electronically from
http://Www.grants.gov or from the appropriate regional office.
(b) PWEDA does not require nor does EDA provide an appeals process for denial of applications
or EDA Investment Assistance.
[75 FR 4262, Jan. 27, 2010, as amended at 79 FR 76126, Dec. 19, 2014; 82 FR 57053, Dec. 1,
2017]
§301.8 Application evaluation criteria.
EDA will screen all applications for the feasibility of the budget presented and conformance with
EDA's statutory and regulatory requirements. EDA will assess the economic development needs
of the affected Region in which the proposed Project will be located (or will service), as well as
the capability of the Eligible Applicant to implement the proposed Project. EDA will also review
applications for conformance with program -specific evaluation criteria set out in the applicable
FFO.
[82 FR 57053, Dec. 1, 2017]
§301.9 Application selection criteria.
(a) EDA will review completed application materials for compliance with the requirements set
forth in PWEDA, this chapter, the applicable FFO, and other applicable Federal statutes and
regulations. From those applications that meet EDA's technical and legal requirements, EDA
will select applications based on the:
(1) Availability of funds;
(2) Competitiveness of the applications in accord with the criteria set forth in §301.8; and
(3) Funding priority considerations identified in the applicable FFO.
(b) EDA will endeavor to notify applicants as soon as practicable regarding whether their
applications are selected for funding.
[79 FR 76127, Dec. 19, 2014]
§301.10 Formal application requirements.
Each formal application for EDA Investment Assistance must:
(a) Include evidence of applicant eligibility (as set forth in §301.2) and of economic distress (as
set forth in §301.3);
(b) Identify the sources of funds, both eligible Federal and non-EDA, and In -Kind Contributions
that will constitute the required Matching Share for the Project (see the Matching Share
requirements under §301.5); and
(c) For Projects under parts 305 or 307 of this chapter, include a CEDS acceptable to EDA
pursuant to part 303 of this chapter or otherwise incorporate by reference a current CEDS
that EDA approves for the Project. The requirements stated in the preceding sentence shall
not apply to:
(1) Strategy Grants, as defined in §307.3 of this chapter; and
(2) A Project located in a Region designated as a Special Impact Area pursuant to part 310 of
this chapter.
(d) Projects that propose the construction of a business, technology, or other type of incubator or
accelerator, must include a feasibility study demonstrating the need for the Project and an
operational plan based on industry best practices demonstrating the Eligible Applicant's plan
for ongoing successful operations. EDA will provide further guidance in the applicable FFO.
EDA may require the Recipient to demonstrate that the feasibility study has been conducted
by an impartial third party, as determined by EDA.
[75 FR 4263, Jan. 27, 2010, as amended at 79 FR 76127, Dec. 19, 2014]
§301.11 Infrastructure.
(a) EDA will fund both construction and non -construction infrastructure necessary to meet a
Region's strategic economic development goals and needs, which in turn results in job
creation. This includes infrastructure used to develop basic economic development assets as
described in §§305.1 and 305.2 of this chapter (e.g., roads, sewers, and water lines), as well
as infrastructure that supports innovation and entrepreneurship. The following are examples
of innovation and entrepreneurship -related infrastructure that support job creation:
(1) Business Incubation. Business incubation includes both physical facilities and business
support services to advance the successful development of start-up companies by
providing entrepreneurs with an array of targeted resources and services.
(2) Business Acceleration. Business acceleration includes both physical facilities and an
array of business support services to help new and existing businesses develop new
processes or products, get products and services to market more efficiently, expand
market opportunities, or increase sales and exports.
(3) Venture Development Organization. A venture development organization ("VDO") works
to ensure that Regional economies operate as smoothly and efficiently as possible in
support of innovation -based entrepreneurship. A VDO may make strategic investments of
time, talent, and other resources toward innovation, entrepreneurship, and technology to
help nurture and grow promising companies and ideas, thereby promoting and taking
advantage of the innovation assets of a Region and addressing the needs of the high -
growth, innovation -oriented start-up companies in the Region.
(4) Proof of Concept Center. A proof of concept center serves as a hub of collaborative and
entrepreneurial activity designed to accelerate the commercialization of innovations into
the marketplace. Such centers support innovation -based, high growth entrepreneurship
through a range of services, including technology and market evaluation, business
planning and mentorship, network development, and early stage access to capital.
(5) Technology Transfer. Technology transfer is the process of transferring scientific
findings from one organization to another for the purpose of further development and
commercialization. The process typically includes: Identifying new technologies;
protecting technologies through patents and copyrights; and forming development and
commercialization strategies, such as marketing and licensing, for existing private sector
companies or creating start-up companies based on the technology.
(b) In general, successful Projects, including innovation and entrepreneurship -related
infrastructure, require the engagement of a broad range of Regional stakeholders and
resources. Therefore through appropriate FFOs and program requirements, EDA will seek to
advance interagency coordination by funding Projects that demonstrate effective leveraging
of other Federal Agency resources based on a Region's strategic economic development
goals and needs. For all types of Projects, EDA assistance may not be used to provide direct
venture capital to a for -profit entity because of the restrictions set out in section 217 of
PWEDA (42 U.S.C. 3154c) and part 309 of this chapter. Nonetheless, EDA may consider an
application more competitive if it includes measures to address the need to provide
entrepreneurs with access to early stage capital outside of the proposed EDA Project budget.
See §301.8(b).
PART 302—GENERAL TERMS AND CONDITIONS FOR INVESTMENT
ASSISTANCE
AUTHORITY: 19 U.S.C. 2341 et seq.; 42 U.S.C. 3150; 42 U.S.C. 3152; 42 U.S.C. 3153; 42 U.S.C.
3192; 42 U.S.C. 3193; 42 U.S.C. 3194; 42 U.S.C. 3211; 42 U.S.C. 3212; 42 U.S.C. 3216; 42
U.S.C. 3218; 42 U.S.C. 3220; 42 U.S.C. 5141; 15 U.S.C. 3701; Department of Commerce
Delegation Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
§302.1 Environment.
EDA will undertake environmental reviews of Projects in accordance with the requirements of
the National Environmental Policy Act of 1969, as amended (Pub. L. 91-190; 42 U.S.C. 4321 et
seq., as implemented under 40 CFR chapter V) ("NEPA"), and all applicable Federal
environmental statutes, regulations, and Executive Orders. These authorities include the
implementing regulations of NEPA requiring EDA to provide public notice of the availability of
Project -specific environmental documents, such as environmental impact statements,
environmental assessments, findings of no significant impact, and records of decision, to the
affected or interested public, as specified in 40 CFR 1506.6(b). Depending on the Project's
location, environmental information concerning specific Projects may be obtained from the
individual serving as the Environmental Officer in the appropriate EDA regional office listed in
the applicable FFO.
[79 FR 76128, Dec. 19, 2014]
§302.2 Procedures in disaster areas.
When non -statutory EDA administrative or procedural conditions for Investment Assistance
awards under PWEDA cannot be met by an Eligible Applicant as the result of a disaster, EDA
may waive such conditions.
§302.3 Project servicing for loans, loan guaranties and Investment
Assistance.
EDA will provide Project servicing to borrowers who received EDA loans or EDA-guaranteed
loans and to lenders who received EDA loan guaranties under an EDA-administered program.
Project servicing includes loans made under PWEDA prior to the effective date of the Economic
Development Administration Reform Act of 1998, the Trade Act, and the Community
Emergency Drought Relief Act of 1977 (Pub. L. 95-31; 42 U.S.C. 5184 note).
(a) EDA will continue to monitor such loans and loan guaranties in accordance with the
applicable loans or loan guaranty program(s).
(b) Borrowers and lenders shall submit to EDA any requests for modifications of their loan or
loan guaranty agreements with EDA, as applicable. EDA shall consider and respond to such
modification requests in accordance with applicable laws and policies, including the
budgetary constraints imposed by the Federal Credit Reform Act of 1990, as amended (2
U.S.C. 661 c(e)).
(c) In the event that EDA determines it necessary or desirable to take actions to protect or further
the interests of EDA in connection with loans, loan guaranties or evidence of purchased debt,
EDA may:
(1) Assign or sell at public or private sale or otherwise dispose of for cash or credit, in its
discretion and upon such terms and conditions as it shall determine to be reasonable, any
evidence of debt, contract, claim, personal or real property, or security assigned to or held
by it in connection with any EDA loans, EDA-guaranteed loans or Investment Assistance
extended under PWEDA;
(2) Collect or compromise all obligations assigned to or held by it in connection with any
EDA loans, EDA-guaranteed loans or Investment Assistance awarded under PWEDA
until such time as such obligations may be referred to the Attorney General of the United
States for suit or collection; and
(3) Take any and all other actions determined to be necessary or desirable in purchasing,
servicing, compromising, modifying, liquidating, or otherwise administratively
processing or disposing of loans or loan guaranties made or evidence of purchased debt in
connection with any EDA loans, EDA-guaranteed loans or Investment Assistance
awarded under PWEDA.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76128, Dec. 19, 2014]
§302.4 Public information.
The rules and procedures regarding public access to EDA's records pursuant to the Freedom of
Information Act of 1967, as amended (5 U.S.C. 552), and the Privacy Act of 1974, as amended
(5 U.S.C. 552a), are at 15 CFR part 4.
§302.5 Relocation assistance and land acquisition policies.
Recipients of EDA Investment Assistance or any other types of assistance under PWEDA, the
Trade Act, and Stevenson-Wydler (States and political subdivisions of States and non-profit
organizations, as applicable) are subject to the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970, as amended (Pub. L. 91-646; 42 U.S.C. 4601 et seg.). See 15
CFR part 11 and 49 CFR part 24 for specific compliance requirements.
[82 FR 57053, Dec. 1, 2017]
§302.6 Additional requirements; Federal policies and procedures.
Recipients are subject to all Federal laws and to Federal, Department, and EDA policies,
regulations, and procedures applicable to Federal financial assistance awards, including 2 CFR
part 200, Uniform Administrative Requirements, Cost Principles, and Audit Requirements for
Federal Awards.
[82 FR 57053, Dec. 1, 2017]
§302.7 Amendments and changes.
(a) Recipients shall submit requests for amendments to Investment awards in writing to EDA for
approval and shall provide such information and documentation as EDA deems necessary to
justify the request.
(b) Any changes to Projects made without EDA's approval are made at the Recipient's risk of
non-payment of costs, suspension, termination or other applicable EDA action with respect to
the Investment.
§302.8 Pre -approval Investment Assistance costs.
Project activities carried out before approval of Investment Assistance shall be carried out at the
sole risk of the Eligible Applicant. Such activity is subject to the rejection of the application, the
disallowance of costs, or other adverse consequences as a result of non-compliance with EDA or
Federal requirements, including procurement requirements, civil rights requirements, Federal
labor standards, or Federal environmental, historic preservation, and related requirements.
[79 FR 76128, Dec. 19, 2014]
§302.9 Inter -governmental review of projects.
(a) When an Eligible Applicant is not a State, Indian Tribe, or other general purpose
governmental authority, the Eligible Applicant must afford the appropriate general purpose
local governmental authority (the "Authority") in the Region a minimum of 15 days to review
and comment on a proposed Project under EDA's Public Works and Economic Development
program or a proposed construction Project or RLF Grant under EDA's Economic
Adjustment Assistance program. Under these programs, the Eligible Applicant shall furnish
the following with its application:
(1) If no comments are received from the Authority, a statement of efforts made to obtain
such comments; or
(2) If comments are received from the Authority, a copy of the comments and a statement of
any actions taken to address such comments.
(b) As required by 15 CFR part 13 and Executive Order 12372, "Intergovernmental Review of
Federal Programs," as amended, if a State has adopted a process under Executive Order
12372 to review and coordinate proposed Federal financial assistance and direct Federal
development (commonly referred to as the "single point of contact review process"), all
Eligible Applicants also must give State and local governments a reasonable opportunity to
review and comment on the proposed Project, including review and comment from area -wide
planning organizations in metropolitan areas, as provided for in 15 CFR part 13.
[79 FR 76128, Dec. 19, 2014]
§302.10 Attorneys' and consultants' fees, employment of expediters, and
post -employment restriction.
(a) Employment of expediters. Investment Assistance awarded under PWEDA shall not directly
or indirectly reimburse any attorneys' or consultants' fees incurred in connection with
obtaining Investment Assistance and contracts under PWEDA. Such Investment Assistance
shall not be awarded to any Eligible Applicant, unless the owners, partners, or officers of the
Eligible Applicant certify to EDA the names of any attorneys, agents, and other persons
engaged by or on behalf of the Eligible Applicant for the purpose of expediting an
application made to EDA in connection with obtaining Investment Assistance under PWEDA
and the fees paid or to be paid to the person(s) for expediting the application.
(b) Post -employment restriction.
(1) In general, any Eligible Applicant that is a non-profit organization, District Organization,
or for -profit entity, for the two-year period beginning on the date on which the
Investment Assistance under PWEDA is awarded to the Eligible Applicant, must refrain
from employing, offering any office or employment to, or retaining for professional
services any person who, on the date on which the Investment Assistance is awarded or
within the one-year period ending on that date:
(i) Served as an officer, attorney, agent, or employee of the Department; and
(ii) Occupied a position or engaged in activities that the Assistant Secretary determines
involved discretion with respect to the award of Investment Assistance under
PWEDA.
(2) In addition to the types of Eligible Applicants noted in this paragraph (b), EDA may
require another Eligible Applicant to execute an agreement to abide by the above -
described post -employment restriction on a case -by -case basis; for example, when an
institution of higher education implements activities under or related to the Investment
Assistance through a separate non-profit organization or association.
[79 FR 76128, Dec. 19, 2014]
§302.11 Economic development information clearinghouse.
Pursuant to section 502 of PWEDA, EDA maintains an economic development information
clearinghouse on its Internet Web site at http://www.eda.gov.
[79 FR 76128, Dec. 19, 2014]
§302.12 Project administration, operation and maintenance.
EDA shall approve Investment Assistance awards only if, as determined in its sole discretion, the
Project for which such Investment Assistance is awarded will be properly and efficiently
administered, operated and maintained.
§302.13 Maintenance of standards.
All laborers and mechanics employed by contractors or subcontractors on Projects receiving
Investment Assistance under PWEDA shall be paid wages at rates not less than those prevailing
on similar construction in the locality, as determined by the U.S. Secretary of Labor in
accordance with subchapter IV of chapter 31 of title 40, United States Code. EDA shall not
extend any Investment Assistance under this chapter for a Project without first obtaining
adequate assurance that these labor standards will be maintained upon the construction work.
The U.S. Secretary of Labor shall have, with respect to the labor standards specified in this
provision, the authority and functions set forth in Reorganization Plan No. 14 of 1950 (15 FR
3176 (May 25, 1950); 64 Stat. 1267) and section 3145 of title 40, United States Code.
§302.14 Records.
(a) Records. Recipients of Investment Assistance under PWEDA shall keep such records as
EDA shall require, including records that fully disclose:
(1) The total cost of the Project;
(2) The amount and disposition by the Recipient of the Investment Assistance;
(3) The amount and nature of the portion of Project costs provided by other sources; and
(4) Such other information as EDA determines will facilitate an effective audit.
(b) Access to records. The Recipient shall permit the Assistant Secretary, the Inspector General
of the Department, the Comptroller General of the United States or any of their respective
agents or representatives access to its properties in order to examine all books,
correspondence, and records, including without limitation computer programs and data
processing software, to verify the Recipient's compliance with Investment Assistance
requirements.
[73 FR 62865, Oct. 22, 2008]
§302.15 Acceptance of certifications made by Eligible Applicants.
EDA will accept an Eligible Applicant's certifications, accompanied by evidence satisfactory to
EDA, that the Eligible Applicant meets the requirements for receiving Investment Assistance.
§302.16 Accountability.
(a) General. Each Recipient must submit reports to EDA at intervals and in the manner that
EDA shall require, except that EDA shall not require any report to be submitted more than
ten years after the date of closeout of the Investment Assistance.
(b) Data on Project effectiveness. Each report must contain a data -specific evaluation of the
effectiveness of the Investment Assistance provided in fulfilling the Project's purpose
(including alleviation of economic distress and meeting Project goals) and in meeting the
objectives of PWEDA. Data used by a Recipient in preparing reports shall be accurate and
verifiable as determined by EDA, and from independent sources (whenever possible). EDA
will use this data and report to fulfill its performance measurement reporting requirements
under the Government Performance and Results Act of 1993, as amended (Pub. L. 103-62)
and to monitor internal, Investment, and Project performance through an internal
performance measurement system.
(c) Reporting Project service benefits. To enable EDA to determine the economic development
effect of a Project that provides service benefits, EDA may require the Recipient to submit a
Project service map and information from which to determine whether services are provided
to all segments of the Region being assisted.
(d) Consequences for failure to undertake good faith efforts.
(1) The Recipient must undertake good faith efforts to fulfill the purpose of the Project as set
out in the terms of the Investment Assistance and must report regularly on Project goals.
In the event that EDA determines that the Recipient is failing to make good faith efforts
to meet these goals, or otherwise is failing to meets its obligations under the Investment
Assistance, EDA shall take necessary actions to protect EDA's interest in the Project,
including the following:
(i) Discontinue disbursement of funds pending correction;
(ii) Suspend the Investment Assistance;
(iii)Terminate the Investment Assistance;
(iv)Require reimbursement of the EDA share of the Project; or
(v) Institute formal Government -wide debarment and suspension proceedings against the
Recipient.
(2) Before making a determination under this subsection, EDA shall provide the Recipient
with reasonable notice and opportunity to respond. A determination under this subsection
is final and cannot be appealed.
[79 FR 76129, Dec. 19, 20141
§302.17 Conflicts of interest.
(a) General. It is EDA's and the Department's policy to maintain the highest standards of
conduct to prevent conflicts of interest in connection with the award of Investment
Assistance or its use for reimbursement or payment of costs (e.g., procurement of goods or
services) by or to the Recipient. A conflict of interest generally exists when an Interested
Party participates in a matter that has a direct and predictable effect on the Interested Party's
personal or financial interests. A conflict also may exist where there is an appearance that an
Interested Party's objectivity in performing his or her responsibilities under the Project is
impaired. For example, an appearance of impairment of objectivity may result from an
organizational conflict where, because of other activities or relationships with other persons
or entities, an Interested Party is unable to render impartial assistance, services or advice to
the Recipient, a participant in the Project or to the Federal government. Additionally, a
conflict of interest may result from non -financial gain to an Interested Party, such as benefit
to reputation or prestige in a professional field.
(b) Prohibition on direct or indirect financial or personal benefits.
(1) An Interested Party shall not receive any direct or indirect financial or personal benefits
in connection with the award of Investment Assistance or its use for payment or
reimbursement of costs by or to the Recipient.
(2) An Interested Party also shall not, directly or indirectly, solicit or accept any gift,
gratuity, favor, entertainment or other benefit having monetary value, for himself or
herself or for another person or entity, from any person or organization which has
obtained or seeks to obtain Investment Assistance from EDA.
(3) Costs incurred in violation of any conflicts of interest rules contained in this chapter or in
violation of any assurances by the Recipient may be denied reimbursement.
(4) See §315.15 of this chapter for special conflicts of interest rules for Trade Adjustment
Assistance Investments.
(c) Special rules for Revolving Loan Fund ("RLF") Grants. In addition to the rules set forth in
this section:
(1) An Interested Party of a Recipient of an RLF Grant shall not receive, directly or
indirectly, any personal or financial benefits resulting from the disbursement of RLF
loans;
(2) A Recipient of an RLF Grant shall not lend RLF funds to an Interested Party; and
(3) Former board members of a Recipient of an RLF Grant and members of his or her
Immediate Family shall not receive a loan from such RLF for a period of two years from
the date that the board member last served on the RLF's board of directors.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62866, Oct. 22, 2008; 79 FR 76129, Dec.
19, 2014]
§302.18 Post -approval requirements.
A Recipient must comply with all financial, performance, progress report, and other
requirements set forth in the terms and conditions of the Investment Assistance, including any
special award conditions and applicable Federal cost principles (collectively, "Post -Approval
Requirements"). A Recipient's failure to comply with Post -Approval Requirements may result in
the disallowance of costs, termination of the Investment Assistance award, or other adverse
consequences to the Recipient.
[79 FR 76129, Dec. 19, 2014]
§302.19 Indemnification.
To the maximum extent permitted by law, a Recipient shall indemnify and hold EDA harmless
from any liability that EDA may incur due to the actions or omissions of the Recipient.
§302.20 Civil rights.
(a) Discrimination is prohibited by a Recipient or Other Party (as defined in paragraph (b) of this
section) with respect to a Project receiving Investment Assistance under PWEDA or
Stevenson-Wydler or by an entity receiving Adjustment Assistance (as defined in §315.2 of
this chapter) under the Trade Act or any other type of assistance under Stevenson-Wydler, in
accordance with the following authorities:
(1) Section 601 of Title VI of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000d et
seq.) (proscribing discrimination on the basis of race, color, or national origin), and the
Department's implementing regulations found at 15 CFR part 8;
(2) 42 U.S.C. 3123 (proscribing discrimination on the basis of sex in Investment Assistance
provided under PWEDA), 42 U.S.C. 6709 (proscribing discrimination on the basis of sex
under the Local Public Works Program), Title IX of the Education Amendments of 1972,
as amended (20 U.S.C. 1681 et seq.) (proscribing discrimination on the basis of sex in
any education program or activity receiving Federal financial assistance, whether or not
such program or activity is offered or sponsored by an educational institution), and the
Department's implementing regulations found at 15 CFR part 8a;
(3) Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794) (proscribing
discrimination on the basis of disabilities), and the Department's implementing
regulations found at 15 CFR part 8b;
(4) The Age Discrimination Act of 1975, as amended (42 U.S.C. 6101 et seq.) (proscribing
discrimination on the basis of age), and the Department's implementing regulations found
at 15 CFR part 20; and
(5) Other Federal statutes, regulations and Executive Orders, as applicable.
(b) Definitions.
(1) For purposes of this section, an "Other Party" means an "other party subject to this part,"
as defined in 15 CFR 8.3(1), and includes an entity which (or which is intended to) creates
and/or saves 15 or more permanent jobs as a result of Investment Assistance; provided
that such entity also is either specifically named in the application as benefiting from the
Project, or is or will be located in an EDA building, port, facility, or industrial,
commercial or business park constructed or improved in whole or in part with Investment
Assistance prior to EDA's final disbursement of award funds.
(2) Additional applicable definitions are provided in 15 CFR part 8.
(c) No Recipient or Other Party shall intimidate, threaten, coerce or discriminate against any
person for the purpose of interfering with any right or privilege secured by 42 U.S.C. 3123 or
42 U.S.C. 6709, or because the person has made a complaint, testified, assisted or
participated in any manner in an investigation, proceeding or hearing under this section.
(d) All Recipients of Investment Assistance under PWEDA and Stevenson-Wydler, all Other
Parties, and all entities receiving Adjustment Assistance under the Trade Act or any other
type of assistance under Stevenson-Wydler must submit to EDA written assurances that they
will comply with applicable laws, EDA regulations, Department regulations, and such other
requirements as may be applicable, prohibiting discrimination.
(e) Reporting and other procedural matters are set forth in 15 CFR parts 8, 8a, 8b, 8c and 20.
[71 FR 56675, Sept. 27, 2006, as amended at 75 FR 4263, Jan. 27, 2010; 79 FR 76129, Dec. 19,
2014; 82 FR 57053, Dec. 1, 2017]
PART 303—PLANNING INVESTMENTS AND COMPREHENSIVE
ECONOMIC DEVELOPMENT STRATEGIES
AUTHORITY: 42 U.S.C. 3143; 42 U.S.C. 3162; 42 U.S.C. 3174; 42 U.S.C. 3211; Department of
Commerce Organization Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
Subpart A —General
§303.1 Overview of EDA's Planning Program.
The purpose of EDA Planning Investments is to provide support to Planning Organizations for
the development, implementation, revision, or replacement of Comprehensive Economic
Development Strategies, and for related State plans and short-term Planning Investments
designed to create and retain new and better jobs, particularly for the unemployed and
underemployed in the nation's most economically distressed Regions. EDA's Planning
Investments support partnerships with District Organizations, Indian Tribes, community
development corporations, non-profit Regional planning organizations, and other Eligible
Recipients. Planning activities supported by these Investments must be part of a continuous
process involving the active participation of the private sector, public officials, non-profit
organizations, educational institutions, and private citizens, and include:
(a) Analyzing local economies;
(b) Defining economic development goals;
(c) Determining Project opportunities; and
(d) Formulating and implementing an economic development program that includes systematic
efforts to reduce unemployment and increase incomes.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76129, Dec. 19, 2014]
§303.2 Definitions.
In addition to the defined terms set forth in §300.3 of this chapter, the following terms used in
this part shall have the following meanings:
Planning Investment means the award of EDA Investment Assistance under section 203 of
PWEDA and this part.
Planning Organization means a Recipient whose purpose is to develop and implement a CEDS
for a specific EDA-approved Region under section 203 of PWEDA.
Strategy Committee means the committee or other entity identified by the Planning Organization
as responsible for the development, implementation, revision or replacement of the CEDS for the
Planning Organization.
§303.3 Application requirements and evaluation criteria.
(a) For Planning Investment awards, EDA uses the general application evaluation criteria set
forth in §301.8 of this chapter. In addition, applications for Planning Investments must
include information about the following:
(1) The proposed scope of work for the development, implementation, revision or
replacement of the CEDS, or the relation of the CEDS to the proposed short-term
planning activities or the State plan;
(2) Qualifications of the Eligible Applicant to implement the goals and objectives resulting
from the CEDS, short-term planning activities or the State plan;
(3) The involvement of the Region's business leadership at each stage of the preparation of
the CEDS, short-term planning activities or State plan;
(4) Extent of broad -based representation and involvement of the Region's civic, business,
labor, minority and other interests in the Eligible Applicant's economic development
activities; and
(5) Feasibility of the proposed scope of work to create and retain new and better jobs through
implementation of the CEDS.
(b) In addition to the criteria set forth in paragraph (a) of this section, funded Recipients are
evaluated on the basis of the extent of continuing economic distress within the Region, their
past performance, and the overall effectiveness of their CEDS.
(c) For Planning Investment awards to a State, the Assistant Secretary also shall consider the
extent to which the State will integrate and coordinate its CEDS with local and Economic
Development District plans.
(d) The Investment Rates for Planning Investments will be determined in accordance with
§301.4 of this chapter.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76129, Dec. 19, 2014]
§303.4 Award requirements.
(a) Planning Investments shall be coordinated with and effectively leverage any other available
Federal, State, or local planning assistance and private sector investments.
(b) Except in compelling circumstances as determined by the Assistant Secretary, EDA will not
provide Planning Investments for multiple CEDS that address the needs of an identical or
substantially similar Region.
(c) EDA will provide a Planning Investment for the period of time required to develop, revise or
replace, and implement a CEDS, generally in 36-month renewable Investment project
periods.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62866, Oct. 22, 2008; 79 FR 76130, Dec.
19, 2014]
§303.5 Eligible administrative expenses.
In accordance with applicable Federal cost principles, Planning Investments may be used to pay
the direct and indirect costs incurred by a Planning Organization in the development,
implementation, revision or replacement of a CEDS and for related short-term planning
activities.
Subpart B—Partnership Planning Assistance
§303.6 Partnership Planning and the EDA-funded CEDS process.
(a) Partnership Planning Overview. Partnership Planning Investments support a nationwide
network of Planning Organizations to provide comprehensive economic development
planning services to distressed Regions. EDA makes Partnership Planning Investments to
enable Planning Organizations to manage and coordinate the development and
implementation of CEDS to address the unique needs of their respective Regions.
(b) CEDS Process. If EDA awards Investment Assistance to a Planning Organization to develop,
revise, or replace a CEDS, the Planning Organization must follow the procedures set forth in
this section:
(1) CEDS Strategy Committee. The Planning Organization must appoint a Strategy
Committee. The Strategy Committee must represent the main economic interests of the
Region, which may include Indian tribes, the private sector, State and other public
officials, community leaders, private individuals, representatives of workforce
development boards, institutions of higher education, minority and labor groups, and
others who can contribute to and benefit from improved economic development in the
relevant Region. In addition, the Strategy Committee must demonstrate the capacity to
undertake a collaborative and effective planning process.
(2) Public notice and comment. The Planning Organization must develop and submit to EDA
a CEDS that complies with the requirements of §303.7. Before submission to EDA, the
Planning Organization must provide the public and appropriate governments and interest
groups in the relevant Region with adequate notice of and opportunity to comment on the
CEDS. The comment period shall be at least 30 days and the Planning Organization shall
make the CEDS readily available through appropriate means of distribution,
electronically and otherwise, throughout the comment period. The Planning Organization
also shall make the CEDS available in hardcopy upon request. EDA may require the
Planning Organization to provide any comments received and demonstrate how the
comments were resolved.
(3) Reports and updates.
(i) After obtaining EDA approval of the CEDS, the Planning Organization must submit
annually an updated CEDS performance report to EDA.
(ii) The Planning Organization must submit a new or revised CEDS to EDA at least every
five years, unless EDA or the Planning Organization determines that a new or revised
CEDS is required earlier due to changed circumstances. In connection with the
submission of a new or revised CEDS, the Planning Organization shall use its best
efforts to obtain renewed commitments from participating counties or other areas
within the District to support the economic development activities of the District.
Provided the Planning Organization can document a good faith effort to obtain
renewed commitments, the inability to secure renewed commitments shall not
disqualify a CEDS update.
(iii)Any updated CEDS performance report that results in a change of the requirements
set forth in §303.7(b)(1)(iii) of the EDA-accepted CEDS or any new or revised
CEDS, must be available for review and comment by the public in accordance with
paragraph (b)(2) of this section.
(4) Inadequate CEDS. If EDA determines that implementation of the CEDS is inadequate, it
will notify the Planning Organization in writing and the Planning Organization shall
submit to EDA a new or revised CEDS.
(5) Regional Commission notification. If any part of a Region is covered by one or more of
the Regional Commissions as set forth in section 404 of PWEDA, the Planning
Organization shall ensure that a copy of the CEDS is provided to the Regional
Commission(s).
[79 FR 76130, Dec. 19, 2014, as amended at 82 FR 57054, Dec. 1, 2017]
§303.7 Requirements for Comprehensive Economic Development Strategies.
(a) General. CEDS are designed to bring together the public and private sectors in the creation
of an economic roadmap to diversify and strengthen Regional economies. The CEDS should
analyze the Regional economy and serve as a guide for establishing Regional goals and
objectives, developing and implementing a Regional plan of action, and identifying
investment priorities and funding sources. Public and private sector partnerships are critical
to the implementation of the integral elements of a CEDS set forth in paragraph (b) of this
section. As a performance -based plan, the CEDS will serve a critical role in a Region's
efforts to defend against economic dislocations due to global trade, competition and other
events resulting in the loss of jobs and private investment.
(b) Strategy requirements.
(1) A CEDS must be the result of a continuing economic development planning process,
developed with broad -based and diverse public and private sector participation.
Consistent with section 302 of PWEDA, each CEDS must promote Regional resiliency
and be unique and responsive to the relevant Region. Each CEDS must include:
(i) A summary of economic development conditions of the Region;
(ii) An in-depth analysis of economic and community development strengths,
weaknesses, opportunities, and threats (commonly known as a "SWOT" analysis);
(iii)Strategies and an implementation plan to build upon the Region's strengths and
opportunities and resolve the weaknesses and threats facing the Region, which should
not be inconsistent with applicable State and local economic development or
workforce development strategies; and
(iv)Performance measures used to evaluate the Planning Organization's successful
development and implementation of the CEDS.
(2) EDA will publish and periodically update specific CEDS content guidelines.
(c) Consideration of non-EDA funded CEDS.
(1) In determining the acceptability of a CEDS prepared independently of EDA Investment
Assistance or oversight for Projects under parts 305 and 307 of this chapter, EDA may in
its discretion determine that the CEDS is acceptable so long as it includes all of the
elements listed in paragraph (b) of this section. In certain circumstances, EDA may
accept a non-EDA funded CEDS that does not contain all the elements listed in paragraph
(b) of this section. In doing so, EDA shall consider the circumstances surrounding the
application for Investment Assistance, including emergencies or natural disasters and the
fulfillment of the requirements of section 302 of PWEDA.
(2) If the CEDS for a Project under parts 305 and 307 of this chapter is developed under
another federally -supported program, it must include acceptable performance measures
similar to those set forth in paragraph (b) of this section and information on the state of
the Regional economy. To the maximum extent practicable, the CEDS shall be consistent
and coordinated with any existing economic development plan for the Region.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76130, Dec. 19, 2014; 82 FR 57054, Dec. 1,
2017]
Subpart C—State and Short -Term Planning Assistance
§303.8 Requirements for State plans.
(a) As a condition of a State receiving a Planning Investment:
(1) The State must have or develop a CEDS that meets the requirements of §303.7;
(2) Any State plan developed with Planning Investment Assistance must, to the maximum
extent practicable, be developed cooperatively by the State, political subdivisions of the
State, and the Economic Development Districts located wholly or partially in the State;
and
(3) The State must submit to EDA an annual report on any State plan receiving Planning
Investment Assistance.
(b) Before awarding a Planning Investment to a State, EDA shall consider the extent to which
the State will take into account local and District economic development plans.
§303.9 Requirements for short-term Planning Investments.
(a) In addition to providing support for CEDS and State plans, EDA also may provide
Investment Assistance to support short-term planning activities. EDA may provide such
Investment Assistance to:
(1) Develop the economic development planning capacity of States, cities and other Eligible
Applicants experiencing economic distress;
(2) Assist in institutional capacity building; or
(3) Undertake innovative approaches to economic development.
(b) Eligible activities may include updating a portion of a CEDS, economic analysis,
development of economic development policies and procedures, and development of
economic development goals.
(c) Applicants for short-term Planning Investments must provide performance measures
acceptable to EDA that can be used to evaluate the success of the program and provide EDA
with progress reports during the term of the Planning Investment, as set forth in the
Investment agreement.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76130, Dec. 19, 2014]
PART 304—ECONOMIC DEVELOPMENT DISTRICTS
AUTHORITY: 42 U.S.C. 3122; 42 U.S.C. 3171; 42 U.S.C. 3172; 42 U.S.C. 3196; Department of
Commerce Organization Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
§304.1 Designation of Economic Development Districts: Regional eligibility.
Upon the request of a District Organization (as defined in §304.2), EDA may designate a Region
as an Economic Development District if such Region:
(a) Contains at least one geographic area that is subject to the economic distress criteria set forth
in §301.3(a)(1) of this chapter and is identified in an approved CEDS;
(b) Is of sufficient size or population and contains sufficient resources to foster economic
development on a scale involving more than a single geographic area subject to the economic
distress criteria set forth in §301.3(a)(1) of this chapter;
(c) Has an EDA-approved CEDS that:
(1) Meets the requirements under §303.7 of this chapter;
(2) Contains a specific program for intra-District cooperation, self-help, and public
investment; and
(3) Is approved by each affected State and by the Assistant Secretary;
(d) Obtains commitments from at least a majority of the counties or other areas within the
proposed District, as determined by EDA, to support the economic development activities of
the District; and
(e) Obtains the concurrence with the designation request from the State (or States) in which the
proposed District will be wholly or partially located.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76131, Dec. 19, 2014]
§304.2 District Organizations: Formation, organizational requirements and
operations.
(a) General. A "District Organization" is an entity that satisfies the formation and organizational
requirements under paragraphs (b) and (c) of this section.
(b) Formation. A District Organization must be organized as one of the following:
(1) A public organization formed through an inter -governmental agreement providing for the
joint exercise of local government powers; or
(2) A public organization established under State -enabling legislation for the creation of
multi jurisdictional area -wide planning organizations; or
(3) A non-profit organization incorporated under the applicable non-profit statutes of the
State in which it is incorporated.
(c) Organization and governance.
(1) Each District Organization must meet the requirements of this paragraph (c) concerning
membership composition, the maintenance of adequate staff support to perform its
economic development functions, and its authorities and responsibilities for carrying out
economic development functions. The District Organization's board of directors (or other
governing body) also must meet these requirements.
(2) The District Organization must demonstrate that its governing body is broadly
representative of the principal economic interests of the Region, which may include the
private sector, public officials, community leaders, representatives of workforce
development boards, institutions of higher education, minority and labor groups, and
private individuals. In addition, the governing body must demonstrate the capacity to
implement the EDA-approved CEDS.
(3) The District Organization must be assisted by a professional staff drawn from qualified
persons in economic development, planning, business development or related disciplines.
(4) The governing bodies of District Organizations must provide access for persons who are
not members to make their views known concerning ongoing and proposed District
activities in accordance with the following requirements:
(i) The District Organization must hold meetings open to the public at least twice a year
and also shall publish the date and agenda of such meetings sufficiently in advance to
allow the public a reasonable time to prepare in order to participate effectively.
(ii) The District Organization shall adopt a system of parliamentary procedures to assure
that board members and others have access to an effective opportunity to participate
in the affairs of the District.
(iii)The District Organization shall provide information sufficiently in advance of
decisions to give the public adequate opportunity to review and react to proposals.
District Organizations should communicate technical data and other material to the
public so they may understand the impact of public programs, available options and
alternative decisions.
(iv)The District Organization must make available to the public such audited statements,
annual budgets and minutes of public meetings, as may be reasonably requested.
(v) The District Organization and its board of directors must comply with all Federal and
State financial assistance reporting requirements and the conflicts of interest
provisions set forth in §302.17 of this chapter.
(d) Operations.
(1) The District Organization shall engage in the full range of economic development
activities listed in its EDA-approved CEDS. These activities may include:
(i) Coordinating and implementing economic development activities in the District;
(ii) Carrying out economic development research, planning, implementation and advisory
functions identified in the CEDS; and
(iii)Coordinating the development and implementation of the CEDS with other local,
State, Federal and private organizations.
(2) The District Organization may at its option contract for services to accomplish the
activities listed in paragraphs (d)(1)(i) through (iii) of this section.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76131, Dec. 19, 2014; 82 FR 57054, Dec. 1,
2017]
§304.3 District modification and termination.
(a) Modification. Upon the request of a District Organization and with the concurrence of the
State or States affected (unless such concurrence is waived by the Assistant Secretary), EDA
may modify the geographic boundaries of a District, if it determines that such modification
will contribute to a more effective program for economic development.
(b) Termination. EDA may, upon 60 days prior written notice to the District Organization,
member counties, and other areas determined by EDA and each affected State, terminate a
Region's designation as an Economic Development District when:
(1) A District or District Organization no longer meets the requirements of §§304.1 or 304.2;
or
(2) EDA determines that the District Organization fails to execute its CEDS according to the
development, implementation and other performance measures set forth therein; or
(3) A District Organization has requested termination.
(c) Prior to terminating a District Organization under paragraph (b)(2) of this section, EDA will
consult with the District Organization and consider all facts and circumstances regarding the
District Organization's operations. EDA will not terminate a District's designation based on
circumstances beyond the control of the District Organization (e.g., natural disaster, plant
closure, overall economic downturn, sudden and severe economic dislocation, or other
situation).
(d) EDA may further modify or terminate a Region's designation as a District according to the
standards set forth in an FFO.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76131, Dec. 19, 20141
§304.4 Performance evaluations.
(a) EDA shall evaluate the management standards, financial accountability and program
performance of each District Organization within three years after the initial Investment
award and at least once every three years thereafter, so long as the District Organization
continues to receive Investment Assistance. EDA's evaluation shall assess:
(1) The continuing Regional eligibility of the District, as set forth in §304.1;
(2) The management of the District Organization, as set forth in §304.2; and
(3) The implementation of the CEDS, including the District Organization's performance and
contribution towards the retention and creation of employment, as set forth in §303.7 of
this chapter.
(b) For peer review, EDA shall ensure the participation of at least one other District
Organization in the performance evaluation on a cost -reimbursement basis.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76131, Dec. 19, 2014]
PART 305—PUBLIC WORKS AND ECONOMIC DEVELOPMENT
INVESTMENTS
AUTHoRiTY: 42 U.S.C. 3211; 42 U.S.C. 3141; Department of Commerce Organization Order 10-
4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
Subpart A —General
§305.1 Purpose and scope.
Public Works and Economic Development Investments ("Public Works Investments') intend to
help the nation's most distressed communities revitalize, expand, and upgrade their physical
infrastructure (as defined in §301.11 of this chapter) to attract new industry, encourage business
expansion, diversify local economies, and generate or retain long-term private sector jobs and
investments. The primary goal of these Investments is to create new or retain existing, long-term
private sector job opportunities in communities experiencing significant economic distress as
evidenced by chronic high unemployment, underemployment, low per capita income,
outmigration, or a Special Need. These Investments also intend to assist communities in
attracting private capital investment and new and better job opportunities and to promote the
successful long-term economic recovery of a Region.
[79 FR 76131, Dec. 19, 20141
§305.2 Award requirements.
(a) Project scope. Public Works Investments may fund the following activities:
(1) Acquisition or development of land and improvements for use in a public works, public
service or other type of development facility; or
(2) Acquisition, design and engineering, construction, rehabilitation, alteration, expansion, or
improvement of such a facility, including related machinery and equipment.
(b) Requirements. A Public Works Investment may be made if EDA determines that:
(1) The Project will, directly or indirectly:
(i) Improve the opportunities for the successful establishment or expansion of industrial
or commercial plants or facilities in the Region where the Project is located;
(ii) Assist in the creation of additional long-term employment opportunities in the
Region; or
(iii)Primarily benefit the long-term unemployed and members of low-income families in
the Region;
(2) The Project will fulfill a pressing need of the Region, or a part of the Region, in which
the Project is located; and
(3) The Region in which the Project is located has a CEDS and the Project is consistent with
the CEDS.
(c) Not more than 15 percent of the annual appropriations made available to EDA to fund Public
Works Investments may be made in any one State.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76131, Dec. 19, 2014]
§305.3 Application requirements.
(a) Each application for Public Works Investment Assistance must:
(1) Include evidence of eligibility, as provided in part 301 of this chapter;
(2) Include, or incorporate by reference, a CEDS (as provided in §303.7 of this chapter);
(3) Demonstrate how the proposed Project meets the criteria of §305.2; and
(4) Demonstrate how the proposed Project meets the application evaluation criteria set forth
in §301.8 of this chapter.
(b) The Investment Rate for Public Works Investments will be determined in accordance with
§301.4 of this chapter.
[71 FR 56675, Sept. 27, 2006, as amended at 75 FR 4264, Jan. 27, 2010]
§305.4 Projects for design and engineering work.
In the case of Public Works Investment Assistance awarded solely for design and engineering
work, the following additional application requirements and terms shall apply:
(a) EDA may determine that a separate Investment for design and engineering is warranted due
to the technical complexity or environmental sensitivity of the construction Project;
(b) The purpose of the Investment may be limited to the development and production of all
documents required for the construction of the proposed construction Project in a format and
in sufficient quantity to permit advertisement and award of a construction contract soon after
securing construction financing for the Project;
(c) EDA will not disburse any portion of the Investment Assistance until it receives and certifies
compliance with the Investment award of all design and engineering contracts; and
(d) EDA's funding of the Project for design and engineering work does not in any way commit
EDA to fund construction of the Project.
Subpart B—Requirements for Approved Projects
§305.5 Project administration by District Organization.
(a) When a District Organization is not the Recipient or co -Recipient of Investment Assistance,
the District Organization may administer the Project for the Recipient if EDA determines
fulfillment of the following conditions:
(1) The Recipient has requested (either in the application or by separate written request) that
the District Organization for the Region in which the Project is located administer the
Project;
(2) The Recipient certifies and EDA finds that:
(i) Administration of the Project is beyond the capacity of the Recipient's current staff
and would require hiring additional staff or contracting for such services;
(ii) No local organization or business exists that could administer the Project in a more
efficient or cost-effective manner than the staff of the District Organization; and
(iii)The staff of the District Organization would administer the Project without sub-
contracting the work; and
(3) The allowable costs for the administration of the Project by the District Organization's
staff will not exceed the amount that would be allowable to the Recipient.
(b) EDA must approve the request either by approving the application in which the request is
made or by separate specific written approval.
§305.6 Allowable methods of procurement for construction services.
(a) Recipients shall seek EDA's prior written approval to use alternate construction procurement
methods to the traditional design/bid/build procedures (including lump sum or unit price -type
construction contracts). These alternate methods may include design/build, construction
management at risk, and force account. If an alternate method is used, the Recipient shall
submit to EDA for approval a construction services procurement plan and the Recipient must
use a design professional to oversee the process. The Recipient shall submit the plan to EDA
prior to advertisement for bids and shall include the following, as applicable:
(1) Justification for the proposed method for procurement of construction services, including
a brief analysis of the appropriateness and benefits of using the method to successfully
execute the Project and the Recipient's experience in using the method;
(2) The scope of work with cost estimates and schedules;
(3) A copy of the proposed construction contract;
(4) The name and qualifications of the selected design professional; and
(5) Procedures to be used to ensure full and open competition, including the selection
criteria.
(b) For all procurement methods, the Recipient must comply with the procedures and standards
set forth in 2 CFR part 200.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62866, Oct. 22, 2008; 79 FR 76131, Dec.
19, 2014; 82 FR 57054, Dec. 1, 2017]
§305.7 Services performed by the Recipient's own forces.
In certain circumstances, the Recipient may wish to consider having a portion or all of the
design, construction, inspection, legal services or other work and/or services in connection with
the Project performed by personnel who are employed by the Recipient either full-time or part-
time. EDA may approve the use of such "in-house forces" if
(a) The services are routinely performed by the Recipient for all construction Projects performed
by the Recipient (for example, inspection or legal); or
(b) The Recipient has a special skill required for the construction of the Project (for example,
construction of unique Indian structures); or
(c) The Recipient has made all reasonable efforts to obtain a contractor but has failed to do so
because of uncontrollable factors such as the remoteness of the Project site or an
overabundance of construction work in the Region; or
(d) The Recipient demonstrates substantial cost savings.
§305.8 Recipient -furnished equipment and materials.
The Recipient may wish to incorporate into the Project equipment or materials that it will secure
through its own efforts, subject to the following requirements:
(a) EDA must approve any use of Recipient -furnished equipment and materials. EDA may
require that major equipment items be subject to a lien in favor of EDA and also may require
a statement from the Recipient regarding expected useful life and salvage value of such
equipment;
(b) EDA may require the Recipient to establish that the expense claimed for such equipment or
materials is competitive with current local market costs; and
(c) Acquisition of Recipient -furnished equipment or materials under this section also is subject
to the requirements of 2 CFR part 200.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76132, Dec. 19, 2014; 82 FR 57054, Dec. 1,
2017]
§305.9 Project phasing and Investment disbursement.
(a) EDA may authorize in advance the award of construction contracts in phases, provided the
Recipient submits a request that includes each of the following:
(1) Valid reasons justifying why the Project must be phased;
(2) Description of the specific elements to be completed in each phase;
(3) Detailed construction cost estimates for each phase;
(4) Time schedules for completing all phases of the Project;
(5) Certification that the Recipient can and will fund any overrun(s); and
(6) Certification that the Recipient is capable of paying incurred costs prior to the first
disbursement of EDA funds.
(b) EDA will begin disbursement of funds after receipt of evidence sufficient to EDA of
compliance with all Investment award conditions. EDA may approve the disbursement of
funds prior to the tender of all construction contracts if the Recipient can demonstrate to
EDA's satisfaction that a severe financial hardship will result without such approval.
§305.10 Bid underrun and overrun.
(a) Underrun. If at the construction contract bid opening, the lowest responsive bid is less than
the total Project cost, the Recipient shall notify EDA immediately to determine relevant
procedures.
(b) Overrun.
(1) In the case of an overrun at the construction contract bid opening, the Recipient may:
(i) If provided for in the bid documents, take deductive alternatives to eliminate certain
Project elements in case of insufficient funds in the exact order shown on the
invitation for bid until at least one of the responsive bids, less deductive
alternative(s), results in a price within the budget for that item of work;
(ii) Reject all bids and re -advertise if there is a rational basis to expect that re -advertising
will result in a lower bid; or
(iii)Augment the Matching Share by an amount sufficient to cover the excess cost. The
Recipient must furnish a letter to EDA identifying the source of the additional funds
and confirming that the Matching Share meets the requirements of §301.5 of this
chapter.
(2) If the Recipient demonstrates to EDA's satisfaction that the options listed in paragraph
(b)(1) of this section are not feasible and the Project cannot be completed otherwise, the
Recipient may submit a written request to EDA for additional funding in accordance with
applicable EDA guidance. The award of additional Investment Assistance is at EDA's
sole discretion and will be considered in accord with EDA's competitive process
requirements. EDA's consideration of a request for additional Investment Assistance does
not indicate approval.
[79 FR 76132, Dec. 19, 2014]
§305.11 Contract awards; early construction start.
EDA must determine that the award of all contracts necessary for design and construction of the
Project facilities is in compliance with the terms and conditions of the Investment award in order
for the costs to be eligible for EDA reimbursement. Pending this determination, the Recipient
may issue a notice permitting construction under the contract to commence. If construction
commences prior to EDA's determination, the Recipient proceeds at its own risk until EDA
review and concurrence. The EDA regional office will advise the Recipient of the requirements
necessary to obtain EDA's determination.
§305.12 Project sign.
The Recipient shall be responsible for the construction, erection and maintenance in good
condition throughout the construction period of a sign or signs at a conspicuous place at the
Project site indicating that the Federal government is participating in the Project. The EDA
regional office will provide mandatory specifications for the signage.
§305.13 Contract change orders.
(a) If it becomes necessary to alter the construction contracts post -execution, the Recipient and
contractor shall agree to a formal contract change order.
(b) All contract change orders must receive EDA review for compliance with the terms and
conditions of the Investment award, even if the Recipient is to pay for all additional costs
resulting from the change or the change order reduces the contract price.
(c) Work on the Project may continue pending EDA review of the contract change order, but all
such work will be at the Recipient's risk until EDA completes its review.
§305.14 Occupancy prior to completion.
Occupancy of any part of the Project prior to final acceptance is entirely at the Recipient's risk
and must follow the requirements of local and State law.
PART 306—TRAINING, RESEARCH AND TECHNICAL ASSISTANCE
INVESTMENTS
AuTHoiuw: 42 U.S.C. 3147; 42 U.S.C. 3196; 42 U.S.C. 3211; Department of Commerce
Organization Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
Subpart A —Local and National Technical Assistance
§306.1 Purpose and scope.
(a) Local and National Technical Assistance Investments may be awarded to:
(1) Determine the causes of excessive unemployment, underemployment, low per capita
income, outmigration or other problems throughout the nation;
(2) Formulate and implement economic development tools, models, and innovative
techniques that will alleviate or prevent conditions of excessive unemployment or
underemployment;
(3) Formulate and implement economic development programs to increase local, regional
and national capacity;
(4) Evaluate the effectiveness and economic impact of programs, projects and techniques to
alleviate economic distress and promote economic development;
(5) Conduct project planning and feasibility studies;
(6) Provide management and operational assistance;
(7) Establish business outreach centers;
(8) Disseminate information about effective programs, projects and techniques that alleviate
conditions of economic distress and promote economic development;
(9) Assess, market and establish business clusters and associations; or
(10) Perform other activities determined by EDA to be appropriate under the Local and
National Technical Assistance program.
(b) Investment Assistance may not be used to start or expand a private business.
(c) EDA may identify specific training, research or technical assistance Projects it will fund,
which will be subject to competition. Ordinarily, these Projects are specified in an FFO,
which will provide the specific requirements, timelines and the appropriate points of contact
and addresses.
(d) In providing Local and National Technical Assistance under this subpart, EDA, in addition to
making Investments, may:
(1) Provide Local and National Technical Assistance through officers or employees of the
Department;
(2) Pay funds made available to carry out this subpart to Federal Agencies; or
(3) Employ private individuals, partnerships, businesses, corporations, or appropriate
institutions under contracts entered into for this purpose.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76132, Dec. 19, 2014]
§306.2 Award requirements.
EDA selects Projects for Local and National Technical Assistance Investments in accordance
with the general evaluation and selection criteria set forth in part 301 of this chapter and the
extent to which the Project:
(a) Strengthens the capacity of local, State or national organizations and institutions to undertake
and promote effective economic development programs targeted to Regions of distress;
(b) Benefits distressed Regions;
(c) Demonstrates innovative approaches to stimulate economic development in distressed
Regions;
(d) Is consistent with an EDA-approved CEDS, as applicable, for the Region in which the
Project is located; and
(e) Meets the criteria outlined in the applicable FFO.
§306.3 Application requirements.
(a) EDA will provide Investment Assistance under this subpart for the period of time required to
complete the Project's scope of work, generally not to exceed 12 to 18 months.
(b) For a Project of significant Regional or national scope, EDA may waive the requirement set
forth in §301.2(b) of this chapter that the non-profit organization act in cooperation with
officials of a political subdivision of a State.
(c) The Investment Rate for Investments under this subpart shall be determined in accordance
with §301.4(b)(4) of this chapter.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76132, Dec. 19, 2014]
Subpart B—University Center Economic Development Program
§306.4 Purpose and scope.
The University Center Economic Development Program is intended to help improve the
economies of distressed Regions. Institutions of higher education have many assets, such as
faculty, staff, libraries, laboratories, and computer systems that can address local economic
problems and opportunities. With Investment Assistance, institutions of higher education
establish and operate research centers ("University Centers') that provide technical assistance to
public and private sector organizations with the goal of enhancing local economic development.
[79 FR 76132, Dec. 19, 2014]
§306.5 Award requirements.
EDA provides Investment Assistance to University Center Projects in accordance with the
general evaluation and selection criteria set forth in part 301 of this chapter, the competitive
selection process outlined in the applicable FFO, and the extent to which the Project:
(a) Addresses the economic development needs, issues and opportunities of the Region and will
benefit distressed areas in the Region;
(b) Provides service and value that are unique and will maximize coordination with other
organizations in the Region;
(c) Has the commitment and support (both financial and non -financial) of the highest
management levels of the sponsoring institution;
(d) Outlines activities consistent with the expertise of the proposed staff, academic programs and
other resources available within the sponsoring institution; and
(e) Documents past experience of the sponsoring institution in operating technical assistance
programs.
§306.6 Application requirements.
(a) EDA will provide Investment Assistance under this subpart for the period of time required to
complete the Project's scope of work, as specifically outlined in the applicable FFO.
(b) For a Project of significant Regional or national scope, EDA may waive the requirement set
forth in §301.2(b) of this chapter that the non-profit organization act in cooperation with
officials of a political subdivision of a State.
(c) The Investment Rate for Investments under this subpart shall be determined in accordance
with §301.4(b)(4) of this chapter.
(d) At least 80 percent of EDA funding must be allocated to direct costs of program delivery.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76132, Dec. 19, 2014]
§306.7 Performance evaluations of University Centers.
(a) EDA will:
(1) Evaluate each University Center within three years after the initial Investment award and
at least once every three years thereafter, so long as such University Center continues to
receive Investment Assistance; and
(2) Assess the University Center's contribution to providing technical assistance, conducting
applied research, meeting program performance objectives (as evidenced by retention and
creation of employment opportunities) and disseminating Project results in accordance
with the scope of work funded during the evaluation period.
(b) The performance evaluation will determine in part whether a University Center can compete
to receive Investment Assistance under the University Center Economic Development
Program for the following Investment Assistance cycle.
(c) For peer review, EDA shall ensure the participation of at least one other University Center in
the performance evaluation on a cost -reimbursement basis.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76132, Dec. 19, 2014]
PART 307—ECONOMIC ADJUSTMENT ASSISTANCE INVESTMENTS
AUTHORITY: 42 U.S.C. 3211; 42 U.S.C. 3149; 42 U.S.C. 3161; 42 U.S.C. 3162; 42 U.S.C. 3233;
Department of Commerce Organization Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
Subpart A —General
§307.1 Purpose.
The purpose of Economic Adjustment Assistance Investments is to address the needs of
communities experiencing adverse economic changes that may occur suddenly or over time,
including those caused by:
(a) Military base closures or realignments, defense contractor reductions in force, or U.S.
Department of Energy defense -related funding reductions;
(b) Federally Declared Disaster;
(c) International trade;
(d) Long-term economic deterioration;
(e) Loss of a major community employer; or
(f) Loss of manufacturing jobs.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76132, Dec. 19, 2014]
§307.2 Criteria for Economic Adjustment Assistance Investments.
(a) Economic Adjustment Assistance Investments are intended to enhance a distressed
community's ability to compete economically by stimulating private investment in targeted
economic sectors through use of tools that:
(1) Help develop and implement a CEDS;
(2) Expand the capacity of public officials and economic development organizations to work
effectively with businesses;
(3) Assist in overcoming major obstacles identified in the CEDS;
(4) Enable communities to plan and coordinate the use of Federal resources and other
resources available to support economic recovery, development of Regional economies,
or recovery from natural or other disasters; or
(5) Encourage the development of innovative public and private approaches to economic
restructuring and revitalization.
(b) Economic Adjustment Assistance Investments may be made when the Project funded by the
Investment will help the Region meet a Special Need. The Region in which a Project is
located must have a CEDS with which the Project is consistent (except that this requirement
shall not apply to Strategy Grants described in §307.3).
§307.3 Use of Economic Adjustment Assistance Investments.
Economic Adjustment Assistance Investments may be used to develop a CEDS to alleviate long-
term economic deterioration or a sudden and severe economic dislocation (a "Strategy Grant"),
or to fund a Project implementing such a CEDS (an "Implementation Grant").
(a) Strategy Grants support developing, updating or refining a CEDS.
(b) Implementation Grants support the execution of activities identified in a CEDS. Specific
activities may be funded as separate Investments or as multiple elements of a single
Investment. Examples of Implementation Grant activities include:
(1) Infrastructure (as defined in §301.11 of this chapter) improvements, such as site
acquisition, site preparation, construction, rehabilitation and equipping of facilities;
(2) Provision of business or infrastructure financing through the capitalization of Recipient -
administered Revolving Loan Funds ("RLFs "), which may include loans and interest rate
buy -downs to facilitate business lending activities;
(3) Market or industry research and analysis;
(4) Technical assistance, including organizational development such as business networking,
restructuring or improving the delivery of business services, or feasibility studies;
(5) Public services;
(6) Training; and
(7) Other activities justified by the CEDS that satisfy applicable statutory and regulatory
requirements.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76132, Dec. 19, 2014]
§307.4 Award requirements.
(a) General. EDA will select Economic Adjustment Assistance Projects in accordance with part
301 of this chapter and the additional criteria provided in paragraphs (b), (c), and (d) of this
section, as applicable. Funding priority considerations for Economic Adjustment Assistance,
including RLF Grants, may be set forth in an FFO.
(b) Strategy Grants. EDA will review Strategy Grant applications to ensure that the proposed
activities conform to the CEDS requirements set forth in §303.7 of this chapter. Strategy
Grants shall comply with the applicable provisions of part 303 of this chapter.
(c) Implementation Grants.
(1) EDA will review Implementation Grant applications for the extent to which the:
(i) Applicable CEDS meets the requirements in §303.7 of this chapter; and
(ii) Proposed Project is identified as a necessary element of or consistent with the
applicable CEDS.
(2) Implementation Grants involving construction shall comply with the provisions of
subpart B of part 305 of this chapter.
(3) Implementation Grants that do not involve construction shall comply with the applicable
provisions of subpart A of part 306 of this chapter.
(d) See §307.7 for RLF award requirements.
[71 FR 56675, Sept. 27, 2006, as amended at 75 FR 4264, Jan. 27, 2010; 79 FR 76132, Dec. 19,
2014]
§307.5 Application requirements.
(a) Each application for Economic Adjustment Assistance must:
(1) Include or incorporate by reference (if so approved by EDA) a CEDS, except that a
CEDS is not required when applying for a Strategy Grant; and
(2) Explain how the proposed Project meets the criteria set forth in §307.2.
(b) For a technical assistance Project of significant Regional or national scope under this subpart,
EDA may waive the requirement set forth in §301.2(b) of this chapter that the non-profit
organization act in cooperation with officials of a political subdivision of a State.
Subpart B—Revolving Loan Fund Program
§307.6 Revolving Loan Funds established for lending.
Economic Adjustment Assistance Grants to capitalize or recapitalize RLFs most commonly fund
business lending, but also may fund public infrastructure or other authorized lending activities.
The requirements in this subpart apply to EDA-funded RLFs. Special award conditions may
containappropriate modifications of these requirements.
[82 FR 57054, Dec. 1, 2017]
§307.7 Revolving Loan Fund award requirements.
(a) For Eligible Applicants seeking to capitalize or recapitalize an RLF, EDA will review
applications for the following, as applicable:
(1) Need for a new or expanded public financing tool to:
(i) Enhance other business assistance programs and services targeting economic sectors
and locations described in the CEDS; or
(ii) Provide appropriate support for post -disaster economic recovery efforts in
Presidentially Declared Disaster areas;
(2) Types of financing activities anticipated; and
(3) Capacity of the RLF organization to manage lending activities, create networks between
the business community and other financial providers, and implement the CEDS.
(b) RLF Grants shall comply with the requirements set forth in this part, as well as relevant
provisions of parts 300 through 303, 305, and 314 of this chapter and in the following
publications:
(1) EDA's RLF Standard Terms and Conditions; and
(2) The Compliance Supplement, which is appendix XI to 2 CFR part 200 and is available on
the OMB Web site at https://www.whitehouse.govlomb/circulars default.
[79 FR 76133, Dec. 19, 2014, as amended at 82 FR 57055, Dec. 1, 2017]
§307.8 Definitions.
In addition to the defined terms set forth in §300.3 of this chapter, the following terms used in
this part shall have the following meanings:
Allowable Cash Percentage means the average percentage of the RLF Capital Base maintained
as RLF Cash Available for Lending by RLF Recipients in each EDA regional office's portfolio
of RLF Grants over the previous year.
Closed Loan means any loan for which all required documentation has been received, reviewed
and executed by an RLF Recipient.
Disbursement Phase means the period of loan activity where Grant funds awarded have not been
fully disbursed to the RLF Recipient.
Exempt Security means a Security that is not subject to certain SEC or Federal Reserve Board
rules.
Prudent Lending Practices means generally accepted underwriting and lending practices for
public loan programs, based on sound judgment to protect Federal and lender interests. Prudent
Lending Practices include loan processing, documentation, loan approval, collections, servicing,
administrative procedures, collateral protection and recovery actions. Prudent Lending Practices
provide for compliance with local laws and filing requirements to perfect and maintain a security
interest in RLF collateral.
Recapitalization Grants are Investments of additional Grant funds to increase the RLF Capital
Base.
Reporting Period, for purposes of this subpart only, is based on the RLF Recipient's fiscal year
end and is on an annual or semi-annual basis as determined by EDA.
Revolving Phase means that stage of the RLF's business lending activities that commences
immediately after all Grant funds have been disbursed to the RLF Recipient.
Risk Analysis System refers to a set of measures defined by EDA to evaluate a Recipient's
administration of its RLF Grant and that may include but is not limited to capital, assets,
management, earnings, liquidity, strategic results, and financial controls.
RLF Capital Base means the total value of RLF Grant assets administered by the RLF Recipient
It is equal to the amount of Grant funds used to capitalize (and recapitalize, if applicable), the
RLF, plus Local Share, plus RLF Income less any eligible and reasonable administrative
expenses, plus Voluntarily Contributed Capital, less any loan losses and disallowances. Except
as used to pay for eligible and reasonable administrative costs associated with the RLF's
operations, the RLF Capital Base is maintained in two forms at all times: As RLF Cash
Available for Lending and as outstanding loan principal.
RLF Cash Available for Lending means the portion of the RLF Capital Base that is held as cash
and available to make loans. This excludes loans that have been committed or approved but have
not yet been funded.
RLF Income means interest earned on outstanding loan principal and RLF accounts holding RLF
funds, all fees and charges received by the RLF, and other income generated from RLF
operations. An RLF Recipient may use RLF Income only to capitalize the RLF for financing
activities and to cover eligible and reasonable costs necessary to administer the RLF, unless
otherwise provided for in the Grant agreement or approved in writing by EDA. RLF Income
excludes repayments of principal and any interest remitted to the U.S. Treasury pursuant to
generally accepted accounting principles (GAAP) and §307.20(h).
RLF Recipient means the Eligible Recipient that receives an RLF Grant to manage an RLF in
accordance with an RLF Plan, Prudent Lending Practices, the terms and conditions of the RLF
Grant, and all applicable policies, laws, and regulations.
RLF Third Party, for purposes of this subpart B only, means an Eligible Recipient or for -profit
entity selected by EDA through a request for applications or Cooperative Agreement to facilitate
or manage the intended liquidation of an RLF.
Sale means an EDA-approved sale by an RLF Recipient of its RLF loan portfolio (or a portion
thereof) to a third party. A third party may participate in a subsequent Securitization offered in a
secondary market transaction and collateralized by the underlying RLF loan portfolio (or a
portion thereof).
SEC or the Commission means the U.S. Securities and Exchange Commission.
Securitization refers to the financing technique of securing an investment of new capital with a
stream of income generated by aggregating similar instruments such as loans or mortgages into a
new transferable Security.
Security means any investment instrument issued by a corporation, government or other
organization which offers evidence of debt or equity.
Voluntary Contributed Capital means an RLF Recipient's voluntary infusion of additional non-
EDA funds into the RLF Capital Base that is separate from and exceeds any Local Share that is
required as a condition of the RLF Grant. Voluntary Contributed Capital is an irrevocable
addition to the RLF Capital Base and must be administered in accordance with EDA regulations
and policies.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62867, Oct. 22, 2608; 75 FR 4264, Jan. 27,
2010; 82 FR 5 705 5, Dec. 1, 2017]
§307.9 Revolving Loan Fund Plan.
All RLF Recipients shall manage RLFs in accordance with an RLF plan (the "RLF Plan" or
"Plan") as described in this section. The Plan shall be submitted in electronic format to EDA for
approval, unless EDA approves a paper submission.
(a) Format and content.
(1) Part I of the Plan titled "Revolving Loan Fund Strategy" shall summarize the Region's
CEDS or EDA-approved economic development plan, if applicable, and business
development objectives, and shall describe the RLF's financing strategy, policy and
portfolio standards.
(2) Part II of the Plan titled "Operational Procedures" must serve as the RLF Recipient's
internal operating manual and set out administrative procedures for operating the RLF
consistent with "Prudent Lending Practices," as defined in §307.8, the RLF Recipient's
environmental review and compliance procedures as set out in §307.10, and EDA's
conflicts of interest rules set out in §302.17 of this chapter.
(b) Evaluation of RLF Plans. EDA will use the following criteria in evaluating Plans:
(1) The Plan must be consistent with the CEDS or EDA-approved economic development
plan, if applicable, for the Region.
(2) The Plan must identify the strategic purpose of the RLF and must describe the selection
of the financing strategy and lending criteria, including:
(i) An analysis of the local capital market and the financing needs of the targeted
businesses; and
(ii) Financing policies and portfolio standards that are consistent with EDA's policies and
requirements; and
(3) The Plan must demonstrate an adequate understanding of commercial loan portfolio
management procedures, including loan processing, underwriting, closing,
disbursements, collections, monitoring, and foreclosures. It also shall provide sufficient
administrative procedures to prevent conflicts of interest and to ensure accountability,
safeguarding of assets and compliance with Federal and local laws.
(c) Revision and Modification of RLF Plans.
(1) An RLF Recipient must update its Plan as necessary in accordance with changing
economic conditions in the Region; however, at a minimum, an RLF Recipient must
submit an updated Plan to EDA every five years.
(2) An RLF Recipient must notify EDA of any change(s) to its Plan. Any material
modification, such as a merger, consolidation, or change in the EDA-approved lending
area under §307.18, a change in critical management staff, or a change to the strategic
purpose of the RLF, must be submitted to EDA for approval prior to any revision of the
Plan. If EDA approves the modification, the RLF Recipient must submit an updated Plan
to EDA in electronic format, unless EDA approves a paper submission.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62867, Oct. 22, 2008; 75 FR 4264, Jan. 27,
2010; 79 FR 76133, Dec. 19, 2014]
§307.10 Pre -loan requirements.
(a) RLF Recipients must adopt procedures to review the impacts of prospective loan proposals
on the physical environment. The Plan must provide for compliance with applicable
environmental laws and other regulations, including parts 302 and 314 of this chapter. The
RLF Recipient also must adopt procedures to comply, and ensure that potential borrowers
comply, with applicable environmental laws and regulations.
(b) RLF Recipients must ensure that prospective borrowers, consultants, or contractors are aware
of and comply with the Federal statutory and regulatory requirements that apply to activities
carried out with RLF loans. Accordingly, RLF loan agreements shall include applicable
Federal requirements to ensure compliance and RLF Recipients must adopt procedures to
diligently correct instances of non-compliance, including loan call stipulations.
(c) All RLF loan documents and procedures must protect and hold the Federal government
harmless from and against all liabilities that the Federal government may incur as a result of
providing an RLF Grant to assist directly or indirectly in site preparation or construction, as
well as the direct or indirect renovation or repair of any facility or site. These protections
apply to the extent that the Federal government may become potentially liable as a result of
ground water, surface, soil or other natural or man-made conditions on the property caused
by operations of the RLF Recipient or any of its borrowers, predecessors or successors.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76133, Dec. 19, 2014]
§307.11 Pre -disbursement requirements and disbursement of funds to
Revolving Loan Funds.
(a) Pre -disbursement requirements.
(1) Within 60 calendar days before the initial disbursement of EDA funds, the RLF Recipient
must provide the following in a form acceptable to EDA:
(i) Certification from the RLF Recipient that the Recipient's accounting system is
adequate to identify, safeguard, and account for the entire RLF Capital Base,
outstanding RLF loans, and other RLF operations.
(ii) The RLF Recipient's certification that standard RLF loan documents reasonably
necessary or advisable for lending are in place and a certification from the RLF
Recipient's legal counsel that the loan documents are adequate and comply with the
terms and conditions of the RLF Grant, RLF Plan, and applicable State and local law.
The standard loan documents must include, at a minimum, the following:
(A)Loan application;
(B) Loan agreement;
(C) Board of directors' meeting minutes approving the RLF loan;
(D)Promissory note;
(E) Security agreement(s);
(F) Deed of trust or mortgage (as applicable);
(G)Agreement of prior lien holder (as applicable); and
(H)Evidence demonstrating that credit is not otherwise available on terms and
conditions that permit the completion or successful operation of the activity to be
financed.
(iii)Evidence of fidelity bond coverage for persons authorized to handle funds under the
RLF Grant award in an amount sufficient to protect the interests of EDA and the
RLF. At a minimum, the amount of coverage shall be the maximum loan amount
allowed for in the EDA-approved RLF Plan.
(2) The RLF Recipient is required to maintain the adequacy of the RLF's accounting system
and maintain and update standard RLF loan documents at all times during the duration of
the RLF's operation. In addition, the RLF recipient must maintain sufficient fidelity bond
coverage as described in this subsection for the duration of the RLF's operation. The RLF
Recipient shall maintain records and documentation to demonstrate the requirements set
out in this paragraph (a) are maintained for the duration of the RLF's operation. See also
§307.13(b)(3).
(b) Timing of request for disbursements. An RLF Recipient shall request disbursements of Grant
funds only to close a loan or disburse RLF funds to a borrower. The RLF Recipient must
disburse the RLF funds to a borrower within 30 days of receipt of the Grant funds. Any Grant
funds not disbursed within the 30 day period shall be refunded to EDA pursuant to paragraph
(e) of this section.
(c) Amount of disbursement. The amount of a disbursement of Grant funds shall be the amount
required to meet the Federal share requirement of a new RLF loan. RLF Income held during
the disbursement phase may be used to reimburse eligible administrative costs. RLF Income
earned and principal repaid during the Disbursement Phase must be placed in the RLF
Capital Base and may be used to reimburse eligible and reasonable administrative costs,
provide the requirements of §307.12(a) and (b) are met, and increase the RLF Capital Base.
RLF Income earned and principal repaid during the Disbursement Phase is not required to be
used for new RLF loans, unless otherwise specified in the terms and conditions of an RLF
Grant.
(d) Interest -bearing account. All Grant funds disbursed by EDA to the RLF Recipient for loan
obligations incurred but not yet disbursed to an eligible RLF borrower must be deposited and
held in an interest -bearing account by the Recipient until an RLF loan is made to a borrower.
(e) Delays. If the RLF Recipient receives Grant funds and the RLF loan disbursement is
subsequently delayed beyond 30 days, the RLF Recipient must notify the applicable grants
officer and return such non -disbursed funds to EDA. Grant funds returned to EDA shall be
available to the RLF Recipient for future draw -downs. When returning prematurely drawn
Grant funds, the RLF Recipient must clearly identify on the face of the check or in the
written notification to the applicable grants officer `EDA," the Grant award number, the
words "Premature Draw," and a brief description of the reason for returning the Grant funds.
(f) Local Share.
(1) Cash Local Share of the RLF may only be used for lending purposes. The cash Local
Share must be used either in proportion to the Grant funds or at a faster rate than the
Grant funds.
(2) When an RLF has a combination of In -Kind Contributions, which must be specifically
authorized in the terms and conditions of the RLF Grant and may be used to provide
technical assistance to borrowers or for eligible RLF administrative costs, and cash Local
Share, the cash Local Share and the Grant funds will be disbursed proportionately as
needed for lending activities, provided that the last 20 percent of the Grant funds may not
be disbursed until all cash Local Share has been expended. The full amount of the cash
Local Share shall remain for use in the RLF.
(g) Loan closing and disbursement schedule.
(1) RLF loan activity must be sufficient to draw down Grant funds in accordance with the
schedule prescribed in the award conditions for loan closings and disbursements to
eligible RLF borrowers. The schedule usually requires that the RLF Recipient lend the
entire amount of the RLF Grant within three years of the Grant award.
(2) If an RLF Recipient fails to meet the prescribed lending schedule, EDA may de -obligate
the non -disbursed balance of the RLF Grant. EDA may allow exceptions where:
(i) Closed Loans approved prior to the schedule deadline will commence and complete
disbursements within 45 days of the deadline;
(ii) Closed Loans have commenced (but not completed) disbursement obligations prior to
the deadline; or
(iii)EDA has approved a time schedule extension pursuant to paragraph (h) of this
section.
(h) Time schedule extensions.
(1) RLF Recipients shall promptly inform EDA in writing of any condition that may
adversely affect their ability to meet the prescribed schedule deadlines. RLF Recipients
must submit a written request to EDA for continued use of Grant funds beyond a missed
deadline for disbursement of RLF funds. RLF Recipients must provide good reason for
the delay in their extension request by demonstrating that:
(i) The delay was unforeseen or beyond the control of the RLF Recipient;
(ii) The financial need for the RLF still exists;
(iii)The current and planned use and the anticipated benefits of the RLF will remain
consistent with the current CEDS and the RLF Plan; and
(iv)The proposal of a revised time schedule is reasonable. An extension request must also
provide an explanation as to why no further delays are anticipated.
(2) EDA is under no obligation to grant a time extension. In the event an extension is denied,
EDA may de -obligate all or part of the unused Grant funds and terminate the Grant.
[71 FR 56675, Sept. 27, 2006, as amended at 75 FR 4264, Jan. 27, 2010; 79 FR 76133, Dec. 19,
2014; 82 FR 57055, Dec. 1, 2017]
§307.12 Revolving Loan Fund Income requirements during the Revolving
Phase; payments on defaulted and written off Revolving Loan Fund loans;
Voluntarily Contributed Capital.
(a) Revolving Loan Fund Income requirements during the Revolving Phase. During the
Revolving Phase, RLF Income must be placed into the RLF Capital Base for the purpose of
making loans or paying for eligible and reasonable administrative costs associated with the
RLF's operations. RLF Income may fund administrative costs, provided:
(1) Such RLF Income is earned and the administrative costs are accrued in the same fiscal
year of the RLF Recipient;
(2) RLF Income earned, but not used for administrative costs during the same fiscal year of
the RLF Recipient is made available for lending activities;
(3) RLF Income shall not be withdrawn from the RLF Capital Base in a subsequent fiscal
year for any purpose other than lending without the prior written consent of EDA; and
(4) An RLF Recipient shall not use funds in excess of RLF Income for administrative costs
unless directed otherwise in writing by EDA. In accordance with EDA's RLF Risk
Analysis System, RLF Recipients are expected to keep administrative costs to a
minimum in order to maintain the RLF Capital Base. The percentage of RLF Income
used for administrative expenses will be one of the measures used in EDA's RLF Risk
Analysis System to evaluate RLF Recipients. See also §307.16.
(b) Compliance guidance. When charging costs against RLF Income, RLF Recipients must
comply with applicable Federal uniform administrative requirements, cost principles, and
audit requirements as detailed in this paragraph (b) and in the terms and conditions of the
RLF Grant.
(1) For RLF Grants made on or after December 26, 2014. For RLFs awarded on or after
December 26, 2014 or for RLFs that have received one or more Recapitalization Grants
on or after December 26, 2014, the RLF Recipient must comply with the administrative
and cost principles in 2 CFR part 200 ("Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards").
(2) For RLF Grants made before December 26, 2014. For RLFs awarded before December
26, 2014, unless otherwise indicated in the terms of the Grant, the RLF Recipient must
comply with the following cost principles:
(i) 2 CFR part 225 (OMB Circular A-87 for State, local, and Indian tribal governments),
(ii) 2 CFR part 230 (OMB Circular A-122 for non-profit organizations other than
institutions of higher education, hospitals or organizations named in OMB Circular
A-122 as not subject to such Circular), and
(iii)2 CFR part 220 (OMB Circular A-21 for educational institutions).
(3) For all RLF Grants. For all RLF Grants, regardless of when they were awarded, the audit
requirements set out as subpart F to 2 CFR part 200 apply to audits of the RLF
Recipient's fiscal years beginning on or after December 26, 2014. In addition, the
Compliance Supplement, which is appendix XI to 2 CFR part 200, applies as appropriate.
(c) Priority ofpayments on defaulted and written off RLF loans. When an RLF Recipient
receives proceeds on a defaulted or written off RLF loan that is not subject to liquidation
pursuant to §307.21, such proceeds shall be applied in the following order of priority:
(1) First, towards any costs of collection;
(2) Second, towards outstanding penalties and fees;
(3) Third, towards any accrued interest to the extent due and payable; and
(4) Fourth, towards any outstanding principal balance.
(d) Voluntarily Contributed Capital. An RLF Recipient that wishes to inject additional capital
into the RLF Capital Base to augment the amount of resources available to lend must submit
a written request that specifies the source of the funds to be added. Once an RLF Recipient
elects to commit Voluntarily Contributed Capital and upon approval by EDA, the Voluntarily
Contributed Capital becomes an irrevocable part of the RLF Capital Base and may not be
subsequently withdrawn or separated from the RLF.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62867, Oct. 22, 2008; 79 FR 76134, Dec.
19, 2014; 82 FR 57056, Dec. 1, 2017]
§307.13 Records and retention.
(a) Closed Loan files and related documents. The RLF Recipient shall maintain Closed Loan
files and all related documents, books of account, computer data files and other records over
the term of the Closed Loan and for a three-year period from the date of final disposition of
such Closed Loan. The date of final disposition of a Closed Loan is the date:
(1) Principal, interest, fees, penalties and all other costs associated with the Closed Loan
have been paid in full; or
(2) Final settlement or discharge and cessation of collection efforts of any unpaid amounts
associated with the Closed Loan have occurred.
(b) Administrative records. RLF Recipients must at all times:
(1) Maintain adequate accounting records and source documentation to substantiate the
amount and percent of RLF Income expended for eligible RLF administrative costs.
(2) Retain records of administrative expenses incurred for activities and equipment relating
to the operation of the RLF for three years from the actual submission date of the report
that covers the fiscal year in which such costs were claimed.
(3) Consistent with §307.11(a), for the duration of RLF operations, maintain records to
demonstrate:
(i) The adequacy of the RLF's accounting system to identify, safeguard, and account for
the entire RLF Capital Base, outstanding RLF loans, and other RLF operations;
(ii) That standard RLF loan documents reasonably necessary or advisable for lending are
in place; and
(iii)Evidence of fidelity bond coverage for persons authorized to handle funds under the
Grant award in an amount sufficient to protect the interests of EDA and the RLF.
(4) Make available for inspection retained records, including those retained for longer than
the required period. The record retention periods described in this section are minimum
periods and such prescription does not limit any other record retention requirement of law
or agreement. In no event will EDA question claimed administrative costs that are more
than three years old, unless fraud is at issue.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62867, Oct. 22, 2008; 79 FR 76134, Dec.
19, 2014; 82 FR 57057, Dec. 1, 2017]
§307.14 Revolving Loan Fund report.
(a) Frequency of reports. All RLF Recipients, including those receiving Recapitalization Grants
for existing RLFs, must complete and submit an RLF report, using Form ED-209, in a format
and at a frequency as required by EDA.
(b) Report contents. RLF Recipients must certify as part of the RLF report to EDA that the RLF
is operating in accordance with the applicable RLF Plan and that the information provided is
complete and accurate.
[82 FR 57057, Dec. 1, 2017]
§307.15 Prudent management of Revolving Loan Funds.
(a) Accounting principles.
(1) RLFs shall operate in accordance with generally accepted accounting principles
("GAAP") as in effect in the United States and the provisions outlined in the audit
requirements set out as subpart F to 2 CFR part 200 and the Compliance Supplement,
which is appendix XI to 2 CFR part 200, as applicable.
(2) In accordance with GAAP, a loan loss reserve may be recorded in the RLF Recipient's
financial statements to show the adjusted current value of an RLF's loan portfolio,
provided this loan loss reserve is non -funded and is represented by a non -cash entry.
However, loan loss reserves shall not be used to reduce the value of the RLF in the
Schedule of Expenditures of Federal Awards ("SEFA") required as part of the RLF
Recipient's audit requirements under 2 CFR part 200.
(b) Interest rates—
(1) General rule. An RLF Recipient may make loans to eligible borrowers at interest rates
and under conditions determined by the RLF Recipient to be appropriate in achieving the
goals of the RLF. The minimum interest rate an RLF Recipient may charge is four
percentage points below the lesser of the current money center prime interest rate quoted
in the Wall Street Journal, or the maximum interest rate allowed under State law. In no
event shall the interest rate be less than the lower of four percent or 75 percent of the
prime interest rate listed in the Wall Street Journal.
(2) Exception. Should the prime interest rate listed in the Wall Street Journal exceed 14
percent, the minimum RLF interest rate is not required to be raised above 10 percent if
doing so compromises the ability of the RLF Recipient to implement its financing
strategy.
(c) RLF leveraging.
(1) RLF loans must leverage additional investment of at least two dollars for every one dollar
of such RLF loans. This leveraging requirement applies to the RLF portfolio as a whole
rather than to individual loans and is effective for the duration of the RLF's operation. To
be classified as leveraged, additional investment must be made within 12 months of
approval of an RLF loan, as part of the same business development project, and may
include:
(i) Capital invested by the borrower or others;
(ii) Financing from private entities;
(iii)The non -guaranteed portions and 90 percent of the guaranteed portions of any Federal
loan; or
(iv)Loans from other State and local lending programs.
(2) Private investments shall not include accrued equity in a borrower's assets.
(d) RLF certification course. EDA may establish a mandatory RLF certification program to
enhance RLF Recipients' ability to administer RLF Grants in a prudent manner. If so required
by EDA, the RLF Recipient must satisfactorily complete this program, and may consider the
cost of attending the certification courses as an administrative cost, provided the
requirements set forth in §307.12 are satisfied.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62868, Oct. 22, 2008; 75 FR 4264, Jan. 27,
2010; 79 FR 76134, Dec. 19, 2014; 82 FR 57057, Dec. 1, 2017]
§307.16 Risk Analysis System.
(a) EDA shall evaluate and manage RLF recipients using a Risk Analysis System that will focus
on such risk factors as: capital, assets, management, earnings, liquidity, strategic results, and
financial controls. Risk analysis ratings of each RLF Recipient's RLF program shall be
conducted at least annually and will be based on the most recently submitted Form ED-209
RLF report.
(b) An RLF Recipient generally will be allowed a reasonable period of time to achieve
compliance with risk factors as defined by EDA. However, persistent noncompliance with
these factors and their limits as identified through EDA's Risk Analysis System over multiple
Reporting Periods may result in EDA taking appropriate remedies for noncompliance as
detailed in §307.21.
[82 FR 57057, Dec. 1, 2017]
§307.17 Requirements for Revolving Loan Fund Cash Available for Lending.
(a) General. RLF Cash Available for Lending shall be deposited and held in an interest -bearing
account by the Recipient and used for the purpose of making RLF loans that are consistent
with an RLF Plan or such other purposes approved by EDA. To ensure that RLF funds are
used as intended, each loan agreement must clearly state the purpose of each loan.
(b) Allowable Cash Percentage. EDA shall notify each RLF recipient by January 1 of each year
of the Allowable Cash Percentage that is applicable to lending during the Recipient's ensuing
fiscal year. During the Revolving Phase, RLF Recipients must manage their repayment and
lending schedules so that at all times they do not exceed the Allowable Cash Percentage.
(c) Restrictions on use of RLF Cash Available for Lending. RLF Cash Available for Lending
shall not be used to:
(1) Acquire an equity position in a private business;
(2) Subsidize interest payments on an existing RLF loan;
(3) Provide a loan to a borrower for the purpose of meeting the requirements of equity
contributions under another Federal Agency's loan programs;
(4) Enable borrowers to acquire an interest in a business either through the purchase of stock
or through the acquisition of assets, unless sufficient justification is provided in the loan
documentation. Sufficient justification may include acquiring a business to save it from
imminent closure or to acquire a business to facilitate a significant expansion or increase
in investment with a significant increase in jobs. The potential economic benefits must be
clearly consistent with the strategic objectives of the RLF;
(5) Provide RLF loans to a borrower for the purpose of investing in interest -bearing
accounts, certificates of deposit, or any investment unrelated to the RLF; or
(6) Refinance existing debt, unless:
(i) The RLF Recipient sufficiently demonstrates in the loan documentation a "sound
economic justification" for the refinancing (e.g., the refinancing will support
additional capital investment intended to increase business activities). For this
purpose, reducing the risk of loss to an existing lender(s) or lowering the cost of
financing to a borrower shall not, without other indicia, constitute a sound economic
justification; or
(ii) RLF Cash Available for Lending will finance the purchase of the rights of a prior lien
holder during a foreclosure action which is necessary to preclude a significant loss on
an RLF loan. RLF funds may be used for this purpose only if there is a high
probability of receiving compensation from the sale of assets sufficient to cover an
RLF's costs plus a reasonable portion of the outstanding RLF loan within a reasonable
time frame approved by EDA following the date of refinancing.
(7) Serve as collateral to obtain credit or any other type of financing without EDA's prior
written approval;
(8) Support operations or administration of the RLF Recipient; or
(9) Undertake any activity that would violate the requirements found in part 314 of this
chapter, including §314.3 ("Authorized Use of Property") and §314.4 ("Unauthorized
Use of Property").
[82 FR 57057, Dec. 1, 2017]
§307.18 Addition of lending areas; consolidation and merger of RLFs.
(a) (1) An RLF Recipient shall make loans only within its EDA-approved lending area, as set
forth and defined in the RLF Grant and the RLF Plan. An RLF Recipient may add a
lending area (an "Additional Lending Area ") to its existing lending area to create a new
lending area (the "New Lending Area ") only with EDA's prior written approval and
subject to the following provisions and conditions:
(i) The Additional Lending Area must meet the economic distress criteria for Economic
Adjustment Assistance Investments under this part and in accordance with §301.3(a)
of this chapter;
(ii) Prior to EDA's disbursement of additional funds to the RLF Recipient (for example,
through a recapitalization), EDA shall determine a new Investment Rate for the New
Lending Area based on the criteria set forth in §301.4 of this chapter;
(iii)The RLF Recipient must demonstrate that the Additional Lending Area is consistent
with its CEDS, or modify its CEDS for any such Additional Lending Area, in
accordance with §307.9(b)(1);
(iv)The RLF Recipient shall modify its Plan to incorporate the Additional Lending Area
and revise its lending strategy, as necessary;
(v) The RLF Recipient shall execute an amended financial assistance award, as
necessary; and
(vi)The RLF Recipient fulfills any other conditions reasonably requested by EDA.
(2) Following EDA approval, the New Lending Area designation shall remain in place until
EDA approves a subsequent request for a New Lending Area.
(b) Consolidation and merger of RLFs—
(1) Single RLF Recipient. An RLF Recipient with more than one EDA-funded RLF Grant
may consolidate two or more EDA-funded RLFs into one combined RLF with EDA's
prior written approval and provided:
(i) It is up-to-date with all reports in accordance with §307.14;
(ii) It demonstrates a rational basis for undertaking the consolidation (for example, the
lending area(s) and borrower criteria identified in different RLF Plans are compatible,
or will be compatible, for all RLFs to be consolidated);
(iii)It amends and consolidates its Plan to account for the consolidation of RLFs,
including items such as the New Lending Area (including any Additional Lending
Area(s)), its lending strategy and borrower criteria;
(iv)Prior to EDA's disbursement of additional funds to the RLF Recipient (for example,
through a recapitalization), EDA shall determine a new Investment Rate for the New
Lending Area based on the criteria set forth in §301.4 of this chapter; and
(v) The RLF Recipient fulfills any other conditions reasonably requested by EDA.
(2) Multiple RLF Recipients. Two or more RLF Recipients may merge their EDA-funded
RLFs into one surviving RLF with EDA's prior written approval and provided:
(i) The replacement RLF Recipient is up-to-date with all reports in accordance with
§307.14;
(ii) The surviving RLF Recipient amends and consolidates its Plan to account for the
merger of RLFs, including items such as the New Lending Area (including any
Additional Lending Area(s)), its lending strategy and borrower criteria;
(iii)Prior to EDA's disbursement of additional funds to the surviving RLF Recipient (for
example, through a recapitalization), EDA shall determine a new Investment Rate for
the New Lending Area based on the criteria set forth in §301.4 of this chapter;
(iv)EDA must provide written approval of the merger agreement(s), modifications and
revisions to the Plans and any other related amendments thereto;
(v) All applicable RLF Grant assets of the discharging RLF Recipient(s) transfer to the
surviving RLF Recipient as of the merger's effective date; and
(vi)The surviving RLF Recipient becomes fully responsible for administration of the
RLF Grant assets transferred and fulfills all surviving RLF Grant requirements and
any other conditions reasonably requested by EDA.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62869, Oct. 22, 2008; 79 FR 76135, Dec.
19, 2014; 82 FR 57058, Dec. 1, 2017]
§307.19 RLF loan portfolio Sales and Securitizations.
EDA may take such actions as appropriate to enable an RLF Recipient to sell or securitize RLF
loans, except that EDA may not issue a Federal guaranty covering any issued Security. With
prior approval from EDA, an RLF Recipient may enter into a Sale or a Securitization of all or a
portion of its RLF loan portfolio, provided:
(a) An RLF Recipient must use all proceeds from any Sale or Securitization (net of reasonable
transaction costs) to make additional RLF loans;
(b) No Security collateralized by RLF loans and other RLF property and offered in a secondary
market transaction pursuant to a Securitization shall be treated as an Exempt Security for
purposes of the Securities Act of 1933, as amended (15 U.S.C. 77a et seq.), or the Securities
Exchange Act of 1934, as amended (15 U.S.C. 78a et seq.) (the "Exchange Act"), unless
exempted by a rule or regulation issued by the Commission; and
(c) Except as provided in paragraph (b), no provision of this section supersedes or otherwise
affects the application of the "securities laws" (as such term is defined in section 3(a)(47) of
the Exchange Act) or the rules, regulations or orders issued by the Commission or a self -
regulatory organization under the Commission.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76135, Dec. 19, 2014]
§307.20 Noncompliance.
EDA will take appropriate compliance actions as detailed in §307.21 for the RLF Recipient's
failure to operate the RLF in accordance with the RLF Plan, the terms and conditions of the RLF
Grant, or this subpart, including but not limited to:
(a) Failing to obtain prior EDA approval for material changes to the RLF Plan, including
provisions for administering the RLF;
(b) Failing to submit an updated RLF Plan to EDA in accordance with §307.9(c);
(c) Failing to submit timely progress, financial, and audit reports in the format required by the
RLF Grant and §307.14, including the Form ED-209 RLF report;
(d) Failing to manage the RLF Grant in accordance with Prudent Lending Practices, as defined
in §307.8;
(e) Holding RLF Cash Available for Lending so that it is 50 percent or more of the RLF Capital
Base for 24 months without an EDA-approved extension request based on other EDA risk
analysis factors or other extenuating circumstances;
(f) Making an ineligible loan;
(g) Failing to disburse the EDA funds in accordance with the time schedule prescribed in the
RLF Grant;
(h) Failing to sequester funds or remit the interest on EDA's portion of the sequestered funds to
the U.S. Treasury, as directed by EDA;
(i) Failing to comply with the audit requirements set forth in subpart F to 2 CFR part 200 and
the related Compliance Supplement, including reference to the correctly valued EDA RLF
Federal expenditures in the SEFA, timely submission of audit reports to the Federal Audit
Clearinghouse, and the inclusion of the RLF program as an appropriately audited program;
(j) Failing to implement timely resolutions to audit findings or questioned costs contained in the
annual audit, as applicable;
(k) Failing to comply with an EDA-approved corrective action plan to remedy persistent
noncompliance with RLF-related findings;
(1) Failing to comply with the conflicts of interest provisions set forth in §302.17; and
(m)Making unauthorized use of RLF Cash Available for Lending in violation of §307.18(c).
[82 FR 57058, Dec. 1, 2017]
§307.21 Remedies for noncompliance.
(a) General. If an RLF Recipient fails to operate the RLF in accordance with the RLF Plan, the
terms and conditions of the RLF Grant, or this subpart, as detailed in §307.20, EDA may
require one or more of the following actions, as appropriate in the circumstances:
(1) Increased reporting requirements;
(2) Implementation of a corrective action plan;
(3) A special audit;
(4) Sequestration of RLF funds;
(5) Repayment of ineligible loans or other costs to the RLF;
(6) Transfer or merger of the RLF in accordance with §307.18;
(7) Suspension of the RLF Grant; or
(8) Termination of the RLF Grant, in whole or in part.
(b) Disallowance of a portion of an RLF Grant, liquidation. If the RLF Recipient engages in
certain problematic practices, EDA may disallow a corresponding proportion of the Grant or
direct the RLF Recipient to transfer loans to an RLF Third Party for liquidation. Problematic
practices for which EDA may disallow a portion of an RLF Grant and recover the pro-rata
Federal Share (as defined in §314.5 of this chapter) include the RLF Recipient:
(1) Holding RLF Cash Available for Lending so that it is 50 percent or more of the RLF
Capital Base for 24 months without an EDA-approved extension request;
(2) Failing to disburse the EDA funds in accordance with the time schedule prescribed in the
RLF Grant; or
(3) Determining that it does not wish to further invest in the RLF or cannot maintain
operations at the degree originally contemplated upon receipt of the RLF Grant and
requests that a portion of the RLF Grant be disallowed, and EDA agrees to the
disallowance.
(c) Termination or suspension. To maintain effective control over and accountability of RLF
Grant funds and assets, EDA shall determine the manner and timing of any suspension or
termination action. EDA may require the RLF Recipient to repay the Federal Share in a
lump -sum payment or enter into a Sale, or EDA may agree to enter into a repayment
agreement with the RLF Recipient for repayment of the Federal Share.
(d) Termination, liquidation upon termination. When EDA approves the termination of an RLF
Grant, EDA must make all efforts to recover the pro rata Federal Share (as defined in §314.5
of this chapter). EDA may assign or transfer assets of the RLF to an RLF Third Party for
liquidation. The following terms will govern any liquidation:
(1) EDA shall have sole discretion in choosing the RLF Third Party;
(2) The RLF Third Party may be an Eligible Applicant or a for -profit organization not
otherwise eligible for Investment Assistance;
(3) EDA may enter into an agreement with the RLF Third Party to liquidate the assets of one
or more RLFs or RLF Recipients;
(4) EDA may allow the RLF Third Party to retain a portion of the RLF assets, consistent
with the agreement referenced in paragraph (d)(3) of this section, as reasonable
compensation for services rendered in the liquidation; and
(5) EDA may require additional reasonable terms and conditions.
(e) Distribution ofproceeds. The proceeds resulting from any liquidation upon termination shall
be distributed in the following order of priority:
(1) First, for any third party liquidation costs;
(2) Second, for the payment of EDA's Federal Share; and
(3) Third, if any proceeds remain, to the RLF Recipient.
(f) RLF Recipient's request to terminate. EDA may approve a request from an RLF Recipient to
terminate an RLF Grant. The RLF Recipient must compensate the Federal Government for
the pro rata Federal Share of the RLF Capital Base.
(g) Distribution ofproceeds upon termination. Upon termination, distribution of proceeds shall
occur in accordance with §307.21(e).
[82 FR 57058, Dec. 1, 2017]
§307.22 Variances.
EDA may approve variances to the requirements contained in this subpart, provided such
variances:
(a) Are consistent with the goals of the Economic Adjustment Assistance program and with an
RLF Plan;
(b) Are necessary and reasonable for the effective implementation of the RLF;
(c) Are economically and financially sound; and
(d) Do not conflict with any applicable legal requirements, including Federal, State and local
law.
PART 308—PERFORMANCE INCENTIVES
AUTHORITY: 42 U.S.C. 3151; 42 U.S.C. 3154a; 42 U.S.C. 3154b; Department of Commerce
Delegation Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
§308.1 Use of funds in Projects constructed under projected cost.
(a) If the Assistant Secretary determines before closeout of a construction Project funded under
parts 305 or 307 of this chapter that the cost of the Project, based on the designs and
specifications that were the basis of the Investment Assistance, has decreased because of a
decrease in costs, EDA may in its discretion approve the use of the excess funds (or a portion
of the excess funds) by the Recipient to:
(1) Increase the Investment Rate of the Project to the maximum percentage allowable under
§301.4 of this chapter for which the Project was eligible at the time of the Investment
award; or
(2) Further improve the Project consistent with its purpose.
(b) EDA, in its sole discretion, may use any amount of excess funds remaining after application
of paragraph (a) of this section for other eligible Investments.
(c) In the case of Projects involving funds transferred from other Federal Agencies, EDA will
consult with the transferring Agency regarding the use of any excess funds.
§308.2 Performance awards.
(a) A Recipient of Investment Assistance under parts 305 or 307 of this chapter may receive a
performance award in connection with an Investment made on or after the date of enactment
of section 215 of PWEDA in an amount not to exceed 10 percent of the amount of the
Investment award.
(b) To receive a performance award, a Recipient must demonstrate Project performance in one or
more of the areas listed in this paragraph, weighted at the discretion of the Assistant
Secretary:
(1) Meet or exceed the Recipient's projection of jobs created;
(2) Meet or exceed the Recipient's projection of private sector capital invested;
(3) Meet or exceed target dates for Project start and completion stated at the time of
Investment approval;
(4) Fulfill the application evaluation criteria set forth in §301.8 of this chapter; or
(5) Demonstrate other unique Project performance characteristics as determined by the
Assistant Secretary.
(c) A Recipient may receive a performance award no later than three years following the
Project's closeout.
(d) A performance award may fund up to 100 percent of the cost of an eligible Project or any
other authorized activity under PWEDA. For the purpose of meeting the non -Federal share
requirement of PWEDA or any other statute, the amount of a performance award shall be
treated as non -Federal funds.
(e) The applicable FFO will set forth the requirements, qualifications, guidelines and procedures
for performance awards to be made during the applicable fiscal year, with all performance
awards being subject to the availability of funds.
[71 FR 56675, Sept. 27, 2006, as amended at 75 FR 4265, Jan. 27, 2010; 79 FR 76136, Dec. 19,
2014]
§308.3 Planning performance awards.
(a) A Recipient of Investment Assistance awarded on or after the date of enactment of section
216 of PWEDA for a Project located in an EDA-funded Economic Development District
may, at the discretion of the Assistant Secretary, receive a planning performance award in an
amount not to exceed five percent of the amount of the applicable Investment award if EDA
determines before closeout of the Project that:
(1) The Recipient, through the Project, actively participated in the economic development
activities of the District;
(2) The Project demonstrated exceptional fulfillment of one or more components of, and is
otherwise in accordance with, the applicable CEDS, including any job creation or job
retention requirements; and
(3) The Recipient demonstrated exceptional collaboration with Federal, State, and local
economic development entities throughout the development of the Project.
(b) The Recipient shall use the planning performance award to increase, up to 100 percent, the
Federal share of the cost of a Project under this chapter.
(c) The applicable FFO may set forth additional requirements, qualifications and guidelines for
planning performance awards.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62869, Oct. 22, 2008; 79 FR 76136, Dec.
19, 2014]
PART 309—REDISTRIBUTIONS OF INVESTMENT ASSISTANCE
AUTHORITY: 42 U.S.C. 3154c; 42 U.S.C. 3211; Department of Commerce Delegation Order 10-
4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
§309.1 Redistributions under parts 303, 305 and 306.
(a) General. Except as provided in paragraph (b) of this section, a Recipient of Investment
Assistance under parts 303, 305 or 306 of this chapter may directly expend such Investment
Assistance or, with prior EDA approval, may redistribute such Investment Assistance in the
form of a subgrant to another Eligible Recipient, generally referred to as a Subrecipient, that
qualifies for Investment Assistance under the same part of this chapter as the Recipient, to
fund required components of the scope of work approved for the Project. All subgrants made
pursuant to this section shall be subject to the same terms and conditions applicable to the
Recipient under the original Investment Assistance award and must satisfy the requirements
of PWEDA and of this chapter. EDA may require the Eligible Recipient under the original
Investment award to agree to special award conditions and the Subrecipient to provide
appropriate certifications to ensure the Subrecipient's compliance with legal requirements.
(b) Exception. A Recipient may not make a subgrant of Investment Assistance received under
parts 303 or 305 of this chapter to a for -profit entity.
[71 FR 56675, Sept. 27, 2006, as amended at 82 FR 57059, Dec. 1, 20171
§309.2 Redistributions under part 307.
(a) A Recipient of Investment Assistance under part 307 of this chapter may directly expend
such Investment Assistance or, with prior EDA approval, may redistribute such Investment
Assistance in the form of:
(1) A subgrant to another Eligible Recipient, generally referred to a Subrecipient, that
qualifies for Investment Assistance under part 307 of this chapter; or
(2) Pursuant to part 307, subpart B, a loan or other appropriate assistance to non-profit and
private for -profit entities.
(b) All redistributions of Investment Assistance made pursuant to this section shall be subject to
the same terms and conditions applicable to the Recipient under the original Investment
Assistance award and must satisfy the requirements of PWEDA and of this chapter. EDA
may require the Eligible Recipient under the original Investment Award to agree to special
award conditions and the Subrecipient to provide appropriate certifications to ensure the
Subrecipient's compliance with legal requirements.
[71 FR 56675, Sept. 27, 2006, as amended at 82 FR 57059, Dec. 1, 2017]
PART 310—SPECIAL IMPACT AREAS
AUTHORITY: 42 U.S.C. 3154; Department of Commerce Organization Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
§310.1 Special Impact Area.
Upon the application of an Eligible Applicant, and with respect to that Eligible Applicant's
Project only, the Assistant Secretary may designate the Region which the Project will serve as a
Special Impact Area if the Eligible Applicant demonstrates that its proposed Project will:
(a) Directly fulfill a pressing need; and
(b) Be useful in alleviating or preventing conditions of excessive unemployment or
underemployment, or assist in providing useful employment opportunities for the
unemployed or underemployed residents of the Region.
[73 FR 62869, Oct. 22, 2008, as amended at 79 FR 76136, Dec. 19, 2014]
§310.2 Pressing need; alleviation of unemployment or underemployment.
(a) The Assistant Secretary may find a pressing need to exist if the Region which the Project will
serve:
(1) Has a unique or urgent circumstance that would necessitate waiver of the CEDS
requirements of §303.7 of this chapter;
(2) Involves a Project undertaken by an Indian Tribe;
(3) Is rural and severely distressed;
(4) Is undergoing a transition in its economic base as a result of changing trade patterns (e.g.,
the Region is certified as eligible by the North American Development Bank Program or
the Community Adjustment and Investment Program);
(5) Exhibits a substantial reliance on a natural resource for its economic well-being;
(6) Has been designated as a Federally Declared Disaster area; or
(7) Has a Special Need.
(b) For purposes of this part, excessive unemployment exists if the 24-month unemployment rate
is at least 225 percent of the national average or the per capita income is not more than 50
percent of the national average. A Region demonstrates excessive underemployment if the
employment of a substantial percentage of workers in the Region is less than full-time or at
less skilled tasks than their training or abilities would otherwise permit. Eligible Applicants
seeking a Special Impact Area designation under this criterion must present appropriate and
compelling economic and demographic data.
(c) Eligible Applicants may demonstrate the provision of useful employment opportunities by
quantifying and evidencing the Project's prospective:
(1) Creation of jobs;
(2) Commitment of financial investment by private entities; or
(3) Application of innovative technology that will lead to the creation of jobs or the
commitment of financial investment by private entities.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76136, Dec. 19, 2014]
PART 311 [RESERVED]
PART 312—REGIONAL INNOVATION PROGRAM
AUTHORITY: 15 U.S.C. 3701 et seq.; Department of Commerce Organization Order 10-4.
SOURCE: 82 FR 3134, Jan. 11, 2017, unless otherwise noted.
Subpart A —General Provisions
§312.1 Purpose and scope of the Regional Innovation Program.
The purpose of the Regional Innovation Program is to encourage and support the development of
regional innovation strategies. The Regional Innovation Program includes two sub -programs.
One is focused on the formation and development of regional innovation clusters and
implemented through the Regional Innovation Strategies Program. 15 U.S.C. 3722(b). The
second program is focused on best practices, metrics and the collection and dissemination of
information related to regional innovation strategies, achieved through the Regional Innovation
Research and Information Program. 15 U.S.C. 3722(c). The Secretary has delegated to the
Economic Development Administration the authority to implement and administer the Regional
Innovation Program.
§312.2 General definitions from Public Works and Economic Development
Act regulations inapplicable to this part.
The definitions contained in §300.3 of this chapter do not apply to this part.
§312.3 General definitions.
As used in this part, the following terms shall have the following meanings:
Act or Stevenson-Wydler means the Stevenson-Wydler Technology Innovation Act of 1980, as
amended (15 U.S.C. 3701 et seq.).
Assistant Secretary means the Assistant Secretary of Commerce for Economic Development
within the Department.
Department of Commerce, Department, or DOC means the U.S. Department of Commerce.
Economic Development Organization means an organization whose primary purpose is to
support the economic development of a community or region.
EDA means the Economic Development Administration within the Department.
Eligible applicant means an entity qualified to be an eligible recipient or its authorized
representative.
Eligible recipient means a recipient that meets the requirements of §312.6.
Equipment is defined at 2 CFR 200.33.
Federal agency means any executive agency as defined in 5 U.S.C. 105, and the military
departments as defined in 5 U.S.C. 102, as well as any agency of the legislative branch of the
Federal Government.
Federal funding opportunity or FFO means an announcement that EDA publishes during the
fiscal year on a Federal Government grants platform or on EDA's Internet Web site at
http://Www.eda.gov, https://www.eda.gov/oi% or any successor Web site, that provides the
funding amounts, application and programmatic requirements, funding priorities, special
circumstances, and other information concerning a specific competitive solicitation under EDA's
Regional Innovation Program.
Federal interest is defined at 2 CFR 200.41, in accordance with 2 CFR 200.316.
Federal laboratory means any laboratory, any federally funded research and development center,
or any center established under section 7 or section 9 of the Act that is owned, leased, or
otherwise used by a Federal agency and funded by the Federal Government, whether operated by
the government or by a contractor.
Grant means the financial assistance award of EDA funds to an eligible recipient, under which
the Eligible Recipient bears responsibility for meeting a purpose or carrying out an activity
authorized under Stevenson-Wydler. See 31 U.S.C. 6304.
In -kind contribution(s) means non -cash contributions, which may include contributions of space,
Equipment, services, and assumptions of debt that are fairly evaluated by EDA and that satisfy
applicable Federal Uniform Administrative Requirements and Cost Principles as set out in 2
CFR part 200.
Indian tribe means an entity on the list of recognized tribes published pursuant to the Federally
Recognized Indian Tribe List Act of 1994, as amended (Pub. L. 103-454) (25 U.S.C. 479a et
seq.), and any Alaska Native Village or Regional Corporation (as defined in or established under
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.)). This term includes the
governing body of an Indian tribe, nonprofit Indian corporation (restricted to Indians), Indian
authority, or other nonprofit Indian tribal organization or entity; provided that the Indian tribal
organization or entity is wholly owned by, and established for the benefit of, the Indian tribe or
Alaska Native village.
Investment or Investment assistance means a grant entered into by EDA and a recipient.
Investment rate means, as set forth in §312.8, the amount of the EDA investment in a particular
project expressed as a percentage of the total project cost.
Matching share or Local share means the non-EDA funds and any in -kind contribution(s) that
are approved by EDA and provided by a recipient or third party as a condition of an investment.
The matching share may include funds from another Federal agency only if authorized by a
statute that allows such use, which may be determined by EDA's reasonable interpretation of
such authority.
Nonprofit organization is defined at 2 CFR 200.70.
Office oflnnovation and Entrepreneurship or OIE means the office established by 15 U.S.C.
3720.
Project means the proposed or authorized activity (or activities), the purpose of which fulfills
EDA's mission and program requirements as set forth in the Act and this part, and which may be
funded in whole or in part by EDA investment assistance.
Public private partnership means a relationship formalized by contractual agreement between a
public agency and a private -sector entity that reasonably defines the terms of collaboration in the
delivery and financing of a public project.
Real property means any land, whether raw or improved, and includes structures, fixtures,
appurtenances, and other permanent improvements, excluding moveable machinery and
equipment.
Recipient means an entity receiving EDA investment assistance, including any successor to the
entity approved by EDA in writing. If investment assistance is awarded to more than one
recipient under a single award, the recipients are referred to as "co -recipients" and, unless
otherwise provided in the terms and conditions of the investment assistance, each co -recipient is
jointly and severally liable for fulfilling the terms of the investment assistance.
Region or Regional means an economic unit of human, natural, technological, capital, or other
resources, defined geographically. Geographic areas comprising a region need not be contiguous
or defined by political boundaries, but should constitute a cohesive area capable of undertaking
self -sustained economic development.
Regional innovation clusters or RICs means a geographically bounded network of similar,
synergistic, or complementary entities that are engaged in or with a particular industry sector and
its related sectors; have active channels for business transactions and communication; share
specialized infrastructure, labor markets, and services; and leverage the region's unique
competitive strengths to stimulate innovation and create jobs.
Regional Innovation Program means the program enacted by Stevenson-Wydler at 15 U.S.C.
3722.
Regional Innovation Research and Information Program or RIRI Program means the program
authorized by 15 U.S.C. 3722(c).
Regional Innovation Strategies Program or RIS Program means the cluster grant program
authorized by 15 U.S.C. 3722(b).
Science or research park means a property -based venture that has: Master -planned property and
buildings designed primarily for private -public research and development activities, high
technology and science -based companies, and research and development support services; a
contractual or operational relationship with one or more science- or research -related institutions
of higher education or governmental or nonprofit research laboratories; a primary mission to
promote research and development through industry partnerships, assisting in the growth of new
ventures and promoting innovation -driven economic development; a role in facilitating the
transfer of technology and business skills between researchers and industry teams; and a role in
promoting technology -led economic development for the community or region in which the park
is located.
Secretary means the Secretary of Commerce.
State means a State of the United States, the District of Columbia, the Commonwealth of Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, or any other territory or possession of the United States.
United States means all of the States.
Subpart B—Regional Innovation Strategies Program
§312.4 Purpose and scope of the Regional Innovation Strategies Program.
Under the RIS Program, EDA makes grants on a competitive basis to eligible applicants to foster
connected, innovation -centric economic regions that support commercialization and
entrepreneurship. The grants are intended to build public and private capacity to invent and
improve products and services and to bring those products and services to market through a
process often referred to as technology commercialization, as demonstrated by methodologically
sound metrics for output and outcome.
§312.5 Regional Innovation Strategies Program definitions.
In addition to the defined terms set forth in subpart A of this part, the following term applies
specifically to the RIS Program:
Institution of higher education means:
(1) An educational institution in any State that—
(i) Admits as regular students only persons having a certificate of graduation from a school
providing secondary education, or the recognized equivalent of such a certificate, or
persons who meet the requirements of 20 U.S.C. 1091(d);
(ii) Is legally authorized within such State to provide a program of education beyond
secondary education;
(iii)Provides an educational program for which the institution awards a bachelor's degree or
provides not less than a 2-year program that is acceptable for full credit toward such a
degree, or awards a degree that is acceptable for admission to a graduate or professional
degree program, subject to review and approval by the Secretary of Education; and
(iv)Is accredited by a nationally recognized accrediting agency or association, or if not so
accredited, is an institution that has been granted preaccreditation status by such an
agency or association that has been recognized by the Secretary of Education for the
granting of preaccreditation status, and the Secretary of Education has determined that
there is satisfactory assurance that the institution will meet the accreditation standards of
such an agency or association within a reasonable time.
(2) Additional institutions included. For purposes of this subpart, the term Institution of higher
education also includes—
(i) Any school that provides not less than a 1-year program of training to prepare students
for gainful employment in a recognized occupation and that meets the provisions of
paragraphs (1)(i), (ii), and (iv) of this definition; and
(ii) An educational institution in any State that, in lieu of the requirement in paragraph (1)(i)
of this definition, admits as regular students individuals—
(A) Who are beyond the age of compulsory school attendance in the State in which the
institution is located; or
(B) Who will be dually or concurrently enrolled in the institution and a secondary school.
§312.6 Eligible recipients.
A recipient eligible for investment assistance includes:
(a) A State;
(b) An Indian tribe;
(c) A city or other political subdivision of a State;
(d) An entity that is a nonprofit organization and whose application for funding under the RIS
Program is supported by a State or a political subdivision of a State;
(e) An entity that is an institution of higher education, a public -private partnership, a science or
research park, a Federal laboratory, or an economic development organization or similar
entity, and whose application for funding under the RIS Program is supported by a State or a
political subdivision of a State; or
(f) A consortium of any of the entities described in paragraphs (a) through (e) of this section.
§312.7 Eligible project activities.
(a) Activities eligible for a RIS Program grant include:
(1) Feasibility studies;
(2) Planning activities;
(3) Technical assistance;
(4) Developing or strengthening communication and collaboration between and among
participants of a regional innovation cluster;
(5) Attracting additional participants to a regional innovation cluster;
(6) Facilitating market development of products and services of a regional innovation cluster,
including through demonstration, deployment, technology transfer, and
commercialization activities;
(7) Developing relationships between a regional innovation cluster and entities or clusters in
other regions;
(8) Interacting with the public and State and local governments to meet the goals of the
regional innovation cluster;
(9) Purchase of equipment and equipment -related modifications or renovations of a facility,
but only to the extent that such equipment and any related modifications or renovations
are used to support another eligible activity as described in this section (the recipient may
be required to secure and record the Federal interest in the equipment); and
(10) Any other activity determined appropriate by the Assistant Secretary and consistent with
section 27(b) of Stevenson-Wydler.
(b) An ineligible activity includes, but is not limited to:
(1) Use of Federal funds or matching share for equity investments;
(2) Acquisition or improvement of real property;
(3) Construction except to the extent provided in paragraph (a)(9) of this section; and
(4) Lending programs, such as a direct loan program or capitalizing a revolving loan fund.
§312.8 Investment rates.
(a) Minimum investment rate. There is no minimum investment rate for a project.
(b) Maximum investment rate. The maximum investment rate for a project shall not exceed 50
percent.
§312.9 Matching share requirements.
The required matching share of a project's eligible costs may consist of cash or in -kind
contribution(s) whose value can be readily determined, verified, and justified. Applicants must
show at the time of application that the matching share is committed to the project, will be
available as needed, and is not or will not be conditioned or encumbered in any way that would
preclude its use consistent with the requirements of the investment assistance. EDA shall
determine at its sole discretion whether the matching share documentation adequately addresses
the requirements of this section.
§312.10 Application components.
In addition to the criteria set forth in the FFO, to be considered for a RIS Program grant, eligible
applicants must provide the following information:
(a) A description of the regional innovation cluster supported by the proposed activity;
(b) The extent to which the regional innovation cluster is supported by the private sector, State
and local units of government, and other relevant stakeholders;
(c) The methods that participants in the regional innovation cluster will use to encourage and
solicit participation by all types of entities that might benefit from participation, including
newly formed entities and rival existing participants;
(d) The extent to which the regional innovation cluster is likely to stimulate innovation and have
a positive effect on regional economic growth and development;
(e) The capacity of participants in the regional innovation cluster to access, or contribute to, a
well -trained workforce;
(f) The ability of participants in the regional innovation cluster to attract additional funds to
support the cluster with non -Federal funds; and
(g) The likelihood that participants in the regional innovation cluster will be able to sustain
activities after the grant expires.
§312.11 Application evaluation and selection criteria.
(a) EDA will evaluate and select complete applications in accordance with the evaluation
criteria, funding priority considerations, availability of funding, competitiveness of the
application, and requirements set forth in section 27(b) of Stevenson-Wydler, the FFO, and
other applicable Federal statutes and regulations. All awards are subject to the availability of
funds.
(b) EDA will endeavor to notify applicants as soon as practicable regarding whether their
applications are selected for funding.
(c) Stevenson-Wydler does not require nor does EDA provide an appeal process for denial of
applications for EDA investment assistance.
§312.12 General terms and conditions for investment assistance.
RIS Program grants are subject to all requirements contained in part 302 of this chapter, except
§§302.2, 302.3, 302.9, 302.10, and 302.17.
Subpart C—Regional Innovation Research and Information Program
[Reserved]
§§312.13-312.17 [Reserved]
PART 313 [Reserved]
PART 314—PROPERTY
AUTHORITY: 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.
SOURCE: 71 FR 56675, Sept. 27, 2006, unless otherwise noted.
§314.1 Definitions.
In addition to the defined terms set forth in §300.3 of this chapter, the following terms shall have
the following meanings:
Adequate Consideration means the fair market value at the time of sale or lease of any Property,
as adjusted, in EDA's sole discretion, by any services, property exchanges, contractual
commitments, acts of forbearance or other considerations that are in furtherance of the
authorized purposes of the Investment Assistance, which are received by the Recipient or Owner
in exchange for such Property.
Disposition or Dispose means the sale, lease, abandonment or other disposition of any Property
and also includes the Unauthorized Use of such Property.
Estimated Useful Life, as used in this part, means the period of years that constitutes the expected
useful lifespan of a Project, as determined by EDA, during which EDA anticipates obtaining the
economic development benefits of its Investment.
Federal Interest has the definition ascribed to it in §314.2(a).
Federal Share has the definition ascribed to it in §314.5.
Owner means a fee owner, transferee, lessee or optionee of any Property. The term Owner also
includes the holder of other interests in a Property where the interests are such that the holder
effectively controls the use of such Property.
Personal Property means all tangible and intangible property other than Real Property, including
the RLF Capital Base as defined at §307.8.
Project Property means all Property that is acquired or improved, in whole or in part, with
Investment Assistance and is required, as determined by EDA, for the successful completion and
operation of a Project and/or serves as the economic justification of a Project. As appropriate to
specify the type of Property referenced, this part refers to Project Property as "Project Real
Property" or "Project Personal Property".
Property means Real Property, Personal Property and mixed property.
Real Property means any land, whether raw or improved, and includes structures, fixtures,
appurtenances and other permanent improvements, excluding moveable machinery and
equipment. Real Property includes land that is served by the construction of Project
infrastructure (such as roads, sewers and water lines) where the infrastructure contributes to the
value of such land as a specific purpose of the Project.
Successor Recipient means an EDA-approved transferee of Property pursuant to §314.3(d). A
Successor Recipient must be an Eligible Recipient of Investment Assistance.
Unauthorized Use means any use of Property acquired or improved in whole or in part for
purposes not authorized by EDA Investment Assistance, PWEDA or this chapter, as set forth in
§314.4.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76136, Dec. 19, 2014; 82 FR 57059, Dec. 1,
2017]
§314.2 Federal Interest.
(a) Subject to the obligations and conditions set forth in this part and in relevant provisions of 2
CFR part 200, Project Property vests upon acquisition in the Recipient (or, if approved by
EDA, in a Co -recipient or Subrecipient). Project Property shall be held in trust by the
Recipient for the benefit of the Project for the Estimated Useful Life of the Project, during
which period EDA retains an undivided equitable reversionary interest in the Property (the
"Federal Interest"). The Federal Interest ensures compliance with EDA Project requirements,
including those related to the purpose, scope, and use of a Project. The Recipient typically
must secure the Federal Interest through a recorded lien, statement, or other recordable
instrument setting forth EDA's Property interest in a Project (e.g., a mortgage, covenant, or
other statement of EDA's Real Property interest in the case of a Project involving the
acquisition, construction, or improvement of a building. See §314.8.).
(b) When the Federal Government is fully compensated for the Federal Share of Project
Property, the Federal Interest is extinguished and the Federal Government has no further
interest in the Property, except as provided in §314.10(e)(3) regarding nondiscrimination
requirements.
[82 FR 57059, Dec. 1, 2017]
§314.3 Authorized use of Project Property.
(a) General. During the Estimated Useful Life of the Project, the Recipient or Owner must use
any Project Property only for authorized Project purposes as set out in the terms of the
Investment Assistance. Such Property must not be Disposed of or encumbered without
EDA's prior written authorization.
(b) Project Property that is no longer needed for Project purposes. Where EDA and the
Recipient determine during the Estimated Useful Life of the Project that Project Property is
longer needed for the original purpose of the Investment Assistance, EDA, in its sole
discretion, may approve the use of such Property in other Federal grant programs or in
programs that have purposes consistent with those authorized by PWEDA and by this
chapter.
(c) Real Propertyfor sale or lease. Where EDA determines that the authorized purpose of the
Investment Assistance is to develop Real Property to be leased or sold, such sale or lease is
permitted provided it is for Adequate Consideration and the sale is consistent with the
authorized purpose of the Investment Assistance and with all applicable Investment
Assistance requirements, including nondiscrimination and environmental compliance.
(d) Property transfers and Successor Recipients. EDA, in its sole discretion, may approve the
transfer of any Project Property from a Recipient to a Successor Recipient (or from one
Successor Recipient to another Successor Recipient). The Recipient will remain responsible
for complying with the rules of this part and the terms and conditions of the Investment
Assistance for the period in which it is the Recipient. Thereafter, the Successor Recipient
must comply with the rules of this part and with the same terms and conditions as were
applicable to the Recipient (unless such terms and conditions are otherwise amended by
EDA). The same rules apply to EDA-approved transfers of Property between Successor
Recipients.
(e) Replacement Personal Property. When acquiring replacement Personal Property of equal or
greater value than Personal Property originally acquired with Investment Assistance, the
Recipient may, with EDA's approval, trade in such Personal Property originally acquired or
sell the original Personal Property and use the proceeds for the acquisition of the replacement
Personal Property, provided that the replacement Personal Property is for use in the Project.
The replacement Personal Property is subject to the same requirements as the original
Personal Property.
(f) Replacement Real Property. In extraordinary and compelling circumstances, the Assistant
Secretary may approve the replacement of Real Property used in a Project.
(g) Incidental use of Project Property. With EDA's prior written approval, a Recipient may
undertake an incidental use of Project Property that does not interfere with the scope of the
Project or the economic purpose for which the Investment was made, provided that the
Recipient is in compliance with applicable law and the terms and conditions of the
Investment Assistance, and the incidental use of the Property will not violate the terms and
conditions of the Investment Assistance or otherwise undermine the economic purpose for
which the Investment was made or adversely affect the economic useful life of the Property.
Eligible Applicants and Recipients should contact the appropriate regional office (whose
contact information is available via the Internet at http://Www.eda.gov) for guidelines on
obtaining approval for incidental use of Property under this section.
[82 FR 57059, Dec. 1, 2017]
§314.4 Unauthorized Use of Project Property.
(a) Compensation of Federal Share upon an Unauthorized Use of Project Property. Except as
provided in §§314.3 (regarding the authorized use of Property) or 314.10 (regarding the
release of the Federal Interest in certain Property), or as otherwise authorized by EDA, the
Federal Government must be compensated by the Recipient for the Federal Share whenever,
during the Estimated Useful Life of the Project, any Project Property is Disposed of,
encumbered, or no longer used for the purpose of the Project; provided that for equipment
and supplies, the requirements of 2 CFR part 200, including any supplements, shall apply.
(b) Additional Unauthorized Uses of Project Property. Additionally, prior to the release of the
Federal Interest, Project Real Property or tangible Project Personal Property may not be used:
(1) In violation of the nondiscrimination requirements of §302.20 of this chapter or in
violation of the terms and conditions of the Investment Assistance; or
(2) For any purpose prohibited by applicable law.
(c) Recovery of the Federal Share. Where the Disposition, encumbrance, or use of any Project
Property violates paragraph (a) or (b) of this section, EDA may assert the Federal Interest in
the Project Property to recover the Federal Share for the Federal Government and may take
such actions as authorized by PWEDA and this chapter, including the actions provided in
§ §302.3, 302.16, and 307.21 of this chapter. EDA may pursue its rights under paragraph (a)
of this section and this paragraph (c) to recover the Federal Share, plus costs and interest.
When the Federal Government is fully compensated for the Federal Share, the Federal
Interest is extinguished as provided in §314.2(b), and EDA will have no further interest in the
ownership, use, or Disposition of the Property, except for the nondiscrimination requirements
set forth in §314. 1 0(d)(3).
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76137, Dec. 19, 2014; 82 FR 57059, Dec. 1,
2017]
§314.5 Federal Share.
(a) For purposes of this part, "Federal Share" means that portion of the current fair market value
of any Project Property attributable to EDA's participation in the Project. EDA may rely on a
current certified appraisal of the Project Property prepared by an appraiser licensed in the
State where the Project Property is located to determine the fair market value. In
extraordinary circumstances and at EDA's sole discretion, where EDA is unable to determine
the current fair market value, EDA may use other methods of determining the value of
Project Property, including the amount of the award of Investment Assistance or the amount
paid by a transferee. The Federal Share shall be the current fair market value or other
valuation as determined by EDA of the Property after deducting:
(1) Reasonable repair expenses, if any, incurred to put the Property into marketable
condition; and
(2) Sales, commission and marketing costs.
(b) The Federal Share excludes that portion of the current fair market value of the Property
attributable to acquisition or improvements before or after EDA's participation in the Project,
which are not included in the total Project costs. For example, if the total Project costs are
$100, consisting of $50 of Investment Assistance and $50 of Matching Share, the Federal
Share is 50 percent. If the Property is disposed of when its current fair market is $250, the
Federal Share is $125 (i.e., 50 percent of $250). If $10 is spent to put the Property into
salable condition, the Federal Share is $120 (Le., 50 percent of ($250-$10)).
[73 FR 62870, Oct. 22, 2008, as amended at 79 FR 76137, Dec. 19, 2014; 82 FR 57060, Dec. 1,
2017]
§314.6 Encumbrances.
(a) General. Except as provided in paragraph (b) of this section or as otherwise authorized by
EDA, Project Property must not be used to secure a mortgage or deed of trust or in any way
otherwise encumbered, except to secure a grant or loan made by a Federal Agency or State
agency or other public body participating in the same Project, so long as the Recipient
discloses such an encumbrance in writing as part of its application for Investment Assistance
or as soon as practicable after learning of the encumbrance.
(b) Exceptions. Subject to EDA's approval, which will not be unreasonably withheld or unduly
delayed, paragraph (a) of this section does not apply in the following circumstances:
(1) Shared first lien position. EDA, at its discretion, may approve an encumbrance on Project
Property where a lien holder and EDA enter into an inter -creditor agreement pursuant to
which EDA and the other lien holder share a first lien position on terms satisfactory to
EDA.
(2) Utility encumbrances. Encumbrances arising solely from the requirements of a pre-
existing water or sewer facility or other utility encumbrances, which by their terms
extend to additional Property connected to such facilities.
(3) Pre-existing encumbrances. Encumbrances already in place and disclosed to EDA at the
time EDA approves the Project where EDA, in its sole discretion, determines that:
(i) The requirements of §314.7(b) are met;
(ii) Consistent with paragraphs (b)(4)(iv) and (b)(5)(iv) of this section, the terms and
conditions of the encumbrance are satisfactory; and
(iii)Consistent with paragraphs (b)(4)(v) and (b)(5)(v) of this section, there is a
reasonable expectation that the Recipient will not default on its obligations.
(4) Encumbrances proposed proximate to Project approval. Encumbrances required to
secure debt, including time and maturity -limited debt, that finances the Project Property
at the same proximate time that EDA approves the Project when all of the following are
met:
(i) EDA, in its sole discretion, determines that there is good cause and legal authority to
waive paragraph (a) of this section;
(ii) All proceeds secured by the encumbrance on the Property shall be available only to
the Recipient and shall be used only for the Project for which the Investment
Assistance applies, for related activities of which the Project is an essential part, or
other activities that EDA determines are authorized under PWEDA;
(iii)A grantor or lender will not provide funds without the security of a lien on the
Property;
(iv)The terms and conditions of the encumbrance are satisfactory to EDA; and
(v) There is a reasonable expectation, as determined by EDA, that the Recipient will not
default on its obligations. In determining whether an expectation is reasonable for
purposes of this paragraph, EDA shall take into account whether:
(A)A Recipient that is a non-profit organization is joined in the Project with a co -
Recipient that is a public body and all co -Recipients are jointly and severally
responsible;
(B) A Recipient that is a non-profit organization is financially strong and is an
established organization with sufficient organizational life to demonstrate stability
over time;
(C) The approximate value of the Project Property so that the total amount of all debt
plus the Federal share of cost as reflected on the EDA Investment award, and any
amendments as applicable, does not exceed the value of the Project Property as
improved; and
(D) Such other factors as EDA deems appropriate.
(5) Encumbrances proposed after Project approval. Encumbrances proposed to be incurred
after Project approval where all of the following are met:
(i) EDA, in its sole discretion, determines that there is good cause and legal authority to
waive paragraph (a) of this section;
(ii) All proceeds secured by the encumbrance on the Property shall be available only to
the Recipient and shall be used only for the Project for which the Investment
Assistance applies, for related activities of which the Project is an essential part, or
other activities that EDA determines are authorized under PWEDA;
(iii)A grantor or lender will not provide funds without the security of a lien on the
Property;
(iv)The terms and conditions of the encumbrance are satisfactory to EDA; and
(v) There is a reasonable expectation, as determined by EDA, that the Recipient will not
default on its obligations. In determining whether an expectation is reasonable for
purposes of this paragraph, EDA shall take into account whether:
(A)A Recipient that is a non-profit organization is joined in the Project with a co -
Recipient that is a public body and all co -Recipients are jointly and severally
responsible;
(B) A Recipient that is a non-profit organization is financially strong and is an
established organization with sufficient organizational life to demonstrate stability
over time;
(C) The Recipient's equity in the Project Property based on the appraised value of the
Project Property at the time the encumbrance is requested so that the total amount
of all debt plus the Federal share of cost as reflected on the EDA Investment
award, and any amendments as applicable, does not exceed the value of the
Project Property as improved; and
(D) Such other factors as EDA deems appropriate.
(c) Unauthorized encumbrances. Encumbering Project Property, other than as permitted in this
section, is an Unauthorized Use of the Property under §314.4.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62870, Oct. 22, 2008; 79 FR 76137, Dec.
19, 2014; 82 FR 57060, Dec. 1, 2017]
§314.7 Title.
(a) General title requirement. Except in those limited circumstances identified in paragraph (c)
of this section, at the time Investment Assistance is awarded, the Recipient must hold title to
Project Real Property, which, as noted in §314.1 in the definition of "Real Property" includes
land that is served by the construction of Project infrastructure (such as roads, sewers, and
water lines) and where the infrastructure contributes to the value of such land as a specific
purpose of the Project. The Recipient must maintain title to Project Real Property at all times
during the Estimated Useful Life of the Project, except in those limited circumstances as
provided in paragraph (c) of this section. The Recipient also must furnish evidence,
satisfactory in form and substance to EDA, that title to Project Real Property (other than
property of the United States) is vested in the Recipient and that any easements, rights -of -
way, State or local government permits, long-term leases, or other items required for the
Project have been or will be obtained by the Recipient within an acceptable time, as
determined by EDA.
(b) Disclosure of encumbrances.
(1) The Recipient must disclose to EDA all encumbrances, including the following:
(i) Liens;
(ii) Mortgages;
(iii)Reservations;
(iv)Reversionary interests; and
(v) Other restrictions on title or on the Recipient's interest in the Property.
(2) No encumbrance will be acceptable if, as determined by EDA, the encumbrance
interferes with the construction, use, operation or maintenance of the Project during its
Estimated Useful Life.
(c) Exceptions. The following are exceptions to the requirements of paragraph (a) of this section
that the Recipient hold title to Project Real Property at the time Investment Assistance is
awarded and at all times during the Estimated Useful Life of the Project.
(1) Project Real Property acquisition. Where the acquisition of Project Real Property is
contemplated as part of an Investment Assistance award, EDA may determine that an
agreement for the Recipient to purchase the Project Real Property will be acceptable for
purposes of paragraph (a) of this section if-
(i) The Recipient provides EDA with reasonable assurances that it will obtain fee title to
the Real Property prior to or concurrent with the initial disbursement of the
Investment Assistance; and
(ii) EDA, in its sole discretion, determines that the terms and conditions of the purchase
agreement adequately safeguard the Federal Government's interest in the Project Real
Property.
(2) Leasehold interests. EDA may determine that a long-term leasehold interest for a period
not less than the Estimated Useful Life of Project Real Property will be acceptable for
purposes of paragraph (a) of this section if-
(i) Fee title to the Real Property is not otherwise obtainable; and
(ii) EDA, in its sole discretion, determines that the terms and conditions of the lease
adequately safeguard the Federal government's interest in the Real Property and
demonstrate the economic development and public benefits of the leasehold
transaction.
(3) Railroad right-of-way construction. When a Project includes construction within a
railroad's right-of-way or over a railroad crossing, EDA may find it acceptable for the
work to be completed by the railroad and for the railroad to continue to own, operate, and
maintain that portion of the Project, if required by the railroad; and provided that, the
construction is a minor but essential component of the Project.
(4) State or local government owned roadway or highway construction. When the Project
includes construction on a State or local government owned roadway or highway the
owner of which is not the Recipient, EDA may allow the Project to be constructed in
whole or in part in the right-of-way of such public roadway or highway, provided that:
(i) All EDA-funded construction is completed in accordance with EDA requirements;
(ii) The Recipient confirms in writing to EDA, satisfactory to EDA, that:
(A) The Recipient is committed during the Estimated Useful Life of the Project to
operate, maintain and repair all improvements for the Project consistent with the
Investment Assistance; and
(B) If at any time during the Estimated Useful Life of the Project any or all of the
improvements in the Project within the State or local government owned roadway
or highway are relocated for any reason pursuant to requirements of the owner of
the public roadway or highway, the Recipient shall be responsible for
accomplishing such relocation, including expending the Recipient's own funds as
necessary, so that the Project continues as authorized by the Investment
Assistance; and
(iii)The Recipient obtains all written authorizations (i.e., State or county permit(s))
necessary for the Project to be constructed within the public roadway or highway,
copies of which shall be submitted to EDA. Such authorizations shall contain no time
limits that EDA determines substantially restrict the use of the public roadway or
highway for the Project during the Estimated Useful Life of the Project.
(5) Construction of Recipient -owned facilities to serve Recipient or privately owned Real
Property—
(i) General. At EDA's discretion, when an authorized purpose of the Project is to
construct Recipient -owned facilities to serve Recipient or privately owned Project
Real Property, including industrial or commercial parks, so that the Recipient or
Owner may sell or lease parcels of the Project Real Property to private parties, such
ownership, sale, or lease, as applicable, is permitted so long as:
(A)In cases where an authorized purpose of the Project is to sell Project Real
Property, the Recipient or Owner, as applicable, provides evidence sufficient to
EDA that it holds title to the Project Real Property intended for sale or lease prior
to the disbursement of any portion of the Investment Assistance and will retain
title until the sale of the Property in accordance with paragraphs (c)(5)(i)(C)
through (E) of this section;
(B) In cases where an authorized purpose of the Project is to lease Project Real
Property, the Recipient or Owner, as applicable, provides evidence sufficient to
EDA that it holds title to the Project Real Property intended for lease prior to the
disbursement of any portion of the Investment Assistance and will retain title for
the entire Estimated Useful Life of the Project;
(C) The Recipient provides adequate assurances that the Project and the development
of land and improvements on the Recipient or privately owned Project Real
Property to be served by or that provides the economic justification for the Project
will be completed according to the terms of the Investment Assistance;
(D) The sale or lease of any portion of the Project or of Project Real Property served
by the Project or that provides the economic justification for the Project during
the Project's Estimated Useful Life must be for Adequate Consideration and the
terms and conditions of the Investment Assistance and the purpose(s) of the
Project must continue to be fulfilled after such sale or lease; and
(ii) Additional conditions on sale or lease. EDA also may condition the sale or lease on
the satisfaction by the Recipient, Owner, purchaser, or lessee (as the case may be) of
any additional requirements that EDA may impose, including EDA's pre -approval of
the sale or lease.
(iii)Agreement between Recipient and Owner. In addition to paragraphs (c)(5)(i) and (ii)
of this section, when an authorized purpose of the Project is to construct facilities to
serve privately owned Real Property, the Recipient and the Owner must agree to use
the Real Property improved or benefitted by the EDA Investment Assistance only for
the authorized purposes of the Project and in a manner consistent with the terms and
conditions of the EDA Investment Assistance for the Estimated Useful Life of the
Project.
(iv) Unauthorized Use and compensation of Federal Share. EDA may deem that a
violation of this paragraph (c)(5) by the Recipient, Owner, purchaser, or lessee (as the
case may be) constitutes an Unauthorized Use of the Real Property and the Recipient
must agree to compensate EDA for the Federal government's Federal Share of the
Project in the case of such Unauthorized Use.
[71 FR 56675, Sept. 27, 2006, as amended at 73 FR 62870, Oct. 22, 2008; 79 FR 76137, Dec.
19, 2014; 82 FR 5 706 1, Dec. 1, 2017]
§314.8 Recorded statement for Project Real Property.
(a) For all Projects involving the acquisition, construction, or improvement of a building, as
determined by EDA, the Recipient shall execute a lien, covenant, or other statement of the
Federal Interest in such Project Real Property. The statement shall specify the Estimated
Useful Life of the Project and shall include, but not be limited to, the Disposition,
encumbrance and Federal Share requirements. The statement shall be satisfactory in form
and substance to EDA.
(b) The statement of the Federal Interest must be perfected and placed of record in the Real
Property records of the jurisdiction in which the Project Real Property is located, all in
accordance with applicable law.
(c) Facilities in which the EDA Investment is only a small part of a large project, as determined
by EDA, may be exempted from the requirements of this section.
(d) In extraordinary circumstances and at EDA's sole discretion, EDA may choose to accept
another instrument to protect the Federal Interest in Project Real Property, such as an escrow
agreement or letter of credit, provided that EDA determines such instrument is adequate and
a recorded statement in accord with paragraph (a) of this section is not reasonably available.
The terms and provisions of the relevant instrument shall be satisfactory to EDA in EDA's
sole judgment. The costs and fees for escrow services and letters of credit shall be paid by the
Recipient.
[71 FR 56675, Sept. 27, 2006, as amended at 79 FR 76138, Dec. 19, 2014; 82 FR 57061, Dec. 1,
2017]
§314.9 Recorded statement for Project Personal Property.
For all Projects which EDA determines involve the acquisition or improvement of significant
items of Personal Property, including ships, machinery, equipment, removable fixtures, or
structural components of buildings, the Recipient shall provide notice of the Federal Interest in
all Project Personal Property by executing a Uniform Commercial Code Financing Statement
(Form UCC-1, as provided by State law) or other statement of the Federal Interest in the Project
Personal Property, acceptable in form and substance to EDA, which statement must be perfected
and placed of record in accordance with applicable law, with continuances re -filed as
appropriate. Whether or not a statement is required by EDA to be recorded, the Recipient must
hold title to all Project Personal Property, except as otherwise provided in this part.
[82 FR 57062, Dec. 1, 2017]
§314.10 Procedures for release of the Federal Interest.
(a) General. As provided in §314.2, the Federal Interest in Project Property extends for the
duration of the Estimated Useful Life of the Project, which is determined by EDA at the time
of Investment award. Upon request of the Recipient, EDA will release the Federal Interest in
Project Property upon expiration of the Estimated Useful Life as established in the terms and
conditions of the Investment Assistance and in accord with the requirements of this section
and part. This section provides procedures to obtain a release of the Federal Interest in
Project Property.
(b) Release of the Federal Interest after the expiration of the Estimated Useful Life. At the
expiration of a Project's Estimated Useful Life and upon the written request of a recipient, the
Assistant Secretary may release the Federal Interest in Project Property if EDA determines
that the Recipient has made a good faith effort to fulfill all terms and conditions of the
Investment Assistance. The determination provided for in this paragraph (b) shall be
established at the time of Recipient's written request and shall be based, at least in part, on
the facts and circumstances provided in writing by the Recipient. For a Project in which a
Recorded Statement as provided for in §§314.8 and 314.9 has been recorded, EDA will
provide for the release by executing an instrument in recordable form. The release will
terminate the Investment as of the date of its execution and satisfy the Recorded Statement.
See paragraph (e) of this section for limitations and covenants of use that are applicable to
any release of the Federal Interest.
(c) Release prior to the expiration of the Estimated Useful Life. If the Recipient will no longer
use the Project Property in accord with the requirements of the terms and conditions of the
Investment within the time period of the Estimated Useful Life, EDA will determine if such
use by the Recipient constitutes an Unauthorized Use of Property and require compensation
for the Federal Interest as provided in §314.4 and this section. EDA may release the Federal
Interest in connection with such Property only upon receipt of full payment in compensation
of the Federal Interest and thereafter will have no further interest in the ownership, use, or
Disposition of the Property, except for the nondiscrimination requirements set forth in
paragraph (e)(3) of this section.
(d) Release of the Federal Interest before the expiration of the Estimated Useful Life, but 20
years after the award of Investment Assistance. In accord with section 601(d)(2) of PWEDA,
upon the request of a Recipient and before the expiration of the Estimated Useful Life of a
Project, but where 20 years have elapsed since the award of Investment Assistance, EDA
may release any Real Property or tangible Personal Property interest held by EDA, if EDA
determines:
(1) The Recipient has made a good faith effort to fulfill all terms and conditions of the award
of Investment Assistance; and
(2) The economic development benefits as set out in the award of Investment Assistance
have been achieved.
(3) See paragraph (e) of this section for limitations and covenants of use that are applicable
to any release of the Federal Interest.
(e) Limitations and Covenant of Use.
(1) EDA's release of the Federal Interest pursuant to this section is not automatic; it requires
EDA's approval, which will not be withheld except for good cause or as otherwise
required by law, as determined in EDA's sole discretion. As deemed appropriate, EDA
may require the Recipient to take some action as a condition of the release.
(2) In determining whether to release the Federal Interest, EDA will review EDA's legal
authority to release its interest, including the Recipient's performance under and
conformance with the terms and conditions of the Investment Assistance; any use of
Project Property in violation of §314.3 or §314.4; and other such factors as EDA deems
appropriate. When requesting a release of the Federal Interest pursuant to this section, the
Recipient will be required to disclose to EDA the intended future use of the Real Property
or the tangible Personal Property for which the release is requested.
(i) A Recipient not intending to use the Real Property or tangible Personal Property for
explicitly religious activities following EDA's release will be required to execute a
covenant of use. A covenant of use with respect to Real Property shall be recorded in
the jurisdiction where the Real Property is located in accordance with §314.8. A
covenant of use with respect to items of tangible Personal Property shall be perfected
and recorded in accordance with applicable law, with continuances re -filed as
appropriate. See §314.9. A covenant of use shall (at a minimum) prohibit the use of
the Real Property or the tangible Personal Property for explicitly religious activities in
violation of applicable Federal law.
(ii) EDA may require a Recipient (or its successors in interest) that intends or foresees the
use of Real Property or tangible Personal Property for explicitly religious activities
following the release of the Federal Interest to compensate EDA for the Federal Share
of such Property. If such compensation is made, no covenant with respect to
explicitly religious activities will be required as a condition of the release. EDA
recommends that any Recipient who intends or foresees the use of Real Property or
tangible Personal Property (including by successors of the Recipient) for explicitly
religious activities to contact EDA well in advance of requesting a release pursuant to
this section.
(3) Notwithstanding any release of the Federal Interest under this section, including a release
upon a Recipient's compensation for the Federal Share, a Recipient must ensure that
Project Property is not used in violation of nondiscrimination requirements set forth in
§302.20 of this chapter. Accordingly, upon the release of the Federal Interest, the
Recipient must execute a covenant of use that prohibits use of Real Property or tangible
Personal Property for any purpose that would violate the nondiscrimination requirements
set forth in §302.20 of this chapter.
(i) With respect to Real Property, the Recipient must record a covenant under this
subsection in the jurisdiction where the Real Property is located in accordance with
§314.8.
(ii) With respect to items of tangible Personal Property, the Recipient must perfect and
record a covenant under this subsection in accordance with applicable law, with
continuances re -filed as appropriate, in accordance with §314.9.
[79 FR 76139, Dec. 19, 2014, as amended at 82 FR 57062, Dec. 1, 2017]
PART 315—TRADE ADJUSTMENT ASSISTANCE FOR FIRMS
AUTHORITY: 19 U.S.C. 2341 et seq., as amended by Division B, Title I, Subtitle I, Part II of Pub.
L. 111-5; 42 U.S.C. 3211; Department of Commerce Organization Order 10-4.
SOURCE: 74 FR 41598, Aug. 18, 2009, unless otherwise noted.
Subpart A —General Provisions
§315.1 Purpose and scope.
The regulations in this part set forth the responsibilities of the Secretary of Commerce under
chapter 3 of title II of the Trade Act concerning Trade Adjustment Assistance for Firms. The
statutory authority and responsibilities of the Secretary of Commerce relating to Adjustment
Assistance are delegated to EDA. EDA certifies Firms as eligible to apply for Adjustment
Assistance, provides technical Adjustment Assistance to Firms and other recipients, and provides
assistance to organizations representing trade injured industries.
§315.2 Definitions.
In addition to the defined terms set forth in §300.3 of this chapter, the following terms used in
this part shall have the following meanings:
Adjustment Assistance means technical assistance provided to Firms or industries under chapter 3
of title II of the Trade Act.
Adjustment Proposal means a Certified Firm's plan for improving its economic situation.
Certified Firm means a Firm which has been determined by EDA to be eligible to apply for
Adjustment Assistance.
Confidential Business Information means any information submitted to EDA or a TAAC by a
Firm that concerns or relates to trade secrets for commercial or financial purposes, which is
exempt from public disclosure under 5 U.S.C. 552(b)(4), 5 U.S.C. 552b(c)(4) and 15 CFR part 4.
Contributed Importantly, with respect to an Increase in Imports, refers to a cause which is
important but not necessarily more important than any other cause. Imports will not be
considered to have Contributed Importantly if other factors were so dominant, acting singly or in
combination, that the worker separation or threat thereof or decline in sales or production would
have been essentially the same, irrespective of the influence of imports.
Decreased Absolutely means a Finn's sales or production has declined by a minimum of five
percent relative to its sales or production during the applicable prior time period,
(1) Independent of industry or market fluctuations; and
(2) Relative only to the previous performance of the Firm, unless EDA determines that these
limitations in a given case would not be consistent with the purposes of the Trade Act.
Directly Competitive means imported articles or services that compete with and are substantially
equivalent for commercial purposes (i.e., are adapted for the same function or use and are
essentially interchangeable) as the Firm's articles or services. Any Firm that engages in exploring
or drilling for oil or natural gas, or otherwise produces oil or natural gas, shall be considered to
be producing articles directly competitive with imports of oil and with imports of natural gas.
Firm means an individual proprietorship, partnership, joint venture, association, corporation
(includes a development corporation), business trust, cooperative, trustee in bankruptcy or
receiver under court decree, and includes fishing, agricultural or service sector entities and those
which explore, drill or otherwise produce oil or natural gas. See also the definition of Service
Sector Finn. Pursuant to section 261 of chapter 3 of title II of the Trade Act (19 U.S.C. 2351), a
Firm, together with any predecessor or successor firm, or any affiliated firm controlled or
substantially beneficially owned by substantially the same person, may be considered a single
Finn where necessary to prevent unjustifiable benefits. For purposes of receiving benefits under
this part, when a Firm owns or controls other Firms, the Firm and such other Finns may be
considered a single Firm when they produce or supply like or Directly Competitive articles or
services or are exerting essential economic control over one or more production facilities.
Accordingly, such other Finns may include a(n):
(1) Predecessor —see the following definition for Successor;
(2) Successor —a newly established Firm (that has been in business less than two years) which
has purchased substantially all of the assets of a previously operating company (or in some
cases a whole distinct division) (such prior company, unit or division, a `Predecessor') and is
able to demonstrate that it continued the operations of the Predecessor which has operated as
an autonomous unit, provided that there were no significant transactions between the
Predecessor unit and any related parent, subsidiary, or affiliate that would have affected its
past performance, and that separate records are available for the Predecessor's operations for
at least two years before the petition is submitted. The Successor Firm must have continued
virtually all of the Predecessor Firm's operations by producing the same type of products or
services, in the same plant, utilizing most of the same machinery and equipment and most of
its former workers, and the Predecessor Firm must no longer be in existence;
(3) Affiliate —a company (either foreign or domestic) controlled or substantially beneficially
owned by substantially the same person or persons that own or control the Firm filing the
petition; or
(4) Subsidiary —a company (either foreign or domestic) that is wholly owned or effectively
controlled by another company.
Increase in Imports means an increase of imports of Directly Competitive or Like Articles or
Services with articles produced or services supplied by such Finn. EDA may consider as
evidence of an Increase in Imports a certification from the Finn's customers that account for a
significant percentage of the Firm's decrease in sales or production that they have increased their
purchase of imports of Directly Competitive or Like Articles or Services from a foreign country,
either absolutely or relative to their acquisition of such Like Articles or Services from suppliers
located in the United States.
Like Articles or Services means any articles or services, as applicable, which are substantially
identical in their intrinsic characteristics.
Partial Separation means, with respect to any employment in a Firm, either:
(1) A reduction in an employee's work hours to 80 percent or less of the employee's average
weekly hours during the year of such reductions as compared to the preceding year; or
(2) A reduction in the employee's weekly wage to 80 percent or less of his/her average weekly
wage during the year of such reduction as compared to the preceding year.
Person means an individual, organization or group.
Record means any of the following:
(1) A petition for certification of eligibility to qualify for Adjustment Assistance;
(2) Any supporting information submitted by a petitioner;
(3) The report of an EDA investigation with respect to petition; and
(4) Any information developed during an investigation or in connection with any public hearing
held on a petition.
Service Sector Firm means a Firm engaged in the business of supplying services. For purposes of
receiving benefits under this part, when a Service Sector Firm owns or controls other Service
Sector Firms, the Service Sector Firm and such other Service Sector Firms may be considered a
single Service Sector Firm when they furnish like or Directly Competitive services or are
exerting essential economic control over one or more servicing facilities. Such other Service
Sector Firm may be a Predecessor, Successor, Affiliate or Subsidiary, each as defined in the
definition of Firm.
Significant Number or Proportion of Workers means five percent of a Finn's work force or 50
workers, whichever is less, unless EDA determines that these limitations in a given case would
not be consistent with the purposes of the Trade Act. An individual farmer or fisherman is
considered a Significant Number or Proportion of Workers.
Substantial Interest means a direct material economic interest in the certification or non -
certification of the petitioner.
TAAC means a Trade Adjustment Assistance Center, as more fully described in §315.5.
Threat of Total or Partial Separation means, with respect to any group of workers, one or more
events or circumstances clearly demonstrating that a Total or Partial Separation is imminent.
Total Separation means, with respect to any employment in a Firm, the laying off or termination
of employment of an employee for lack of work.
§315.3 Confidential Business Information.
EDA will follow the procedures set forth in 15 CFR 4.9 for the submission of Confidential
Business Information. Submitters should clearly mark and designate as confidential any
Confidential Business Information.
§315.4 Eligible applicants.
(a) The following entities may apply for assistance to operate a TAAC:
(1) Universities or affiliated organizations;
(2) States or local governments; or
(3) Non-profit organizations.
(b) For purposes of §315.17 and to the extent funds are appropriated to implement section 265 of
the Trade Act, organizations assisting or representing industries in which a substantial
number of Firms or workers have been certified as eligible to apply for Adjustment
Assistance under sections 223 and 251 of the Trade Act, include:
(1) Existing agencies;
(2) Private individuals;
(3) Firms;
(4) Universities;
(5) Institutions;
(6) Associations;
(7) Unions; or
(8) Other non-profit industry organizations.
§315.5 TAAC scope, selection, evaluation and awards.
(a) TAAC purpose and scope.
(1) TAACs are available to assist Firms in obtaining Adjustment Assistance in all 50 U.S.
States, the District of Columbia and the Commonwealth of Puerto Rico. TAACs provide
Adjustment Assistance in accordance with this part either through their own staffs or by
arrangements with outside consultants. Information concerning TAACs serving particular
areas may be obtained from the TAAC Web site at http://Www.taacenters.org or from
EDA at http://www.eda.gov.
(2) Prior to submitting a petition for Adjustment Assistance to EDA, a Firm should
determine the extent to which a TAAC can provide the required Adjustment Assistance.
EDA will provide Adjustment Assistance through TAACs whenever EDA determines
that such assistance can be provided most effectively in this manner. Requests for
Adjustment Assistance will normally be made through TAACs.
(3) A TAAC generally provides Adjustment Assistance by providing assistance to a:
(i) Firm in preparing its petition for eligibility certification; and
(ii) Certified Firm in diagnosing its strengths and weaknesses, and developing and
implementing an Adjustment Proposal.
(b) TAAC selection.
(1) EDA invites currently funded TAACs to submit either new or amended applications,
provided they have performed in a satisfactory manner and complied with previous or
current conditions in their Cooperative Agreements with EDA and contingent upon
availability of funds. Such TAACs shall submit an application on a form approved by
OMB, as well as a proposed budget, narrative scope of work, and such other information
as requested by EDA. Acceptance of an application or amended application for a
Cooperative Agreement does not ensure funding by EDA.
(2) EDA may invite new applications through a Federal Funding Opportunity (`FFO )
announcement. An application will require a narrative scope of work, proposed budget
and such other information as requested by EDA. Acceptance of an application does not
ensure funding by EDA.
(c) TAAC evaluation.
(1) EDA generally evaluates currently funded TAACs based on:
(i) Performance under Cooperative Agreements with EDA and compliance with the
terms and conditions of such Cooperative Agreements;
(ii) Proposed scope of work, budget and application or amended application; and
(iii)Availability of funds.
(2) EDA generally evaluates new TAACs based on:
(i) Competence in administering business assistance programs;
(ii) Background and experience of staff,
(iii)Proposed scope of work, budget and application; and
(iv)Availability of funds.
(d) TAAC award requirements.
(1) EDA generally funds a TAAC for a three-year project period consisting of three separate
funding periods of 12 months each.
(2) There are no matching share requirements for Adjustment Assistance provided by the
TAACs to Finns for certification or for administrative expenses of the TAACs.
§315.6 Firm eligibility for Adjustment Assistance.
(a) Firms participate in the Trade Adjustment Assistance for Firms program in accordance with
the following:
(1) Firms apply for certification through a TAAC by completing a petition for certification.
The TAAC will assist Firms in completing such petitions (at no cost to the Firms);
(2) Firms certified in accordance with the procedures described in §§315.7 and 315.8 must
prepare an Adjustment Proposal for Adjustment Assistance from the TAAC (`Adjustment
Proposal') and submit it to EDA for approval; and
(3) EDA determines whether the Adjustment Assistance requested in the Adjustment
Proposal is eligible based upon the evaluation criteria set forth in subpart D of this part. A
Certified Firm may submit a request to the TAAC for Adjustment Assistance to
implement an approved Adjustment Proposal.
(b) For certification, EDA evaluates Firms' petitions strictly on the basis of fulfillment of the
requirements set forth in §315.7.
(c) (1) Certified Firms generally receive Adjustment Assistance over a two-year period.
(2) The matching share requirements are as follows:
(i) Each Certified Firm must pay at least 25 percent of the cost of preparing its
Adjustment Proposal. Each Certified Firm requesting $30,000 or less in total
Adjustment Assistance in its approved Adjustment Proposal must pay at least 25
percent of the cost of that Adjustment Assistance. Each Certified Firm requesting
more than $30,000 in total Adjustment Assistance in its approved Adjustment
Proposal must pay at least 50 percent of the cost of that Adjustment Assistance.
(ii) Organizations representing trade -injured industries must pay at least 50 percent of the
total cash cost of the Adjustment Assistance, in addition to appropriate in -kind
contributions.
Subpart B—Certification of Firms
§315.7 Certification requirements.
(a) General. EDA may certify a Firm as eligible to apply for Adjustment Assistance under
section 251(c) of the Trade Act if it determines that the petition for certification meets one of
the minimum certification thresholds set forth in paragraph (b) of this section. In order to be
certified, a Finn must meet the criteria listed under any one of the 5 circumstances described
in paragraph (b) of this section.
(b) Minimum certification thresholds.
(1) Twelve-month decline. Based upon a comparison of the most recent 12-month period for
which data are available and the immediately preceding twelve-month period:
(i) A Significant Number or Proportion of Workers in the Firm has undergone Total or
Partial Separation or a Threat of Total or Partial Separation;
(ii) Either sales or production, or both, of the Firm has Decreased Absolutely; or sales or
production, or both, of any article or service that accounted for not less than 25
percent of the total production or sales of the Firm during the 12-month period
preceding the most recent 12-month period for which data are available have
Decreased Absolutely; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial
Separation or Threat of Total or Partial Separation, and to the applicable decline in
sales or production or supply of services.
(2) Twelve-month versus twenty-four month decline. Based upon a comparison of the most
recent 12-month period for which data are available and the immediately preceding 24-
month period:
(i) A Significant Number or Proportion of Workers in the Firm has undergone Total or
Partial Separation or a Threat of Total or Partial Separation;
(ii) Either average annual sales or production, or both, of the Firm has Decreased
Absolutely; or average annual sales or production, or both, of any article or service
that accounted for not less than 25 percent of the total production or sales of the Firm
during the 24-month period preceding the most recent 12-month period for which
data are available have Decreased Absolutely; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial
Separation or Threat of Total or Partial Separation, and to the applicable decline in
sales or production or supply of services.
(3) Twelve-month versus thirty-six month decline. Based upon a comparison of the most
recent 12-month period for which data are available and the immediately preceding 36-
month period:
(i) A Significant Number or Proportion of Workers in the Firm has undergone Total or
Partial Separation or a Threat of Total or Partial Separation;
(ii) Either average annual sales or production, or both, of the Firm has Decreased
Absolutely; or average annual sales or production, or both, of any article or service
that accounted for not less than 25 percent of the total production or sales of the Firm
during the 36-month period preceding the most recent 12-month period for which
data are available have Decreased Absolutely; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial
Separation or Threat of Total or Partial Separation, and to the applicable decline in
sales or production or supply of services.
(4) Interim sales or production decline. Based upon an interim sales or production decline:
(i) Sales or production has Decreased Absolutely for, at minimum, the most recent six-
month period during the most recent 12-month period for which data are available as
compared to the same six-month period during the immediately preceding 12-month
period;
(ii) During the same base and comparative period of time as sales or production has
Decreased Absolutely, a Significant Number or Proportion of Workers in such Firm
has undergone Total or Partial Separation or a Threat of Total or Partial Separation;
and
(iii)During the same base and comparative period of time as sales or production has
Decreased Absolutely, an Increase in Imports has Contributed Importantly to the
applicable Total or Partial Separation or Threat of Total or Partial Separation, and to
the applicable decline in sales or production or supply of services.
(5) Interim employment decline. Based upon an interim employment decline:
(i) A Significant Number or Proportion of Workers in such Firm has undergone Total or
Partial Separation or a Threat of Total or Partial Separation during, at a minimum, the
most recent six-month period during the most recent 12-month period for which data
are available as compared to the same six-month period during the immediately
preceding 12-month period; and
(ii) Either sales or production of the Firm has Decreased Absolutely during the 12-month
period preceding the most recent 12-month period for which data are available; and
(iii)An Increase in Imports has Contributed Importantly to the applicable Total or Partial
Separation or Threat of Total or Partial Separation, and to the applicable decline in
sales or production or supply of services.
[74 FR 41598, Aug. 18, 2009, as amended at 75 FR 4265, Jan. 27, 2010]
§315.8 Processing petitions for certification.
(a) Firms shall consult with a TAAC for guidance and assistance in the preparation of their
petitions for certification.
(b) A Finn seeking certification shall complete a Petition by a Firm for Certification of
Eligibility to Apply for Trade Adjustment Assistance (Form ED-840P or any successor form)
with the following information about such Firm:
(1) Identification and description of the Firm, including legal form of organization, economic
history, major ownership interests, officers, directors, management, parent company,
Subsidiaries or Affiliates, and production and sales facilities;
(2) Description of goods or services supplied or sold;
(3) Description of imported Directly Competitive or Like Articles or Services with those
produced or supplied;
(4) Data on its sales, production and employment for the applicable 24-month, 36-month, or
48-month period, as required under §315.7(b);
(5) One copy of a complete auditor's certified financial report for the entire period covering
the petition, or if not available, one copy of the complete profit and loss statements,
balance sheets and supporting statements prepared by the Firm's accountants for the
entire period covered by the petition; publicly -owned corporations should submit copies
of the most recent Form 10-K annual reports (or Form 10-Q quarterly reports, as
appropriate) filed with the U.S. Securities and Exchange Commission for the entire
period covered by the petition;
(6) Information concerning its major customers and their purchases (or its bids, if there are
no major customers); and
(7) Such other information as EDA considers material.
(c) EDA shall determine whether the petition has been properly prepared and can be accepted.
Promptly thereafter, EDA shall notify the petitioner that the petition has been accepted or
advise the TAAC that the petition has not been accepted, but may be resubmitted at any time
without prejudice when the specified deficiencies have been corrected. Any resubmission
will be treated as a new petition.
(d) EDA will publish a notice of acceptance of a petition in the FEDERAL, REGISTER.
(e) EDA will initiate an investigation to determine whether the petitioner meets the requirements
set forth in section 251(c) of the Trade Act and §315.7.
(f) A petitioner may withdraw a petition for certification if EDA receives a request for
withdrawal before it makes a certification determination or denial. A Firm may submit a new
petition at any time thereafter in accordance with the requirements of this section and §315.7.
(g) Following acceptance of a petition, EDA will:
(1) Make a determination based on the Record as soon as possible after the petitioning Firm
or TAAC has submitted all material. In no event may the determination period exceed 40
days from the date on which EDA accepted the petition; and
(2) Either certify the petitioner as eligible to apply for Adjustment Assistance or deny the
petition. In either event, EDA shall promptly give written notice of action to the
petitioner. Any written notice to the petitioner of a denial of a petition shall specify the
reason(s) for the denial. A petitioner shall not be entitled to resubmit a petition within one
year from the date of denial, provided, EDA may waive the one-year limitation for good
cause.
§315.9 Hearings.
EDA will hold a public hearing on an accepted petition if the petitioner or any interested Person
found by EDA to have a Substantial Interest in the proceedings submits a request for a hearing
no later than 10 days after the date of publication of the notice of acceptance in the FEDERAL,
REGISTER, under the following procedures:
(a) The petitioner or any interested Person(s) shall have an opportunity to be present, to produce
evidence and to be heard;
(b) A request for public hearing must be delivered by hand or by registered mail to EDA. A
request by a Person other than the petitioner shall contain:
(1) The name, address and telephone number of the Person requesting the hearing; and
(2) A complete statement of the relationship of the Person requesting the hearing to the
petitioner and the subject matter of the petition, and a statement of the nature of its
interest in the proceedings.
(c) If EDA determines that the requesting party does not have a Substantial Interest in the
proceedings, a written notice of denial shall be sent to the requesting party. The notice shall
specify the reasons for the denial;
(d) EDA shall publish a notice of a public hearing in the FEDERAL REGISTER, containing the
subject matter, name of petitioner, and date, time and place of the hearing; and
(e) EDA shall appoint a presiding officer for the hearing who shall respond to all procedural
questions.
§315.10 Loss of certification benefits.
EDA may terminate a Finn's certification or refuse to extend Adjustment Assistance to a Firm
for any of the following reasons:
(a) Failure to submit an acceptable Adjustment Proposal within two years after date of
certification. While approval of an Adjustment Proposal may occur after the expiration of
such two-year period, a Firm must submit an acceptable Adjustment Proposal before such
expiration;
(b) Failure to submit documentation necessary to start implementation or modify its request for
Adjustment Assistance consistent with its Adjustment Proposal within six months after
approval of the Adjustment Proposal, where two years have elapsed since the date of
certification. If the Firm anticipates needing a longer period to submit documentation, it
should indicate the longer period in its Adjustment Proposal. If the Firm is unable to submit
its documentation within the allowed time, it should notify EDA in writing of the reasons for
the delay and submit a new schedule. EDA has the discretion to accept or refuse a new
schedule;
(c) EDA has denied the Firm's request for Adjustment Assistance, the time period allowed for
the submission of any documentation in support of such request has expired, and two years
have elapsed since the date of certification; or
(d) Failure to diligently pursue an approved Adjustment Proposal where five years have elapsed
since the date of certification.
§315.11 Appeals, final determinations and termination of certification.
(a) Any petitioner may appeal in writing to EDA from a denial of certification, provided that
EDA receives the appeal by personal delivery or by registered mail within 60 days from the
date of notice of denial under §315.8(g). The appeal must state the grounds on which the
appeal is based, including a concise statement of the supporting facts and applicable law. The
decision of EDA on the appeal shall be the final determination within the Department. In the
absence of an appeal by the petitioner under this paragraph, the determination under
§315.8(g) shall be final.
(b) A Firm, its representative or any other interested domestic party aggrieved by a final
determination under paragraph (a) of this section may, within 60 days after notice of such
determination, begin a civil action in the United States Court of International Trade for
review of such determination, in accordance with section 284 of the Trade Act.
(c) Whenever EDA determines that a Certified Firm no longer requires Adjustment Assistance
or for other good cause, EDA will terminate the certification and promptly publish notice of
such termination in the FEDERAL REGISTER. The termination will take effect on the date
specified in the published notice.
(d) EDA shall immediately notify the petitioner and shall state the reasons for any termination.
Subpart C—Protective Provisions
§315.12 Recordkeeping.
Each TAAC shall keep records that fully disclose the amount and disposition of Trade
Adjustment Assistance for Firms program funds so as to facilitate an effective audit.
§315.13 Audit and examination.
EDA and the Comptroller General of the United States shall have access for the purpose of audit
and examination to any books, documents, papers, and records of a Firm, TAAC or other
recipient of Adjustment Assistance pertaining to the award of Adjustment Assistance.
§315.14 Certifications.
EDA will provide no Adjustment Assistance to any Firm unless the owners, partners, members,
directors or officers thereof certify to EDA:
(a) The names of any attorneys, agents, and other Persons engaged by or on behalf of the Firm
for the purpose of expediting applications for such Adjustment Assistance; and
(b) The fees paid or to be paid to any such Person.
§315.15 Conflicts of interest.
EDA will provide no Adjustment Assistance to any Firm under this part unless the owners,
partners, or officers execute an agreement binding them and the Firm for a period of two years
after such Adjustment Assistance is provided, to refrain from employing, tendering any office or
employment to, or retaining for professional services any Person who, on the date such
assistance or any part thereof was provided, or within one year prior thereto, shall have served as
an officer, attorney, agent, or employee occupying a position or engaging in activities which
involved discretion with respect to the provision of such Adjustment Assistance.
Subpart D—Adjustment Proposals
§315.16 Adjustment proposal requirements.
EDA evaluates Adjustment Proposals based on the following:
(a) EDA must receive the Adjustment Proposal within two years after the date of the
certification of the Firm;
(b) The Adjustment Proposal must include a description of any Adjustment Assistance requested
to implement such proposal, including financial and other supporting documentation as EDA
determines is necessary, based upon either:
(1) An analysis of the Finn's problems, strengths and weaknesses and an assessment of its
prospects for recovery; or
(2) If EDA so determines, other available information;
(c) The Adjustment Proposal must:
(1) Be reasonably calculated to contribute materially to the economic adjustment of the Firm
(Le., that such proposal will constructively assist the Firm to establish a competitive
position in the same or a different industry);
(2) Give adequate consideration to the interests of a sufficient number of separated workers
of the Firm, by providing, for example, that the Firm will:
(i) Give a rehiring preference to such workers;
(ii) Make efforts to find new work for a number of such workers; and
(iii)Assist such workers in obtaining benefits under available programs; and
(3) Demonstrate that the Firm will make all reasonable efforts to use its own resources for its
recovery, though under certain circumstances, resources of related Firms or major
stockholders will also be considered; and
(d) The Adjustment Assistance identified in the Adjustment Proposal must consist of specialized
consulting services designed to assist the Firm in becoming more competitive in the global
marketplace. For this purpose, Adjustment Assistance generally consists of knowledge -based
services such as market penetration studies, customized business improvements, and designs
for new products. Adjustment Assistance does not include expenditures for capital
improvements or for the purchase of business machinery or supplies.
Subpart E—Assistance to Industries
§315.17 Assistance to firms in import -impacted industries.
(a) Whenever the International Trade Commission makes an affirmative finding under section
202(B) of the Trade Act that increased imports are a substantial cause of serious injury or
threat thereof with respect to an industry, EDA shall provide to the Firms in such industry
assistance in the preparation and processing of petitions and applications for benefits under
programs which may facilitate the orderly adjustment to import competition of such Firms.
(b) EDA may provide Adjustment Assistance, on such terms and conditions as EDA deems
appropriate, for the establishment of industry -wide programs for new product development,
new process development, export development or other uses consistent with the purposes of
the Trade Act and this part.
(c) Expenditures for Adjustment Assistance under this section may be up to $10,000,000
annually per industry, subject to availability of funds, and shall be made under such terms
and conditions as EDA deems appropriate.
PARTS 316-399 [RESERVED]
The undersigned has fully and completely reviewed this training on behalf of the proposer/awardee, understands the information presented in this
training, and has the authority to make this certification as the awardee. The undersigned understands providing false or misleading information
during any part of the proposal, award, or performance phase of an EDA assistance award may result in criminal, civil or administrative sanctions,
including but not limited to: fines, restitution, and/or imprisonment under 18 U.S.C. § 1001; treble damages and civil penalties under the False Claims
Act, 31 U.S.C. § 3729 et seq.; civil recovery of award funds; suspension and/or debarment from all federal procurement and non -procurement
transactions, FAR Part 9.4 or 2 CFR Part 180; and other administrative remedies including termination of active EDA assistance awards.
Signature
Name
Position Title
Date
City of Fayetteville, AR
Entity Name
08-79-05388
Award Number
Compliance with EDA Disaster
Assistance Program Requirements
Fraud Awareness Training
You m.rnr suenn(ullr awnpht, ehb tnming ii d atg#N!.#M.11$Jt4.aAlttplsttnn
as.n9�yt.,wtg atta yw, dgn.d c0.tsu.
Fail, to comply with this ma r,q•iro y ro,wt in a finding of nom
tornpllanc, wth th• t•— and ncon 10— of your award
Role of EDA: Facilitate the timely and effective delivery of
Federal economic development assistance to support long-term
community economic recovery planning and project
implementation, redevelopment, and resiliency
Overview of EDA Disaster Recovery Programs
• The Department of Commerce (DOC)
Office of Inspector General (OIG)
• Fraud in EDA Programs
• Additional Items
• Certificate
Under the Additional SupplemenalAppropriation, for Oisest� RehelAct, 2019 (Public
Law 1 16-20). Congress provided EDA with ehc Following disaster -specific program
twe to x'"Ie e" t its Care FY19 Econutnsc Asvwxe
IllSAP) AppeolvgtgmAmwnt to scam. Ml et ptimewwks MW
E[enerllc Oarpbpmans An i42 t2iC.3W3 for an at>dragl alOellpt Str'Scogemk
t)eielA¢innu ttsiiiistiea Program ' lier, necessary nxsenr es mintoll1. Mpp1) miii eti...
disster relief , longterm rem cry, and resmrarion of 4,a—rr— in areas that
ecei e a maim dsaster n as a rcsuh of Hurd—, Florence. Michael. and
lane.Typhoom Yu mand - - and of wildfires, voIardt ctoptioin, earrhquakes and
other natural dsuen occumrag in Wender year 2018, and tmmdoes and floods
occureng in calendar year 2019 under the Robert Stafford Dun— Relief and
Emergency Astistnnee Act i42 U.iC.. 5121 et se¢).
r FraikMAnnor4other things, must have a nexus to applicable disaster
Meeewq anQ yaptlience eiforts and be consistent with at Ieast one of the Edo
tmmyttMt PyIOrRMs.
1
EDA INVESTMENT PRIORITIES
r All projects considered for EDA funding under this Disaster
Supplemental NOFO must be consistent with at least one of EDA4
Investment Priorities. EDA•s Investment Priorities canbe found at
httpsdtwww.ed&govlabout/i nvestment-priorides/disaster-recovery/.
The priorities may be updated from time to time, Any future
revisions will be reflected on EDA•s website on January 15, April 15,
June IS. or September 15 of each year.
Eligible applicants under the EAA Program include:
• Distrirt Organhtadon
• In, en Tribe or a ronwruum of India., Tnl:et
Stne,e <oUMy. city, or other pokocal tubd.,,u- al a sate. in h gspecu eg a l pwpose — of
a Sate or I -A g—rumen, engaged in eronormc or :nfratvorrLK deKlrpm'nt activities, or
a consortium of palkiW subdirisions
• !—coo or higtwr e•hx:rtiwr or a sown dvm of v—dons of h1he,'d—d-
• Nbk tsr pr no,.prore org—uan or as—n:o' arcing:' cnnperasion whh ai k:ais of
;v+1 suhdsvnfoa of a 5—
EDA is not authorized to provide EAA grants to individuals or fonproft
entities. Requests from such entities will not be considered for funding.
y„et R..m Rk eM ed,n utT. it
.• DISASTER RECOVERY
• EDA disaster assistance grants are being awarded through Its Regional
Offices under the agency's Economic Adjustment Assistance (EAA)
Program. The EAA Program enables EDA to make awards that
support a wide range of construction and non -construction activities.
• Catalog of Federal Domestic Assistance (CFDA) I IJ07
.- looted at
-- Corwin, overview of the EAA Program
- Gomins'NgthrYry, appflcarlon, anAcompliance regtdremems, etu
Projects eligible for EDA support include both die development of
disaster recovery strategies and the implementation of recovery
projects idencifled within chose scncegles, including construction
activities, capitalizing revolving loan funds, and a variety of others.
PA
Applicants must propose a project located in or serving one or more
communities or regions impacted by Hurricanes Harvey, Irma. or
Maria. or wildfires or other Federally -declared natural disaster,
occurring in calendar year 2017.
• Created by IG Act of 1978 to:
- Combac fraud. waste. and abuse within the DOC
- Conduct audits and investigations of DOC operations
- Keep the DOC and Congress informed
• Mission
- To improve the programs and operations of the Department of
Commerce through independent and objective oversight
This includes oversight of EDAAssistance Programs
• Office of Audit and Evaluation
• Office of Investigations
- Criminal
-ca
- Administrative
- Employee miscoivHrt
- Public corruption
3
federal employees, applrcana. and employees of federal core —, and grantees who make
certain dndosures—to OIG a- elsewhere —are protected under the law from suffering
retaliation because of those disclosures.
9asc eiemenes of wtimleblower protection law: (0 you make a protected disclosure: (2) you
are sublact co certain retaliawry uts:aod (3) there is a causal corneaton between your
protected disclosure and the retaliatory act,
OIG receives. reviews. and where appropriate. investigates allegations of whisdeblower
reprisaL
Whistleblower complaints may be submitted m the OIG via the hotline:
Ati .. _. ��4l7pFAfd1SS �9LOhA'FpR
WMxleblower comptamn may aIso be submined co the Office of Special Counsel via their
webske: rE.Q'!/l14a4'.5413i05d1}pk
DOC-OIG Whiuleblower protetuon Coordimcor conatt information:
Emaih IDo,ggt,(gX. Phone202-e82-1099
Although it can take many forms, fraud, at its core• is
deception through the misrepresentation or
omission of material facts for the purpose of
illegitimate gain.
• Fraud Defined
a Compliance Requirements
— Eligibility
— Duplicate Funding
— Matching Funds
— Mandatory Reporting of Fraud
• Consequences of Fraud
• Recommendations/Best Practices
Eaamole% of fraud wlthin EDA Asslsi a Programs includes bi
are not limited to:
• Accepting federal funding in multiple assistance awards for the same work
• Misrepresentations regarding the eligibility of the project or recipient
• Misrepresentations or omissions about the recipients facilities,
ownership/control, or the work to be performed by the recipient
!providing hisifred letters of support
Misrepresentations concerning the use of funds expended, work
performed, results achieved, or compliance with program requirements
under the award
• Inflated labor costs
4
• Misuse or conversion of assistance award funds leg. using funds for personal
expenses)
Theft of government owned property (18 US•C, § 666)
Embeaiemenc (18 US.C. § 666)
• Fabrication or Falsification of data, in applying for, carrying out, or reporting
results from an assistance award
• Failure to comply wish applicable federal cost principles governing grants !
cooperative agreements
Undisclosed self-dpling, such as a sub -award to an entity in which an awardee,
executive, or key employee (or family members of the aforementioned
individuals) has a financial interest
• "Buying Expenses", or reporting expenses incurred by another entity for work
unrelated so the assistance award
2 CFR § 200.338 — REMEDIES FOR NONCOMPLIANCE
if - - r1e ry 1-is n ah Federal statutus, r.gul.d.-or the terms
and ...slur shf. Federal:...d.,h. Fed-1i nang.g.nty iax -,hrwgh.ntxy
:my ,npose additional condisions, a. m certain cbrumsu nces, the Federal awarding agency
or p.ssth—gh entity array take one or rmne of the logovdng actions, a, xppropn to m the
ur<urmtances:
T mponry w:d holding of ash pay!nen, pendvy eo,—Jon of the deficiency by the n
Federal malty car max. Scrt< enformnent aakn by she Peden. —,ding atcncy Or pass
throughe ray
Dhalb+rance of (chat is. d" both use o1 funds and any.appik..be shaitnint nedk for) au us
pa[, of Nei .1thea ., 0, a[rmn ro[ in cnt i.—
whok a p•rual,usp.m:u %o[ ,a m,muon or th. federal awxd
.m046tn of su,penucnor debarment proc.eemg, taa,n the a. M a pas,-,ft—gl, enun,
..coimsend such a pnaceed.% 1 ud,:at.d by, Fed era la ,intagency)
wrhhoNingof fw,her Feoe-ala ds for use xqg Osyr,Vr
b,hn remedies ,cats, rmy ne :etally arn41,k
RECIPIENTS MUST COMPLYWITH:
2 CFR Part 200 — Uniform Adminiscradve Requirements, Cost Principles,
and Audit Requirements for Federal Awards
• Department of Commerce Finandal Assistance Standard Terms and
Conditions
• EDA Standard Award Conditions for Construction Projects or EDA
Revolving Loan Furl Standard Award Conditions, (as appl)cable)
• Special Award Conditions (unique to each award)
COMPLIANCE•
Eligibility
Within their EDA Assistance Award Proposal, applicants make
numerous certifications as to their eligibility to receive a
federal award, among other certifications.
Falsely certifying to any material fact or
representation contained in a certification is fraud.
5
EliyibilitX Double-click
he l.w for more
Duplication of Benefits is Prohibited
infcrmaron
IMPORTANT— The Stafford Act (42 U.S.C. § 5155) prohibits
mleptan, lndnd m ��
duplication of benefits:
+,
N.nprofrc orpnizntion made false card rrislead�ng staumzn,s m _,., - "' -
nboln hd.zal gram lording ,-=_-
• F, W m 1. crllW . cnnih- of Ncer.st that were rcq.-d in be •,^`'.^�^
"The President, in consultation with the head of each Federal agency
distlo"d
administering any program providing finandal assistance to persons. business
sz_"' • -
concerns, or other entities suffering losses as a result of a major disaster or
�iOme
emer shall assure that no such gency, person, business concern or other entity
-
will receive such assistance with respect to any part of such loss as to which
• Non he d to $51a.595B2,o r.,olw aq h � ' '
pro agree pay egarrom, ti -Tu=a:.
he has received financial assistance under an other program or from
Y P !
viouted,h. False efaim,At,
insurance or any other source"
pupikadon of Benefits is Prohibited
2 C Fla. § 200.53 - Improper Payment
lnsproper payment includes any payment to an inNlgible party,any payment fa- an
inellgible good or service, any duplicate payment any payment for a good or
service not received (except for such payments where auttwrized by law), any payment
that does not account for o-edit for applicable discounmand any payment where
insufficient or lack of documentation prevents a reviewer from dfuernfng whether a
payment was proper
Other Federal Awards with Similar Programmatic Activities
"The Recipient shall Immediately notify the Project Oflicer and the Grants Officer in
writing if, after receipt of this Awaid, other financial assistance Is received to support
nr hind any portion n( the stripe of work Incorporated into this AwatA EDA will not
pay for costs that are funded by other sources." EDA Standard Terms and Conduons (a
a�mtrucriat Prgects, February 12. 20f e
DuRfication of Benefits Double-click
below for more
info— on
Alkp—Inclu&d: ass.�r aass�r
Nce-for-profit owns applkd for funding for similar service' —
Owner converted the duplicate funding for Ns personal and business —
use
ourcome: MIMI
fg-
¢sna
wn
•- Os pled guilty co mad fraud and money hundering :- — _ 'l
Sae xed co 24 • ci
Ordered:. pay "AD.9e1 in reva"iron
V
Matching Funds
Generally. EDA's m,uu mnn al:owabie grant rate is 50% of the approved proj— toss:
however, EDA wi0 work with the recipient to determine the appropriate grant rate for
she award based on statutory and regulatory disrresa factors.
The remaining portion of the EOA approved scope of work must be borne by the
recipient or provided co the recipient by a third parry as a contribution for the
purposes of and sublet, ra the terms of she award..
The applicant mu,,c do, amen that the matching share will:
Be committed to the protest for the period of perfornon e,
a 94 snob leas .0 ,
• Not be conditioned w encumbered m any wry that may pecfude as rase s umiscent
with the of Et2A—usem..—ce
Applkanrs must submit, fat each sows, of unatcl,tq store. a wIn nibnent fatty or
equuvaient dorumant signed by an authorized repemitrauve of the orprianon
prondng the matching furch Additional documenlatoan may be requested by EaA as coder
ro substam6Ae dre wariobhtrs' d the mRchmg funds.
Mandltmapi—IS-49.iA pf EM4
2 CFR § 200.113 • Mandatory disclosures
The non -Federal entity or applicant for a Federal award must
disclose, in a timely manner, in writing to the Federal awarding agency
or pass -through entity all violations of Federal criminal law involving
fraud, bribery, or gratuity violations potentially affecting the Federal
award,
Failure to disclose could result in the remedies detailed in 2 CFR § 200.338
(slide 19 of this presentation).
Matching Funds Double crick
below for more
Allegations Included: information
awe +finer
Small business owntr made several base 1—ments ..it
miuepeseouelons to obtain led eral grant funding
Ovmer mnrepre—ted that he obuiu ed a $100,000 imesmvent from a
third party.. order to quality for federal naMYng Iwds
Ownw snmerted gran, hinds m personal use
outcome -- —
• Owner, corm<ced M Ina1 for wue fraud. man fraW, falsd [ion of rawde *�
and di of government popery _
• Senrnmed to 36 months .n pr—
• Ordered so pay $I GS.726 m resottnion
Owa¢, Mrs—d fur 5 years
Criminal Prosecution
Lying to obtain a grant or lying about the work performed may violate
several criminal laws:
• Ia U.S.0 § 1001, False Statements (up to 5 years in pnson,forteiture and $250K fine)
• Ia USC, § 641.Theft of Federal Property (up to 10 years in prison, forfeiture and
$250K fine)
• Ia USC § 1343• Wire Fraud (up to 20 years in prison, forfeiture and $250K fine)
Ia US.0 § 666.Thek or bribery concerning programs receiving Federal funds (Yp to
10 years in prison. forfeiture and i250K fine)
nines for ergencraGons may be as high u g500K
Criminal forfeiture = full amount of the grant; personal assets can be
seized to satisfy forfeiture or fine
QyjL Prosecution
In addition to or in lieu of criminal prosecuri:x,
Civil False Claims Act. 31 U.S.C. §§ 3729-3733
Liability Includes up to treble damages (3x actual damages) and a civil penalty
of up to t22.363 for each false claim
• False calms liability may fnclude payments received when the government
relied upon false Information in the award proposal. In a certification of current
cost or pricing data. In a request for payment. or in progress reports
• Although. the statute requires knowledge that the claim was false, kn wle e
includes'_ " or
• Whistleblowers an receive up to 30%of the recovery amount for reporting
fraud via 0 lom provisions of the False Claims Act
The government retains the right to examine the status of an
EDA Assistance award at any time.
Status checks include:
• Sim vlslts
• Requests for records Including financial documents and timesheets
Good recordkeeping will help ensure successful
status checks and eliminate potential issues.
Administrative Remedies
• Government an terminate contracts/grants minted by fraud
• Government an suspend/debar the entity, owner, and/or employees
Results In prohibition from receiving any federal grants or contracts, or
working as a sub -grantee on federal grants or a sub -contractor on federal
contracts
• Debarment is typically for three years, but an be for a longer period
• Administrative remedies are in addition to cr in lieu of criminal and civil
liability
Good Records: Key to Protecting Yourself
Documentation
• Tmnheets for hours wonted byALL involved employees
• All Financial recefpts,Imckes and statements for expenses related to the project
Updates on the project status• including successeslfailures
Keep regular records at the It slness•level so you have all facts on hand if
needed/requested by the government
Documentation to Documentation
support performance metrics
H
If you are unsure about any of the requirements relating to the
award of an EDA Assistance grant/cooperative agreement:
Contact the appropriate EDA POC and provide all relevant
facts
Request written guidance from the EDA POC, and
Follow it!
EDA D aster R ry web ite
httPE/tv+±rw,gQa �rlaroe'i!;ts�dh�Sf�.tAcfrxtYl
13 CFR Chapter III Econornk, Development Administration (Parts 300-315)
4Wn"�ssYtetktml'Miat •t•sLD.nn{usta?+a.A11±9 St. Mk i^�•eKAzt�•eW_�.�ssB>4tk11t1�tMs�:p
2 CFR Part 200 -Uniform Admi,istrativ, R q i ents Cast Primipl s, and
Audit Requirements for Federal A rds
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Grant Fraud & Scams - Grants.gov
htWS�/wwvrffiOtStO:'�Saf3±71inWys3111>If 1udhUM
Department of Commerce - Grants and Cooperative Agreement Manual
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tm:at .+u�.su.w4�•oa.n
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Department of CommerceOffice
of Inspector General
oOffice
of Investigations
440
OIG HOTLINEr
Phone: (800) 424.5197
'LENT of
Online Complaint Form:
For more information
�iFlL~ vc"vkLksu=li''.YSZRN54!i?4
please visit our website
G#hR4k!t'k!'mtfWS
www.aig,do�.gov
0
National Center for Disaster Fraud Hotline
Phone:866-720-5721
Fax: 225-3 34-47 07
Email: dismterl_dleo.gov
For more information please visit
httpsdlwww.fema.�ovldhcst9n�utj
CERTIFICATE OFTRAINING COMPLETION
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e nblWln{inlermubn tlurin{a.r EanelcM prep,µ tivA,.r
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pen,L4. L:mInE� rn.be Cr.ai-n q.t li a s.C, S Il,a r...}; U.tl n:wen al ,ward hndn �,penabn anN.�
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.+t .nM .endnbuviM r,w>aw Yxrbrt ta.r.a.wL� Mun. f �,awntxe mM.
Tlgnaturo �~�-~Date ��-
Return signed with esocutad Award Documents,
Nomaa separate Certification is .qulreci for each
Authorised Signer on the Award.
This Certirication must be signed by the same
Entity Name Individual(,) executing the Award (CDA50).
Positi—Tina
EDAAward Number 06-79-05391 C-tificate One
You must successfully complete this training and
attach the completion certificate (next slide) to
your signed CD-450.
Failure to comply with this requirement may result
in a finding of non-compliance with the terms and
conditions of your award.
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Signature Date
Return signed with eaec,xed Award Document.,
Name - separate Certiftcatien is required for each
Autborised Signer on the Award.
This Certificarion must be signed by the same
Entity Name Individual(,) eaecudog the Award(CD-450).
Position Title
EDAAward Nwnber 08-79 05391 Certificate Two
10
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Sign aturo
Date
Return signed with execated Award Documents,
Name
teparot. Certillc:t_ it required for each
Authorized Sig-- the Award.
_
Thk CertHlcatlon must be signed by the same
Emily Nam.
individual(,) executing the Award (CD-ISD).
Position Title
EDAAward Number 48-79-05791 Carthl—Three
11
113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 38-20
File Number: 2019-0897
ECONOMIC DEVELOPMENT ADMINISTRATION:
A RESOLUTION TO AUTHORIZE AN APPLICATION FOR AN 80/20 MATCHING GRANT FROM
THE ECONOMIC DEVELOPMENT ADMINISTRATION IN THE AMOUNT OF $2,225,268.00 FOR
THE CONSTRUCTION OF A ROAD FROM INDUSTRIAL DRIVE TO CITY LAKE ROAD, AND
TO AUTHORIZE MAYOR JORDAN TO SIGN A FUNDING COMMITMENT LETTER
CONFIRMING THAT THE CITY HAS MATCHING FUNDS AVAILABLE IN THE AMOUNT OF
$556,317.00
WHEREAS, the construction of a road from Industrial Drive to City Lake Road, at a total estimated
cost of $2,781,585.00, would allow a significant amount of landlocked City property in the Commerce
District to be developed; and
WHEREAS, the Fayetteville Chamber of Commerce, working with the Northwest Arkansas Economic
Development District, has identified an 80/20 matching Economic Development Administration grant for
which the City can apply; and
WHEREAS, staff recommends utilizing Economic Development Bond funds approved by Fayetteville
voters for the City's 20% match in the estimated amount of $556,317.00; and
WHEREAS, the Economic Development Administration requires a funding commitment letter to be
included in the grant application stating the City's matching funds are available, unencumbered, and
dedicated to this project in the event the City is awarded the grant.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Page 1 Punted on 1/22/20
File Number. 2019-0897
Resolution 38-20
Section l: That the City Council of the City of Fayetteville, Arkansas hereby authorizes an application
for an 80/20 matching Economic Development Administration grant application for $2,225,268.00 for the
construction of a road and sidewalk from Industrial Drive to City Lake Road with the 20% match to
be funded by City of Fayetteville economic development bond funds.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the Mayor to
sign a funding commitment letter that will be included in the grant application stating that the City's
matching funds in the amount of $556,317.00 are available, unencumbered, and dedicated to this project
in the event the City is awarded the grant.
PASSED and APPROVED on 1/21/2020
Page 2
Attest:
�•``�`�'��R K t� T�F �•.
Kara Paxton, City Clerk Treasi j FAYfTTfV/t
u,.�Q
S ANSPS ,•`
ON Cn ,,,%-
Printed on 1/22/20
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 57"323
Text File
File Number: 2019-0897
Agenda Date: 1/21/2020 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: C. 3
ECONOMIC DEVELOPMENT ADMINISTRATION:
A RESOLUTION TO AUTHORIZE AN APPLICATION FOR AN 80/20 MATCHING GRANT FROM
THE ECONOMIC DEVELOPMENT ADMINISTRATION IN THE AMOUNT OF $2,225,268.00 FOR
THE CONSTRUCTION OF A ROAD FROM INDUSTRIAL DRIVE TO CITY LAKE ROAD, AND TO
AUTHORIZE MAYOR JORDAN TO SIGN A FUNDING COMMITMENT LETTER CONFIRMING
THAT THE CITY HAS MATCHING FUNDS AVAILABLE IN THE AMOUNT OF $556,317.00
WHEREAS, the construction of a road from Industrial Drive to City Lake Road, at a total estimated cost of
$2,781,585.00, would allow a significant amount of landlocked City property in the Commerce District to be
developed; and
WHEREAS, the Fayetteville Chamber of Commerce, working with the Northwest Arkansas Economic
Development District, has identified an 80/20 matching Economic Development Administration grant for which
the City can apply; and
WHEREAS, staff recommends utilizing Economic Development Bond funds approved by Fayetteville voters
for the City's 20% match in the estimated amount of $556,317.00; and
WHEREAS, the Economic Development Administration requires a funding commitment letter to be included in
the grant application stating the City's matching funds are available, unencumbered, and dedicated to this
project in the event the City is awarded the grant.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section l: That the City Council of the City of Fayetteville, Arkansas hereby authorizes an application for an
80/20 matching Economic Development Administration grant application for $2,225,268.00 for the
construction of a road and sidewalk from Industrial Drive to City Lake Road with the 20% match to be funded
by City of Fayetteville economic development bond funds.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the Mayor to sign a
funding commitment letter that will be included in the grant application stating that the City's matching funds in
City of Fayetteville, Arkansas Page 1 Printed on 122/2020
File Number. 2019-0897
the amount of $556,317.00 are available, unencumbered, and dedicated to this project in the event the City is
awarded the grant.
City olFayetteville, Arkansas Page 2 Printed on 1/22/2020
OFFICE OF THE MAYOR
January 22, 2020
Mr. Jorge Ayala, Regional Director
Economic Development Administration
Austin Regional Office
903 San Jacinto Blvd, Suite 206
Austin, TX 78701-4037
Dear Mr. Ayala:
Re: Availability of Local Matching Funds
I am writing to affirm that the City of Fayetteville has $556,317.00 in matching funds available,
unencumbered, and dedicated for the grant in which we are applying for through the Economic
Development Administration.
These funds will be utilized as detailed in the grant proposal. Should you have any further
questions regarding the matching funds, please do not hesitate to contact me.
Sin
7!ly,
Lioneld Jo
Mayor
City of Fayetteville 113 W. Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov
City of Fayetteville Staff Review Form
2019-0897
Legistar File ID
1/21/2020
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Devin Howland 12/31/2019 ECONOMIC DEVELOPMENT (050)
Submitted By Submitted Date Division / Department
Action Recommendation:
APPROVAL OF A RESOLUTION AUTHORIZING MAYOR JORDAN TO APPLY FOR AN 80/20 MATCHING GRANT WITH
THE ECONOMIC DEVELOPMENT ADMINISTRATION FOR $2,084,720 AND SIGN A FUNDING COMMITMENT LETTER
FOR QUESTION SIX BOND FUNDS.
Budget Impact:
Account Number
Project Number
Budgeted Item? No Current Budget
Funds Obligated
Current Balance
Fund
Project Title
$
Does item have a cost? No Item Cost
Budget Adjustment Attached? NA Budget Adjustment
Remaining Budget $
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number: Approval Date:
Original Contract Number:
Comments:
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF JANUARY 21, 2020
TO:
Mayor and City Council
THRU:
Don Marr, Chief of Staff
FROM:
Devin Howland, Director of Economic Vitality
DATE:
December 30, 2019
CITY COUNCIL MEMO
SUBJECT: A Resolution authorizing Mayor Jordan to apply for an 80/20 matching
grant with the Economic Development Administration and sign a funding commitment
letter for question six bond funds.
RECOMMENDATION:
Staff is recommending approval of a resolution authorizing Mayor Jordan to apply for an 80/20
matching grant with the Economic Development Administration (EDA) and sign a funding
commitment letter.
BACKGROUND:
The Fayetteville Chamber of Commerce, as the City's economic development contractor, has
identified the lack of "shovel ready" parcels as a key challenge for the past several years,
particularly within our Commerce District. Staff concurs with the challenge, as many other
shovel ready parcels exist and continue to be developed throughout the region in other
municipalities, available City owned sites in the commerce district have become increasingly
limited.
City -owned land in the Commerce District is reserved for the purpose of economic
development. This land is for sale at $20,000 an acre to existing businesses looking to expand
in Fayetteville or new businesses considering locating here. One major benefit of municipally
owned land within the commerce park, is the ability to reserve this land for projects which offer
employment opportunities that meet a living wage and align with our targeted industry sectors,
outlined in the Fayetteville First Economic Development Plan.
In the past, staff reviewed several requests to extend Borick Drive between S. City Lake Road
and S. Armstrong, two challenges were identified:
1. Cost: the 4,004 L.F. road would have cost an estimated $3.5M
2. Environmentally Sensitive areas: Parcel: 765-16578-000 (13.1 acres) and Parcel: 765-
15271-000 (10.5 acres)
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
However, the Fayetteville Chamber of Commerce and City staff have identified a unique
opportunity to open a significant amount of land locked City -owned commerce park land and
negate both previously identified concerns.
DISCUSSION:
The Fayetteville Chamber of Commerce, working with the Northwest Arkansas Economic
Development District, has identified a pool of Economic Development Administration funding
which Fayetteville can apply for. Traditionally, EDA grants are not eligible in Fayetteville given
the City not meeting guidelines given job totals and income ranges.
The grant request is to construct 2,472 L.F. of road from Industrial Drive to City Lake Road at
the following cost breakdown:
ITEM
COST
Construction
$2,200,000
Engineering
$330,000
NWAEDD Administrative Fee
$75,900
Total Grant Ask
$2,605,900
City of Fayetteville 20% Contribution
$521,180
EDA 80% Contribution
$2,084,720
City of Fa etteville's cost per foot
$210.83
The City of Fayetteville's cost is $521,180, representing 20% of the project cost. Staff is
recommending utilizing Question 6 "Economic Development" Bond funding to cover the City's
portion for the match. The amount represents 16% of the total Question 6 funds, ensuring the
remaining 84% of the funds can be utilized for workforce development and job skill training
opportunities, as outlined in the ordinance. If the grant is awarded, the City would receive
$2,084,720 from the Economic Development Administration.
As depicted in Exhibit A (attached) the proposed road would travel south off the cul-de-sac on
Industrial drive for roughly 1,250 feet, then turns west and goes roughly 1,100 feet connecting
with S. City Lake Road. Staff reviewed eight different alignment options and chose the proposed
alignment for the following reasons:
1. Primarily benefits City -owned Commerce Park Land;
2. Does not go near environmentally sensitive areas to the east;
3. Opens roughly 46 acres of City -owned Commerce Park Land.
The City of Fayetteville will also be conducting an environmental impact analysis before
applying for the grant- given the proximity to environmentally sensitive areas and to meet
guidelines set forth by the Economic Development Administration.
The Economic Development Administration also requires a funding commitment letter to be
included in the grant application (Exhibit B) stating funds are available in the event of being
awarded the grant.
BUDGET/STAFF IMPACT:
If the grant is awarded the City of Fayetteville will be responsible for $521,180 in Question 6
"Economic Development" Bond Funds.
The Environmental assessment which will be conducted as part of the grant submission will cost
$12,000. In the event of the grant not being awarded, staff feels there is a great deal of value in
having this environmental assessment completed given on -going efforts to recruit new
employers to our commerce district.
Attachments:
Exhibit A: Road Alignment Map
Exhibit B: Draft Funding Commitment Letter
Exhibit C: Environmental Narrative Requirements
Exhibit D: Preliminary Engineering Report Requirements
Exhibit E: Chamber of Commerce Letter of Support
Exhibit F: Flood Plain Map
66
OFFICE OF THE MAYOR
January 21, 2020
Mr. Jorge Ayala, Regional Director
Economic Development Administration
Austin Regional Office
903 San Jacinto Blvd, Suite 206
Austin, TX 78701-4037
Re: Availability of Local Matching Funds
Dear Mr. Ayala,
I am writing to affirm that the City of Fayetteville has $521,180 in matching funds available,
unencumbered, and dedicated for the grant in which we are applying for through the Economic
Development Administration.
These funds will be utilized as detailed in the grant proposal. Should you have any further
questions regarding the matching funds, please do not hesitate to contact me.
Sincerely,
Lioneld Jordan
Mayor
City of Fayetteville 113 W. Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
Environmental Narrative Requirements
The National Environmental Policy Act (NEPA) requires Federal agencies to assess the expected
environmental impacts associated with proposed federal actions. Per EDA Directive 17.02-2; EDA must
ensure that "proper environmental review of program activities takes place, that there is a proper balance
between the goals of economic development and environmental enhancement, and that adverse
environmental impacts are mitigated or avoided to the extent possible".
In order to comply with NEPA requirements, the applicant must submit, in its application package,
information detailing the present environmental condition of the project area and how the project will
impact environmental resources in and around the project area.
The Applicant must provide detailed, comprehensive information for the:
1. site(s) where the proposed project facilities will be constructed and the surrounding areas affected
by its operation; and
2. areas to be affected by any primary beneficiaries of the project.
The information submitted must be sufficient to evaluate all reasonable alternatives to the proposed
project, the direct and indirect environmental impacts, as well as the cumulative impacts on the
environment as defined in the Council on Environmental Quality (CEQ) regulations for implementing
NEPA set out at 40 C.F.R. 1500-1508. The level of detail should be commensurate with the complexity
and size of the project, and the magnitude of the expected impact. Relevant, recently completed
environmental impact documentation (assessments, impact statements, etc.) for activities in the region in
which the proposed project will be located may be included along with the environmental narrative.
Applicants must provide information on all the items identified below in their application for EDA
assistance. Applicants must provide a detailed explanation for any area in which the applicant asserts that
an item is not applicable to a project. Applicants are encouraged to contact their designated Economic
Development Representative or the applicable RDA Regional Environmental Officer with questions
(please see the EDA website for contact information).
Several issues discussed in the environmental narrative below may require consultation with other State
or Federal agencies before EDA's final approval of an award (for example, the State Historic
Preservation Agency or the U.S. Fish and Wildlife Service). While EDA does not require that
applicants complete such consultations before submitting an application, applicants should be
aware that in the event their project is selected for funding, the applicant will be expected to
proceed with consultations in an expeditious manner. EDA expects applicants to be prepared to
submit all required information to the appropriate agencies upon receipt of a Non -Binding
Commitment letter.
APLLICANTS MUST PROVIDE INFORMATION ON THE FOLLOWING ITEMS IN THE
ENVIRONMENTAL NARRATIVE:
Note: Applicants mustprotade all h formation requested below. Although EDA strnn&l)recommends following the format
of this template, other formats will be accepted pmvided that the narrative contains all required information.
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
A. BENEFICIARIES
Identify any existing businesses or major developments that will benefit from the proposed
project, and those that will expand or locate in the area because of the project.
B. PROJECT DESCRIPTION
1. Proposed Construction
Describe the project construction components in detailed, quantifiable terms. Describe the
project location, proposed construction methods, and schedule. Summarize the environmental
resources that would be impacted by the project. See the mock example below for the level of
specificity expected by EDA:
The City of it proposing to construct a 30-inch (in) water line which would be
constructed within an existing SO foot City of right-of-way (ROW) and measure 1,220
linearfeei (0. The project is located within Township 39N, Range 10E, Section 24 in the City of
County, [[(Slate."]]]: The project would be constructed over a three-month period
from Aprd June 2011. Constrgction of tbis project would entail trenching o 1 ft wide by 3 ft. deep ditcb
and installing the 30-in. pipe within the existing ROW. Total land disturbance will be 2.1 acres.
The construction rfaging area would be located entirely within the "existing ROW. Best Management
Practices (BMP) would be implemented inclrtdiiig the installation of straw bales and silt fences to
minimize impacts to storm water. Constril4don would only occur from 7 am-5pm to minimize noise
impacts in the project areal. Minor maintenance would occur during the operation of the waterline, but
would not entail anyground disturbing actitiitiei: The waterline would birect a palustrine emergent
wetland in two places and result in the impact of 0. >0 acre of wetland.
As an exhibit to this Narrative, provide a topographical map of the project area and a site map
(with legends) displaying the project location and boundaries, existing and proposed project
components and location of all sites and/or companies benefiting from the proposed project.
The documents should be of sufficient clarity for adequate interpretation of the Applicant's
intentions.
2. Alternative to the Proposed Project
Provide a detailed description of alternative actions that were considered during the project
planning but were not selected (e.g., alternative locations, designs, other projects having similar
benefits, or a "no project" alternative). Explain why this project/site was selected as the preferred
alternative with respect to other choices. Provide detail on why others alternatives were rejected
(e.g. did not meet the purpose and need of the project, implicated more environmental impacts
than the proposed action).
3. Mitigation
Describe methods to be employed to reduce adverse impacts from construction, such as noise,
dust generation, soil erosion, and siltation. List all mitigation measures that would be
implemented to minimize impacts to environmental resources from project implementation.
C. HISTORICIARCHEOLOGICAL RESOURCES
Identify any known historic/archeological resources within the project site(s) or area of potential
effect that are either listed on the National Register of Historic Places or considered to be of local
or State significance and perhaps eligible for listing on the National Register. Discuss the
potential impacts of the project on culturally significant resources and provide a determination as
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Last Updated January 23, 2014 EDA Environmental
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to whether there will be: no historical properties/culture resources present; no historical
properties/culture resources adversely affected; or historical properties/culture resources
adversely impacted.
Provide a list of Tribal Historic Preservation Officers (THPO), Tribal Leaders, and other
interested parties to be consulted with, as well as any comments already obtained from these
parties. This can be obtained from the State Historic Preservation Officer (SHPO), Native
American organizations, or online. The National Association of Tribal Historic Preservation
Officers maintains a database of currently recognized THPOs. In addition, the Advisory Council
on Historic Preservation (ACHP) and the National Park Service both has information on
THPOs.
Applicants will be required to provide the relevant SHPO with information about the project and
request that the SHPO submit comments on the proposed project to die' appropriate EDA
Regional Office prior to final approval of any award. Note that the applicant is not required
to contact the SHPO until directed to do so by EDA. If comments from the SHPO have
already been received, they should be attached along with copies of the information provided to
the SHPO, The following information will be required for the SHPO to review the project:
a. a narrative description of the project's elements and its location;
b. a map of the area surrounding the project, which identifies the project site,
adjacent streets and other identifiable objects, and the Area of Potential Effect;
c. line drawings or sketches of the project;
d. photographs of the affected properties if building demolition or renovation is
involved; and
e. an archeological survey and report if one has been prepared.
D. AFFECTED ENVIRMMJI
For the resource areas identified below, indicate potential direct, indirect, and cumulative impacts
from proposed project activities and specify proposed measures to mitigate probable impacts.
1. Affected Area
Describe the general project area, including topography, historic land usages, unique geological
features, and economic history. Provide site photographs if available.
2. Shorelines, Estuaries, Beaches and Dunes
Identify any shorelines, beaches, dunes, or estuaries within or adjacent to the project site(s).
Indicate whether the project is located within a designated coastal zone subject to the Coastal
Zone Management Act. Information on coastal zone boundaries is available on the National
Oceanic and Atmospheric Administration's (NOAA) website at www.hoa'a.t? y. Also indicate if
there are any proposed overwater structures that could impact navigable waters.
3. Wetlands
Identify any wetlands within or adjacent to the project site(s). If available, provide an on -site
wetland/waters delineation performed in accordance with the 1987 (or current version) U.S.
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Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
Army Corps of Engineers Wetland Delineation Manual, as amended. If the delineation has
received a preliminary or final jurisdictional Determination from the U.S. Army Corps of
Engineers (USACE), please provide the determination. Provide a determination of effects
including the amount of jurisdictional waters affected by type (e.g. 1.1 acres of palustrine
emergent wetlands would be impacted by the proposed project).
If wetlands, streams, or navigable waters may be impacted, it is recommended that Applicants
contact USACE concerning any jurisdictional waters resources. Include any correspondence or
comments from USACE related to the projeces impacts as an exhibit to the environmental
narrative as part of the application for EDA assistance.
4. Floodplains
Provide a FEMA floodplain map (with the map number and effective date) displaying the project
location and boundaries, existing and proposed project components, and location of all sites
and/or companies benefiting from the proposed project. The document should be of sufficient
clarity for adequate interpretation of the applicant's intentions. F000dplain maps can be viewed
and printed from FEMA's website at www;fetna.kov. If FEMA floodplain maps do not exist in
the project area, provide a letter from a Professional Engineer regarding the presence or absence
of a 100-year flood plain. The narrative should also indicate whether the Applicant's community
participates in the National Flood Plain Insurance Program.
5. Vegetation and Wildlife Resources
Identify native vegetation and wildlife found in the project area or its immediate vicinity.
Describe the amount and type of vegetation in the project area and indicate the impact to
vegetation if removed (e.g., 1.2 acres of early successional native hardwood forest).
Identify any designated State and National Parks, National Wildlife Refuges, or National Game
Preserves located on or in the vicinity of the proposed project activities.
Identify any Wilderness Areas, as designated or proposed under the Wilderness Act, or wild or
scenic rivers, as designated or proposed under the Wild and Scenic Rivers Act, that are located on
or in the vicinity of the proposed project activities.
6. Endangered Species
Provide a list of all threatened, endangered, and candidate species located in the project area and
its immediate vicinity. Identify these species' potential or existing habitat, and critical habitat
designations.in the project area. Critical habitat designations and lists of protected species by
county are generally available on the U.S. Fish and Wildlife Services (USFWS) website. If an
Effect Determination or Biological Assessment has been completed for any of the species listed,
please provide them. Applicants may refer to the most recent USFWW Endangered Species
Consultation Handbook for effect determination definitions.
Applicants should include any correspondence with the USFWS that exists related to their
proposal for EDA investment assistance as an exhibit to the Environmental Narrative. For
projects with possible impacts to marine/coastal species, provide and correspondence with the
National Marine Fisheries Service (NMFS).
7. Land Use and Zoning
Describe the present formal zoning designation and current land use of the specific project site
and adjacent land parcels. The areas include: the site of construction activities, adjacent areas,
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Last Updated January 23, 2014 EDA Environmental
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and areas affected by the primary beneficiaries. Land uses to be considered include, but are not
limited to, industrial, commercial, residential, agriculture, recreational, woodlands, mines/quarries,
and open spaces. Please indicate if the project is located entirely within a city limit.
Identify agriculture land parcels designated as "prime/unique agriculture lands" by the U.S.
Department of Agriculture (USDA) under the Federal Farmlands Protection Act or a local
equivalent. Additional information may be found at the USDA's Natural Resources
Conservation Service website.
8. Solid Waste Management
Indicate the types and quantities of solid wastes to be produced by the project facilities and
primary beneficiary. Describe local solid waste collection and disposal methods and the expected
useful life of the disposal facility.
Indicate if recycling or resource recovery programs are currently being use or will be used in the
future.
9. Hazardous or Toxic Substances
Describe any toxic, hazardous, or radioactive substances that will be utilized or produced by the
proposed project facilities and primary beneficiaries.
Describe the manner in which these substances will be stored, used, or disposed.
Complete and sign one "Applicant Certification Clause" for each co -applicant (see Appendix A).
If a recent Phase I o� Phase II Environmental Site Assessment has been performed, please
provide a copy. -
10. Water Resources
Describe surface and underground water resources at or near the project sites) and any impacts
of the project to these. If groundwater will be used, is the aquifer in overdraft and /or
adjudicated? If there will be discharges to surface water, is the receiving surface water body listed
on the U.S. Environmental Protection Agency's (EPA) Section 303(d) list of impaired waters? Is
a National Pollution Discharge Elimination System (NPDES) permit required for any discharges
to surface waters? Indicate if the proposed project is located within an area mapped by the EPA
as sole source aquifer recharge area (maps and further information are available on EPA's website
at www ea_oovl.; Describe any induced changes in local surface water runoff patterns, and the
status of storm water discharge permit processes (if applicable).
11. Water Supply and Distribution System
Indicate. the source, quality, and supply capacity of local domestic and industrial/commercial
water resources, and the amount of water that project facilities and primary beneficiaries are
expected to utilize. Applicants should note whether the water that is being supplied is in
compliance with the Safe Drinking Water Act, and if not, what steps are being taken to ensure
compliance.
12. Wastewater Collection and Treatment Facilities
Describe all domestic class or process wastewater or other discharges associated with the project
facilities and its primary beneficiaries, and the expected composition and quantities to be
discharged either to a municipal system or to the local environment.
Describe the wastewater treatment facilities available for processing the additional effluent and
indicate their design capacities and current loading (both daily average and peak), and their
adequacy in terms of degree and type of treatment required. Indicate all discharges that will
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Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
require on -site pre-treatment. Applicants should note whether the wastewater treatment plant is
in violation of the Clean Water Act, and if so, what steps are being taken to ensure compliance.
If local treatment and sewer systems are or will be inadequate or overloaded, describe the steps
being taken for necessary improvements and their completion dates.
13. Environmental Justice (Executive Order 12898)
Applicants should describe whether the proposed project will result in disproportionate adverse
human health or environmental impacts relative to minority and low income populations.
Sufficient detail should be provided to enable EDA to determine whether the project will comply
with Executive Order 12898.
14. Transportation (Streets, Traffic and Parking)
Briefly describe the local street/road system serving the project site(s) and describe any new
traffic patterns that may arise because of the project. Indicate if land use in the vicinity, such as
residential, hospital, school, or recreational, will be affected by these new traffic patterns.
Indicate if any existing capacities of these transportation facilities will be exceeded as a direct or
indirect result of this project implementation, particularly in terms of car and truck traffic, and
what the new Level of Service designation will be.
15. Air Quality
Indicate types and quantities of air emissions (including odors) to be produced by the project
facilities and its primary beneficiaries, and any measures proposed to mitigate adverse impacts.
Indicate the impact that the project would have on greenhouse gas emissions.
Is the proposed project site classified as a "non -attainment" area for any criteria pollutants? If so,
what are those pollutants? Indicate any local topographical or meteorological conditions that
hinder the dispersal of air emissions.
16. Noise Pollution
Will operation of project facilities or primary beneficiaries' facilities increase local ambient noise
levels? If yes, indicate the estimated levels of increase, and the areas and sensitive receptors (e.g.,
residences) to be affected.
17. Permits
Identify any Federal, State, or local permits of an environmental nature needed for the project
(e.g., USACE, US Environmental Protection Agency (EPA), Coastal Zone
Management/Shoreline Management, Air Quality, State Environmental Policy Act, NPDES, etc.)
and the status of any such permits. Attach copies of any such permits and all associated
correspondence, including the permit applications.
18.
Public Notification/Controversy
Provide evidence of the community's awareness of the project, such as newspaper articles or
public notification and/or public meetings, as applicable.
If a formal public hearing has been held, attach a copy of the transcript.
Fully describe any public controversy or objections which have been made concer,
proposed project and discuss steps taken to resolve such objections.
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
19. Direct, Indirect, and Cumulative Effects
Please list projects (public and private) that have occurred or will occur in the past, present, and
future in and around the project area that could result in significant cumulative or indirect
impacts when considered in aggregate with the proposed EDA project. Cumulative impacts
result from the incremental impacts of a proposed action when added to other past, present and
reasonable foreseeable future actions (40 C.F.R. Section 1508.7). Indirect impacts are those that
are caused by a proposed action, but that may occur later in time or farther removed in distance,
relative to the primary impacts of the proposed action (40 C.F.R. Section 1508.7)
Applicants should identify the direct and indirect effects of the proposed action; which resources,
ecosystems, and human communities are affected; and which effects on these resources are
important from a cumulative effects perspective.
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Last Updated January 23, 2014 EDA Environmental
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E. LIST OF ATTACHMENTS
The following checklist is a list of required and optional attachments to the Environmental
Narrative as described in the sections above. The items listed in the optional section may be
required by EDA at a later date to complete the project review and selection process, so it is
recommended that you provide them now if they are currently available to expedite decision -
making. While the documents listed below are the most common required to make
determinations of compliance with all environmental requirements, EDA reserves the right to
request additional items that are not listed below when necessary.
Applicants are not required to contact other governmental agencies for environmental or
historical resources consultation until directed by EDA, though any interagency coordination
letters that may be currently available should be provided. EDA expects that all Applicants
whose projects are selected for a Non -Binding Commitment letter will proceed with
consultations in an expeditious manner. As such, Applicants should have the required
information prepared for submission immediately upon notification of selection by EDA.
If you determine that your project may affect environmental or historical resources, you may
contact the appropriate Regional Environmental Officer to determine if early interagency
consultation is appropriate.
Checklist of Required Environmental Documents that must be submitted with Application•
o USGS topographic map(s) and site map(s) (see Section B1)
o FEMA floodplain map with map number (see D4)
oAppendix A: Applicant Certification Clause (See D9)
Checklist of Qptional Environmental Documents that should be submitted with Ayp_ licatioit if
available (will.expedite review and selectimplocess)
o SHPO/THPO and Tribal leader comments and copy of submittals (see Section C)
o Site photographs (see Section DI)
o Coastal Zone consistency determination (see D2)
o Wetland delineation and/or Jurisdictional Determination (see D3)
o Preliminary wedand info (see 133)
o U.S. Army Corps of Engineers comments, Section 404 Permit, Section 10 Permit, and/or
Water Quality Certification (401 approval) (see D3)
o Biological Assessment and/or survey for federally protected species (see D6)
o Correspondence with US Fish and Wildlife Service and/or National Marine Fisheries
Service (see D6)
o Natural Resources Conservation Service determination of Prime Farmland, Form AD-
1006, if applicable (see D7)
o Phase I and I1 Environmental Site Assessment (see D9)
o Sole Source Aquifer review by US Environmental Protection Agency, if applicable (see
D l 0)
o Other federal, state and local environmental permits (see D17)
o Copies of public notices, public hearing minutes, etc. (see D18)
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Last Updated January 23, 2014 EDA Environmental
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All References refer to applicable Environmental Compliance section of Form ED-900, App/icq ion for
EDA Assistance. Applicants should carefully review the applicable FFO for unique requirements for each
individual grant competition.
9
Last Updated Mairh 3, 2013 EDA Preliminary .Enguieeirn$.Report Requirements
Overview
EDA is required to complete an engineering review for all construction and design projects before
making an award. FDA's Application Form (Form ED-900,Applieatioii forEDAA.rsi.dance) and
related forms require Applicants to provide key information about the proposed construction and
design projects to enable EDA to compete its requisite reviews.
All applications for construction and design assistance must complete the Preliminary
Engineering Report (PER). The following outline provides more detailed information on these
requirements in order to assist Applicants in preparing their application.
Preliminary Engineering Report Requirements
In order to be considered for assistance, all construction and design applications must include a PER
that at a minimum provides the following information:
3.
Description of'.PrOject.C6ml2onents, Provide a general description of all project components
involved in the project. Indicate where the project involves the construction of new facilities or
the renovation or replacement of existing ones. Describe each of the project components in
terms of dimensions, quantities, capacities, square footage, etc..
Engineering reports that describe project components that are inconsistent with the EDA
investment project description in Section A.2 of Form ED-900 will not be considered valid.
D.ror corm t iJ-`lUU;Utatprovtde eeanomtc iustiEicab n for the projectif any: Rough
dimensions and quantities for major project components should be shown and labeled on the
drawings. Drawings should clearly identify the project components that are being proposed.
Applicants are encouraged to clarify such drawings, for example, through color coding, labeling,
and other appropriate methods.
4. A feasibility an*, sis-for the"c6nstn etabtlity of'thc broject, including a review of the existing
conditions and noting particular features, alignments, and, events affecting construction of
project components.
S. The proposed method of construction Indicate whether construction procurement shall be
done through competitive bid or other method. Indicate if any portion of the project is to be
done by design/build, construction management at risk, by the applicant's own forces, or
whether a third party construction.manager will be used. If an alternate construction
procurement method (other than traditional design/bid/build with sealed competitive bid
process) is proposed, a construction services procurement plan must be provided to EDA for
approval in accordance with EDA's regulation at 13 C.F.R. 305.6(a).
6. The number of constriction contracts anticipated. If multiple contracts are proposed, provide a
description of the project components included in each contract. If separate contracts are
Last Updated March 3, 2013 EDA Preliminary Engineering Repo►4 Requirements
anticipated for demolition or site work, the budget information cost classification should reflect
the estimated costs for these components. If project phasing is proposed, a project phasing
request must be provided to EDA for approval per FDA's regulation at 13 C.F.K. 305.9(a).
7. A current detailed construction cost estima;Ie:for each of the project components, showing
quantities, unit prices, and total costs. Provide a basis for the determination of construction
contingencies.
8. ' If the budget id cludes costs for real Oro�erty kWsitiditAhe Lpplicant should iactude a current
fair market value appraisal completed by a certified appraiser for the property to be purchased.
9. A -list of all permits rwiired fir the proposed project and'their current status. Identify all
permits required; include the timeline to obtain the permits and discuss how the permitting
relates to the overall project schedule. If the project crosses a railroad right-of-way or is within a
railroad right-of-way, provide an explanation of any permitting or approvals that may be
required from the railroad or other authority and the timeframe for obtaining these permits or
approvals.
10. ,Ah overall estimated project schedule, including the number of months for each of the
following:
i. design period;
ii. period of time to obtain required permits;
iii. period of time to obtain any required easements of rights -of -way;
iv. solicitation of bids and awarding of contracts, and
V. construction period.
9MaGV-IJ F�Q
F A Y E T T E V i L L E
December 31, 2019
Mayor Lioneld Jordan
Fayetteville City Council
113 W. Mountain St.
Fayetteville, AR 72701
Dear Mayor Jordan and Council Aldermen,
I strongly support the submission of the Federal Grant application through the Northwest Arkansas
Economic Development District for a road extension in the Commerce District. This grant for $2,605,900
will only require a 20% match by the City or $521,180. The Economic Development bond's first use will
generate an immediate 500% return and open over 40 acres for small to medium scale light manufacturing
facilities in Fayetteville.
The Chamber requests approval of the resolution to
• Apply for the grant
• Mayor Jordan to sign a funding commitment letter
• Conduct Environmental Study
The estimated costs are listed below
• Construction: $2,200,000
• Engineering (15%): $330,000
• Administrative/NWAEDD (3% of Construction and Engineering): $75,900
• Total Grant Ask: $2,605,900
• City of Fayetteville 20% Match: $521,180
This project supports the City's economic development goals as outlined in our contract. The type jobs
typical of the Commerce District pay well above the City average and therefore improves the standard of
living for all Fayetteville and Northwest Arkansas residents. By creating the opportunity for expansion in
the Commerce District, we also create access to higher paying jobs for our citizens who live nearby. This
project contributes to the sustainability of a manufacturer base in Fayetteville.
Thank you for your consideration,
Steve Clark
President and Chief Exectutive Officer
Fayetteville Chamber of Commerce
21 W. Mountain St., Ste. 300 72701
Fayettevillear.com
7 J Proposed Alignment
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1
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EXHIBIT F: Flood Plain Map
City of Fayetteville Staff Review Form
2020-0318
Legistar File ID
N/A
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
Devin Howland 4/9/2020 ECONOMIC DEVELOPMENT (050)
Submitted By Submitted Date Division / Department
Action Recommendation:
MAYOR JORDANS SIGNATURE IS NEEDED ON FORM CD-511 WITH THE DEPARTMENT OF COMMERCE AND OTHER
DEPARTMENT OF COMMERCE FORMS AS PART OF THE CITYS GRANT APPLICATION WITH THE ECONOMIC
DEVELOPMENT ADMINISTRATION
Account Number
Project Number
Budgeted Item? NA
Does item have a cost?
Budget Adjustment Attached?
Budget Impact:
Current Budget
Funds Obligated
Current Balance
NA Item Cost
No Budget Adjustment
Remaining Budget
Fund
Project Title
I
0
V20180321
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number:
Original Contract Number:
Comments:
Approval Date:
CITY OF
FAYETTEVILLE
ARKANSAS
TO: Lioneld Jordan, Mayor
THRU: Susan Norton, Chief of Staff
FROM: Devin Howland, Director of Economic Vitality
DATE: April 9, 2020
STAFF MEMO
SUBJECT: MAYOR JORDANS SIGNATURE IS NEEDED ON FORM CD-511 WITH THE
DEPARTMENT OF COMMERCE AND OTHER DEPARTMENT OF COMMERCE FORMS AS
PART OF THE CITYS GRANT APPLICATION WITH THE ECONOMIC DEVELOPMENT
ADMINISTRATION
RECOMMENDATION:
Staff is recommending approval of authorizing Mayor Jordan to sign the attached documents for
an EDA Grant
BACKGROUND:
On January 21, 2020 with the passage of Resolution 38-20 the Fayetteville City Council
Authorized Mayor Jordan to apply for an 80/20 matching grant with the Economic Development
Administration.
DISCUSSION:
The Grant is being administered by the Northwest Arkansas Economic Development
Commission. As part of the application process, the grant administrator has requested original
ink signed copies of the attached forms.
Staff is requesting the Mayor signs two copies, so that the Clerk and the Grant Administrator
can retain original copies.
The forms are standard for grants within the Department of Commerce. The first is form CD-511
which is a certification regarding lobbying. The second is a disclosure regarding lobbying. The
third is ED-900A which is additional EDA assurance for construction investments.
Attachments:
EDA Forms
Resolution 38-20
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
FORM CD-511
U.S. DEPARTMENT OF COMMERCE
(REV 1-05) CERTIFICATION REGARDING LOBBYING
Applicants should also review the instructions for certification included in the regulations before completing this form. Signature on this form provides for
compliance with certification requirements under 15 CFR Part 28, 'New Restrictions on Lobbying.' The certifications shall be treated as a material representation
of fact upon which reliance will be placed when the Department of Commerce determines to award the covered transaction, grant, or cooperative agreement.
LOBBYING
As required by Section 1352, Title 31 of the U.S. Code, and Implemented
at 15 CFR Part 28, for persons entering into a grant, cooperative
agreement or contract over $100,000 or a loan or loan guarantee over
$150,000 as defined at 15 CFR Part 28, Sections 28.105 and 28.110, the
applicant certifies that to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of any agency, a Member of Congress in
connection with the awarding of any Federal contract, the making of any
Federal grant, the making of any Federal loan, the entering into of any
cooperative agreement, and the extension, continuation, renewal,
amendment, or modification of any Federal contract, grant, loan, of
cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer or
employee of any agency, a Member of Congress, an officer or employee of
Congress, or an employee of a member of Congress In connection with
this Federal contract, grant, loan, or cooperative agreement, the
undersigned shall complete and submit Standard Form-LLL, 'Disclosure
Form to Report Lobbying.' in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be
Included in the award documents for all subawards at all tiers (including
subcontracts, subgrants, and contracts under grants, loans, and
cooperative agreements) and that all subrecipients shall certify and
disclose accordingly.
This certification is a material representation of fact upon which reliance
was placed when this transaction was made or entered into. Submission of
this certification is a prerequisite for making or entering Into this
transaction imposed by section 1352, title 31, U.S. Code. Any person who
fails to file the required certification shall be subject to a civil penalty of not
less than $10,000 and not more than $100,000 for each such failure
occurring on or before October 23, 1996, and of not less than $11,000 and
not more than $110,000 for each such failure occurring after October 23,
1996.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowiedge and belief,
that:
In any funds have been paid or will be paid to any person for influencing or !
attempting to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with this commitment providing for the
United States to Insure or guarantee a loan, the undersigned shall
complete and submit Standard Form-LLL, 'Disclosure Form to Report
Lobbying,' in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering Into
this transaction imposed by section 1352, title 31, U.S. Code. Any person
who fails to file the required statement shall be subject to a civil penalty of
not less than $10,000 and not more than $100,000 for each such failure
occurring on or before October 23, 1996, and of not less than $11,000 and
not more than $110,000 for each such failure occurring after October 23,
1996.
As the duly authorised representative of the applicant, I hereby certify that the applicant will comply with the above applicable certffication.
' NAME OF APPLICANT
Citv of Fayetteville, -Arkansas
AWARD NUMBER ' PROJECT NAME
N/A Borick Drive 1rprovementa
Prefix: ' First Name: Middle Name:
P Liotield
Last Name: Suffix:
Jordan
' Title: -Mayor of - -F
• SIGNATURE: ' DATE:
Completed by Grants.gov upon submission. CCompleted by Grants.gov upon submission
DISCLOSURE OF LOBBYING ACTIVITIES
Complete this form to disclose lobbying activities pursuant to 31 U.S.C.1352 OMB Number: 404D-0013
Expiration Date: 0=8l2022
1. t Type
of Federal Action:
2. a Status of Federal Action:
3. • Report Type:
a. contract
❑ a. bldloft/appibatlon
® a. initial filing
b. grant
® b. initial award
El b. material change
G cooperative agreement
post -award
d. ban
e. loan guarantee
Elf.
loan Insurance
4. Name and Address of Reporting Entity:
®Prime ElSubAwardea
•Name
City of i+ayetteville
' Street 1 Street 2
113 zest Nrnmtain Street
• payetceville Smte Ail.: Arkansas 72701
Congrosslonal District, if brown:
5. If Reporting Entity in No.4 is Subawardee, Enter Name and Address of Prime:
6.' Federal Department/Agency:
7. * Federal Program Name/Description:
economic Development Ministration
Economic adjustment Assistance
CFDA Number, ffappicable: 11.307
S. Federal Action Number, /f known:
S. Award Amount, /f known:
2,124,454.40
10. a. Name and Address of Lobbying Registrant:
Prefix �� ' Hrai Name JA MIdum Name
• Last Nerrre xJA Su(ffx
•StreetI Street
' Cd'y State vP
b. Individual Performing Services (including address if different from No. 10a)
Prefix • Fret Name R/r Middle Noma
• Last Name N/A $jx
•Ssseti S9eet2
1W State ZIP
11. Information requested through this form Is authorized by title 31 U.S.C. sedan 1352. This disclosure of lobbying activities is a material representation d fact upon which
reliance was placed by the tier above when the transaction was made or ordered into. This disclosure Is required ptrsuard to 31 U.S.C. 1352, This information .w11 be reported to
the Congress seml-annually and will be available for public inspectiom My parson who fails to file the required disclosure shall be subject to a cavil penalty of not less then
$10,000 and not more ill" ;100.D00 for each Such failure.
Signature: kompleted on submission to Grants.gov
'Name: Prefix 'Felt Name "we Name
Limeld
'Last Nam .rordam suffix
Title: Y.ayor Telephone No.: 479-575-8330 Date: complated on submission to Giriiata.govil
4
-�+- -.•
AUMofisdfor LocalFbprmluctlm
F ._
standard:e.m • LLL (R-. 7A7)
OMB Number: 0610-0094
Expiration Date: 11/30/2021
wa ED-900A - Additional EDA Assurances for
Construction Or Non -Construction Investments
For ALL investments: As a duly authorized representative of the applicant, I further certify that the
applicant:
1. Understands that attorneys' or consultants' fees, whether direct or indirect, expended for securing
or obtaining EDA investment assistance are not eligible costs. See 13 C.F.R. § 302.10(a).
2. Understands that conflicts of interest or appearances of conflicts of interest are prohibited and may
jeopardize this application or result in the forfeiture of investment funds. A conflict of interest
occurs, for example, where a representative, official, employee, architect, attorney, engineer, or
inspector of the applicant, or a representative or official of the federal, State or local government,
has a direct or indirect financial interest in the acquisition or furnishing of any materials, equipment,
or services to or in connection with the project. See 13 C.F.R. § 302.17.
3. Will comply with the reporting requirements under the Government Performance and Results Act
(GPRA) of 1993 and the GPRA Modernization Act of 2010 (GPRAMA) for measuring and reporting
project performance.
For CONSTRUCTION investments: As a duly authorized representative of the applicant, I further certify
that the applicant:
1. Will operate and maintain the facility in accordance with at least the minimum standards as may be
required or prescribed by applicable federal, State and local agencies for the maintenance and
operation of such facilities.
2. Will require the facility to be designed to comply with the Americans with Disabilities Act of 1990
(ADA) (42 U.S.C. 12101 et seq.), the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.)
and the Accessibility Guidelines for Buildings and Facilities regulations, as amended (36 C.F.R.
part 1191), and will be responsible for conducting inspections to insure compliance with these
requirements.
3. For the two-year period beginning on the date EDA investment assistance is awarded, will refrain
from employing, offering any office or employment to, or retaining for professional services any
person who, on the date on which the investment assistance is awarded or within the one-year (1)
period ending on that date, served as an officer, attorney, agent or employee of the Department of
Commerce and occupied a position or engaged in activities that EDA determines involved
discretion with respect to the award of investment assistance under PWEDA. See section 606 of
PWEDA and 13 C.F.R. §302.10(b).
4. Will have no facilities under ownership, lease or supervision to be utilized in this project that are
listed or under consideration for listing on EPA's List of Violating Facilities.
5. Will comply with Executive Order 12699, "Seismic Safety of Federal and Federally Assisted or
Regulated New Building Construction," which imposes requirements that federally -assisted
facilities be designed and constructed in accordance with the most current local building codes
determined by the awarding agency or by the Interagency Committee for Seismic Safety in
Construction (ICSSC) and the most recent edition of the American National Standards Institute
Standards A58, Minimum Design Loads for i3widings and Other Structures.
6. Will observe and comply with federal procurement rules, as set forth in 2 C.F.R. part 200, as
applicable, for award of any contracts for architectural engineering, grant administration services,
or construction financed with EDA investment assistance
For NON -CONSTRUCTION investments: As a duly authorized representative of the applicant, I further
certify that the applicant:
1. Will comply with applicable regulations regarding indirect cost rates, if indirect costs are included in
the application.
2. Will comply with the requirement that this investment assistance will not provide a proprietary
benefit to a private individual, for -profit corporation, or other commercial entity.
SIGNATURE OF AUTHORIZED CERTIFYING OFFICIAL
Completed on submission to Grants.gov
APPLICANT ORGANIZATION
lCity of Fayetteville, Arkansas
TITLE
Ma or of Fayetteville
DATE SUBMITTED
Completed on submission to Grants.gov
113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
Resolution: 38-20
File Number: 2019-0897
ECONOMIC DEVELOPMENT ADMINISTRATION:
A RESOLUTION TO AUTHORIZE AN APPLICATION FOR AN 80/20 MATCHING GRANT FROM
THE ECONOMIC DEVELOPMENT ADMINISTRATION IN THE AMOUNT OF $2,225,268.00 FOR
THE CONSTRUCTION OF A ROAD FROM INDUSTRIAL DRIVE TO CITY LAKE ROAD, AND
TO AUTHORIZE MAYOR JORDAN TO SIGN A FUNDING COMMITMENT LETTER
CONFIRMING THAT THE CITY HAS MATCHING FUNDS AVAILABLE IN THE AMOUNT OF
$556,317.00
WHEREAS, the construction of a road from Industrial Drive to City Lake Road, at a total estimated
cost of $2,781,585.00, would allow a significant amount of landlocked City property in the Commerce
District to be developed; and
WHEREAS, the Fayetteville Chamber of Commerce, working with the Northwest Arkansas Economic
Development District, has identified an 80/20 matching Economic Development Administration grant for
which the City can apply; and
WHEREAS, staff recommends utilizing Economic Development Bond funds approved by Fayetteville
voters for the City's 20% match in the estimated amount of $556,317.00; and
WHEREAS, the Economic Development Administration requires a funding commitment letter to be
included in the grant application stating the City's matching funds are available, unencumbered, and
dedicated to this project in the event the City is awarded the grant.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Page 1 Primed on 1/22/20
File Number. 2019-0897
Resolution 38-20
Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes an application
for an 80/20 matching Economic Development Administration grant application for $2,225,268.00 for the
construction of a road and sidewalk from Industrial Drive to City Lake Road with the 20% match to
be funded by City of Fayetteville economic development bond funds.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the Mayor to
sign a funding commitment letter that will be included in the grant application stating that the City's
matching funds in the amount of $556,317.00 are available, unencumbered, and dedicated to this project
in the event the City is awarded the grant.
PASSED and APPROVED on 1/21/2020
Attest:
.�. GITY�
Kara Paxton, City Clerk Treasi�rqr' FAYEr?fV���E v_
'sus •,9A
Page 2 Printed on 1/22/20
City of Fayetteville, Arkansas 113 West Mountain Street
Fayetteville, AR 72701
(479) 575-8323
t Text File
File Number: 2019-0897
Agenda Date: 1/21/2020 Version: 1 Status: Passed
In Control: City Council Meeting File Type: Resolution
Agenda Number: C. 3
ECONOMIC DEVELOPMENT ADMINISTRATION:
A RESOLUTION TO AUTHORIZE AN APPLICATION FOR AN 80/20 MATCHING GRANT FROM
THE ECONOMIC DEVELOPMENT ADMINISTRATION IN THE AMOUNT OF $2,225,268.00 FOR
THE CONSTRUCTION OF A ROAD FROM INDUSTRIAL DRIVE TO CITY LAKE ROAD, AND TO
AUTHORIZE MAYOR JORDAN TO SIGN A FUNDING COMMITMENT LETTER CONFIRMING
THAT THE CITY HAS MATCHING FUNDS AVAILABLE IN THE AMOUNT OF $556,317.00
WHEREAS, the construction of a road from Industrial Drive to City Lake Road, at a total estimated cost of
$2,781,585.00, would allow a significant amount of landlocked City property in the Commerce District to be
developed; and
WHEREAS, the Fayetteville Chamber of Commerce, working with the Northwest Arkansas Economic
Development District, has identified an 80/20 matching Economic Development Administration grant for which
the City can apply; and
WHEREAS, staff recommends utilizing Economic Development Bond funds approved by Fayetteville voters
for the City's 20% match in the estimated amount of $556,317.00; and
WHEREAS, the Economic Development Administration requires a funding commitment letter to be included in
the grant application stating the City's matching funds are available, unencumbered, and dedicated to this
project in the event the City is awarded the grant.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
FAYETTEVILLE, ARKANSAS:
Section l: That the City Council of the City of Fayetteville, Arkansas hereby authorizes an application for an
80/20 matching Economic Development Administration grant application for $2,225,268.00 for the
construction of a road and sidewalk from Industrial Drive to City Lake Road with the 20% match to be funded
by City of Fayetteville economic development bond funds.
Section 2: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the Mayor to sign a
funding commitment letter that will be included in the grant application stating that the City's matching funds in
City o/Fayetteville, Arkansas Page 1 Printed on 1/22/2020
File Number. 2019-0897
the amount of $556,317.00 are available, unencumbered, and dedicated to this project in the event the City is
awarded the grant.
City of Fayetteville, Arkansas Page 2 Printed on 1/22/2020
OFFICE OF THE MAYOR
January 22, 2020
Mr. Jorge Ayala, Regional Director
Economic Development Administration
Austin Regional Office
903 San Jacinto Blvd, Suite 206
Austin, TX 78701-4037
Dear Mr. Ayala:
Re: Availability of Local Matching Funds
I am writing to affirm that the City of Fayetteville has $556,317.00 in matching funds available,
unencumbered, and dedicated for the grant in which we are applying for through the Economic
Development Administration.
These funds will be utilized as detailed in the grant proposal. Should you have any further
questions regarding the matching funds, please do not hesitate to contact me.
City of Fayetteville 113 W. Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov
City of Fayetteville Staff Review Form
2019-0897
Legistar File ID
1/21/2020
City Council Meeting Date - Agenda Item Only
N/A for Non -Agenda Item
DI 1 — —11. �n AI— 1-1-k
even How and L1/3.L/2019
Submitted By Submitted Date
Action Recommendation:
Division / Department
APPROVAL OF A RESOLUTION AUTHORIZING MAYOR JORDAN TO APPLY FOR AN 80/20 MATCHING GRANT WITH
THE ECONOMIC DEVELOPMENT ADMINISTRATION FOR $2,084,720 AND SIGN A FUNDING COMMITMENT LETTER
FOR QUESTION SIX BOND FUNDS.
Budget Impact:
Account Number Fund
Project Number Project Title
Budgeted Item? No Current Budget $ -
Funds Obligated $ -
Current Balance �$ -
Does item have a cost? No Item Cost
Budget Adjustment Attached? NA Budget Adjustment
Remaining Budget $
V20180321
Purchase Order Number: Previous Ordinance or Resolution #
Change Order Number: Approval Date:
Original Contract Number:
Comments:
L
CITY OF
FAYETTEVILLE
ARKANSAS
MEETING OF JANUARY 21, 2020
TO: Mayor and City Council
THRU: Don Marr, Chief of Staff
FROM: Devin Howland, Director of Economic Vitality
DATE: December 30, 2019
CITY COUNCIL MEMO
SUBJECT: A Resolution authorizing Mayor Jordan to apply for an 80/20 matching
grant with the Economic Development Administration and sign a funding commitment
letter for question six bond funds.
RECOMMENDATION:
Staff is recommending approval of a resolution authorizing Mayor Jordan to apply for an 80/20
matching grant with the Economic Development Administration (EDA) and sign a funding
commitment letter.
BACKGROUND:
The Fayetteville Chamber of Commerce, as the City's economic development contractor, has
identified the lack of "shovel ready" parcels as a key challenge for the past several years,
particularly within our Commerce District. Staff concurs with the challenge, as many other
shovel ready parcels exist and continue to be developed throughout the region in other
municipalities, available City owned sites in the commerce district have become increasingly
limited.
City -owned land in the Commerce District is reserved for the purpose of economic
development. This land is for sale at $20,000 an acre to existing businesses looking to expand
in Fayetteville or new businesses considering locating here. One major benefit of municipally
owned land within the commerce park, is the ability to reserve this land for projects which offer
employment opportunities that meet a living wage and align with our targeted industry sectors,
outlined in the Fayetteville First Economic Development Plan.
In the past, staff reviewed several requests to extend Borick Drive between S. City Lake Road
and S. Armstrong, two challenges were identified:
1. Cost: the 4,004 L.F. road would have cost an estimated $3.5M
2. Environmentally Sensitive areas: Parcel: 765-16578-000 (13.1 acres) and Parcel: 765-
15271-000 (10.5 acres)
Mailing Address:
113 W. Mountain Street www.fayetteville-ar.gov
Fayetteville, AR 72701
However, the Fayetteville Chamber of Commerce and City staff have identified a unique
opportunity to open a significant amount of land locked City -owned commerce park land and
negate both previously identified concerns.
DISCUSSION:
The Fayetteville Chamber of Commerce, working with the Northwest Arkansas Economic
Development District, has identified a pool of Economic Development Administration funding
which Fayetteville can apply for. Traditionally, EDA grants are not eligible in Fayetteville given
the City not meeting guidelines given job totals and income ranges.
The grant request is to construct 2,472 L.F. of road from Industrial Drive to City Lake Road at
the following cost breakdown:
ITEM
COST
Construction
$2,200,000
Engineering
$330,000
NWAEDD Administrative Fee
$75,900
Total Grant Ask
$2,605,900
City of Fayetteville 20% Contribution
$521,180
EDA 80% Contribution
$2,084,720
City of Fa etteville's cost per foot
$210.83
The City of Fayetteville's cost is $521,180, representing 20% of the project cost. Staff is
recommending utilizing Question 6 "Economic Development" Bond funding to cover the City's
portion for the match. The amount represents 16% of the total Question 6 funds, ensuring the
remaining 84% of the funds can be utilized for workforce development and job skill training
opportunities, as outlined in the ordinance. If the grant is awarded, the City would receive
$2,084,720 from the Economic Development Administration.
As depicted in Exhibit A (attached) the proposed road would travel south off the cul-de-sac on
Industrial drive for roughly 1,250 feet, then turns west and goes roughly 1,100 feet connecting
with S. City Lake Road. Staff reviewed eight different alignment options and chose the proposed
alignment for the following reasons:
1. Primarily benefits City -owned Commerce Park Land;
2. Does not go near environmentally sensitive areas to the east;
3. Opens roughly 46 acres of City -owned Commerce Park Land.
The City of Fayetteville will also be conducting an environmental impact analysis before
applying for the grant- given the proximity to environmentally sensitive areas and to meet
guidelines set forth by the Economic Development Administration.
The Economic Development Administration also requires a funding commitment letter to be
included in the grant application (Exhibit B) stating funds are available in the event of being
awarded the grant.
BUDGET/STAFF IMPACT:
If the grant is awarded the City of Fayetteville will be responsible for $521,180 in Question 6
"Economic Development" Bond Funds.
The Environmental assessment which will be conducted as part of the grant submission will cost
$12,000. In the event of the grant not being awarded, staff feels there is a great deal of value in
having this environmental assessment completed given on -going efforts to recruit new
employers to our commerce district.
Attachments:
Exhibit A: Road Alignment Map
Exhibit B: Draft Funding Commitment Letter
Exhibit C: Environmental Narrative Requirements
Exhibit D: Preliminary Engineering Report Requirements
Exhibit E: Chamber of Commerce Letter of Support
Exhibit F: Flood Plain Map
.0
OFFICE OF THE MAYOR
January 21, 2020
Mr. Jorge Ayala, Regional Director
Economic Development Administration
Austin Regional Office
903 San Jacinto Blvd, Suite 206
Austin, TX 78701-4037
Re: Availability of Local Matching Funds
Dear Mr. Ayala:
I am writing to affirm that the City of Fayetteville has $521,180 in matching funds available,
unencumbered, and dedicated for the grant in which we are applying for through the Economic
Development Administration.
These funds will be utilized as detailed in the grant proposal. Should you have any further
questions regarding the matching funds, please do not hesitate to contact me.
Sincerely,
Lioneld Jordan
Mayor
City of Fayetteville 113 W. Mountain Street Fayetteville, AR 72701 www.fayetteville-ar.gov
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
Environmental Narrative Requirements
to (ie t3Snrded'lbfiticti
The National Environmental Policy Act (NEPA) requires Federal agencies to assess the expected
environmental impacts associated with proposed federal actions. Per EDA Directive 17.02-2; EDA must
ensure that "proper environmental review of program activities takes place, that there is a proper balance
between the goals of economic development and environmental enhancement, and that adverse
environmental impacts are mitigated or avoided to the extent possible".
In order to comply with NEPA requirements, the applicant must submit, in its application package,
information detailing the present environmental condition of the project area and how the project will
impact environmental resources in and around the project area.
The Applicant must provide detailed, comprehensive information for the:
1. site(s) where the proposed project facilities will be constructed and the surrounding areas affected
by its operation; and
2. areas to be affected by any primary beneficiaries of the project.
The information submitted must be sufficient to evaluate all reasonable alternatives to the proposed
project, the direct and indirect environmental impacts, as well as the cumulative impacts on the
environment as defined in the Council on Environmental Quality (CEQ) regulations for implementing
NEPA set out at 40 C.F.R. 1500-1508. The level of detail should be commensurate with the complexity
and size of the project, and the magnitude of the expected impact. Relevant, recently completed
environmental impact documentation (assessments, impact statements, etc.) for activities in the region in
which the proposed project will be located may be included along with the environmental narrative.
Applicants must provide information on all the items identified below in their application for EDA
assistance. Applicants must provide a detailed explanation for any area in which the applicant asserts that
an item is not applicable to a project. Applicants are encouraged to contact their designated Economic
Development Representative or the applicable EDA Regional Environmental Officer with questions
(please see the EDA website for contact information).
Several issues discussed in the environmental narrative below may require consultation with other State
or Federal agencies before EDA's final approval of an award (for example, the State Historic
Preservation Agency or the U.S. Fish and Wildlife Service). While EDA does not require that
applicants complete such consultations before submitting an application, applicants should be
aware that in the event their project is selected for funding, the applicant will be expected to
proceed with consultations in an expeditious manner. EDA expects applicants to be prepared to
submit all required information to the appropriate agencies upon receipt of a Non -Binding
Commitment letter.
APLLICANTS MUST PROVIDE INFORMATION ON THE FOLLOWING ITEMS IN THE
ENVIRONMENTAL NARRATIVE:
Note: Applicant,- mast prornde all it formation regnesied helom. Although EDA strongly recommends follou ing the format
of this template, other formats will he accepted provided that the narrative contains all requird infotwation.
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
A. BENEFICIARIES
Identify any existing businesses or major developments that will benefit from the proposed
project, and those that will expand or locate in the area because of the project.
B. PROJECTDESCRIPTION
1. Proposed Construction
Describe the project construction components in detailed, quantifiable terms. Describe the
project location, proposed construction methods, and schedule. Summarize the environmental
resources that would be impacted by the project. See the mock example below for the level of
specificity expected by EDA:
The City 6 is props ring to construct a 30-inch (in) water line which would be
constructed within an existing SO_ foot City of right-of-way (ROW) and measure 1,220
linear feet (0. The project is located within Township 39N, Range 10E, Section 24 in the City of
V. County, [[(State]]]. The project would be constructed over a three-month period
from April June 2011. Consirvetion of this project would entail trenching a 1 ft wide by 3 ft. deep ditch
and bulalliltg the 30-in. p pe within the existing ROIY. Total land disturbance will be 2.1 acres.
The construction (aging area would be located entirely within the "existing ROW. Best Management
Practices'(BMP) would be implemented including the inslalla?ion of straw bales and silt fences to
minimize impacts to storm water. Consirwrlion would only occur from 7 am-5pm to minimize noise
impacts in the project areas. Minor maintenance would occur during the operation of the waterline, but
would not entail any ground disturbing activities: The waterline would birect a palumine emergent
wetland in two places and result in the impact of 0.10 acre of wetland.
As an exhibit to this Narrative, provide a topographical map of the project area and a site map
(with legends) displaying the project location and boundaries, existing and proposed project
components and location of all sites and/or companies benefiting from the proposed project.
The documents should be of sufficient clarity for adequate interpretation of the Applicant's
intentions.
2. Alternative to the Proposed Project
Provide a detailed description of alternative actions that were considered during the project
planning but were not selected (e.g., alternative locations, designs, other projects having similar
benefits, or a "no project" alternative). Explain why this project/site was selected as the preferred
alternative with respect to other choices. Provide detail on why others alternatives were rejected
(e.g. did not meet the purpose and need of the project, implicated more environmental impacts
than the proposed action).
3. Mitigation
Describe methods to be employed to reduce adverse impacts from construction, such as noise,
dust generation, soil erosion, and siltation. List all mitigation measures that would be
implemented to minirnize impacts to environmental resources from project implementation.
C. HISTORIC/ARCHEOLOGICAL RESOURCES
Identify any known historic/archeological resources within the project site(s) or area of potential
effect that are either listed on the National Register of Historic Places or considered to be of local
or State significance and perhaps eligible for listing on the National Register. Discuss the
potential impacts of the project on culturally significant resources and provide a determination as
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement.,
to whether there will be: no historical properties/culture resources present; no historical
properties/culture resources adversely affected; or historical properties/culture resources
adversely impacted.
Provide a list of Tribal Historic Preservation Officers (THPO), Tribal Leaders, and other
interested parties to be consulted with, as well as any comments already obtained from these
parties. This can be obtained from the State Historic Preservation Officer (SHPO), Native
American organizations, or online. The National Association of Tribal Historic Preservation
Officers maintains a database of currently recognized THPOs. In addition, the Advisory Council
on Historic Preservation (ACHP) and the National Park Service both has information on
THPOs.
Applicants will be required to provide the relevant SHPO with information about the project and
request that the SHPO submit comments on the proposed project to the appropriate EDA
Regional Office prior to final approval of any award. Note that the applicant is not required
to contact the SHPO until directed to do so by EDA. If comments from the SHPO have
already been received, they should be attached along with copies of the information provided to
the SHPO, The following information will be required for the SHPO to review the project:
a. a narrative description of the projeces elements and its location;
b. a map of the area surrounding the project, which identifies the project site,
adjacent streets and other identifiable objects, and the Area of Potential Effect;
C. line drawings or sketches of the project;
d. photographs of the affected properties if building demolition or renovation is
involved; and
e. an archeological survey and report if one has been prepared.
D. AFFECTED : ENV gQNMFW
For the resource areas identified below, indicate potential direct, indirect, and cumulative impacts
from proposed project activities and specify proposed measures to mitigate probable impacts.
1. Affected Area
Describe the general project area, including topography, historic land usages, unique geological
features, and economic history. Provide site photographs if available.
2. Shorelines, Estuaries, Beaches and Dunes
Identify any shorelines, beaches, dunes, or estuaries within or adjacent to the project site(s).
Indicate whether the project is located within a designated coastal zone subject to the Coastal
Zone Management Act. Information on coastal zone boundaries is available on the National
Oceanic and Atmospheric Administration's (NOAA) website at w,,vw.noa`a.gov.. Also indicate if
there are any proposed overwater structures that could impact navigable waters.
3. Wetlands
Identify any wetlands within or adjacent to the project site(s). If available, provide an on -site
wetland/waters delineation performed in accordance with the 1987 (or current version) U.S.
3
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
Army Corps of Engineers Wetland Delineation Manual, as amended. If the delineation has
received a preliminary or final Jurisdictional Determination from the U.S. Army Corps of
Engineers (USACE), please provide the determination. Provide a determination of effects
including the amount of jurisdictional waters affected by type (e.g. 1.1 acres of palustrine
emergent wetlands would be impacted by the proposed project).
If wetlands, streams, or navigable waters may be impacted, it is recommended that Applicants
contact USACE concerning any jurisdictional waters resources. Include any correspondence or
comments from USACE related to the project's impacts as an exhibit to the environmental
narrative as part of the application for EDA assistance.
4. Floodplains
Provide a FEMA floodplain map (with the map number and effective date) displaying the project
location and boundaries, existingand proposed project components, and location of all sites
and/or companies benefiting from the proposed project. The document should be of sufficient
clarity for adequate interpretation of the applicant's intentions. Floodplain maps can be viewed
and printed from FEMA's website at w—w%femn.jgov. If FEMA floodplain maps do not exist in
the project area, provide a letter from a Professional Engineer regarding the presence or absence
of a 100-year flood plain. The narrative should also indicate whether the Applicant's community
participates in the National Flood Plain Insurance Program.
5. Vegetation and Wildlife Resources
Identify native vegetation and wildlife found in the project area or its immediate vicinity.
Describe the amount and type of vegetation in the project area and indicate the impact to
vegetation if removed (e.g., 1.2 acres of early successional native hardwood forest).
Identify any designated State and National Parks, National Wildlife Refuges, or National Game
Preserves located on or in the vicinity of the proposed project activities.
Identify any Wilderness Areas, as designated or proposed under the Wilderness Act, or wild or
scenic rivers, as designated or proposed under the Wild and Scenic Rivers Act, that are located on
or in the vicinity of the proposed project activities.
6. Endangered Species
Provide a list of all threatened, endangered, and candidate species located in the project area and
its immediate vicinity. Identify these species' potential or existing habitat, and critical habitat
designations in the project area. Critical habitat designations and lists of protected species by
county are generally available on the U.S. Fish and Wildlife Services (USFWS) website. If an
Effect Determination or Biological Assessment has been completed for any of the species listed,
please provide them. Applicants may refer to the most recent USFWW Endangered Species
Consultation Handbook for effect determination definitions.
Applicants should include any correspondence with the USFWS that exists related to their
proposal for EDA investment assistance as an exhibit to the Environmental Narrative. For
projects with possible impacts to marine/coastal species, provide and correspondence With the
National Marine Fisheries Service (NMFS).
7. Land Use and Zoning
Describe the present formal zoning designation and current land use of the specific project site
and adjacent land parcels. The areas include: the site of construction activities, adjacent areas,
4
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
and areas affected by the primary beneficiaries. Land uses to be considered include, but are not
limited to, industrial, commercial, residential, agriculture, recreational, woodlands, mines/quarries,
and open spaces. Please indicate if the project is located entirely within a city limit.
Identify agriculture land parcels designated as "prime/unique agriculture lands" by the U.S.
Department of Agriculture (USDA) under the Federal Farmlands Protection Act or a local
equivalent. Additional information may be found at the USDA's Natural Resources
Conservation Service website.
8. Solid Waste Management
Indicate the types and quantities of solid wastes to be produced by the project facilities and
primary beneficiary. Describe local solid waste collection and disposal methods and the expected
useful life of the disposal facility.
Indicate if recycling or resource recovery programs are currently being use or will be used in the
future.
9. Hazardous or Toxic Substances
Describe any toxic, hazardous, or radioactive substances that will be utilized or produced by the
proposed project facilities and primary beneficiaries.
Describe the manner in which these substances will be stored, used, or disposed.
Complete and sign one "Applicant Certification Clause" for each co -applicant (see Appendix A).
If a recent Phase I o� Phase II Environmental Site Assessment has been performed, please
provide a copy. -
10. Water Resources
Describe surface and underground water resources at or near the project site(s) and any impacts
of the project to these. If groundwater will be used, is the aquifer in overdraft and /or
adjudicated? If there will be discharges to surface water, is the receiving surface water body listed
on the U.S. Environmental Protection Agency's (EPA) Section 303(d) list of impaired waters? Is
a National Pollution Discharge Elimination System (NPDES) permit required for any discharges
to surface waters? Indicate if the proposed project is located within an area mapped by the EPA
as sole source aquifer recharge area (maps and further information are available on EPA's website
at .www:ei, Describe any induced changes in local surface water runoff patterns, and the
status of storm water discharge permit processes (if applicable).
11. Water Supply and Distribution System
Indicate. the source, quality, and supply capacity of local domestic and industrial/commercial
,eater resources, and the amount of water that project facilities and primary beneficiaries are
expected to utilize. Applicants should note whether the water that is being supplied is in
compliance with the Safe Drinking Water Act, and if not, what steps are being taken to ensure
compliance.
12. Wastewater Collection and Treatment Facilities
Describe all domestic class or process wastewater or other discharges associated with the project
facilities and its primary beneficiaries, and the expected composition and quantities to be
discharged either to a municipal system or to the local environment.
Describe the wastewater treatment facilities available for processing the additional effluent and
indicate their design capacities and current loading (both daily average and peak), and their
adequacy in terms of degree and type of treatment required. Indicate all discharges that will
5
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
require on -site pre-treatment. Applicants should note whether the wastewater treatment plant is
in violation of the Clean Water Act, and if so, what steps are being taken to ensure compliance.
If local treatment and sewer systems are or will be inadequate or overloaded, describe the steps
being taken for necessary improvements and their completion dates.
13. Environmental Justice (Executive Order 12898)
Applicants should describe whether the proposed project will result in disproportionate adverse
human health or environmental impacts relative to minority and low income populations.
Sufficient detail should be provided to enable EDA to determine whether the project will comply
with Executive Order 12898.
14. Transportation (Streets, Traffic and Parking)
Briefly describe the local street/road system serving the project site(s) and describe any new
traffic patterns that may arise because of the project. Indicate if land use in the vicinity, such as
residential, hospital, school, or recreational, will be affected by these new traffic patterns.
Indicate if any existing capacities of these transportation facilities will be exceeded as a direct or
indirect result of this project implementation, particularly in terms of car and truck traffic, and
what the new Level of Service designation will be.
15. Air Quality
Indicate types and quantities of air emissions (including odors) to be produced by the project
facilities and its primary beneficiaries, and any measures proposed to mitigate adverse impacts.
Indicate the impact that the project would have on greenhouse gas emissions.
Is the proposed project site classified as a "non -attainment" area for any criteria pollutants? If so,
what are those pollutants? Indicate any local topographical or meteorological conditions that
hinder the dispersal of air emissions.
16. Noise Pollution
Will operation of project facilities or primary beneficiaries' facilities increase local ambient noise
levels? If yes, indicate the estimated levels of increase, and the areas and sensitive receptors (e.g.,
residences) to be affected.
17. Permits ,
Identify any Federal, State, or local permits of an environmental nature needed for the project
(e.g., USACE, US Environmental Protection Agency (EPA), Coastal Zone
Management/Shoreline Management, Air Quality, State Environmental Policy Act, NPDES, etc.)
and the status of any such permits. Attach copies of any such permits and all associated
correspondence, including the permit applications.
18. Public Notification/Controversy
Provide evidence of the community's awareness of the project, such as newspaper articles or
public notification and/or public meetings, as applicable.
If a formal public hearing has been held, attach a copy of the transcript.
Fully describe any public controversy or objections which have been made concerning this
proposed project and discuss steps taken to resolve such objections.
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Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
19. Direct, Indirect, and Cumulative Effects
Please list projects (public and private) that have occurred or will occur in the past, present, and
future in and around the project area that could result in significant cumulative or indirect
impacts when considered in aggregate with the proposed EDA project. Cumulative impacts
result from the incremental impacts of a proposed action when added to other past, present and
reasonable foreseeable future actions (40 C.F.R. Section 1508.7). Indirect impacts are those that
are caused by a proposed action, but that may occur later in time or farther removed in distance,
relative to the primary impacts of the proposed action (40 C.F.R. Section 1508.7)
Applicants should identify the direct and indirect effects of the proposed action; which resources,
ecosystems, and human communities are affected; and which effects on these resources are
important from a cumulative effects perspective.
7
Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
E. LIST OF ATTACHMENTS
The following checklist is a list of required and optional attachments to the Environmental
Narrative as described in the sections above. The items listed in the optional section may be
required by EDA at a later date to complete the project review and selection process, so it is
recommended that you provide them now if they are currently available to expedite decision -
making. While the documents listed below are the most common required to make
determinations of compliance with all environmental requirements, EDA reserves the right to
request additional items that are not listed below when necessary.
Applicants are not required to contact other governmental agencies for environmental or
historical resources consultation until directed by EDA, though any interagency coordination
letters that may be currently available should be provided. EDA expects that all Applicants
whose projects are selected for a Non -Binding Commitment letter will proceed with
consultations in an expeditious manner. As such, Applicants should have the required
information prepared for submission immediately upon notification of selection by EDA.
If you determine that your project may affect environmental or historical resources, you may
contact the appropriate Regional Environmental Officer to determine if early interagency
consultation is appropriate.
Checklist. of Required Environmental Documents that must be submitted with Application-
o USGS topographic map(s) and site map(s) (see Section BI)
o FEMA floodplain map with map number (see D4)
oAppendix A: Applicant Certification Clause (See D9)
Checklist of Optional Environmental Document's that should be submitted with AiJ?Hcation if
available (will.expedite review and selecgon p ocess)
o SHPO/THPO and Tribal leader comments and copy of submittals (see Section C)
o Site photographs (see Section DI)
o Coastal Zone consistency determination (see D2)
o Wedand delineation and/or Jurisdictional Determination (see D3)
o Preliminary wetland info (see D3)
o U.S. Army Corps of Engineers comments, Section 404 Permit, Section 10 Permit, and/or
Water Quality Certification (401 approval) (see D3)
o Biological Assessment and/or survey for federally protected species (see D6)
o Correspondence with US Fish and Wildlife Service and/or National Marine Fisheries
Service (see D6)
o Natural Resources Conservation Service determination of Prime Farmland, Form AD-
1006, if applicable (see D7)
o Phase I and II Environmental Site Assessment (see 139)
o Sole Source Aquifer review by US Environmental Protection Agency, if applicable (see
D10)
o Other federal, state and local environmental permits (see D17)
o Copies of public notices, public hearing minutes, etc. (see D18)
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Last Updated January 23, 2014 EDA Environmental
Narrative Requirement
All References refer to applicable Environmental Compliance section of Form ED-900, AppGcgton for
EDA Assistance. Applicants should carefully review the applicable FFO for unique requirements for each
individual grant competition.
9
Last Updated Marrh 3, 2013
-._.,. - _ .. EDA Preliminary,ErigiiieeiYng:.Report Requirements
Overview
EDA is required to complete an engineering review for all construction and design projects before
making an award. FDA's Application Form (Form ED-900, Apfii,6 for for EDA Assistance) and
related forms require Applicants to provide key information about the proposed construction and
design projects to enable EDA to compete its requisite reviews.
All applications for construction and design assistance must complete the Preliminary
Engineering Report (PER). The following outline provides more detailed information on these
requirements in order to assist Applicants in preparing their application.
Preliminary Engineering Report Requirements
In order to be considered for assistance, all construction and design applications must include a PER
that at a minimum provides the following information:
1. ..IJesctiption o:Pr4jec[ omiorieots� Provide a general description of all project components
involved in the project. Indicate where the project involves the construction of new facilities or
the renovation or replacement of existing ones. Describe each of the project components in
terms of dimensions, quantities, capacities, square footage, etc..
2. .�1.statement vertfvtntr:the nreect'CAtYfriAfIB17�C (�PGt`itilPi�-'tn t}is.nnrstrinr rinn'�ii..
Engineering reports that describe project components that are inconsistent with the EDA
investment project description in Section A.2 of Form ED-900 will not be considered valid.
3. .
dimensions and quantities for mijor project components should be shown and labeled on the
drawings. Drawings should clearly identify the project components that are being proposed.
Applicants are encouraged to clarify such drawings, for example, through color coding, labeling,
and other appropriate methods.
4. A- feasibility,analWJ;.&J - 4i-eibdtls iy.6f theiri,_ject, including a review of the existing
conditions and noting particular• features, alignments, and, events affecting construction of
project components.
5. The 12=osed'mediod_of construction . Indicate whether construction procurement shall be
done through competitive bid or other method. Indicate if any portion of the project is to be
done by design/build, construction management at risk, by the applicant's own forces, or
whether a third party construction.manager will be used. If an alternate construction
procurement method (other than traditional design/bid/build with sealed competitive bid
process) is proposed, a construction services procurement plan must be provided to EDA for
approval in accordance with EDA's regulation at 13 C.F.R. 305.6(a).
6. The number of constriction-confractc'aritici�ated. If multiple contracts are proposed, provide a
description of the project components included in each contract. If separate contracts are
Last Updated Marcb 3, 2013 EDA Preliminary Engineering Repoi7 Requirements
anticipated for demolition or site work, the budget information cost classification should reflect
the estimated costs for these components. If project phasing is proposed, a project phasing
request must be provided to EDA for approval per EDA's regulation at 13 C.F.K. 305.9(a).
7. A current detailed construction cost estimate for each of.the project components, showing
quantities, unit prices, and total costs. Provide a basis for the determination of construction
contingencies.
8. If the ' ud e i�cluiles Bost: fni. real. o " er a s"'ition =the A licari'thoul'd include a current
fair market value appraisal completed by a certified appraiser for the property to be purchased.
9. A, list of all Veinvtsxe4ulfed for the prb&gd VLfojecf and their'current status. Identify all
permits required; include the timeline to obtain the permits and discuss how the permitting
relates to the overall project schedule. If the project crosses a railroad right-of-way or is within a
railroad right-of-way, provide an explanation of any permitting or approvals that may be
required from the railroad or other authority and the timeframe for obtaining these permits or
approvals.
10. An overall estimated Vioject schedule, including the number of months for each of the
following:
i. design period;
ii. period of time to obtain required permits;
iii. period of time to obtain any required easements of rights -of -way;
iv. solicitation of bids and awarding of contracts, and
V. construction period.
9MZ� N\1 Mc�
F A Y E T T E V 1 L L E
December 31, 2019
Mayor Lioneld Jordan
Fayetteville City Council
113 W. Mountain St.
Fayetteville, AR 72701
Dear Mayor Jordan and Council Aldermen,
strongly support the submission of the Federal Grant application through the Northwest Arkansas
Economic Development District for a road extension in the Commerce District. This grant for $2,605,900
will only require a 20% match by the City or $521,180. The Economic Development bond's first use will
generate an immediate 500% return and open over40 acres forsmall to medium scale light manufacturing
facilities in Fayetteville.
The Chamber requests approval of the resolution to
• Apply for the grant
• Mayor Jordan to sign a funding commitment letter
• Conduct Environmental Study
The estimated costs are listed below
• Construction: $2,200,000
• Engineering (15%): $330,000
• Administrative/NWAEDD (3% of Construction and Engineering): $75,900
• Total Grant Ask: $2,605,900
• City of Fayetteville 20% Match: $521,180
This project supports the City's economic development goals as outlined in our contract. The type jobs
typical of the Commerce District pay well above the City average and therefore improves the standard of
living for all Fayetteville and Northwest Arkansas residents. By creating the opportunity for expansion in
the Commerce District, we also create access to higher paying jobs for our citizens who live nearby. This
project contributes to the sustainability of a manufacturer base in Fayetteville.
Thank you for your consideration,
Steve Clark
President and Chief Exectutive Officer
Fayetteville Chamber of Commerce
21 W. Mountain St., Ste. 300 72701
Fayettevillear.com
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EXHIBIT F: Flood Plain Map
AFFIDAVIT OF PUBLICATION
1, Brittany Smith, do solemnly swear that 1 am the accounting
Legal Cleric of the Northwest Arkansas Democrat -Gazette, printed
and published in Washington County and Benton County, Arkansas,
and of bona fide circulation, that from my own personal knowledge
and reference to the files of said publication, the advertisement of:
City of Fayetteville Planning
Publlc Notice
Was inserted in the Regular Edition on:
May 8, 9 & 10, 2020
Charges: $280.1 b
94� S .;4
Brittany Smith
Subscribed and swom to before me
This 12- day of 114 , 2020.
WA)k <� 1
Notary public -)I�Izrv�
My Commission Expires:
**NOTE**
Please do not pay from affidavit.
Invoice will be sent.
EEO]ttipp
PUBLIC NOTICE
The U-S. tgartmentofCemmetce.
Economic Develt tent Administration
(EDA) is coasidertoga request for
Federal assistance from the City of
Fayeftville to consmici the Borick
Drive Improvements Prq)mf in
Fayetteville. AR. PUtstunt to the
National Enviroamertal Policy Act
(NEPA) ami i7ta National Hisw6c
Preservation Art (NI IPA), EDA is
conducing as assessmCnl of the
posmiai or the proposed project to
Afieu the environmCnI andtor historic
The pmjcd consists of irafrastntcturr
smprovetnenes to provide across to land
in the Faycacwilk Commerce District
Pm w inrorrrwuicn is available for
rtvitev at i74.173 g22I or oalinc ie
h ttp:h1v wva.taycvzva7Ft-
`Ar govi3l4tuonomic-vitwity
If you have any information regarding
potential impacts to historic propcdics t
environrncnutresources including
wetlands or nowplains Associated a ith
this propacd projeM please pnivide it
in Writing to.
Corry Dunn
P_rgaoaal Eeximamasisl
DepartmCni of Commuce
Ecarmmic Developmcnt
Administration
403 Sari Jacinto olvd,. Salta
206 Austin, Tetras Mill
Now an electronic courtesy array of
the written comments is Fern m caded
oral may be submitted to his, Dana at
cdunr?,eda.gov,
Commem received in the EDA
Rrgianat Ofrke by 5M pm csstern on
In= 4, 2020 will be considcmd, A copy
ofilte NEPAINPPA deeisiaaaaf
document will be available uponn request
at the above EDA Regional O fca, i
75267780 May gm 9 & 10. 2020„
FAYETTEVILLE INDUSTRIAL DRIVE EXTENSION
EDA GRANT APPLICATION
ENVIRONMENTAL NARRATIVE
CITY OF
FAYETTEVILLE
ARKANSAS
113 WEST MOUNTAIN STREET
FAYETTEVILLE, AR 72701
♦yt AR OAN
AS
1 REGISTERED L
s PRO(!S 0
0q Nn.112
100� 13�20
s\���\��\►►III
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CANTIQUE, . —+
LLC : Z
i� No.2897
Submitted to:
UNITED STATES ECONOMIC DEVELOPMENT ADMINISTRATION
AUSTIN REGIONAL OFFICE
903 SAN JACINTO, SUITE 206
AUSTIN, TX 78701
March 2020
Revised May 2020
TABLE OF CONTENTS
CITY OF FAYETTEVILLE, ARKANSAS
INDUSTRIAL DRIVE EXTENSION EDA GRANT APPLICATION
ENVIRONMENTAL NARRATIVE
Tableof Contents........................................................................................................... i
A. Beneficiaries.............................................................................................................1
B. Project Description................................................................................................... 1
1. Proposed Construction.................................................................................... 1
2. Alternative to the Proposed Project................................................................. 5
3. Mitigation.........................................................................................................6
C. Historical / Archeological Resources..................................................................... 7
D. Affected Environment.............................................................................................. 7
1.
Affected Area..................................................................................................
7
2.
Shorelines, Estuaries, Beaches and Dunes ....................................................
7
3.
Wetlands.........................................................................................................
7
4.
Floodplains....................................................................................................15
5.
Vegetation and Wildlife Resources...............................................................
15
6.
Endangered Species.....................................................................................
16
7.
Land Use and Zoning....................................................................................
17
8.
Solid Waste Management.............................................................................
17
9.
Hazardous or Toxic Substances...................................................................
17
10.
Water Resources..........................................................................................
18
11.
Water Supply and Distribution System..........................................................
19
12.
Wastewater Collection and Treatment Facilities
........................................... 19
13.
Environmental Justice (Executive Order 12898)
........................................... 19
14.
Transportation (Streets, Traffic and Parking) ................................................
19
15.
Air Quality......................................................................................................
20
16.
Noise Pollution..............................................................................................
20
17.
Permits..........................................................................................................20
18.
Public Notification / Controversy...................................................................
20
19.
Direct, Indirect and Cumulative Effects.........................................................
20
List of Figures
Figure 1 Area Location and Vicinity Maps...................................................................... 2
Figure 2 USGS Topographic Map.................................................................................. 3
Figure 3 Preliminary Site Plan........................................................................................ 4
Figure 4 National Wetlands Inventory Map.................................................................... 9
Figure 5 FEMA Floodplain Map.................................................................................... 10
Fayetteville AR Industrial Drive Extension Environmental Narrative TOC
TABLE OF CONTENTS
CITY OF FAYETTEVILLE, ARKANSAS
INDUSTRIAL DRIVE EXTENSION EDA GRANT APPLICATION
ENVIRONMENTAL NARRATIVE
Figure 6 USDA NRCS Soils Map................................................................................. 11
List of Tables
Table 1 USGS StreamStats Data.................................................................................. 8
Table 2 USDA Natural Resources Conservation Services Soil Survey Report Data... 14
Appendix A — Agency Correspondence
Appendix B — Historic Aerial Imagery
Appendix C - Applicant Certification Clause and Supporting Documentation
Appendix D - 2002 Phase I Environmental Site Assessment
Appendix E - January 21, 2020 City Council Meeting Minutes
Fayetteville AR Industrial Drive Extension Environmental Narrative TOC ii
A. BENEFICIARIES
The City of Fayetteville will benefit from the proposed project by providing city -owned parcels
with access to public streets, water, sewer and other infrastructure within the city's Commerce
District. The existing city -owned land within the Commerce District is for sale at $20,000 per
acre to existing businesses looking to expand in Fayetteville or new businesses looking to
locate to Fayetteville.
The Fayetteville First Economic Development Plan prepared in 2016 identified several targeted
business sectors that offer employment opportunities with a living wage including entrepreneurs
innovators and specialized technologies. Development of the municipally owned land in the
Commerce District would help to attract these targeted and desired business sectors.
Duke Technologies, an international provider of advanced technologies, technical assistance,
and consulting to the refining and alternative fuels industries, has shown interest in purchasing a
5-acre parcel in the proposed project area.
B. PROJECT DESCRIPTION
Proposed Construction
The City of Fayetteville is located in Washington County in Northwest Arkansas, a region
with robust growth and a strong business community. Fayetteville is bordered by the City
of Springdale to the north and the City of Greenland to the south. Figure 1 shows the
area location and vicinity maps.
The proposed project is located in Section 27, Township 16 North, Range 30 West in the
City of Fayetteville, Washington County, Arkansas. The project site is located in
southeast Fayetteville south of Arkansas Highway 16 (15th Street) and east of U.S.
Highway 71 B (School Avenue). Figure 2 shows the USGS topographic map of the
proposed project area.
The City of Fayetteville is proposing to construct an approximately 2,600-foot street
extension to connect South Industrial Drive and South City Lake Road in the city's
Commerce District. The proposed street section is approximately 40 feet in width
including a 28-foot wide asphalt street with concrete curb and gutter, and a 6-foot wide
green space and a 5-foot wide concrete sidewalk on one side. The total project site is
approximately 60 acres of undeveloped natural area. The proposed street extension will
provide access to approximately 47 acres of city -owned land, allowing the development
of five or more parcels. Approximately 13 acres of environmentally sensitive area will be
preserved. Figure 3 shows the preliminary site plan.
The street extension is expected to be constructed over a 9-month period from June
2021 to March 2022. Construction of the project would entail excavating a 40 to 50-foot
width area the entire 2,600 feet length and installing the street extension, curb and
gutter, sidewalk and greenspace. Relocation of existing utilities near the intersection of
South Industrial Drive and South City Lake Road may also occur. The total land
disturbance will be approximately four to five acres.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
Figure 1. Proposed Project Area Location and Vicinity Maps
ITo Springdale
� Hnn. ati.
15th St
7t Pump
a9 Station Rd LOCATION
15
To Fort Smith
VICINITY MAP
NOT TO SCALE
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 2
Figure 2. Proposed Project Area USGS Topographic Map
I
65
AIRCANE ST � �
f,,l .;
i
3590
1
Cem.,
Ll pMMsTAr1 RP
PROJECT
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 3
Figure 3. Proposed Project Preliminary Site Plan
MARSHALLTOWN
PROPOSED TOOLS
STREET
EXTENSION
�FAYETTEVILLr
UTILITIES
1 `DEPARTMENT f'
56 f f
�PRox..4 0'
1 28.0�y
-
b PROPOSED �� �To�I
5—FOOT
SIDEWALK PRESERVATION
AREA
a P�'JJFCT ,
...
~TRIBUTARY IC3
` WEST FORK
l 6' S' 'hJ`ITE RIVER
GREEN SIDE
SPACE
1,5' JR
-LRE t
GU77CN 1I GUTTED
F-:2.5' LANE-r!+12.5' LANC-.�
r+28' BALK TO BPCY,
28' WIDE STREET -
0 250 500
1 INCH 500 FEET
ECONOMIC DEVELOPMENT
ADMINISTRATION
GRAM APPLICATION
CITY OF Section 27, Township 16 North, Range 30 West
FAYETTEVILLE Fayetteville Quadrangle INDUSTRIAL DRIVE EXTENSION
ARKANSAS UTM Coordinates:15 N 39$$446 E 3967$4 PRELIMINARY SrrE PLAN
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 4
Proposed Construction continued
The construction staging area would be located within an existing utility easement as
much as possible. Additional staging would be located on city -owned property near the
Fayetteville Utilities Department operations.
Best Management Practices (BMP) would be implemented including the installation of
straw bales, silt fences and check dams to minimize impacts to storm water.
Construction would only occur from 7:00 am to 5:00 pm to minimize noise impacts in the
project areas.
The short term impacts of the proposed project will be typical of a construction project.
There will be disturbed areas associated with the construction activities within the project
site that will require a General Construction Stormwater Permit. These activities can be
coordinated and mitigated as they occur.
Alternative to the Proposed Project
The following alternatives were considered:
a. Development and Construction of Borick Drive Extension
This alternative includes the construction of an approximately 4,000-foot street
extension to connect South City Lake Road and South Armstrong Avenue in the
city's Commerce District. The proposed street section considered was
approximately 30 feet in width including a 28-foot wide asphalt street with
concrete curb and gutter.
This alternative had an estimated cost of $3.5 million, which is approximately
$1.15 million more than the selected project. In addition, this alternative includes
the possible disturbance of two environmentally sensitive areas. The alternative
provides access to privately -owned land in addition to city -owned land and may
limit the city's ability to attract targeted businesses and desired business sectors.
b. "No Project"
The "No Project" alternative would require no capital construction costs and no
additional future maintenance; however, much needed street access to existing
city -owned parcels would not be provided. Therefore, this alternative will not
meet the future growth and development requirements of the city's Commerce
District.
The proposed project provides access to approximately 47 acres of city -owned land,
allowing the development of five or more parcels. Approximately 13 acres of
environmentally sensitive area will be preserved. Additionally, the proposed project is
approximately $1.15 million less than the development and construction of Borick Drive
Extension discussed above.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
Mitigation
There are only temporary minor adverse environmental impacts associated with the
proposed project. These impacts include construction noise, dust and some vegetation
removal during construction. Negative impacts will be mitigated during the construction
period to the maximum possible extent.
This project will not alter any streams or natural drainage patterns. The only alteration to
landforms will be limited to excavation for the new street section. Siltation caused by
excavation will be confined by the use of silt barriers. There will be no dredging or
trenching of watercourses. There will be no creek or stream crossings.
The only disturbed vegetation in this project will be the grass where the street section
will be constructed. To offset the disturbed vegetation, grass will be re-established
through seeding and/or sodding with grasses. There will be no use of herbicides or
explosives. The spoil from the street area excavation will be used on -site to reestablish
disturbed grass and other vegetation. Disrupted soil and vegetative spoil will be used for
fill and erosion control. Erosion runoff will be controlled with hay bales and silt fences
during construction, and later by established vegetation. Vegetation spoil will either be
composted or used as fill material.
Some tree removal is possible given the nature of the landscape, but the amount of tree
removal will be minimal. The new construction will not obstruct any natural views such
as scenic panoramas, native points of interest or other attractions.
Odor should not be an issue for this project. The proposed project will cause a
temporary increase in ambient noise levels in the proposed project area. Noise will be
generated by machinery and construction equipment. Noise levels will be noticeable only
during daytime hours and will not continue at night or on Sunday. All construction noise
will cease when the project is completed. Excessive dust will be controlled by water
sprinkling.
Traffic disruption could be an issue for parts of the construction process, but for the
majority of the project it will not be an issue. Where the project right of way runs
perpendicular with South City Lake Road (Arkansas Highway 156), there may be
temporary traffic disruption in which case proper signage and precaution will be taken to
ensure safety of construction workers and the public.
There will also be some temporary minor adverse environmental impacts associated
with the development of the individual parcels, including construction noise, dust, some
vegetation removal and potential impacts to wetlands during construction. Any negative
impacts will be mitigated during the construction period to the maximum possible extent.
Any impacts to wetlands during the development of the parcels will follow applicable
Corps of Engineers Waters of the U.S. permitting requirements and the standard
practice of avoidance, minimization and compensation.
Each parcel development must be reviewed and approved by the city planning staff and
the city's Planning Commission. Developments will be required to follow the city's
Unified Development Code which includes Tree Preservation and Protection and
Streamside Protection.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 6
C. HISTORIC/ARCHEOLOGICAL RESOURCES
There are no historical properties present in the proposed project area and therefore none will
be adversely affected by the proposed project. The proposed project site is undeveloped,
natural area. There are no existing structures.
Tribes that have expressed interest in the area and will therefore be consulted in accordance
with 36 CFR § 800.2 (c) (2) are:
• Osage Nation — Dr. Andrea Hunter, THPO
• Cherokee Nation — Ms. Elizabeth Toombs, THPO
• Shawnee Tribe of Oklahoma — Ms. Tonya Tipton, THPO
Comments from the Arkansas Historic Preservation Program (AHPP) are attached to this report
under Appendix A. The AHPP recommends that a cultural resources survey be conducted.
D. AFFECTED ENVIRONMENT
Affected Area
The project area is approximately 60 acres of undeveloped natural area located in
southeast Fayetteville south of Arkansas Highway 16 (151h Street) and east of U.S.
Highway 71 B (School Avenue). The southwest portion of the site generally slopes from
southwest to northeast with a slope of approximately 3%. The northeast/east portion of
the site generally slopes from northwest to southeast with a slope of approximately
1.8%. Elevations range from 1,259 feet to 1,215 feet. An unnamed tributary to the West
Fork White River runs through the southeastern corner of the project area.
There are no existing historical properties or cultural resources in the project area.
Historically, the project area has been used as undeveloped pasture or woods.
The proposed project will not impact the unnamed tributary to the West Fork White
River. Approximately 13 acres of environmentally sensitive area will be preserved
including the tributary and associated floodplain.
2. Shorelines, Estuaries, Beaches and Dunes
There are no shorelines, estuaries, beaches or dunes within or nearby the proposed
project area.
3. Wetlands
To ascertain if any waters of the U.S. (WOTUS), including wetlands, as regulated by the
U.S. Army Corps of Engineers (COE) were within the project boundaries, available
environmental information specific to the proposed project site was researched on-line.
While the U.S. Environmental Protection Agency (EPA) is currently in the process of re-
defining WOTUS, the definition of a wetland continues to remain the same. For an area
to be considered a wetland under the COE jurisdiction, the area must meet three
wetland indicators: hydrology, hydric soils & dominance of hydrophytic vegetation.
Additional factors, such as location on the landscape, hydrological connectivity, and
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 7
typical weather conditions, are considered when conducting wetland investigations and
preliminary jurisdictional determinations, but those factors will not be thoroughly explored
in this narrative.
Hydrology —
Within the project boundaries, the U.S. Geological Survey (USGS) topographical map
(Figure 2) shows the presence of two ponds and an intermittent stream flowing towards
the northeast along the south/southeast property lines. This information was also
confirmed by the National Wetlands Inventory (NWI) map found in Figure 4 which shows
the presence of freshwater ponds and a riverine type of wetland on the site. Portions of
the project site are also found to be within the 100-year floodplain (Figure 5).
USGS StreamStats data for this ungaged site indicates that the project site has a
watershed drainage area of 0.48 square miles from the lowest elevational point within
the project and has base flow (6-14 cubic feet per second) for 10-12 days annually. The
StreamStats data in Table 1 indicates that the on -site stream feature is most likely a
small intermittent stream with groundwater influencing nearly a third of the total base
flow.
Parameter/Statistic
Value
Unit
Drainage Area
0.48
square miles
7 Day 2 Year Low Flow
5.57
cubic feet/sec
7 Day 10 Year Low Flow
14.00
cubic feet/sec
Base Flow Index
0.35
dimensionless
Harmonic Mean Streamflow
0.117
cubic feet/sec
Mean Annual Precipitation
47.40
inches
Average Annual Base -Flow Recession Time
10.00
days
Mean Annual Dry Season Total Runoff, July - Nov
4.30
inches
Table 1. USGS StreamStats data accessed February 13, 2020. Source:
https:Hstreamstats.usgs.gov/ss/. Base Flow Index is the proportion of mean annual flow
that is from ground water. Some StreamStats outputs for this ungaged site have been
extrapolated with unknown errors and the errors associated with these estimates are
unknown and may be very large.
The U.S. Department of Agriculture (USDA) Natural Resource Conservation Service
(NRCS) soils report indicated that potentially 27 acres (or nearly 45%) of the entire
project site could have a water table present within the top 12 inches of the soil profile
which is a primary hydrological characteristic of a wetland (see Table 2). Due to the
scale of the NRCS soil mapping units, field verification of on -site soil characteristics must
be conducted to support this information.
Hydric Soils —
The USDA NRCS soils map (Figure 6) indicated that six of the nine mapping units within
the project site are listed as hydric on the County Hydric Soils list which is approximately
48 acres or 80% of the total site (Table 2). Again, field verification of on -site soil
characteristics must be conducted to conclusively support this information.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
Figure 4. National Wetlands Inventory Map
0
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Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
Figure 5. FEMA Floodplain Map
TRIBUTARY TO
WEST FORK
' WHITE RIVER
0 250 500
1 INCH = 500 FEET
LEGEND tWnvmt6 uevtivrmtnI
PROJECT SITE ADMINISTRATION
CITY OF
ZONE A (100—YR FLOODPLAIN) GRANT APPLfCATION
FAYETTEVILLE Ex. STREAM INDUSTRIAL DRNE EXTENSION
ARKANSAS Section 27, Township 16 North, Range 30 West FEMA FLOOQPLAlN MAP
FEMA Map Number 05143CO22OF
Effective Date April 2, 2008
s.VF IflS Mirth 10M . J
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 10
36- 719' N
36° 3'45 N
Figure 6. USDA NRCS Soils Map
Sol Map —Washington County. Arkansas a
k (City of Fayetteville. EDA Grant Application. Dec 2019) k
39M 39M 39900 393EW 335M0 391010 397100 3TWO
3 3
m Mal) Scale: 1:5,1501 prirbedmA pobat(8L5'% 11') 9iea yk,
N 0 50 103 200 300
Ji 0 250 5w 1030 1500
/V Mar, pole t m: Nab Mac3a Curler om cfi W13S94 Fdgetics UIM Zone M W3S94
l - Natural Resources Web Soil Survey 12/13/2019
idiiConservation Service National Cooperative Soil Survey Page 1 of 3
as- 714N
w i'dN
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 11
Soil Map —Washington County, Arkansas
(City of Fayetteville, EDA Grant Aoplicafion, Dec 2019)
MAP LEGEND
MAP INFORMATION
Area of Interest (Aol)
E4l
Spoil Area
The soil surveys that comprise your AOI were mapped at
E
Area oflnterest(AOb
t3
Ston r spot
1:20,000.
Sons
0
Very Stony soot
Warning: Soil Map may not be valid at this scale.
Sal Map Unit Polygons
Wet Spa
Enlargement of maps beyond the scale of mapping can cause
ry
Sol Map Unit Lhes
misunderstanding of the detail of mapping and accuracy of soil
1%
Other
fine placement. The maps do not show the small areas of
p
Soi Map Unit Points
Special Lino Features
contrasting soils that could have been shown at a more detailed
Special
Point Features
scale.
WO
Blowout
Water Features
Streams and Canals
Please rely on the bar scale on each map sheet for map
do
Borrow Pit
measurements.
Transportation
J1K
Clay spot
++4
Raft
Source of Map: Natural Resources Conservation Service
()
Closed Depression
Web Soil Survey URL:
,.�
Interstate Highways
Coordinate System: Web Mercator (EPSG:3857)
Gravel Pit
sw.,.
US Routes
Maps from the Web Soil Survey are based on the Web Mercator
GraYery Spot
Major Roads
projection, which preserves direction and shape but distorts
distance
distance and area. A projection that preserves area, such as the
Landfill
Roads
Albers equal-area conic projection, should be used if more
Lava Flaw
accurate calculations of distance or area are required.
Background
Marsh or swamp
Aerial Photography
This product is generated from the USDA-NRCS certified data as
of the version date(s) listed below.
Mine or Ouarry
Soil Survey Area: Washington County Arkansas
Miscellaneous Water
Survey Area Data: Versioni6, Sep 16, 2019
Perennial Water
Soil map units are labeled (as space allows) for map scales
iV
Rock Outcrop
1:50,000 or larger.
+
Sohn* Spot
Date(s)aerial images were photographed: Jun 13. 2019—Sep
14, 2019
Sandy Spot
The orthophoto or other base map on which the soil Tines were
46
Severely Eroded Spa
compiled and digitized probably differs from the background
displayed on these maps. As a result, some minor
Sinkhole
shifting of map unit boundaries may be evident.
shifting
Slide a Slip
�(
Sode Spot
USDA Natural Resources Web Soil Survey
N 9t� Conservatlon SerAce National Cooperative Soil Survey
12(13t2019
Page 2 or 3
(LZ
C
CD
[S)
l_
U)
D
Z
x
(7
U)
(n
O
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(D
(0
CD
Q
Figure 6. USDA NRCS Soils Map Legend
Soil Map —Washington County, Arkansas
Map Unit Legend
City of Fayetteville, EDA Grant
Application, Dec 2019
Map Unit Symbol
Map Unit Name
Acres in AOI
Percent of AO1
EnC2
Enders gravelly loam, 3 to 8
percent slopes, eroded
1.5
2.5%
10.1 %
EoD
Enders stony loam, 3 to 15
percent slopes
6.1
Le
Leaf sift loam
2.3
3.9%
Moo
Montevallo soils, 3 to 12
percent slopes
4.9
8.1 %
Sa
Sambe sift loam
4.2
7.0%
SfB
Savannah fine sandy loam, 1
to 3 percent slopes
8.0
9.9%
Sn
Sloan sill loam
7.9
13.2%
SsA
Summit silty Gay, 0 to 1
percent slopes
14.7
24.4%
ToA
Taloka silt loam, 0 to 1 percent
slopes
12.6
21.0%
Totals for Area of Interest
60.3
100.0%
Natural Resources
Conservation Service
Web Soil Survey
National Cooperative Soil Survey
12/13l20t9
Page 3 of 3
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 13
Wetlands continued
Map Unit
Symbol
Map Unit Name
Acres in Area of
Interest (AOI)
Percent
of AOI
Depth to
Water Table
Depth to
Bedrock
Listed on County
Hydric Soils List
EnC2
Enders gravelly loam, 3-8%slopes,
eroded
1.5
2.50%
> 80"
54"
No
EoD
Enders stony loam, 3-15% slopes
6.1
10.10%
> 80"
54"
No
Le
Leaf silt loam
2.3
3.90%
0-7"
>72"
Yes
MoD
Montevallo soils, 3-12% slopes
4.9
8.10%
> 80"
15-17"
No
Sa
Samba silt loam
4.2
7.00%
0-12"
>72"
Yes
SfB
Savannah fine sandy loam, 1-3%
slopes
6.0
9.90%
16-30"
>70"
Yes
Sn
Sloam silt loam
7.9
13.20%
0-12"
>611,
Yes
SsA
Summit silty clay, 0-1% slopes
14.7 `
24.40%
12-36"
>72"
Yes
ToA
Taloka silt loam, 0-1%slopes
12.6
121.00%
6-14"
-79"
Yes
Table 2. USDA Natural Resources Conservation Services soil survey report data accessed on December
13, 2019. Sources: Web Soil Survey (https://websoilsurvey.nres.usda.gov/) and Soil Data Access (SDA)
Hydric Soils List (https://www.nres.usda.-gov/).
Hydrophytic Vegetation —
According to the latest aerial imagery available on Google Earth, approximately 34 acres
of the 60-acrea project site are forest or woodland (including a 13.1-acre tree
preservation parcel); 2 acres are open water, bermed ponds; and approximately 24
acres are open field.
Historical imagery dating back to March 1994 (Appendix B) indicates that the property
had much less woody vegetation and the possible presence of prairie mounds (low,
naturally occurring hillocks, randomly distributed over level terrain) in the most northern
parcel. The presence of depressions between the prairie mounds could have provided
for a mosaic of diverse habitat types for wetland and upland plant communities. The
aerial imagery of December 2004 shows the area directly west of the forested 13.1-acre
preservation parcel to possibly have shallow surface water features. The January 2006
and September 2009 aerial images shows soil disturbance due to excavation activities
(and/or soil storage) within that same parcel west of the 13.1-acre preservation area
creating low areas, while the woody vegetation continues to encroach on the previous
open field of the most northern parcel.
Based on the review of the available historical aerial imagery, it is highly possible that
portions of the most northern parcel and the parcel west of the 13.1-acre forested
preservation parcel may meet the hydrophytic vegetation requirement of a wetland.
Hydrophytic vegetation is also expected to be found within the fringe areas of the
property's open water features. On -site documentation is necessary to confirm these
likelihoods.
In conclusion of the desktop analysis, there is a high potential for Waters of the U.S.,
including wetlands, to be found within the entire 60-acre project area, but based on the
location of the construction footprint of the proposed street within the project site, it is
possible that a Corps of Engineers Clean Water Act Section 404 permit may not be
required to complete the project. Review and verification by the COE of a preliminary
wetland delineation report which documents the location and amount of the on -site
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 14
wetlands (site's vegetation and hydric soil conditions, along with verifying the
hydrological connectivity or location in relation to an ordinary high water mark) should
occur to conclusively support these findings, if finances are secured and this proposed
project moves forward.
Any impacts to wetlands during the development and construction of the project will
follow all applicable Corps of Engineers Waters of the U.S. permitting requirements and
the standard practice of avoidance, minimization and mitigation.
4. Floodplains
As shown in the FEMA Floodplain Map in Figure 5, the project site is located
west/northwest of a 100-year floodplain; however, no construction will take place in the
floodplain and therefore the project will have negligible impacts to it. The City of
Fayetteville participates in the National Flood Plain Insurance Program.
5. Vegetation and Wildlife Resources
Of the total 60-acre project area, approximately 34 acres are forest or woodland and
approximately 24 acres are open field.
Vegetation —
Native grass commonly found in the area include species such as big bluestem
(Andropogon gerardii), Eastern gammagrass (Tripsacum dactyloides), Indiangrass
(Sorghastrum nutans), switchgrass (Panicum virgatum), Virginia wildrye (Elymus
virginicus), and fall panicum (Panicum dichotomiflorum).
Native forbs that could be encountered in the project vicinity include eastern purple
coneflower (Echinacea purpurea), great ragweed (Ambrosia trifida), rough cocklebur
(Xanthium strumarium), sharp -winged monkey flower (Mimulus alatus), inland rush
(Juncus interior), Great Plains flat sedge (Cyperus lupulinus), hop sedge (Carex
lupulina), Frank's sedge, (Carex frankii), Eastern poison ivy (Toxicodendron radicans),
spotted water hemlock (Cicuta maculata), prairie fleabane (Erigeron strigosus), common
boneset (Eupatorium perfoliatum), and soft rush (Juncus effusus).
Native woody species often encountered near the project area are red cedar (Juniperus
virginiana), buttonbush (Cephalanthus occidentalis), green ash (Fraxinus
pennsylvanica), American elm (Ulmus americana), common persimmon (Diospyros
virginiana), flowering dogwood (Corpus florida), American black elderberry (Sambucus
niger spp. canadensis), Ozark witch hazel (Hamamelis vernalis), summer grape (Vitas
aestivalis), and spicebush (Lindera benzoin).
Wildlife Resources —
Native wildlife that can be found in the project area include mammals such as the North
American opossum (Didelphis virginiana), gray squirrel (Sciurus carolinensis),
woodchuck (Marmota monax), eastern cottontail (Sylvilagus floridanus), North American
raccoon (Procyon lotor), deer mouse (Peromyscus maniculatus), red fox (Vulpes
vulpes), striped skunk (Mephitis mephitis), and white-tailed deer (Odocoileus
virginianus).
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 15
Native birds commonly found in the project vicinity include the Northern cardinal
(Cardinalis cardinalis), red -winged blackbird (Agelaius phoeniceus), killdeer (Charadrius
vociferus), turkey vulture (Cathartes aura), red-tailed hawk (Buteo jamaicensis), blue jay
(Cyanocitta cristata), American robin (Turdus migratorius), dark -eyed junco (Junco
hyemalis), and white -crowned sparrow (Zonotrichia leucophrys).
Within the vicinity of the project site, a wide variety of reptiles and amphibians are found.
Typical native species that could be found are snapping turtle (Chelydra serpentine
serpentina), three -toed box turtle (Terrapene carolina triunguis), red -eared slider
(Trachemys scripta elegans), five -lined skink (Eumeces fasciatus), rough green snake
(Opheodrys aestivus), western ratsnake (Elaphe obsoleta), Eastern garter snake
(Thamnophis sirtalis sirtalis), western cottonmouth (Agkistrodon piscivorus leucostoma),
southern copperhead (Agkistrodon contortrix contortrix), dwarf American toad (Bufo
americanus charlesmithi), American bullfrog (Rana catesbeiana), and northern spring
peeper (Pseudacris crucifer crucifer).
Of the existing vegetation on the project site, approximately four to five acres will be
disturbed to construct the proposed street project. Of the total construction footprint,
approximately 1.5 acres of wooded area will be cleared, with the remaining area open
field. All disturbed areas that are not going to be paved will be reseeded to prevent
erosion.
6. Endangered Species
Endangered species in Washington County that could potentially live within or in near
proximity of the proposed project area are:
• Gray Bat (Myotis grisescens)
• Indiana Bat (Myotis sodalis)
• Ozark Big -eared Bat (Corynorhinus townsendii ingens)
Threatened species in Washington County that could potentially live within or found in
near proximity of the proposed project area are:
• Northern Long -Eared Bat (Myotis septentrionalis)
• Eastern Black Rail (Laterallus jamaicensis ssp. jamaicensis) — proposed threatened
• Piping Plover (Charadrius melodus)
• Red Knot (Calidris canutus rufa)
• Missouri Bladderpod (Physaria filiformis)
The recently released Arkansas Determination Key (DKey) was used within the
Information for Planning and Consultation (IPaC) system to assist in determining the
effects of this proposed project. The U.S. Fish and Wildlife Service (USFWS) verified
concurrence with a determination of May Affect for the threatened Northern Long-eared
Bat (NLEB) and No Effect for the remaining threatened or endangered species that may
occur in this proposed project area in a verification letter dated February 17, 2020
(Appendix A).
If final project details differ from those used within the Arkansas DKey (latter part of
USFWS verification letter dated 2-17-2020), then the Arkansas DKey must be evaluated
again and additional coordination with the USFWS Arkansas Ecological Services Field
Office may be warranted.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 16
Comments from the Arkansas Natural Heritage Commission (ANHC) are also attached
to this report under Appendix A. The ANHC did not identify any specific concerns.
7. Land Use and Zoning
The proposed project is located entirely in the City of Fayetteville city limits. The existing
zoning of the project area is 1-1, Heavy Commercial and Light Industrial and 1-2, General
Industrial. The future land use of the area is industrial on the 2030 Future Land Use
Map. The existing zoning of the surrounding properties is as follows:
To the North: 1-1, Heavy Commercial and Light Industrial and 1-2, General Industrial
To the East: 1-2, General Industrial
To the South: 1-1, Heavy Commercial and Light Industrial and 1-2, General Industrial
To the West: RSF-4, Residential Single Family, 4 Units Per Acre
The Heavy Commercial District is designed primarily to accommodate certain
commercial and light industrial uses which are compatible with one another but are
inappropriate in other commercial or industrial districts. The Light Industrial District is
designed to group together a wide range of industrial uses, which do not produce
objectionable environmental influences in their operation and appearance. Permitted
uses in the 1-1 zoning include transportation trades and services, warehousing and
wholesale, manufacturing and clean technologies.
The General Industrial District is designed to provide areas for manufacturing and
industrial activities which may give rise to substantial environment nuisances, which are
objectionable to residential and business use. Permitted uses in the 1-2 zoning include
warehousing and wholesale, manufacturing, heavy industrial and clean technologies.
The residential zoning located west of the proposed project site is separated from the I-
2, General Industrial zoning with an area of 1-1, Heavy Commercial and Light Industrial.
This separation indicates a gradual change from residential use to industrial use. The
future land use of the area located west of the proposed project site is rural on the 2030
Future Land Use Map.
There are no agriculture land parcels within the proposed project area designated as
"prime/unique agriculture lands" by the U.S. Department of Agriculture (USDA) under the
Federal Farmlands Protection Act. Comments from the USDA are attached to this report
under Appendix A.
8. Solid Waste Management
The area is served by the City of Fayetteville Recycling and Trash Collection Division.
Any facilities developed within the proposed project area will utilize the city's services for
solid waste management and must abide by the city's ordinances for recycling and trash
collection.
9. Hazardous or Toxic Substances
The City of Fayetteville and the Fayetteville Chamber of Commerce have promoted and
advanced businesses that develop green jobs and clean technology through several
projects and initiatives. The Fayetteville First Economic Development Plan prepared in
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 17
2016 identified several targeted business sectors that offer employment opportunities
with a living wage including entrepreneurs, innovators and specialized technologies.
Development of the municipally owned land in the Commerce District would help to
attract these targeted and desired business sectors. As a result, the proposed project is
not expected to utilize or produce any toxic, hazardous, or radioactive substances.
An Applicant Certification Clause is included as Appendix C. A Phase I Environmental
Site Assessments was performed on the proposed project site in 2002 and portions of
the report are included as Appendix D.
The past and current use of the proposed project site is undeveloped, natural area. Past
and current uses of adjacent properties include one Regulated Storage Tank (RST) and
two Resource Conservation Recovery Act (RCRA) Generators. Documentation from the
Arkansas Division of Environmental Quality and the U.S. Environmental Protection
Agency (EPA) reveal that none of the facilities has any current or past violations.
10. Water Resources
The proposed project site drains to an unnamed tributary of the West Fork White River.
Segments of the West Fork White River are listed on the U.S. Environmental Protection
Agency's (EPA) Section 303(d) list of impaired waters.
The following contaminants have been identified as the cause of impairment:
• Turbidity (Tb)
• Sulfates (SO4)
• Total Dissolved Solids (TDS)
The sources of contamination that are causing impairment are unknown. The designated
use that is not supported as a result of the contamination is listed as aquatic life (AL).
The project will not alter any streams or natural drainage patterns. The only alteration to
landforms will be limited to excavation for the new street section. Siltation caused by
excavation will be confined by the use of silt barriers and other best management
practices. There will be no dredging or trenching of watercourses. There will be no creek
or stream crossings.
The construction of the proposed street extension will require a Storm Water Pollution
Prevention Plan (SWPPP) approved by the Arkansas Department of Energy and the
Environment, Division of Environmental Quality (DEQ).
There will be no point source discharges on the project site; therefore, no National
Pollution Discharge Elimination System (NPDES) permit is required for the project.
The proposed project site is not located within a sole source aquifer recharge area as
designated by the U.S. EPA.
Each parcel development must be reviewed and approved by the city planning staff and
the city's Planning Commission. Developments will be required to follow the city's
Unified Development Code which includes Tree Preservation and Protection and
Streamside Protection.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 18
11. Water Supply and Distribution System
The project site is served by the City of Fayetteville Water and Sewer Department. An
existing 12-inch water main is located on the east side of South City Lake Road. This
main will serve the south and west portions of the project site. Another 12-inch water
main is located on the west side of South Industrial Drive. This main will serve the north
and east portions of the project site. Both 12-inch water mains have adequate capacity
to serve future developments. The municipal water supply and distribution system are in
compliance with the Safe Drinking Water Act.
12. Wastewater Collection and Treatment Facilities
The project site is served by the City of Fayetteville Water and Sewer Department. An
existing 12-inch gravity main is located on the south and east sides of the site. The 12-
inch gravity line flows to an 18-inch gravity line, thence to a 24-inch gravity line.
Wastewater continues through gravity flow to Fayetteville's Noland Wastewater
Treatment Facility. The facility is designed to process an average daily flow of 12.6
million gallons per day (MGD), a maximum daily flow of 29 MGD, and a maximum
monthly flow of 17 MGD. The existing gravity lines and treatment facility have adequate
capacity to serve future developments.
The City of Fayetteville wastewater collection system and the Noland Wastewater
Treatment Facility are in compliance with the Clean Water Act.
13. Environmental Justice (Executive Order 12898)
Because the proposed project will be located within the city's existing Commerce
District, no disproportionate adverse human health or environmental impacts relative to
minority and low-income populations are expected. The nearest low income housing
complexes are approximately two miles north and approximately two miles west of the
project site.
14. Transportation (Streets, Traffic and Parking)
The proposed project site is currently served by South City Lake Road (Arkansas
Highway 156). The existing road is paved (asphalt) and maintained by the Arkansas
Department of Transportation. South City Lake Road is classified as a Neighborhood
Link on the city's Master Street Plan. Neighborhood link streets are intended to bridge
between local, low -volume streets and larger regional arterial streets. The minimum
right-of-way is 55 feet, and the design service volume is less than 6,000 vehicles per
day.
The proposed street extension will connect two existing streets creating a better traffic
flow, particularly within the Commerce District. No new, significant traffic patterns are
expected due to the project. No residential, hospital, school, or recreational land uses
will be affected by the new traffic patterns. The existing capacity of the affected streets
will not be exceeded as a direct or indirect result of the project implementation.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 19
15. Air Quality
The proposed project does not include any facilities that are expected to produce any
type of air emissions. The proposed project site is not classified as a "non -attainment"
area for any criteria pollutants.
The short term impacts of the proposed project will be typical of a construction project.
Construction activities will temporarily create dust and exhaust from equipment.
Mitigation measures include the use of sprinklers to water the site to control dust. All
construction activities can be coordinated and mitigated as they occur.
16. Noise Pollution
The facilities constructed under this project are not expected to increase local ambient
noise levels. The City of Fayetteville has a noise control ordinance, and all new facilities
will be subject to the ordinance.
The short term impacts of the proposed project will be typical of a construction project.
Construction activities will temporarily create noise from equipment. All construction
activities can be coordinated and mitigated as they occur. In addition, all construction
activities will be required to be in compliance with the City of Fayetteville's noise control
ordinance at all times.
17. Permits
Permits that may be needed for the project include:
• United States Army Corps of Engineers Section 404 Permit — Not yet applied
• Arkansas Department of Energy and Environment Division of Environmental Quality
Construction Stormwater Permit — Not yet applied
• Arkansas Department of Transportation Special Permit — Not yet applied
• Arkansas Department of Transportation Utility Permit — Not yet applied
• City of Fayetteville Grading, Drainage and Utility Permit — Not yet applied
• City of Fayetteville Street and Right -Of -Way Excavation Permit — Not yet applied
• City of Fayetteville Temporary Street or Lane Closure Permit — Not yet applied
18. Public Notification/Controversy
A resolution to authorize the submittal of the EDA grant application for funding
assistance for the proposed project was approved by the Fayetteville City Council on
January 21, 2020. See Appendix E for a copy of the meeting minutes. There was no
public comment or objection to the proposed project.
19. Direct, Indirect, and Cumulative Effects
Indirect impacts of the proposed project are expected to be positive because the City of
Fayetteville will benefit by providing city -owned parcels with access to public streets,
water, sewer and other infrastructure within the city's Commerce District. The future
development of the parcels will contribute to the economic growth of the city.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 20
Future development of the parcels in the proposed project area could result in the need
for increased infrastructure such as water and sewer. Each parcel development must be
reviewed and approved by the city planning staff. Coordination of infrastructure needs
will be reviewed and considered as each parcel is developed.
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative 21
Appendix A
Agency Correspondence
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
United States Department of the Interior
FISH AND WILDLIFE SERVICE
Arkansas Ecological Services Field Office
" * 110 South Amity Suite 300
Conway, AR 72032-8975
Phone: (501) 513-4470 Fax: (501) 513-4480
http://www.fws.gov/arkansas-es
In Reply Refer To:
Consultation Code: 04ER1000-2020-TA-0537
7;
G't�7! � 4 41 t&1sE,B f'R
February 17, 2020
Event Code: 04ER1000-2020-E-01246
Project Name: City of Fayetteville U.S. Economic Development Administration Grant
Subject: Verification letter fbr'City of Fayetteville U.S. Economic Development
Administration Grant' for specified federally threatened and endangered species and
designated critical habitat that may occur in your proposed project area consistent
with the Arkansas Determination Key for project review and guidance for federally
listed species (Arkansas Dkey).
Dear Jodie Burns:
The U.S. Fish and Wildlife Service (Service) received on February 17, 2020 your effect
determination(s) for the 'City of Fayetteville U.S. Economic Development Administration
Grant' (the Action) using the Arkansas DKey within the Information for Planning and
Consultation (IPaC) system. The Service developed this system in accordance with the
Endangered Species Act of 1973 (ESA) (87 Stat.884, as amended; 16 U.S.C. 1531 et seq.).
Based on your answers and the assistance in the Service's Arkansas DKey, you made the
following effect determination(s) for the proposed action.
Species Determination
Proposed Threatened Eastern Black Rail (Laterallus jamaicensis ssp. No Effect
jamaicensis)
Threatened Red Knot (Calidris canutus rufa) No Effect
Threatened Piping Plover (Charadrius melodus) No Effect
Endangered Ozark Big -eared Bat (Corynorhinus townsendii ingens) No Effect
Endangered Indiana Bat (Myotis sodahs) No Effect
Threatened Northern Long-eared Bat (Myotis septentrionalis) May Affect
Threatened Missouri bladderpod (Physaria fili formis) No Effect
The Service concurs with the NLAA determination(s) for the species listed above. No further
consultation for this project is required for these species. Your agency has met consultation
requirements by informing the Service of your "No Effect" determinations. No consultation for
this project is required for species that you have determined will not be affected by this action.
02/17/2020 Event Code: 04ER1000-2020-E-01246
This letter confirms you may rely on effect determinations you reached by considering the
Arkansas DKey to satisfy agency consultation requirements under Section 7(a)(2) of the
Endangered Species Act of 1973 (87 Stat. 884, as amended 16 U.S.C. 1531 et seq.; ESA).
The proposed project may affect Northern Long-eared Bat. However, this project complies with
the final 4(d) rule with incidental take covered by the U.S. Fish and Wildlife Service's January 5,
2016, Intra-Service Programmatic Biological Opinion on the final 4(d) rule for the NLEB
addressing "Activities Excepted from Take Prohibitions.
The Service recommends that your agency contact the Arkansas Ecological Services Field Office
or re-evaluate this key in IPaC if: 1) the scope, timing, duration, or location of the proposed
project changes, 2) new information reveals the action may affect listed species or designated
critical habitat; 4) a new species is listed or critical habitat designated. If any of the above
conditions occurs, additional consultation with the Arkansas Ecological Services Field Office
should take place before project changes are final or resources committed.
Bald and Golden Eagle Protection Act: The following resources are provided to project
proponents and consulting agencies as additional information. Bald and golden eagles are not
included in this section 7(a)(2) consultation and this information does not constitute a
determination of effects by the Service.
The Service developed the National Bald Eagle Management Guidelines to advise landowners,
land managers, and others who share public and private lands with Bald Eagles when and under
what circumstances the protective provisions of the BGEPA may apply to their activities. The
guidelines should be consulted prior to conducting new or intermittent activity near an eagle nest.
This document may be downloaded from the following site: https://www.fws.gov/southeast/our-
services/permits/eagles/
To determine if your proposed activity is likely to take or disturb Bald Eagles, complete our step-
by-step online self -certification process, which is located at https://www.fws.gov/southeast/our-
services/eagle-technical-assistance/.
If the recommendations detailed in the National Bald Eagle Management Guidelines cannot be
followed, you may apply for a permit to authorize removal or relocation of an eagle nest in
certain instances. The application form is located at http://www.fws.gov/forms/3-200-72.pdf.
02/17/2020 Event Code: 04ER1000-2020-E-01246
Action Description
You provided to IPaC the following name and description for the subject Action.
1. Name
City of Fayetteville U.S. Economic Development Administration Grant
2. Description
The following description was provided for the project'City of Fayetteville U.S. Economic
Development Administration Grant':
The City of Fayetteville, located in northwest Arkansas, proposes to construct an
approximately 2,600-foot long street extension to connect South Industrial Drive
and South City Lake Road in the city's Commerce District. The proposed street
section is approximately 40 feet in width, including a 28-foot wide street with
curb and gutter and a 5-foot sidewalk and a 6-foot greenspace on one side; the
area to be disturbed for the proposed project is approximately 2.5 acres, 1-1/2
acres of which is forested. The total project site is approximately 60.35 acres of
undeveloped natural area. The proposed street extension will provide access to
approximately 47 acres of city -owned land, allowing for the potential
development of five parcels. Included in the 60.35-acre total is an approximately
13-acre forested parcel which will be preserved because of anticipated
environmental sensitivity.
The City of Fayetteville is applying for a grant to assist in funding the project
from the U.S. Economic Development Administration and is currently preparing
the grant application.
Approximate location of the project can be viewed in Google Maps: https://www.google.com/
maps/place/36.03407525810512N94.14463916194316W
02/17/2020 Event Code: 04ER1000-2020-E-01246
02/17/2020 Event Code: 04ER1000-2020-E-01246
Species Protection Measures
02/17/2020 Event Code: 04ER1000-2020-E-01246
Qualification Interview
1. Have you made an effects determination of "no effect" for all species in the area of the
project? A "no effect" determination means the project will have no beneficial effect, no
short-term adverse effects, and no long-term adverse effects on any of the species on the
IPaC-generated species list for the proposed project or those species habitat. A project with
effects that cannot be meaningfully measured, detected or evaluated, effects that are
extremely unlikely to occur, or entirely beneficial effects should not have a "no effect"
determination. (If unsure, select "No").
No
2. Choose the consulting agency:
c. U.S. Fish and Wildlife Service
3. Does the project include research, direct species management, or intentional handling/
encounter of a listed species?
No
4. Does the project involve electroshocking or electrofishing?
No
5. [Semantic] Does the project intersect designated critical habitat for the Leopard Darter?
Automatically answered
No
6. [Semantic] Does the project intersect designated critical habitat for the Neosho Mucket?
Automatically answered
No
7. [Semantic] Does the project intersect designated critical habitat for Yellowcheek Darter?
Automatically answered
No
8. [Semantic] Does the project intersect designated critical habitat for Rabbitsfoot?
Automatically answered
No
9. [Semantic] Does the project intersect the American burying beetle consultation area ?
Automatically answered
No
02/17/2020 Event Code: 04ER1000-2020-E-01246 7
10. [Semantic] Does the project intersect the red -cockaded woodpecker AOI?
Automatically answered
No
11. [Semantic] Does the project intersect the Eastern black rail AOI?
Automatically answered
Yes
12. Will the project affect sand and gravel areas or shorelines along rivers, lakes, or reservoirs?
No
13. Does the project take place in marshy or flooded open field habitat?
No
14. [Semantic] Does the project intersect the red knot AOI?
Automatically answered
Yes
15. [Semantic (same answer as "8.1.3"1 Will the project affect sand and gravel areas or
shorelines along rivers, lakes, or reservoirs?
Automatically answered
No
16. [Semantic (same answer as "8.2"1 Does the project take place in marshy or flooded open
field habitat?
Automatically answered
No
17. [Semantic] Does the project intersect the Piping Plover AOI?
Automatically answered
Yes
18. [Semantic (same answer as "8.1.3 or 9.3"1 Will the project affect sand and gravel areas or
shorelines along rivers, lakes, or reservoirs?
Automatically answered
No
19. [Semantic] Does the project intersect the Whooping Crane AOI?
Automatically answered
No
02/17/2020 Event Code: 04ER1000-2020-E-01246 8
20. [Semantic] Does the project intersect the interior least tern AOI?
Automatically answered
No
21. [Semantic] Does the project intersect the Gray Bat AOI?
Automatically answered
Yes
22. [Semantic] Is the project located within the Ozark -St. Francis National Forest or the
Ouachita National Forest?
Automatically answered
No
23. Are there any caves within 0.5 mile of the project area?
No
24. Does the project occur in a subdivision or urban area?
Yes
25. [Semantic] Does the project intersect the Ozark Big -eared Bat AOI?
Automatically answered
Yes
26. [Semantic] Is the project located within the Ozark -St. Francis National Forest (cAOI is
Ozark_StFrancis NF.zip)?
Automatically answered
No
27. [Sematic (same answer as question "13.2")] Is there a cave known on the site or within 0.5
mile of the project area?
Automatically answered
No
28. [Sematic (same answer as question "13.2.1")] Does the project occur in a subdivision or
urban area?
Automatically answered
Yes
29. [Semantic] Does the project intersect the Indiana bat AOI?
Automatically answered
Yes
02/17/2020 Event Code: 04ER1000-2020-E-01246 9
30. [Semantic] Is the project located within the Ozark -St. Francis National Forest or the
Ouachita National Forest?
Automatically answered
No
31. [Sematic (same answer as question "13.2" or "14.4")] Are there any caves within 0.5 mile
of the project area?
Automatically answered
No
32. [Sematic (same answer as question "13.2.1" or '14.7)] Does the project occur in a
subdivision or urban area?
Automatically answered
Yes
33. [Semantic] Does the project intersect the Northern Long-eared bat AOI?
Automatically answered
Yes
34. Have you determined that the proposed action will have "no effect" on the northern long-
eared bat? (If you are unsure select "No")
No
35. Will your activity purposefully Take northern long-eared bats?
No
36. Is the project action area located within 0.25 miles of a known northern long-eared bat
hibernaculum?
Note: The map queried for this question contains proprietary information and cannot be
displayed. If you need additional information, please contact your State wildlife agency
(Semantic: Edge In Answer Path)
Automatically answered
No
37. Is the project action area located within 150 feet of a known occupied northern long-eared
bat maternity roost tree?
Note: The map queried for this question contains proprietary information and cannot be
displayed. If you need additional information, please contact your State wildlife agency
(Semantic: Edge In Answer Path)
Automatically answered
No
02/17/2020 Event Code: 04ER1000-2020-E-01246 10
38. [Semantic] Does the project intersect the Benton County Cave Crayfish AOI?
Automatically answered
No
39. [Semantic] Does the project intersect the Hell Creek Cave Crayfish AOI?
Automatically answered
No
40. [Semantic] Does the project intersect the Ozark cavefish AOI?
Automatically answered
No
41. [Semantic] Does the project intersect the Missouri bladderpod AOI?
Automatically answered
Yes
42. Is the proposed project in or near an open glade (an area with thin, poor soil and bedrock
close to the surface or in rocky outcrops) or in shale barrens (Ouachita Mountains
ecoregion)?
No
43. [Semantic] Does the project intersect the Geocarpon AOI?
Automatically answered
No
44. [Semantic] Does the project intersect the running buffalo clover AOI?
Automatically answered
No
45. [Semantic] Does the project intersect the Pondberry AOI?
Automatically answered
No
02/17/2020 Event Code: 04ER1000-2020-E-01246 11
Project Questionnaire
1. Choose the appropriate program below:
Federal Aid: Endangered Species Section 6
2. If the project includes forest conversion, report the appropriate acreages below.
Otherwise, type `0' in questions 1-3.
1. Estimated total acres of forest conversion:
1.5
3. 2. If known, estimated acres of forest conversion from April 1 to October 31
0
4. 3. If known, estimated acres of forest conversion from June 1 to July 31
0
5. If the project includes timber harvest, report the appropriate acreages below.
Otherwise, type `0' in questions 4-6.
4. Estimated total acres of timber harvest
0
6. 5. If known, estimated acres of timber harvest from April 1 to October 31
0
7. 6. If known, estimated acres of timber harvest from June 1 to July 31
0
8. If the project includes prescribed fire, report the appropriate acreages below.
Otherwise, type `0' in questions 7-9.
7. Estimated total acres of prescribed fire
0
9. 8. If known, estimated acres of prescribed fire from April 1 to October 31
0
10. 9. If known, estimated acres of prescribed fire from June 1 to July 31
0
02/17/2020 Event Code: 04ER1000-2020-E-01246 12
11. If the project includes new wind turbines, report the megawatts of wind capacity
below. Otherwise, type Win question 10.
10. What is the estimated wind capacity (in megawatts) of the new turbine(s)?
0
w
r� ,r 14
r. Zvi
ARKAN SAS
H E RI TAG E
February 27, 2020
Ms. Carole Jones, PE
Owner/Project Manager
Cantique, LLC
P.O. Box 4186
Fayetteville, AR 72702
Re: Washington County - Fayetteville
Section 106 Review -EDA
Proposed Undertaking - Industrial Drive Extension in Fayetteville, AR
AHPP Tracking Number 105355
Dear Ms. Jones:
The staff of the Arkansas Historic Preservation Program (AHPP) reviewed the records for
previous investigations and significant archaeological, architectural, and historic resources
within or proximal to the proposed area of potential effects (APE) in Section 27, Township
16 North, Range 30 West in the City of Fayetteville, Washington County, Arkansas. As
described, the undertaking entails construction of a 2,475-foot street extension to connect
South Industrial Drive and South City Lake Road in Fayetteville, Washington County,
Arkansas.
A previous cultural resources investigation corresponds with most of the project area. The
survey conducted in 1994 employed a 50-meter excavation grid (AMASDA 3102). The
investigation recorded three archeological sites near the current project corridor. The sites
are unevaluated for eligibility to the National Register. The field methods used in the 1994
investigation do not accord with current state guidelines. Therefore, the AHPP recommends
a cultural resources survey of the proposed corridor and other potentially affected areas,
such as easements and equipment staging locations. We request the survey conform to the
Arkansas State Plan, Appendix B: Guidelines for Archeological Fieldwork and Report Writing
in Arkansas (revised 2010). Personnel conducting the investigation should meet the
Secretary of the Interior's Professional Qualifications Standards found in 36 CFR Part 61.
Tribes that have expressed an interest in the area include the Cherokee Nation (Ms.
Elizabeth Toombs), the Osage Nation (Dr. Andrea Hunter), and the Shawnee Tribe (Ms.
Tonya Tipton). We recommend consultation in accordance with 36 CFR § 800.2(c)(2).
Arkansas Historic Preservation Program
1100 North Street • Little Rock, AR 72201 • 501.324.9880
Arkansas Preservation.com
L
105355
Thank you for the opportunity to review this undertaking. If you have any questions, please
contact Eric Mills of my staff at (501) 324-9784 or eric.mills@arkansas.gov. Please refer to
the AHPP Tracking Number above in any correspondence.
Sincerely,
k�
Scott Kaufman
Director, AHPP
cc: Ms. Elizabeth Toombs, Cherokee Nation
Dr. Andrea Hunter, Osage Nation
Ms. Tonya Tipton, Shawnee Tribe
Dr. Ann Early, Arkansas Archeological Survey
2
Gmail - City of Fayetteville, AR Industrial Drive Extension EDA Gr.
https:Hmail.google.com/mail/u/O?ik=64cOd585ae&view=pt&search...
M Gmail
Carole Jones <cdjonespe@gmail.com>
City of Fayetteville, AR Industrial Drive Extension EDA Grant Application Review
Request
5 messages
Carole Jones <cdjonespe@gmail. com>
To: Cindy Osborne <Cindy.Osborne@arkansas.gov>
Cc: "Howland, Devin" <dhowland@fayetteville-ar.gov>
Wed, Feb 5, 2020 at 8:36 AM
The City of Fayetteville is applying for a grant to assist in funding a street extension project from the U.S. Economic
Development Administration. We respectfully request that your office review the attached documentation regarding the
project and reply with any comments or concerns that your department may have. Please provide a written response
within 30 days, if possible. If you have any questions or need further information, please do not hesitate to contact me
at 479-445-7110 or cdjonespe@gmail.com.
Kindest regards,
Carole Jones, PE
Owner
Cantique, LLC
Consulting Engineering
(479) 445-7110
an Fayetteville AR Industrial Drive Extension Letter to ANHC 02 05 2020.pdf
6848K
Cindy Osborne <Cindy.Osborne@arkansas.gov>
To: Carole Jones <cdjonespe@gmail.com>
Dear Ms. Jones,
Wed, Feb 5, 2020 at 9:15 AM
I'm sorry I missed your phone call yesterday. I was out of the office. With this e-mail I am confirming receipt of your
request for a review of the proposed Industrial Drive Extension for the City of Fayetteville, Arkansas. Your project is
being handled as an "opportunity to review' as described in the attached Review/Request policy. Under this policy,
you will receive a written response from us only if we have specific concerns regarding the proposal. If no concerns
are identified, the project will be filed without comment. A review date February 26, 2020 of has been assigned. If
you do not hear from us, you may contact us after this date to determine the disposition of the review. When you
contact us, we will provide you with the ANHC number assigned to the project as evidence that the review has been
completed. A lack of response from us should not be interpreted as a clearance from us. Review projects are given a
lower priority and we may not meet the review date if we are extremely busy. Under this option, the only way to
confirm that a project has been reviewed is to contact us and receive the ANHC Number. You may reach me by
e-mail (preferred) or phone. If you wish to receive a letter from us, you may contact me and ask that your project be
handled as an "information request." You should be aware that fees are applied to projects handled under that
option.
Please feel free to contact me if you have questions or need additional information.
Sincerely,
1 of 3 3/5/2020, 8:11 AM
Gmail - City of Fayetteville, AR Industrial Drive Extension EDA Gr
https://mail.google.com/mail/u/O?ik=64cOd585ae&view=pt&search...
CINDY OSBORNE
Data Manager/Environmental Review Coordinator
Arkansas Natural Heritage Commission
1100 North Street
Little Rock, AR 72201
cindy.osborne@arkansas.gov
p: 501.324.9762 1 f: 501.324.9618
NaturalHeritage.com
[Quoted text hidden]
Review_ Request_Policy.pdf
78K
Carole Jones <cdjonespe@gmail.com>
To: Cindy Osborne <Cindy.Osborne@arkansas.gov>
Wed, Mar 4, 2020 at 11:20 AM
Cindy - I am contacting you to determine the status of the "opportunity to review". I have not heard from you, and the
February 26 deadline has passed. Please do not interpret this as an information request. Please feel free to
contact me if you have any questions or need additional information.
Kindest regards,
Carole Jones, PE
Owner
Cantique, LLC
Consulting Engineering
(479) 445-7110
[Quoted text hidden]
Cindy Osborne <Cindy.Osborne@arkansas.gov>
To: Carole Jones <cdjonespe@gmail.com>
Hi Carole,
Wed, Mar 4, 2020 at 2:14 PM
Staff members of the Arkansas Natural Heritage Commission have reviewed the information you submitted on the
2 of 3 3/5/2020, 8:11 AM
Gmail - City of Fayetteville, AR Industrial Drive Extension EDA Gr... https://mail.google.com/mail/u/O?ik=64cOd585ae&view=pt&search...
proposed Industrial Drive Extension in the City of Fayetteville, Arkansas. No specific concerns were identified and the
project was filed without comment. The ANHC Number assigned to the review was: P-CF..-20-011.
Best Regards,
Cindy
[Quoted text hidden]
Carole Jones <cdjonespe@gmail.com>
To: Cindy Osborne <Cindy.Osborne@arkansas.gov>
Thank you!
Kindest regards,
Carole Jones, PE
Owner
Cantique, LLC
Consulting Engineering
(479) 445-7110
[Quoted text hidden]
Thu, Mar 5, 2020 at 8:10 AM
3 of 3 3/5/2020, 811 AM
USDA
United States Department of Agriculture
March 4, 2020
Carole Jones, PE
Cantique, LLC
Consulting Engineering
P.O. Box 4186
Fayetteville, Arkansas 72702
Dear Ms. Jones,
This letter is in response to your request for information related to Prime Farmland and Farmland
of Statewide Importance for the proposed 2,600-foot long street extension to connect South
Industrial Drive and South City Lake Road in the City of Fayetteville's Commerce District. This
project is within the city limits of Fayetteville and does not affect Prime Farmland or Farmland
of Statewide Importance.
Should you have any questions or need additional information, please call me at (501) 301-3163
or email at edgar.mersiovsky@usda.gov.
Sincerely,
L�
Edgar P. Mersiovsky
State Soil Scientist,
Enclosure
Natural Resources Conservation Service
Room 3416, Federal Building
700 West Capitol Avenue Helping People Help the Land
Little Rock, Arkansas 72201-3215
An Equal Opportunity Provider and Employer
U.S. DEPARTMENT OF AGRICULTURE
NRCS-CPA-106
Natural Resources Conservation Service (Rev. t•s11
FARMLAND CONVERSION IMPACT RATING
FOR CORRIDOR TYPE PROJECTS
PART I (To be completed by Federal Agency)
3. Date of Land Evaluation Request
/5120
14 Sheet 1 of 1
1. Name of Project City of Fayetteville -Industrial Drive Extension
5. Federal Agency Involved US Economic Development Administratiot
2 Type of Project Road
6. County and State Washington County, Arkansas
PART II (To be completed by NRCS)
1. Date Request Received by NRCS
2/5120
2. Person Completing Form
Edgar Mersiovsk
3. Does the corridor contain prime, unique statewide or local important farmland? YES NO a
(If no, the FPPA does not apply - Do not complete additional parts o1 this form).
4. Acres rngated
Average arm Size
5. Major Crop(s)
6. Farmable Land in Government Jurisdiction
Acres: %
7. Amount of rarmland As Defined in FPPA
Acres: %
8. Name Of Land Evaluation System Used
9. Name of Local Site Assessment System
10. Date Land Evaluation Returned by NRCS
PART III (To be completed by Federal Agency)
Alternative Corridor For Segment
Corridor A
Corridor B
Corridor C
Corridor D
A. Total Acres To Be Converted Directly
B. Total Acres To Be Converted Indirectly, Or To Receive Services
C. Total Acres In Corridor
PART IV (To be completed by NRCS) Land Evaluation Information
A. Total Acres Prime And Unique Farmland
B. Total Acres Statewide And Local Important Farmland
C. Percentage Of Farmland in County Or Local Govt. Unit To Be Converted
D. Percentage Of Farmland in Govt. Jurisdiction With Same Or Higher Relative Value
PART V (To be compbW by NRCS) Land Evaluation Inforrneti Criterion Relative
value of Farmland to Be Serviced or Converted Scale of 0 - 100 Points
PART VI (To be completed by Federal Agency) Corridor
Assessment Criteria (These criteria are explained in 7 CFR 658.5(c))
Maximum
Points
1. Area in Nonurban Use
15
2. Perimeter in Nonurban Use
10
3. Percent Of Corridor Being Farmed
20
4. Protection Provided By State And Local Govemment
20
5. Size of Present Farm Unit Compared To Average
10
6. Creation Of Nonfarmabie Farmland
25
7 Availablility Of Farm Support Services
5
8. On -Farm Investments
20
9. Effects Of Conversion On Farm Support Services
25
10. Compatibility With Existing Agricultural Use
10
TOTAL CORRIDOR ASSESSMENT POINTS
160
0
0
0
0
PART Vll (To be completed by Federal Agency)
Relative Value Of Farmland (From Part V)
100
0
0
0
0
Total Corridor Assessment (From Part VI above or a local site
assessment)
160
0
p
0
0
TOTAL POINTS (Total of above 2 lines)
260
0
0
0
0
1. Corridor Selected
2. Total Acres of Farmlands to be
Converted by Project
3 Date Of Selection:
4. Was A Local Site Assessment Used?
YES NO
5. Reason For Selection:
Signature of Person Completing this Part DATE
NOTE: Complete a form for each segment with more than one Alternate Corridor
NRCS-CPA-106 (Reverse)
CORRIDOR - TYPE SITE ASSESSMENT CRITERIA
The following criteria are to be used for projects that have a linear or corridor - type site configuration connecting two distant
points, and crossing several different tracts of land. These include utility lines, highways, railroads, stream improvements, and flood
control systems. Federal agencies are to assess the suitability of each corridor - type site or design alternative for protection as farmland
along with the land evaluation information.
(1) How much land is in nonurban use within a radius of 1.0 mile from where the project is intended?
More than 90 percent - 15 points
90 to 20 percent - 14 to 1 point(s)
Less than 20 percent - 0 points
(2) How much of the perimeter of the site borders on land in nonurban use?
More than 90 percent - 10 points
90 to 20 percent - 9 to 1 point(s)
Less than 20 percent - 0 points
(3) How much of the site has been farmed (managed for a scheduled harvest or timber activity) more than five of the last
10 years?
More than 90 percent - 20 points
90 to 20 percent - 19 to 1 point(s)
Less than 20 percent - 0 points
(4) Is the site subject to state or unit of local government policies or programs to protect farmland or covered by private programs
to protect farmland?
Site is protected - 20 points
Site is not protected - 0 points
(5) Is the farm unit(s) containing the site (before the project) as large as the average - size farming unit in the County ?
(Average farm sizes in each county are available from the NRCS field offices in each state. Data are from the latest available Census of
Agriculture, Acreage or Farm Units in Operation with $1,000 or more in sales.)
As large or larger- 10 points
Below average - deduct 1 point for each 5 percent below the average, down to 0 points if 50 percent or more below average - 9 to 0 points
(6) If the site is chosen for the project, how much of the remaining land on the farm will become non-farmable because of
interference with land pattems?
Acreage equal to more than 25 percent of acres directly converted by the project - 25 points
Acreage equal to between 25 and 5 percent of the acres directly converted by the project - 1 to 24 point(s)
Acreage equal to less than 5 percent of the acres directly converted by the project - 0 points
(7) Does the site have available adequate supply of farm support services and markets, i.e., farm suppliers, equipment dealers,
processing and storage facilities and farmer's markets?
All required services are available - 5 points
Some required services are available - 4 to 1 point(s)
No required services are available - 0 points
(8) Does the site have substantial and well -maintained on -farm investments such as bams, other storage building, fruit trees
and vines, field terraces, drainage, irrigation, waterways, or other soil and water conservation measures?
High amount of on -farm investment - 20 points
Moderate amount of on -farm investment - 19 to 1 point(s)
No on -farm investment - 0 points
(9) Would the project at this site, by converting farmland to nonagricultural use, reduce the demand for farm support
services so as to jeopardize the continued existence of these support services and thus, the viability of the farms remaining in the area?
Substantial reduction in demand for support services if the site is converted - 25 points
Some reduction in demand for support services if the site is converted - 1 to 24 point(s)
No significant reduction in demand for support services if the site is converted - 0 points
(10) Is the kind and intensity of the proposed use of the site sufficiently incompatible with agriculture that it is likely to
contribute to the eventual conversion of surrounding farmland to nonagricultural use?
Proposed project is incompatible to existing agricultural use of surrounding farmland - 10 points
Proposed project is tolerable to existing agricultural use of surrounding farmland - 9 to 1 point(s)
Proposed project is fully compatible with existing agricultural use of surrounding farmland - 0 points
Appendix B
Historical Aerial Imagery
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
_ _.s36v.>`ra._�::-�°..�.a"«*. `� ° ..n.-:.. > i.. ao.._._. ...o. � . _ L .. _ ° ry �+a .•� � �fS -�& ^ �t � � A � "' � a.+
City of Fayetteville US EDA Grant �� A �� �; ��.��
x �.
�.erial Imagery, 12/31/2004, 2020 At GIB � `�� ���
? s �N, 4t
Properfil Boundaries - red lines
Proposed Street- orange lines
_..F�
;- ;. "#
014
41,
^ "
a
-
a 5
-
,gym.
i sw } 1s n c V
, �' scams • r (°� � �:` k * x
,4 t.
4 'n q .wt rY a F S fi
3At �-'g
°
-,. - '. �-.... .. .a•..,.�.�.,a ICY ia%�..x. � "' _
Appendix C
Applicant Certification Clause and Supporting
Documentation
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
EDA Environmental Narrative Requirements
Appendix C: Applicant Certification Clause
The applicant represents and certifies that it has used due diligence to determine that the description
of the project site described herein is accurate with respect to the presence or absence of
contamination from toxic and hazardous substances. The term "site" includes the entire scope of the
project, including future phases of the project and all areas where construction will occur.
Is the site currently, or has it in the past 50 years, been used for any of the following operations
or activities:
a. Generation of hazardous substances or waste?
Yes X No
b. Treatment, storage (temporary or permanent), or disposal of solid or hazardous substances or
waste?
Yes X No
c. Storage of petroleum products?
Yes X No
d. Used/waste oil storage or reclamation units?
Yes X No
e. Research or testing laboratory?
Yes X No
Ordinance research, testing, production, use, or storage?
Yes X No
g. Chemical manufacturing or storage?
Yes X No
h. Weapons or ammunition training, use, or testing?
Yes X No
Iron works/foundry?
Yes X No
Railroad yard?
Yes X No
Industrial or manufacturing operation?
Yes X No
If any of the above operations ever occurred at the site, and if appropriate cleanup or other mitigation
actions were performed in accordance with the local, State, and federal laws, please attach
documentation of these actions.
2. Do wells draw from an underlying aquifer to provide the local domestic water supply?
Yes X No
Page 1 of 3
EDA Environmental Narrative Requirements
Appendix C: Applicant Certification Clause
3. Has a federal, State, or local regulatory authority ever conducted an environmental assessment,
environmental impact statement, or a preliminary assessment/site inspection, or similar
environmental surveyor inspection report at the site? If yes, please list here and attach copies
of these reports or results.
X Yes No
• City of Fayetteville, Arkansas Phase I Environmental Site Assessment November 2002 (See
Appendix D)
4. Have any environmental or OSHA citations or notices of violation been issued to a facility at the
site? If yes, please attach copies.
Yes X No
5. Have any unauthorized releases of hazardous substances occurred at any facility at the site
which resulted in notification of the EPA's National Response Center?
Yes X No
6. Is any material containing asbestos or lead paint located at the site? If yes, please attach
information concerning State and federal regulatory compliance.
Yes X No
7. Is there any equipment (electrical transformers, etc.) containing polychlorinated biphenyls (PCB)
on the site? If yes, please attach a description of the equipment.
Yes X No
8. Are there underground or above ground storage tanks on the site? If yes, please attach a
detailed description, including the number of underground storage tanks on the site, whether the
tanks have been inspected (or removed) and the results of such inspections.
Yes X No
9. Has the site been tested for radon? If yes, please attach results.
Yes X No
10. Have there been, or are there now any environmental investigations by federal, State or local
government agencies that could affect the site in question? If yes, please attach available
information.
Yes X No
Page 2 of 3
EDA Environmental Narrative Requirements
Appendix C: Applicant Certification Clause
The applicant acknowledges that this certification regarding hazardous substances and/or waste is a
material representation of fact upon which EDA relies when making and executing an award. EDA
reserves the right to terminate any award made in conjunction with the representations contained
herein if, at any time during the useful life of the project, EDA becomes aware of the presence of
hazardous materials or waste at the site, or that hazardous materials or waste have been
inappropriately handled thereon.
Further, if it is determined at any time that the presence of hazardous materials or waste, or handling
thereof, has been misrepresented, EDA may pursue other available legal remedies against the
applicant.
City of Fayetteville, Arkansas
Applicant's Name
Name anVritle of Applic—ON's Authorized Representative
ture of App' ant' Authorized Representative Date
Page 3 of 3
2020 Photographs of the Proposed Project Site
View Facing South from South Industrial Drive
View Facing East from South City Lake Road
Appendix C Supporting Documentation
Aerial imagery provided by the City of Fayetteville GIS shows that the proposed project site has
been undeveloped or utilized as pasture dating back to 1965.
A Phase I Environmental Site Assessment performed in 2002 confirms that the property's
obvious past use was pasture / undeveloped. The surrounding properties are a mix of
undeveloped, natural areas and established industrial users. Past and current uses of adjacent
properties include one Regulated Storage Tank (RST) and two Resource Conservation
Recovery Act (RCRA) Generators. Documentation from the Arkansas Division of Environmental
Quality and the U.S. Environmental Protection Agency (EPA) reveal that none of the facilities
have any current or past violations.
The National Response Center (NRC) is a part of the federally established National Response
System and is staffed 24 hours a day by the U.S. Coast Guard. It is the designated federal point
of contact for reporting all oil, chemical, radiological, biological and etiological discharges into
the environment, anywhere in the United States and its territories. Data is available on their
website dating back to 1990. The NRC database was searched starting with data from 1990
through the present (February 2020). No unauthorized releases of hazardous substances at the
proposed project site were reported to the NRC.
There are no electrical transformers containing polychlorinated biphenyls (PCB) on the site. The
only electrical transformers found on the project site were installed after 1980. The
manufacturing of PCBs was banned in 1979.
Facility Storage Tank Summary I Database I RST I DEQ http://www.adeq.state.ar.us/rst/programs/fees/p_faciI_detaiIs.asp...
Regulated Storage Tanks (RST) Data Files
Storage Tank Details for This Facility
Close this window Print this page
Facility Information Summary
Facility ID
AFIN Location Name/Address
Temp Out AG UG Leak 1998 Compl
72001742
72-01532 PAT SALMON &SONS, INC
X
2760 CITY LAKE ROAD
FAYETTEVILLE„ AR 72701
County: WASHINGTON
Contact Name: RONNIE PADEN
Date Received:
01/14/1998
Contact Title: DRIVER/MGR
Entry Date:
03/01/1999
Contact Phone: (501) 587-1667
Entry Clerk:
NICHOLS
Location SIC:
Update Date:
Location AFIN: 72-01532
Update Clerk:
Latitude: 36.034117
Amended:
N
Longitude:-94.148975
Certified Name:
LARRY SONGER
Aboveground: X
Title:
MANAGER
Underground:
Date Signed:
1/14/1999
Date Reg. Cert. Issued: 7/15/2019
Do not invoice, if marked:
[]
Owner Information Summary
OwnerlD
Owner Name/Address
Phone
004565
CROSS STREET SERVICE
(501) 945 0778
PO BOX 15070 GMF
LITTLE ROCK, AR 72231
...................... County: PULASKI
Last Date Updated:
06/19/2007
_. Owner Type. 1
EntryClerk:
MARSH
Date Form Received: 07/25/2000
Update Clerk:
lynda
Date Form Entered: 12/20/1991
No Eligibility Certification Information on record for this Facility.
Billing/Payment Information
Invoice #
Date Billed
Owner as of Billing Date
Status Amount/
Last Amount Paid/
Last Check #
Late Fee Billed Total Paid
Date Due
Last Date Paid
ABT013024
03/02/1999
CROSS STREET SERVICE
$50.00
$50.00
120747
$50.00
04/16/1999
03/08/1999
ABT013570
05/14/1999
CROSS STREET SERVICE
$50.00
$50.00
121505
$50.00
06/30/1999
05/24/1999
ABT015636
05/19/2000
CROSS STREET SERVICE
Void
06/30/2000
ABT017269
05/19/2000
CROSS STREET SERVICE
$50.00
$50.00
124629
$50.00
06/30/2000
05/30/2000
ABT019167
04/12/2001
CROSS STREET SERVICE
Void
05/27/2001
ABT020843 05/18/2001 CROSS STREET SERVICE $50.00 $50.00 128090 $50.00
07/01/2001 05/30/2001
ABT022770 05/17/2002 CROSS STREET SERVICE $50.00 $50.00 pce1456 $50.00
06/30/2002 07/03/2002
1 of 3 2/24/2020, 914 AM
Facility Storage Tank Summary I Database I RST I DEQ http-//www.adeq.state.ar.us/rst/programs/fees/p_facil_details.asp...
Invoice #
Date Billed
Owner as of Billing Date
Status Amount/
Last Amount Paid/
Last Check #
Late Fee Billed Total Paid
Date Due
Last Date Paid
ABT024575
05/09/2003
CROSS STREET SERVICE
$50.00
$50.00
139069
$50.00
06/30/2003
05/15/2003'
ABT026300
05/14/2004
CROSS STREET SERVICE
$50.00
$50.00
143593
$50.00
06/30/2004
05/19/2004
TKS074081
05/16/2005
CROSS STREET SERVICE
$50.00
$50.00
148152
$50.00
06/30/2005
05/20/2005
TKS079212
05/19/2006
CROSS STREET SERVICE
$75.00
$75.00
147296
$75.00
07/03/2006
05/24/2006
TKS084403
05/08/2007
CROSS STREET SERVICE
$75.00
$75.00
160407
$75.00
06/30/2007
05/11/2007
TKS089599
05/15/2008
CROSS STREET SERVICE
$75.00
$75.00
160552
$75.00
06/30/2008
05/21/2008'
TKS094707
05/11/2009
CROSS STREET SERVICE
$75.00
$75.00
160814
$75.00
06/30/2009
05/14/2009
TK5099844
05/17/2010
CROSS STREET SERVICE
$75.00
$75.00
161069
$75.00
06/30/2010
05/27/2010'
TKS105038
05/17/2011
CROSS STREET SERVICE
$75.00
$75.00
161328
$75.00
06/30/2011
06/01/2011
TKS110576
. 05/14/2012
CROSS STREET SERVICE
$75.00
$75.00
161531
$75.00
06/30/2012
05/28/2012',
TKS115814
05/15/2013
CROSS STREET SERVICE
$75.00
$75.00
CARD
$75.00
06/30/2013
05/27/2013'
TKS120979
05/14/2014
CROSS STREET SERVICE
$75.00
$75.00
Card
$75.00
06/30/2014
O51/18/2014
TKS126076 '
05/06/2015
CROSS STREET SERVICE
$75.00
$75.00
Card
$75.00
06/30/2015
05/17/2015
TKS131303 !
05/23/2016
CROSS STREET SERVICE
$75.00
$75.00
Card
$75.00
06/30/2016
05/29/2016
TKS136427
: 05/16/2017
CROSS STREET SERVICE
$75.00
$75.00
Card
$75.00
06/30/2017
05/21/2017:
TKS141441
05/15/2018
CROSS STREET SERVICE
$75.00
$75.00
CARD
$75.00
06/30/2018
05/20/2018
TKS146361 ',
05/14/2019
CROSS STREET SERVICE
$75.00
$75.00
CARD
$75.00
06/30/2019
05/22/2019
Status
No Underground Storage Tank Information was found in our database for this facility.
Aboveground Tank Information for Tank #1
Latitude: Entry Date: 03/01/1999
Longitude: Entry Clerk:
Capacity: 10000 Update Date:
Update Clerk:
Substance Tank Material
Install Date: 01/11/1999
Tank Status: In Use
Tank Status Date:
Date Last Used:
Removed:
Gals Remaining:
Internal Corrosion Protection
Empty:
Diesel:
Kerosene:
Gasoline:
Used Oil:
Hazardous:
Unknown:
Mixture Description:
Other Description:
External Corrosion Protection
Steel: X
X Concrete:
Plastic:
Unknown:
Other Description:
Piping
2 of 3 2/24/2020, 914 AM
Facility Storage Tank Summary I Database I RST I DEQ http://www.adeq.state.ar.us/rst/programs/fees/p_facil_detaiIs.asp...
Internal Corrosion Protection
Cathodic Prot. System: X
Lining:
None:
Unknown:
Other Description:
External Corrosion Protection
Cathodic Prot. System: X
Painted: X
Plastic:
None:
Unknown:
Other Description:
Piping
Bare Steel:
Galvanized Steel: X
Plastic:
Cathodic:
Unknown:
Other Description:
No Storage Tank Leak information was found in our database for this facility.
Close this window Print this page
3 of 3 2/24/2020. 914 AM
ECHQ�4
Enforcement and
Compliance History Online
Detailed Facility Report
Facility Summary
MARSHALLTOWN TOOLS
2200 INDUSTRIAL DR., FAYETTEVILLE, AR
72701
FRS (Facility Registry Service) ID:
110000452858
EPA Region: 06
Latitude: 36.040278
Longitude:-94.1425
Locational Data Source: NPDES
Industry:
Indian Country: N
Enforcement and Compliance Summary
Insp (5
_-_....._._-_--------- _ _..-__________._--_
Date of Last _ Dtrswith NC _ �, Otrs with Significant Informal Enforcement Formal Enforcement
--_._--
?Penalties from Formal Enforcement
____ ------
EPA Cases (S' Penaltiesfrom EPA
Statute
Years
Compliance Status
_Inapection, (Noncompliance)(of 12) violation Actions years) Actions l5 years)
Actions,(S�eara
_years) Casest(5yeata
CAA
—
10/09/2014 0 0 — —
—
— —
CWA
_
_ 0
0
RCRA
—
101 12005
Regulatory Information
Clean Air Act (CAA):
Permanently Closed
(AR 0000000514300166)
Clean Water Act (CWA): Minor,
Permit Terminated; Compliance
Tracking Off (ARR155106),
Minor, Permit Effective
(ARROOA390)
Resource Conservation and
Recovery Act (RCRA): Active
(ARD045799152)
Safe Drinking Water Act
(SDWA): No Information
Other Regulatory Reports
Air Emissions Inventory (EIS): No
Information
Greenhouse Gas Emissions (eGGRT): No
Information
Toxic Releases (TRI): 72701 MRSHL22001
Compliance and Emissions Data Reporting
Interface (CEDRI): No Information
Known Data Problems
Facility/System Characteristics
Facility/System Characteristics
FRSI-
T 110000452858
N
36.040278
-94A425
ICIS-Air
CAA
AR0000000514300166
Permanently Closed
N
36.038934
-94.142603
ICIS-NPDES
CWA
ARR155106
Minor General Permit Covered Facility
Terminated; Compliance Traddng Oft
Storm Water Construction
10/31P2016
N
36.038917
-94.142583
)CIS-NPDES
CWA
ARROOA390
Minor. General Permit Covered Facility
Effective
Storrs Water Industrial
06/30/2024
N
38.040278
-94.1425
TRI
EP313
72701MRSHL22001
Toxics Release Inventory
Last Reported for 2018
N
36.038934
-94.142603
RCRAInfo
RCRA
ARD045799152
SOG
Active )H)
N
38.038934
-94.142603
Facility Address
FRS
110000452858
MARSHALLTOWN TOOLS
_ ._............ --- —
2200 INDUSTRIAL DR., FAYETTEVILLE, AR 72701
ICIS-Air
CAA
AR0000000514300166
MARSHALLTONM TOOLS
2200 INDUSTRIAL DRIVE, FAYETTEVILLE, AR 72701
ICISNPDES
CWA
ARR155106
MARSHALLTOVIN CO
2200 INDUSTRIAL DRIVE, FAYETTEVILLE, AR 72701
ICIS-NPDES
CWA
ARROOA390
MARSHALLTOVM COMPANY
2200 INDUSTRIAL DRIVE, FAYETTEVILLE, AR 72701
TRI
EP313
72701MRSHL22001
MARSHALLTOWN CO
2200 IND US TRIAL DR, FAYETTEVILLE, AR 72701
RCRAInfo
RCRA
ARD045799152
MARSHALLTOWN COMPANY
2200 INDUSTRIAL DRIVE, FAYETTEVILLE, AR 72701
Facility SIC (Standard Industrial Classification)
Codes
TRI
72701MRSHL22001
3423
Hand And Edge Tools
ICIS-Air
AR0000000514300166
3423
Hand And Edge Tools
ICISNPDES
ARROOA390
3423
Hand And Edge Tools
NPOES
ARROOA390
3423
Hand And Edge Tools
ICISNPDES
ARR155106
1541
Industrial Buildings And Warehouses
NPDES
ARR155106
1541
Industrial Buildings And Warehouses
Facility Industrial Effluent Guidelines
Identifier EHI ent Guid I (40CFRPart) _ Effluent Guideline Descnphon
_ No data records retumed _
Enforcement and Compliance
Facility NAICS (North American Industry
Classification System) Codes
system
Identifier
NAICS Code
NAICS Description
TRI
72701MRSHL2200I
332211
Cutlery And Flatware )Except Precious) Manufacturing
TRI
72701MRSHL2200I
332212
Hand And Edge Tool Manufacturing
TRI
72701MRSHL2200I
332216
Saw Blade and Handtool Manufacturing
ICIS-Air
AR0000000514300166
332212
Hand And Edge Tool Manufacturing
RCRAInfo
ARD045799152
332216
Saw Blade and Handtool Manufacturing
ICISNPOES
ARROOA390
332212
Hand And Edge Tool Manufacturing
NPDES
ARROOA390
332212
Hand And Edge Tool Manufacturing
ICISNPDES
ARR155106
236210
Industrial Building Construction
NPDES
F ARR155106
236210
Industrial Building Construction
Facility Tribe Information
Reservation Name Tube Name - EPA TnbaIID Distance to Trib�mile
ICherolee OTSA �Cherolee Nation I 100000038 22.07
Compliance Monitoring History (5 years)
_ .... .
Statute Source ID sy9em Acrwry, Type _. Compliance Momtonng Type,,....._ „ ...,..,, .... Lead Agency . ___ �. Date „_. ,Fi - (-t aP hcable) ....... ,.
No data records retuned
Entries in italics are not counted in EPA compliance monitoring strategies or annual results.
Compliance Summary Data
CAA
AR0000000514300166
_........
No
02/22/2020
0
02/21/2020
CWA
ARR155106
No
09/30/2019
0
02212020
CWA
ARROOA390
No
09/302019
0
02/212020
RCRA
ARD045799152
No
02222020
0
02212020
Three -Year Compliance History by Quarter
Statute; Pm ram/P011utanWiolationT a
OTR1 :
OTR2
oTR3
QTR4
OTRS
OTR6
OTR7
OTR
OTR9
C7R 10
OTR 11 OTR 12+
i CAA
130016R_
4M1-06130/1
7/01-09/30/17;10/01.12/31/171 1101-03/31/1
/01-06/30/18707/01-09/30/1
OM142/31/1tW1M1-03/31/1
1-06/30/19A7/01-09130/19'10/01-12/31/19D7/01-03/312
Facility4-evel Status
HPV History
Violation
Agency
Programs
Pollutants
TYW
Program/Pollutant
statute; OTR 1 OTR 2
OTR 3 OTR 4
OTR 5
OTR 6
OTR 7
OTR 8
OTR 9
OTR 10
OTR t1
............
OTR 12 O7R 13+
Niolation Type
CWA (Source ID: ARR7551 o6) 10/01-12131/16
01101-03/31117
04/01-06
i 07101-09
10101-12 i
01/01-03
04101-06
07101-09
tOM1-12
01M7-03
04/01-08
? 07M7-09
t
10/O1-022120
/30/17
r30/17
/31/17
/31118
130118
/30/18
/31/18
131/19
/30/19
rtpryg
Terminated
Terminated
Terminated
Terminated
Terminated
Terminated
Terminated
Te—naled
Terminated
Terminated
Terminated
Facility Status Unlirto i.
T.- nated
-Level
Permit
Permit
Permit
Permit
Permit
Pernit
Permit
Permit
Permrt
Perma
Permit
Permit
Quarterly
Noncompliance
Undetermined
Undetermined
Report History
(Sorce 10: ARROOA390)
10/01.12131/16
01/01-03131/17
04101406
71
10/01-12
01/-03
04/01-06
07/01-09
10101-12
04/01-06
07/01CWA
1
18
r
119
/30/19
1
0/01-0212120!30/17
Facility -Level status
Quarterly
Noncompliance
Report History
` Program/Pollutant � �.........._r—_—.__.1................._..._...._._ _......................._.—T__—._— _._..
:Statute; OTR 1 OTR 2 i OTR 3 i OTR 4 ) OTR 5 i OTR 6 OTR 7 OTR 8 OTR 9 OTR 10 OTR 11 OTR 12+
Molatian T e I I
RCRA (Source ID: 04101-06/30/17 07/O1-09/30/17 10/01-12/31117 ' 01101-03131/18 04/01-06/30/18107/01-09130118 10101-12/31/18101/01-03/31/19 8/3 04/01-00/10M 9 07/01-09130119 11-12131119 O1M1-03l3120
ARD045799152)
F-day-Level Slt—
Informal Enforcement Actions (5 Years)
_...._....................._.........................................._....._........_._......................._............._.__.............._...__..._..-.........._..._......._...................................--..........................................................__......_............................................. __._.._................................._._........_................. ......_.__..__..............._
,Statute ___ _ _ S Item Sou_roe lD T of Action Lead en Date
1I............y__._..---- `............_. -- -. _...-- -- —--........_..__x�_..----.._...._....._.1_._._._........_.......... Aa �z .._....-----....._._..L..----..._._._._—_11I
No data records retuned
Formal Enforcement Actions (5 Years)
tat te: Sytem _ LavirSectlon :Source IDiAction T_y�e Case No. i Lead Aflenry ;Caw Name Imred/Filedm _ Date SettlemenMAdions SettleenVAction Date Federal Pena Stste/Lopl Penaltyr t SEP Cot! Comb Action Co
No data records relumed
Environmental Conditions
Water Quality
N:.mn.r.d rcn - 1; 1 wan
Pernll ID
Combined
Permit ID 1
Number of CSO
Sewer
I 12-Dgit WBD (Watershed Boundary
Dataset) HUC Address
WBD (Watershed Boundary Dataset) State Water Body Name ([CIS : Cause of
1 Impaired Im fired
Subwatershed Name
Waterdletl with ESA
Sewer System
(Comb ned
(RAD (Reach
(RAD (Reach ] (Integrated Compliance N6tera Cass t Impairment s) by
(
(Endangered S edes Ac}
P
.. ........ .....
....._OY4.rflow)O4N21ll....
....._.. .. . _Data9.aee1�. ....... .....
..... AQ.A.Rav patabi!.7R11 ... ..... (flh?.!LO.A]IQn System,B................ ..... [ .......Graupf%l....
l,see AquatiG.SR.A.GIAKI.....
ARR155106 `
110100010404
Town Branch -Wed Fork White River j No
Yes 1
Water Body
Designated Uses
Reach Code
Water Body Name
Exceptional Use Recreational Lime`: vatic Life Use Shellfish Use Beach Closure Within Lad Year Beach Closure Wthin Last Two Years
11010001002061
No No No No No
No
11010001002061
No
No No
No
No
No
Air Quality
No ada
.... ...-
nmentArca7
-- --......... -- - - ---- - --.-- ........ - -- -
tantjmL Applicable Nonatta nment Stamdil
—
No
Ozone
No
Lead
No
Particulate Matter
No
Carbon Monoxide
No
Nitrogen Dioxide
No
Sulfur Dioxide
Pollutants
Toxics Release Inventory History of Reported Chemicals Released in Pounds per Year at Site
..._ Air Pollutant Report TRI Pollution Prevention Report
TRI Facslty ID _Year Total Air Ernimons:i. Surface Water Discharges ;._ OBS to Trandersto POTWs(Publicly Owned Treatment Woft) . Undergroune Infections Releasesto Land Total On-ste Releases Total Off-ste Transfers
72701MRSHL2200. 2018 31 18 2 49 12,290
72701MRSHL22001
2017
42
24
1
66
16,862
72701MRSHL22001
2016
46
12
2
58
16,499
72701MRSHL22001
2015
32
22
0
54
11,915
72701MRSHL22001
2014
36
15
1
51
14,500
72701MRSHL22001
2013
21
5
1
26
8,405
72701MRSHL22001
2012
18
5
0
23
7,314
72701MRSHL22001
2011
25
6
0
31
1 9,874
72701MRSHL22001
2010
13
5
0
18
5.247
72701 MRSHL22001
2009
1
0
0
9,344
Toxics Release Inventory Total Releases and Transfers in Pounds by Chemical and Year
_ .........................._............ ..... ........._
Chemical Name 2018 2017 , 2016 2015 2014 2013 2012 2011 2010 2009
CHROMIUM 1.699 4,777 1,874 1,417 3,215 844 735 991 525 759
COPPER
54
149
71
29
63
LEAD
108
111
160
120
152
59
53
61
25
269
MANGANESE
1,977
NICKEL
10,477
11,890
14,452
10,404
11,121
7,527
6,550
8,853
4, 715
6,339
TRICHLOROETHYLENE
Demographic Profile
EJSCREEN EJ Indexes
Eleven primary environmental justice (EJ) indexes of EJSCREEN, EPA's screening tool for EJ concerns. EPA
uses these indexes to identify geographic areas that may warrant further consideration or analysis for potential
EJ concerns. Note that use of these indexes does not designate an area as an "EJ community" or " EJ facility."
EJSCREEN provides screening level indicators, not a determination of the existence or absence of EJ
concerns. For more information, see the EJSCREEN home page.
Census Block Group EJ Indexes
Particulate Matter(PM 2.5)
Ozone NATA Diesel PM
Air Toxics Cancer Risk
Respiratory Hazard Index (HI)
is Proximity
I Paint Indicator
edund Proximity
Management Plan IMP) Proximity
rdous Wale Proximity
ewater Discharge Proximity
89
88.6
87.2
86.1
83.9
73
69.9
93A
90.7
92.7
Number of EJ Indexes Above 80m Percentile
8
View EJSCREEN Report
Demographic Profile of Surrounding Area (3 Miles)
This section provides demographic information regarding the community surrounding the facility. ECHO
compliance data alone are not sufficient to determine whether violations at a particular facility had negative
impacts on public health or the environment. Statistics are based upon the 2010 US Census and American
Community Survey data, and are accurate to the extent that the facility latitude and longitude listed below are
correct. The latitude and longitude are obtained from the EPA Locational Reference Table (LRT) when
available.
eral Statistics
al Persons
27.564
lulation Density
989/sq.mi.
cent Minority
19%
lseholds in Area
10.633
fang Units in Area
12,408
lseholds on Public Assilance
279
sons Below Poverty Level
10,365
GaograP.!X................ _................................
........................ .
)2adius of Selected Area
3 mi.
iCenter Latitude
36 040278
Center Longitude
-94. 1425
Land Area
99 %
Mlater Area
1 %
income Breakdown. Households �74)
Les than $15,000
_., ._,.....
2,785 (25.68 % )
515,000-525,000
1,859 (17.81%)
325,000 - $50,000
2,448 (23.45%)
350,000 - $75,000
1,129 (10.82%)
;Greater than E75,000
2.218 (21.25%)
Age Breakdown -Persons (%)
a
'Children 5 years and younger
1,295 (5%)
i
:Minors 17 years and younger
3.898 (14%)
Adults 18 years and older
23,666 (86 % )
�Seniors65 years and older
2,057 (7%)
..... __.._............... _....... _
....................
Race Breakdown - Persons �hJ
White
23,206 (84%)
Amcan-Amencan
1,576 (6%)
Hispanic-06gin
1,606 (6%)
Asan/Pacific Islander
902 (3%)
Amencan Indian
295 (1%)
;Other/Multiracial
......... ............ .........
1,586 (6%)
____. ......... _._� J
#duration Lev el(Persons 25 8 ostler) -Persons (%)
Less than 9th Grade
489 (3.62%)
9th through 12th Grade
1,058 (7,83%)
'High School Diploma
2,658 (19.67%)
.Some College2-year
3.392 (25.1%)
'B.S./B.A.(Bachelor of Science/Bachelorof Arts) or More
5,916(43.78%)
ECHQ�*
Enforcement and
Compliance History Online
Detailed Facility Report
Facility Summary
KD TOOLS DANAHER TOOL GROUP
2900 CITY LAKE RD., FAYETTEVILLE, AR
72701
FRS (Facility Registry Service) ID:
110000452876
EPA Region: 06
Latitude: 36.032451
Longitude:-94.147935
Locational Data Source: RCRAINFO
Industry:
Indian Country: N
Enforcement and Compliance Summary
Statute
Insp (6
'.
Enforcement r . om orma-._
Date of Lag at" Mr, NC ', Ctrs witft Significant Informal Enforcement Formal nft PfrFl En/o rcem ent.EPA ._ Cases . _ �5 Penalties 11 - lrom EPA
Compliance Status E
'. Years)
Inspection - {6
(Noncompliance) (of 12) Violation Actions (6 years) Actions )5 years) Actions (5 years) years) Cases years).
CAA
CWA
— ii
Terminated i
0
0
Permit
RCRA
—
06/26/1992
0
0
Regulatory Information
Clean Air Act (CAA): No
Information
Clean Water Act (CWA): Minor,
Permit Terminated; Compliance
Tracking Off (ARROOA770)
Resource Conservation and
Recovery Act (RCRA): Inactive
(ARD107289001)
Safe Drinking Water Act
(SDWA): No Information
Other Regulatory Reports
Air Emissions Inventory (EIS): 1017511
Greenhouse Gas Emissions (eGGRT): No
Information
Toxic Releases (TRI): 72703DNHRT2900C
Compliance and Emissions Data Reporting
Interface (CEDRI): No Information
Known Data Problems
Facility/System Characteristics
Facility/System Characteristics
S stem
FRS
Statute
: Identifier
110000452876
Universe
Status
Areas
Permit Ex ration Date
Indian Count
N
Latitude
36.032451
Lo itude
-94.147935
EIS
CAA
1017511
OPERATING
N
36.02861
94.14222
ICISNPDES
CWA
ARROOA770
Minor General Permit Covered Facility
Terminated; Compliance Trackng Off
Storm Water Industrial
03/31/2009
N
36.028833
94.149389
TRI
EP313
72703DNFRT2900C
Toxics Release Inventory
Last Reported for 2009
N
36.03173
94.14956
RCRAInfo
RCRA
ARD107289001
Other
Inactive ()
I
I
I N
36.032451
94.147935
Facility Address
S em
_. .... )'._. —__
FRS
i .Statute
Wenofier
..._.....__..___. —_.
110000452876
__-.............
Faalr Name
_.... ..__._....._._... _ _—.._.._..__ ..__... _.... ......_.__._
KD TOOLS DANAHER TOOL GROUP
......
Fault Addrea _
.............................__..........................._._........_._......._....X......._.......__.— .._— .......
2900 CITY LAKE RD., FAYETTEVILLE, AR 72701
EIS
CAA
1017511
KD TOOLS DANAHER TOOL GROUP
2900 CITY LAKE RD., FAYETTEVILLE, AR 72701
ICISNPDES
CWA
ARROOA770
DANAHER TOOL GROUP
2900 CITY LAKE ROAD, FAYETTEVILLE, AR 72701
TRI
EP313
72703DNHRT2900C
KD TOOUOANAHER TOOL GROUP-FAYETTEVILLE OPERATIONS
2900 S CITY LAKE RD, FAYETTEVILLE, AR 72701
RCRAInfo
RCRA
ARD107289001
DANAHER TOOL GROUP FAYETTEVILLE OPERATION
2900 SOUTH CITY LAKE ROAD, FAYETTEVILLE, AR 72707
Facility SIC (Standard Industrial Classification)
Codes
System
--- .... _.........-...._....._...--
Itlentifier
--
SIC Code
-- ..
SIC Description
TRI
72703DNHRT2900C
3423
land And Edge Tools
ICISNPDES
ARROOA770
3423
Hand And Edge Tools
NPDES
ARROOA770
3423
Hand And Edge Toole
Facility Industrial Effluent Guidelines
Facility NAICS (North American Industry
Classification System) Codes
system
Identifier
i NAICS Code
NAICS Diiiiijition
EIS
1017511
332216
Saw Blade and Handtool Manufacturing
TRI
72703DNHRT2900C
332212
Hand And Edge Tool Manufacturing
RCRAInfo
ARD107289001
332212
Hand And Edge Tool Manufacturing
Facility Tribe Information
Idenhher EflI ent GuidelineE8luent Guideline Dmdpfion _ I Reservat on Name _._ € Tribe Name EPA Tribal 10 D lancet 7 b (miles)
No data records returned Cherokee OTSA Cherokee Nation I 100000038 I 21 1
Enforcement and Compliance
Compliance Monitoring History (5 years)
............. .......... .._... .. .. P .... ...
Statute So ID ..-Syslem--_j Activit Tye '. Coin ce Monitorin2jype ,. Leatl Agency-,_-,-,.. Date_��_ ._FmdmQ,(�f aPphS2 leI_ -, —
No data recordsretumed
Entries in italics are not counted in EPA compliance monitoring strategies or annual results.
Compliance Summary Data
_...... _ _ _ ........
Statute Source ID Current SNC (Significant No ncompl ante VHPV (H gh Pnonty V olah on) Current As Of Otrs oath NC (No ncom pliana!)(of 12) Oata Last Refielred
CWA ARROOA770 No 09l30/ . 0 0221y2020
RCRA I ARD107289001 No 1 02/22/2020 1 0 0=1/2020
Three -Year Compliance History by Quarter
Statute rog ra m/ olluta n! i Violation Type CTR 1 OTR 2 OTR 3 OTR 4 VTR 5 OTR 6 OTR 7 OTR 8 pTR 9 OTR 10 OTR 11
OTR 12
OTR 13+ j
CWA(Source
ID. ARROOA770)
10/0112/31/1601/01-03/31/1704/01-06/30/1T07/01-09/30/17.10/01-12/31/1701/01-03131/1804/01-06/30/1807/01-09/30/1810/0112/31/1801/01-03/31/19!04/01-06/30/19!07/01-09/30/1910/01-02/21/20l
.... ....
.. ._._..
....... .........
............
..... ........
__.. ....__.._
_............
..... ............... ..........
..
..... ............
.... _____........_..
..
Facility Status
Ternineted
Terminated
Terminated
Terminated
Terminated
Terminated
Terminatatl
Terminated Terminated
Termnated
Terminated
Terminate0
.........
Terminatetl
-Level
Permit
Permit
Permit
Permit
Permit
Permit
Permit
Permit Permit
Permi[
Permit
Permit
Permit
Quarterly
Noncompliance Report
History
.._...... _. .............................................. ...... ... _. ....._................_.-- —_.... ................ ... '
Statute, Program/Pollutant OTR QTR2 QTR3 OTR4 OTR6 I DTR6 OTR7 D7R8 DTR9 OTR 10 I OTR 11 OTR 12+
/Vi olalion T
RCR 1ISource 1, a 04/01-06/30/17 07/01-09130/17 10/01-12/31/17 i 01/01-03/31/18 i 04/01-06130118I 07101.0
9/30/18 j 10/01-12/31/18 01/01-03/31/19 04/Ot-0BI30/19 07/01-09/30/19 10/O1•12/31/19 01/01-03ld1120 ARD107289001) I
L...,,... I Facility -Level Status
Informal Enforcement Actions (5 Years)
— -
Statute System.._,.__ .._ Souroe lD Tyke of Adton Lead Agency ,, -
No data records returned
Formal Enforcement Actions (5 Years)
Environmental Conditions
Water Quality
Number of CSD 12-Digit WBD (Watershed Boundary WBD (Watershed Boundary Dataeet)
Combned -
State Water Body Name (I IS
`Impaired Impaired
Cauasa of
W11teMed with ESA
Permit ID (Combined Sewer Dataaet) HUC (RAD (Reach
;Sewer Sytem7
Adtltlaas Subwaterttetl Name (RAD (Reach
(integreted Compliance
Warfare pea !
impairnent(s) by
(Endangered Species Ad}
��, Oattalls Darebaea
Addroa Database
Information S ern
Grou s
filed A ua0c S edeQ
ARROOA770 110100010404
Tom Brandt -Weal Fork White River
No
Yes
Water Body Designated Uses
..----- -_............................... . _ _............ _........._......................
Reach Code Waters d Name Exceptional Use Recreational flee ! Aquatic Life flee Shellfish Use � Beach Closure Within Let Year
II _. _
Beach Cloalre WAthm Lat Twro Veers
t 11010001002061 I No I
No No
No No
No
Air Quality
Nonana nment. Areal _
_
Pollutants i
Applicable Novara nment Standard(s)
No
Ozone
No
Lead
No
Particulate Matter
No
Carbon Monoxide
No
Nitrogen Dioxide
No
Sulfur Dioxide
Pollutants
Toxics Release Inventory History of Reported Chemicals Released in Pounds per Year at Site
Air Pollutant Report TRI Pollution Prevention Report
........................................ ..... ......... _ ... -- —
TRI Facility ID Year Total Air Em—ons Surface Water Discharges OBS te.Transtersto POTWs(P bl Uy Owned Treatment Worle:) .Underground inlecc ons Rele—sto Land Total On4te Releases. Total OBate Trane/era
r
72703DNFRT2900C I2009 10 I 0 _ ..�. 10 __....... r .. .... ... _. _.1
Toxics Release Inventory Total Releases and Transfers in Pounds by Chemical and Year
Chemical Name
HYDROCHLORIC ACID (1995 AND AFTER ACID AEROSOLS ONLY)
2018
2017
2016
2015
2014
2013
2012
2011
2010
2000
METHANOL
10
SULFURIC ACID (1994 AND AFTER ACID AEROSOLS ONLY)
ZINC COMPOUNDS
Demographic Profile
EJSCREEN EJ Indexes
Eleven primary environmental justice (EJ) indexes of EJSCREEN, EPA's screening tool for EJ concerns. EPA
uses these indexes to identify geographic areas that may warrant further consideration or analysis for potential
EJ concerns. Note that use of these indexes does not designate an area as an "EJ community" or' EJ facility."
EJSCREEN provides screening level indicators, not a determination of the existence or absence of EJ
concerns. For more information, see the EJSCREEN home page.
............_........................................................._... .
us Block Grose EJ Indexes rcen8le
elate Mallet (PM 2.5)
e NATA Diesel PM
Air Toxics Cancer Risk
Respiratory Hazard Index (HI)
c Proximity
Paint Indicator
edund Proximity
Management Plan (RMP) Proximity
idous Waste Proximity
Discharge Proximity
89
88.6
87.2
86.1
83.9
73
69.9
93.4
90.7
92.7
_._.._..._.._......_.........._.—. _...._......_.....__�
Number o/ EJ Indexes Above BOM Percentile
I 8
View EJSCREEN Report
Demographic Profile of Surrounding Area (3 Miles)
This section provides demographic information regarding the community surrounding the facility. ECHO
compliance data alone are not sufficient to determine whether violations at a particular facility had negative
impacts on public health or the environment. Statistics are based upon the 2010 US Census and American
Community Survey data, and are accurate to the extent that the facility latitude and longitude listed below are
correct. The latitude and longitude are obtained from the EPA Locational Reference Table (LRT) when
available.
_
General StaBsocs
.........
_...____„_
_
Age Breakdown-. Pel______,,,....................._.__._._
......._._ _ .....,
.......... .....____.____;
Total Persons
21,045
Children 5 yearsand younger
1,089 (5%)
Population Density
754/sq mi.
Minors 17 yearsand younger
3,123 (15%)
;Percent Minority
20%
:Adults 18 yearsand older
17,923 (85%)
Households in Area
8.488
:Seniors 65 yearsand ostler
1,583 (8%)
!lousing Units in Area
10, 011
--
Race Breakdown -Persona (%)
Households on Public Assistance
254
White
17,530 (83%)
Persons Below Poverty Level
8,345
Atncan-Amencan
1,310 (6%)
is of Selected Area
a Latitude
r Longitude
Area
Area
n S15,000
- $25,000
- $50,000
- $75,000
than $75,000
3 mi.
36.032451
-94.147935
99%
1%
2.215 (27.27%)
1,391 (17.13%)
2,001 (24.64%)
925 (11.39%)
1.589 (19.57%)
Race Breakdown - Persons I%)
HispanicOngin 1,365 (6%)
Aslan/PadBc Islander 597 (3%)
American Indian 240 (1%)
Other/Multiracial 1,368 (7%)
.esthan 9M Grade
432 (4.06%)
Ith through 12th Grade
906 (8.51%)
figh School Diploma
2,320 (21.8%)
tome College/2-year
2,671 (25.1%)
I.S./B.A. (Bachelor of Science/Bachelor of Arts) or Mom
4,312 (40.52%)
Appendix D
2002 Phase I Environmental Site Assessment
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
CITY OF FAYETTEVILLE
PHASE I
ENVIRONMENTAL SITE ASSESSMENT
FAYETTEVILLE INDUSTRIAL PARK
FAYETTEVILLE, ARKANSAS
NOVEMBER 2002
PROJECT NO. FY022167
Designed To Serve
AF
McClelland Consulting Engineers, Inc.
1810 North College, P.O. Box 1229
Fayetteville, Arkansas 72702-1229
Phone (479) 443-2377, Fax (479) 443-9241
TABLE OF CONTENTS
FY022167
SUMMARY
2. INTRODUCTION
2.1
Overview
2.2
Purpose
2.3
Detailed Scope of Services
2.4
Limitations and Exceptions
2.5
Special Terms and Conditions
2.6
Limiting Conditions
2.7
User Reliance
3. SITE DESCRIPTION
3.1 Location and Legal Description
3.2 Site and Vicinity General Characteristics
3.3 Current Uses of the Properties
3.4 Descriptions of Structures, Roads and Other Improvements on the Sites
3.5 Current Uses of Adjoining Properties
4. USER PROVIDED INFORMATION
4.1 Environmental Liens or Activity and Use Limitations
4.2 Specialized Knowledge
4.3 Valuation Reduction for Environmental Issues
4.4 Owner, Property Manager and Occupant Information
4.5 Reason for Performing Phase I
5. RECORDS REVIEW
5.1 Standard Environmental Record Sources
5.1.1 Federal
5.1.2 State or State Equivalent
5.2 Additional Environmental Record Sources
5.3 Physical Setting Sources
5.4 Historical Use Information on the Properties
5.5 Historical Use Information on Adjoining Properties
6. SITE RECONNAISSANCE
6.1 Methodology and Limiting Conditions
6.2 General Site Setting
6.3 Exterior Observations
6.3.1 Western Portion
6.3.2 Eastern Portion
6.4 Interior Observations
TABLE OF CONTENTS
Continued
7. INTERVIEWS
8. FINDINGS
9. OPINION
10. CONCLUSIONS
11. DEVIATIONS
12. ADDITIONAL SERVICES
13. REFERENCES
14. SIGNATURES OF ENVIRONMENTAL PROFESSIONALS
15. QUALIFICATIONS OF ENVIRONMENTAL PROFESSIONALS
APPENDICES
APPENDIX A — FIGURES
APPENDIX B —ZONING INFORMATION
APPENDIX C — INTERVIEW DOCUMENTATION
APPENDIX D — REGULATORY RECORDS DOCUMENTATION
APPENDIX E — SITE PHOTOGRAPHS
SECTION 1 - SUMMARY
This investigation and Environmental Site Assessment report represent appropriate
inquiry regarding the subject properties as described herein. This report was prepared
in accordance with ASTM Practice E 1527-00 by McClelland Consulting Engineers, Inc.
(MCE) on behalf of the City of Fayetteville. This report presents the findings of the
Phase I Environmental Site Assessment performed during the month of November
2002.
Evidence of recognized environmental conditions of concern were discovered during the
Phase I assessment of the subject sites. These conditions are attributed to the following
areas located on the subject properties and on adjacent properties as described below:
The existence of an auto salvage yard located adjacent to two of the subject
properties (Lots 2W and 20W).
The existence of an industrial storm water collection pond located on one of the
subject properties (Lot 15WX).
It is our recommendation that additional investigation by means of intrusive sampling
(Phase II) be performed in and around the following locations to determine if there has
been any contamination of the subject properties.
The recommended analyses are as follows:
The vicinity of the auto salvage yard should be analyzed for Toxicity
Characteristic Leaching Procedure (TCLP) parameters and Total Petroleum
Hydrocarbons (TPH).
The storm water collection pond should be analyzed for pH, Total Kjeldahl
Nitrogen (TKN), Total Phosphorus (TP), Five Day Biochemical Oxygen Demand
(BOD5), Chemical Oxygen Demand (COD), Total Suspended Solids (TSS), Total
Cadmium, Total Arsenic, Total Lead, Total Copper, Total Chromium and Oil &
Grease.
It should also be noted that any structures on the subject properties may contain
asbestos and/or lead -based paint due to the age of the structures. If demolition or
removal of any structures is undertaken at some future date, strict compliance with
removal and disposal regulations may be necessary due to the possible presence of
asbestos and/or lead -based paint materials. It is recommended that an asbestos survey
and a lead -based paint survey be conducted on any structures before demolition or
removal.
SECTION 2 - INTRODUCTION
2.1 OVERVIEW
This report represents appropriate inquiry regarding the environmental condition
of the subject properties owned by the City of Fayetteville. This report was
prepared in accordance with ASTM Practice E 1527-00, by the Preparer,
McClelland Consulting Engineers, Inc. (MCE), on behalf of the User, Mr. Ray
Boudreaux, Director of Aviation and Economic Development, City of Fayetteville.
ASTM Practice E 1527-00 is published by the American Society for Testing and
Materials (ASTM) and is a recognized standard for the completion of a Phase I
Environmental Site Assessment (ESA).
2.2 PURPOSE
The purpose of the Phase I Environmental Site Assessment is to assess the
environmental condition of the subject sites. This was accomplished by
researching the history of the subject sites and surrounding areas by using
"nondestructive" methods (i.e., visual observations, interviews and document
reviews) in an attempt to identify and evaluate any recognized environmental
conditions in connection with the subject sites.
2.3 DETAILED SCOPE OF SERVICES
The contracted scope of work included the following tasks:
• Conduct site visits to observe the current site conditions and look for
indications of past uses that may have involved hazardous substances or
petroleum products.
• Perform site reconnaissances of selected areas around the sites and
determine, through visual observations, if nearby land use has an
apparent potential to have an environmental impact upon the subject sites.
• Conduct interviews with owners, occupants, key site personnel and
selected local officials to gain insight into current/past uses and
environmental conditions of the subject sites and surrounding areas.
• Review local, state and federal regulatory databases to determine whether
the sites or the surrounding areas have the potential for being a source of
contamination.
• Review aerial photographs, topographic maps and other select
background/historical information to seek physical evidence which might
suggest the presence of contaminants on the subject sites or in the
surrounding areas.
Prepare and distribute a written report summarizing the observations,
findings and conclusions.
2.4 LIMITATIONS AND EXCEPTIONS
No environmental assessment can discern absolutely that a site is free of any
environmental contamination whatsoever. Instead, this report attempts to raise
environmental suspicion of the subject sites, using a standard of practice, to
ultimately justify additional investigation or no further investigation.
The boundaries of ASTM Practice E 1527-00 are limited to the scope of work
described in Section 2.3. ASTM Practice E 1527-00 does not address asbestos -
containing materials (ACMs), lead -based paint, radon or any other parameter
requiring intrusive investigation. Endangered species/habitat, archeological and
historical resources and wetlands are also evaluations which are outside the
scope of ASTM Practice E 1527-00.
No exceptions from ASTM Practice E 1527-00 are noted.
2.5 SPECIAL TERMS AND CONDITIONS
Recognized environmental conditions as defined by ASTM E 1527-00, Section
3.3.31 are "the presence or likely presence of any hazardous substances or
petroleum products (HS or PP) on a property under conditions that indicate an
existing release, a past release, or a material threat of a release of any HS or PP
into structures on the property or into the ground, ground water, or surface water
of the property. The term includes HS or PP even under conditions in compliance
with laws. The term is not intended to include de minimis conditions that
generally do not present a material risk of harm to the public health or the
environment and that generally would not be the subject of an enforcement
action if brought to the attention of appropriate governmental agencies.
Conditions determined to be de minimis are not recognized environmental
conditions."
The findings included herein are based upon a review of documents specific to
the sites, as well as information obtained and observations made on the dates
noted, using procedures described herein. McClelland Consulting Engineers, Inc.
relies on the information obtained during these procedures unless we have actual
knowledge to the contrary, or, incidentally disclose contradictory information. If
additional information regarding the subject sites becomes available, we request
the opportunity to review the information, reassess the potential environmental
concerns and modify the conclusions and recommendations, as appropriate.
2.6 LIMITING CONDITIONS
This report is limited by conditions inherent with field reconnaissance.
Reasonable attempts were made to visually observe the subject sites and
surrounding properties. However, access was limited due to private ownership,
bodies of water, and fences. In addition to limited access, vision was impaired by
tall grass, thick brush, woods, adjacent buildings and pavement.
2.7 USER RELIANCE
This report was prepared for the exclusive use of the User and is not intended or
represented for use by any other party, unless authorized by the User. The
information, results and conclusions contained within this report represent
conditions at the time of the site visits. This report cannot represent any changes
that may have occurred subsequent to that time. For this reason, the information,
results and conclusions contained within this report are valid for a period of one
year from the date of the report. Any use of this report beyond the one year
period or use by others at anytime is at the sole risk of that User.
SECTION 3 - SITE DESCRIPTION
3.1 LOCATION AND LEGAL DESCRIPTION
This ESA was performed on the following parcels of City -owned land within the
Fayetteville Industrial Park: 2W, 10W, 11W, 13W, 14W, 15WX, 20W, 29E, 30E,
31 E and 32E. The total acreage is approximately 135 acres. The subject sites
are located south of Arkansas Highway 16 in Sections 22, 23, 26 and 27,
Township 16 North, Range 30 West in Washington County, Arkansas. The
boundaries for our investigation are shown as the hatched areas on the Site
Boundary Map (See Figure 1) which represent the subject properties.
The legal description is as follows:
LOTS 2W, 10W, 11 W, 13W, 14W, 15WX, 20W, 29E, 30E, 31 E and 32E IN THE
FAYETTEVILLE INDUSTRIAL PARKAS DESIGNATED ON THE FINAL
REPLAT ON FILE IN THE OFFICE OF THE CIRCUIT CLERK AND EX-OFFICIO
RECORDER OF WASHINGTON COUNTY, ARKANSAS.
3.2 SITE AND VICINITY GENERAL CHARACTERISTICS
Figure 1, Site Boundary Map, shows the topography of the subject sites and
surrounding areas. The subject sites are located in Washington County, and the
elevations range from 1,180 to 1,274 feet above mean sea level.
The subject sites are mostly bordered by undeveloped pasture or wooded area.
Some of the subject sites are bordered by industrial facilities. Figure 2 is a
drawing showing the locations of the subject sites and the adjoining properties.
The subject sites contain approximately 135 acres. The sites are bounded to the
west by Arkansas Highway 156 (City Lake Road), to the east by the West Fork
White River, to the south by rural/residential area and to the north by Arkansas
Highway 16.
The slope of the land is generally from south to north and west to east. The slope
of the terrain varies between 1 and 8 percent. There are several drainage ways
on and around the subject properties (See Figure 1). Town Branch Creek runs
from west to east through the industrial park north of Pump Station Road. West
Fork White River runs south to north along the eastern edge of the industrial
park. At least three unnamed tributaries run through the industrial park. Each
tributary runs south to north and/or west to east into Town Branch Creek and/or
into the West Fork White River. Three of the subject properties contain manmade
ponds (Lots 2W, 14W and 15WX). The pond located on Lot 15WX is a storm
water collection pond for the facility on the adjoining property (Danaher Tool
Group).
The soils in this area are mainly the Savannah-Cleora-Razort association. Some
of the parcels on the western side of the industrial park are in the Enders -
Allegheny -Hector association. The Sava nnah-Cleora-Razort association soils are
loamy, deep, moderately well drained to well drained, nearly level to gently
sloping soils on terraces and floodplains. The Enders -Allegheny -Hector
association soils are deep and shallow, moderately well drained to somewhat
excessively drained, gently sloping to steep soils on mountainsides.
All of the soil types found on the subject properties are classified as Group C or
Group D hydrologic soils. Group C soils have low infiltration rates when
thoroughly wetted and consist mainly of soils with a layer that impedes downward
movement of water and soils with moderately fine to fine texture. These soils
have a low rate of water transmission (0.05-0.15 in/hr).
Group D soils have high runoff potential. They have very low infiltration rates
when thoroughly wetted and consist mainly of clay soils with a high swelling
potential, soils with a permanent high water table, soils with a claypan or clay
layer at or near the surface, and shallow soils over nearly impervious material.
These soils have a very low rate of water transmission (0-0.05 in/hr).
3.3 CURRENT USES OF THE PROPERTIES
The subject sites and adjacent properties are currently zoned as 1-2. This zoning
allows for a wide range of uses such as manufacturing, heavy industrial, gas
service stations, warehousing and wholesale, as well as, many other uses. See
Appendix B for allowed uses within this zone.
All of the subject sites are currently undeveloped woods and/or pasture. It
appears from a review of the 2001 AHTD aerial photograph that Lot 2W contains
one small structure. Interviews with current occupants revealed that Lot 11W
contains two temporary structures that are used for storage. It appears from site
visits and review of the 2001 aerial photograph that there are currently no
buildings on any of the other subject sites.
3.4 DESCRIPTIONS OF STRUCTURES, ROADS AND OTHER IMPROVEMENTS
ON THE SITES
The properties are near a principal arterial on the north side (Arkansas Highway
16) and collectors on the west side (Morningside Drive and City Lake Road).
Pump Station Road (a minor arterial) runs east/west through the industrial park
and Armstrong Avenue (a minor arterial) runs north/south through the industrial
park.
The sites are served by municipal water and sewer. Southwestern Electric Power
Company (SWEPCO) is the source of electricity to the sites. Arkansas Western
Gas is the source of gas to the sites.
3.5 CURRENT USES OF ADJOINING PROPERTIES
Currently the adjoining properties are as follows (See Figure 2):
Subject
Property to North
Property to South
Property to East
Property to West
Property
Undeveloped
Undeveloped
Undeveloped
Warford Auto
Lot 2W
Pasture/Residential
Woods/Residential
Woods
Wreckers
USPS Sorting
Undeveloped
Undeveloped
Residential/
Lot 10W
Facility/Undeveloped
Pasture
Woods/Pasture
Undeveloped
Woods
Woods
Undeveloped
Pat Salmon & Sons,
Undeveloped
Residential/
Lot 11 W
Woods/Pasture
Inc. Trucking Co.
Pasture
Undeveloped
Woods
Undeveloped
Undeveloped
Undeveloped
Undeveloped
Lot 13W
Woods/Pasture
Woods/Pasture
Woods/Pasture
Woods/Pasture/
Pat Salmon
Trucking
Undeveloped
Armstrong Brothers
Undeveloped
Lot 14W
Marshalltown Tools
Woods/Pasture
Tool Company
Woods/Pasture
Lot
Pat Salmon Trucking/
Danaher Tool Group
Undeveloped
Undeveloped
15WX
Undeveloped
Woods
Woods
Woods/Pasture
Undeveloped
Undeveloped
Warford Auto
Undeveloped
Lot 20W
Pasture/Residential
Pasture/
Wreckers
Pasture/
Residential
Residential
Undeveloped Woods
Northwest Electric
Armstrong Storage
Bioengineering
Lot 29E
Company/
Research
Park Land and
Greenway
SWEPCO Electrical
Undeveloped
Bioengineering
Undeveloped
Lot 30E
Substation
Woods
Research
Woods/
Residential
Park Land and
Bioengineering
Undeveloped
SWEPCO
Lot 31 E
Greenway
Research
Woods
Electrical
Substation
Park Land and
Undeveloped
Park Land and
Undeveloped
Lot 32E
Greenway
Woods
Greenway
Woods
SECTION 4 - USER PROVIDED INFORMATION
4.1 ENVIRONMENTAL LIENS OR ACTIVITY AND USE LIMITATIONS
The owner is not aware of any environmental lien(s) on the subject properties.
4.2 SPECIALIZED KNOWLEDGE
The owner does not have any specialized knowledge concerning recognized
environmental conditions on the subject sites.
4.3 VALUATION REDUCTION FOR ENVIRONMENTAL ISSUES
There are no known reductions of property values due to environmental issues.
4.4 OWNER, PROPERTY MANAGER AND OCCUPANT INFORMATION
Generally, the owner and current occupants all knew of no environmental issues
regarding any of the sites. There are currently no property managers since the
subject sites are all undeveloped.
One of the current occupants was helpful in answering several questions about
the sites and surrounding areas. Kit and Emily Williams currently maintain horses
on Lot 11 W. They stated that they have two temporary structures on Lot 11 W
used for storing hay. See interview records in Appendix C for more information.
4.5 REASON FOR PERFORMING PHASE I
The purpose of this Phase I Environmental Site Assessment is to determine if the
designated properties are subject to recognized environmental conditions as set
out in ASTM E 1527 and defined in Section 2.3 of this report. This assessment is
intended to provide the User with a basis for satisfying one of the requirements
for qualifying for the "innocent landowner's defense" to liability under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA).
This assessment was performed for Mr. Ray Boudreaux, Director of Aviation and
Economic Development, City of Fayetteville. It is typically a requirement of
lending agencies that represent clients who are considering purchasing the
subject sites.
SECTION 5 - RECORDS REVIEW
5.1 STANDARD ENVIRONMENTAL RECORD SOURCES
The following regulatory agency lists and databases from the United States
Environmental Protection Agency (USEPA) and the Arkansas Department of
Environmental Quality (ADEQ) were obtained and reviewed. The purpose of this
review was to identify information within the respective databases that could
potentially have an environmental impact on the subject sites.
5.1.1 Federal
NPL - National Priority List - This list ranks sites across the nation that
are listed or proposed for Superfund Remediation.
CERCLIS - Comprehensive Environmental Response, Compensation,
and Liability Information System - This database lists all sites that the
USEPA has investigated or is currently investigating under the
Comprehensive Environmental Response, Compensation, and Liability
Act (CERCLA is also known as the Superfund). During the review of
the CERCLIS database, we specifically looked for:
CERCLIS - CERCLIS site list; and
CERCLIS NFRAP - former CERCLIS sites where no further remedial
action is planned under CERCLA.
RCRIS - Resource Conservation Recovery Information System - This
database lists all facilities that generate, burn, blend, recycle, and treat,
store, or dispose of hazardous waste regulated under the Resource
Conservation Recovery Act (RCRA). During the review of the RCRIS
database, we specifically looked for:
RCRA GEN - hazardous waste generators;
CORRACTS - hazardous waste treatment, storage, or disposal (TSD)
facilities that are subject to corrective action, and,
RCRA TSD - TSD facilities that are not subject to corrective action.
ERNS - Emergency Response Notification System - This database
includes information on reported releases of petroleum products or
hazardous substances.
5.1.2 State or State -Equivalent
• SPL - State -equivalent of NPL - The SPL is Arkansas' version of the
NPL. Sites on the SPL are in one of two categories. They either are
under investigation or listed for remediation. Regulatory actions
pertaining to these sites are funded by the State in a manner similar to
that of CERCLA.
• SWF - Solid Waste Disposal/Landfill Facilities Lists - This list includes
all permitted solid waste landfills and solid waste processing facilities,
active or closed.
RST - Regulated Storage Tanks List - This list includes all registered
storage tank facilities, above and below ground, within the State of
Arkansas. Our review of the RST list focused only on registered
underground storage tanks.
LUST - Leaking Underground Storage Tanks List - This list includes
information on all reported leaking underground storage tanks.
Note: Currently ADEQ does not have a state -equivalent CERCLIS list.
The following table summarizes the number of sites identified within the ASTM
search distances from the properties:
Min
1.0 mile
NPL
0
CORRACTS
1
SPL
1
Min
0.5 mile
CERCLIS
1
RCRA TSD
0
SWF
2
LUST
1
Property &
adjoining
properties
RCRA GEN
3
RST
1
CERCLIS NFRAP
0
Property only
ERNS
0
See Figure I Regulatory Site Location Map for a graphical representation of the
ASTM minimum search distances.
Nine sites within the ASTM minimum search distances were found during review
of the referenced databases or lists. See Appendix D for documentation.
Facility Name
R & P Electroplating
R & P Electroplating
Facility ID
ARD051961829
ARD051961829
Type/Statue
CERCLIS/Inactive
SPL/Inactive
Review of the USEPA and ADEQ databases shows that R & P Electroplating is
currently on the EPA CERCLIS list and the State Priority List. R & P
Electroplating is listed on the SPL as a site that is both under investigation and
listed for remediation action.
Conversations with Mr. Jim Franks and Mr. Dennis Green of the Hazardous
Waste Division of ADEQ revealed the following information about R & P:
• Action was taken under the original Emergency Order to remove any
contamination that was considered an immediate threat to human health
and safety. This consisted of removing cyanide -tainted waste from the
site.
• Some contamination remains on the site. The walls of the facility and the
soils and groundwater underneath the facility are presumably still
contaminated; however, there is no evidence to date that the
contamination has reached the West Fork White River located east of the
site.
• ADEQ placed a fence around the site to prevent unauthorized persons
from entering the site.
• The USEPA has an environmental lien on the property.
R & P is not adjacent to any of the subject properties, but it is located within the
minimum search distances from some of the subject sites. R & P is located
downhill from the subject properties. In addition, the clay soils that the facility is
located on do not lend themselves to migration of chemicals or hazardous
substances.
One cannot discern absolutely that the R & P site poses no environmental risk to
surrounding properties, but due to the proximity of the subject sites, it is not
considered to pose a material threat to any of the subject sites.
Facility Name Facility ID Type/Statue
Superior Industries ARD000709584 CORRACTS /Active
Review of the USEPA database shows that Superior Industries is currently on
the CORRACTS list. The CORRACTS list is a list of hazardous waste treatment,
storage, or disposal facilities and other RCRIS facilities (due to past interim
status or storage of hazardous waste beyond 90 days) who have been notified by
the USEPA to undertake corrective action under RCRA. It is unknown why
Superior has been placed on the CORRACTS list.
Superior Industries is not adjacent to any of the subject properties, but it is
located within the minimum search distances from some of the subject sites.
Superior is located downhill from the subject properties. In addition, the clay soils
that the facility is located on do not lend themselves to migration of chemicals or
hazardous substances.
One cannot discern absolutely that the Superior Industries facility poses no
environmental risk to the surrounding properties, but due to the proximity of
Superior to the subject sites, it is not considered to pose a material threat to any
of the subject sites.
Facility Name Facility ID Type/Statue
Bioengineering Resources AR0000324442 RCRA SQG /Active
Danaher Tool Group ARD107289001 RCRA SQG /Active
Marshalltown Tools ARD045799152 RCRA SQG /Active
Review of the USEPA and ADEQ databases shows that the above listed facilities
are listed as Small Quantity Generators (SQG) under RCRA. Marshalltown Tools
is not considered a material threat to Lots 13W and 14W because the storm
water from their facility does not drain or flow across the subject properties.
Bioengineering Resources is not considered a material threat to Lots 29E, 30E,
31 E and 32E because there is a large wooded area separating the facility from
the subject properties. The storm water runoff from the Danaher Tool Group
drains by design into a collection pond located on one of the subject properties
(Lot 15WX). There is the potential for hazardous substances to be present in the
collection pond.
Facility Name Permit No. Type/Statue
City of Fayetteville 72-00102 SWF /Active
Roll Off Service, Inc. 72-00679 SWF /Active
Review of the ADEQ database shows that the above listed facilities are listed as
Solid Waste Permitted Facilities. The City of Fayetteville operates a yard waste
compost facility and a solid waste transfer station. Roll Off Service, Inc. operates
a waste recovery facility.
Neither of the facilities is adjacent to any of the subject properties, but they are
located within the minimum search distances from some of the subject sites. The
facilities are located downhill from the subject properties. In addition, the clay
soils that the facilities are located on do not lend themselves to migration of
chemicals or hazardous substances. One cannot discern absolutely that either
facility poses no environmental risk to the surrounding properties, but due to the
proximity of the facilities to the subject sites, they are not considered to pose a
material threat to any of the subject sites.
Facility Name Facility ID. Type/Statue
Pat Salmon & Sons, Inc. 72001742 RST /Active
Review of the ADEQ Regulated Storage Tank database shows that the above
listed facility is listed as having an aboveground storage tank. There are no
leaking storage tank records on file for this facility. Pat Salmon is not considered
a material threat to Lots 11 W and 15WX because the storm water from their
facility does not drain or flow across the subject properties.
Facility Name Facility ID. Type/Statue
EZ Mart #434 72000301 LUST /Active
Review of the ADEQ Facility Report indicates that the facility has had two
reported incidents. Routine checks indicated that one of the facility's tanks was
non -tight in December 1996. A stolen gauge stick was cited as the cause for the
incorrect data. A status of no further action was given in January 1997.
The other incident involved a tripping line in the system's leak detector. A letter
was submitted requesting a review by the RST Division's Technical Branch on
July 29, 1999. A casefile was opened with the Technical Branch on October 27,
1999. Samples were taken and groundwater assessment monitoring was
requested. The site was monitored until August 2002. The site close-out was
reported by the RST Division on August 21, 2002. The facility is not considered a
material threat to any of the subject properties.
5.2 ADDITIONAL ENVIRONMENTAL RECORD SOURCES
In addition to the Standard Environmental Record Sources listed above, the
following local sources were reviewed:
• Fayetteville Planning Department
• Location of Landfills - Northwest Arkansas Solid Waste Study
5.3 PHYSICAL SETTING SOURCES
In researching the site and vicinity characteristics the following sources were
reviewed:
• USGS 7.5 minute topographic map
• Soil Survey of Washington County
• Fayetteville Flood Data
5.4 HISTORICAL USE INFORMATION ON THE PROPERTIES
In researching the past uses of the subject sites the following sources were
reviewed:
• USGS 7.5 minute topographic maps
• Polk's City Directories
• AHTD Aerial photographs
A review of aerial photographs from 2001, 1993 and 1969 shows no indications
that the sites were previously used for industrial purposes. Additionally,
interviews with past and current occupants, employees of adjoining facilities and
the owner reveal that the subject properties have never been used for industrial
purposes. The 1969 aerial photograph shows that there were houses, barns
and/or storage buildings on Lots 2W, 10W, 11 W and 20W. Lots 13W, 14W,
15WX, 29E, 30E, 31 E and 32E were undeveloped in the 1969 aerial photograph.
5.5 HISTORICAL USE INFORMATION ON ADJOINING PROPERTIES
In researching the past uses of the adjoining properties the following sources
were reviewed:
• USGS 7.5 minute topographic maps
• Polk's City Directories
• AHTD Aerial photographs
Obvious past uses of the adjoining properties are as follows:
Subject
Property to North
Property to South
Property to East
Property to West
Property
Residential/
Residential/
Undeveloped
Warford Auto
Lot 2W
Undeveloped Pasture
Undeveloped Pasture
Woods
Salvage
Undeveloped Pasture
Residential/
Undeveloped
Residential/
Lot 10W
Undeveloped Pasture
Pasture
Undeveloped
Woods
Residential/
Residential/
Undeveloped
Residential/
Lot 11 W
Undeveloped Pasture
Undeveloped Pasture
Pasture
Undeveloped
Woods
Undeveloped Pasture
Undeveloped
Undeveloped
Undeveloped
Lot 13W
Woods/Pasture
Woods/Pasture
Woods/Pasture
Residential/
Undeveloped
Undeveloped
Undeveloped
Lot 14W
Undeveloped Pasture
Woods/Pasture
Woods/Pasture
Woods/Pasture
Lot
Residential/
Undeveloped Pasture
Undeveloped
Undeveloped
15WX
Undeveloped Pasture
Woods/Pasture
Woods
Residential/
Residential/
Warford Auto
Residential/
Lot 20W
Undeveloped Pasture
Undeveloped Pasture
Salvage
Undeveloped
Pasture
Undeveloped Woods
City Incinerator/
Residential/
Undeveloped
Lot 29E
Undeveloped Pasture
Undeveloped
Woods
Woods
Undeveloped Woods
Undeveloped Woods
Undeveloped
Undeveloped
Lot 30E
Woods
Woods
Undeveloped
Residential/City
Undeveloped
Undeveloped
Lot 31 E
Woods/Pasture
Incinerator
Woods
Woods
Undeveloped Woods
Undeveloped Woods
Undeveloped
Undeveloped
Lot 32E
Woods
Woods
SECTION 6 - SITE RECONNAISSANCE
6.1 METHODOLOGY AND LIMITING CONDITIONS
The initial visual site inspection was conducted on the properties on November 4,
2002. A subsequent site visit was made on November 13, 2002. The following
descriptions are based on field observations made on these dates. The
properties were examined by walking and driving the perimeters of the properties
and by intermittent traversing of the properties to observe different items as
discussed below.
Limiting conditions occurred where undergrowth was too heavy to see through or
to walk through. This condition existed on several areas of the subject sites.
6.2 GENERAL SITE SETTING
The sites are located in Fayetteville, south of Arkansas Highway 16. They are
situated along Morningside Drive/City Lake Road, Pump Station Road and
Armstrong Avenue. The sites are comprised of approximately 135 acres.
6.3 EXTERIOR OBSERVATIONS
The sites can best be described as two separate areas, the western portion and
the eastern portion. The two areas will be described separately as follows:
6.3.1 Western Portion
The subject sites in the western portion of the Industrial Park are Lots 2W, 10W,
11 W, 13W, 14W, 15WX and 20W as shown on Figure 2. The lots are currently
uninhabited; however, Lots 2W, 20W, 10W and 11 W are used to maintain
horses. It appears from a review of the 2001 AHTD aerial photograph that Lot
2W contains one small structure. Interviews with current occupants revealed that
Lot 11 W contains two temporary structures that are used for storage. It appears
from site visits and review of the 2001 aerial photograph that there are currently
no buildings on any of the other subject sites.
These lots were previously used for residential and agricultural use. The 1969
aerial photograph shows that there were houses, barns and/or storage buildings
on Lots 2W, 10W, 11 W and 20W. Lots 13W, 14W and 15WX were undeveloped
in the 1969 aerial photograph.
A walkthrough of the western sites revealed the following:
Several piles of debris were seen on Lots 13W and 14W including but
possibly not limited to: a pile of gravel and dirt that contained a dead
animal carcass on top, a discarded water heater, a discarded window air
conditioner unit and a discarded car or truck seat.
A concrete slab is present on Lot 11 W, evidently the site of a previous
dwelling.
There was miscellaneous trash on almost all of the subject properties
such as coke cans, paper, etc.
6.3.2 Eastern Portion
The subject sites in the eastern portion of the Industrial Park are Lots 29E, 30E,
31 E and 32E as shown on Figure 2. The lots are currently undeveloped woods. It
is obvious from the aerial photographs and interviews that these lots have never
been developed.
A walkthrough of the eastern sites revealed the following:
There was a dead deer on Lot 31 E; however, it was obvious that it had
been discarded by humans. Personnel from the city arrived during the site
visit to remove the remains.
There were some large chunks of concrete seen on Lots 31 E and 32E.
There was miscellaneous trash on almost all of the subject properties
such as coke cans, paper, etc.
See Appendix E for photographs from the site visits.
6.4 INTERIOR OBSERVATIONS
No interior observations were made during the site visits.
SECTION 7 - INTERVIEWS
Interviews were conducted with the following persons to obtain historical information on
the subject properties. The record of these interviews is shown in Appendix C.
Mr. Ray Boudreaux (Owner's Representative)
Mr. and Mrs. Kit Williams (Current Occupants of Lot 11 W)
Ms. Diana Masterson (Previous Occupant of adjacent property)
Mr. Jim Glass (employee of Marshalltown Tools)
Mr. Richard Vaughan (employee of Danaher Tool Group)
Mr. Jim Franks (ADEQ Hazardous Waste Division — Inactive Sites Branch
Manager)
Mr. Dennis Green (ADEQ Hazardous Waste Division — Inactive Sites Branch)
SECTION 8 - FINDINGS
Significant findings related to the Phase I investigation are as follows:
• The subject sites have apparently been used as undeveloped, residential and/or
agricultural land since at least 1969 per the aerial photographs.
• The properties have been owned by the City of Fayetteville since the early
1980's, and there are no records of any environmental liens on the properties as
indicated by the owner.
• There are three RCRA Generator facilities located adjacent to seven of the
subject properties (Lots 13W, 14W, 15WX, 29E, 30E, 31 E and 32E).
• There is one regulated aboveground storage tank at a facility located adjacent to
three of the subject properties (Lots 11 W, 13W and 15WX).
• There is an electrical substation located adjacent to two of the subject properties
(Lots 30E and 31 E).
Evidence of recognized environmental conditions of concern were discovered during the
Phase I assessment of the subject sites. These conditions are attributed to the following
areas located on the subject properties and on adjacent properties as described below:
The existence of an auto salvage yard located adjacent to two of the subject
properties (Lots 2W and 20W).
The existence of an industrial storm water collection pond located on one of the
subject properties (Lot 15WX).
SECTION 9 - OPINION
Generally, no substantial evidence was encountered during the investigation that
significant environmental risk is associated with the subject properties. Areas of concern
however, are discussed below.
The area of greatest concern is the adjacent location of two of the subject
properties (Lots 2W and 20W) to an auto salvage yard. It is evident from the
1969 aerial photograph and the review of the Polk's City Directories that the
salvage yard has been at its current location for many years. This salvage yard
has been unregulated and there could possibly be migration of hazardous
substances onto the subject properties.
Another area of concern is the storm water collection pond located on one of the
subject properties (Lot 15WX). The facility on the adjoining property (Danaher
Tool Group) is a metal fabricating facility and is listed as a Small Quantity
Generator under RCRA. The storm water runoff from Danaher's facility drains by
design into the collection pond. There is the potential for hazardous substances
to be present in the collection pond.
Lots 29E, 30E, 31 E, 32E, 11 W, 13W, 14W and 15WX are located adjacent to
facilities listed as RCRA Hazardous Waste Generators and/or facilities with
Regulated Storage Tanks. Marshalltown Tools is not considered a material threat
to Lots 13W and 14W because the storm water from their facility does not drain
or flow across the subject properties. Bioengineering Resources is not
considered a material threat to Lots 29E, 30E, 31 E and 32E because there is a
large wooded area separating the facility from the subject properties. Pat Salmon
Trucking is not considered a material threat to Lots 11 W and 15WX because the
storm water from their facility does not drain or flow across the subject properties.
Lots 30E and 31 E are located adjacent to an electrical substation. The substation
is not considered a material threat to these properties because the storm water
from the substation does not drain or flow across the subject properties.
SECTION 10 - CONCLUSIONS
We have performed a Phase I Environmental Site Assessment in conformance with the
scope and limitations of ASTM Practice E 1527-00 of Lots 2W, 10W, 11 W, 13W, 14W,
15WX, 20W, 29E, 30E, 31 E and 32E in the Fayetteville Industrial Park, herein referred
to as the properties. Any exceptions to, or deviations from, this practice are described in
Section 2 or 11 of this report.
This assessment has revealed no evidence of recognized environmental conditions in
connection with the properties except for the following:
The existence of an auto salvage yard located adjacent to two of the subject
properties (Lots 2W and 20W).
The existence of an industrial storm water collection pond located on one of the
subject properties (Lot 15WX).
It is our recommendation that additional investigation by means of intrusive sampling
(Phase II) be performed in and around the following locations to determine if there has
been any contamination of the subject properties.
The recommended analyses are as follows:
The vicinity of the auto salvage yard should be analyzed for Toxicity
Characteristic Leaching Procedure (TCLP) parameters and Total Petroleum
Hydrocarbons (TPH).
The storm water collection pond should be analyzed for pH, Total Kjeldahl
Nitrogen (TKN), Total Phosphorus (TP), Five Day Biochemical Oxygen Demand
(BOD5), Chemical Oxygen Demand (COD), Total Suspended Solids (TSS), Total
Cadmium, Total Arsenic, Total Lead, Total Copper, Total Chromium and Oil &
Grease.
It should also be noted that any structures on the subject properties may contain
asbestos and/or lead -based paint due to the age of the structures. If demolition or
removal of any structures is undertaken at some future date, strict compliance with
removal and disposal regulations may be necessary due to the possible presence of
asbestos and/or lead -based paint materials. It is recommended that an asbestos survey
and a lead -based paint survey be conducted on any structures before demolition or
removal.
SECTION 12 - ADDITIONAL SERVICES
This report does not consider issues that are not within the scope of an Environmental
Site Assessment as according to ASTM E 1527-00.
SECTION 13 - REFERENCES
• United States Department of the Interior, U.S. Geological Survey
• USDA Soil Survey of Washington County (Issued in 1969)
• City of Fayetteville Planning Division
• Arkansas Highway and Transportation Department (AHTD)
• United States Environmental Protection Agency (USEPA)
• Arkansas Department of Environmental Quality (ADEQ)
• Polk's City Directories, published by R.L. Polk
• Interviewees - See Section 7
SECTION 14 - SIGNATURES OF ENVIRONMENTAL
PROFESSIONALS
We have performed a Phase I Environmental Site Assessment in conformance with the
scope and limitations of ASTM practice E 1527-00 on the properties as described in this
report. A Phase I Environmental Site Assessment cannot discern absolutely that a site
is free of contamination. Instead it attempts to uncover and document any discharge of
hazardous waste or hazardous substances and or petroleum products onto the property
through procedures established in ASTM E 1527. This study was conducted pursuant to
guidance provided by ASTM E 1527. It is strictly limited to visual observations of the
properties during the field reconnaissance, interviews, examination of maps and aerial
photographs contained in the report, and a review of records obtained from public
agencies and others as described in the report. There was no sampling of soil or water
at the sites and no subsurface investigations were conducted in the Phase I Study.
Respectfully Submitted,
McCLELLAND CONSULTING ENGINEERS, INC.
R. Wayne Jones, P.E. Carole Jones, E.I.
Vice President Project Engineer
SECTION 15 - QUALIFICATIONS OF
ENVIRONMENTAL PROFESSIONALS
15.1 CORPORATE
McClelland Consulting Engineers, Inc. is a multi disciplinary engineering firm
specializing in civil and environmental engineering complemented with
geotechnical and structural engineering, environmental laboratory analysis,
drafting and surveying.
Established over 39 years ago, the firm has grown to become one of the largest
in Arkansas with offices in Little Rock and Fayetteville.
Over the past years, McClelland Consulting Engineers, Inc. has completed
Phase I and Phase II Environmental Site Assessments for a diverse clientele, as
indicated by the following partial client list:
American Freightways
Bradley Co. Industrial Development Commission
Brinkley Chamber of Commerce
Excel Specialty Products
Farmers & Merchants Bank
First National Bank
Fordyce Industrial Developmental Commission
Mr. Dash Goff
15.2 PROJECT ENGINEER
J.A. Riggs Tractor Company
Jones Toyota
Overton Realty
SE Ark. Education Service Coop
Springdale Chamber of Commerce
Superior Industries
The Watkins Company
Carole Jones earned a Bachelor of Science Degree in Chemical Engineering
from the University of Arkansas in 1987. Prior to employment at McClelland
Consulting Engineers, Inc., Ms. Jones worked as a Process Engineer in the
defense industry for ten (10) years. She is familiar with ASTM Standards and
regulatory agency requirements. Ms. Jones has worked for McClelland
Consulting Engineers, Inc. since April 1997. Ms. Jones is a Project Engineer at
McClelland Consulting Engineers, Inc.
15.3 PROJECT MANAGER
Mr. R. Wayne Jones, P.E., (Vice President) earned a Bachelor of Science
Degree in Civil Engineering from the University of Arkansas in 1970. Mr. Jones
has been employed by MCE for more than 25 years.
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PROJECT # FY022167
NAME: Dennis Green
INTERVIEW DATA SHEET
DATE/TIME: 11/ 19 /02 8:40 AM
PHONE# (501) 682-0874
ADDRESS: 8001 National Drive, Little Rock, AR 72209
AFFILIATION TO PROPERTY (CHECK ONE):
IF Current Owner IF Past Owner T Keysite Mgr:
r Occupant T Local Gov=t. Official:
❑ Other: ADEQ Hazardous Waste Division, Inactive Sites Branch
Method of contact (check one):
IF In person ❑ By telephone T In writing
Please answer in good faith and to the extent of your knowledge. Be as specific as reasonably feasible.
CONTENT OF INTERVIEW
Mr. Green works for ADEQ's Inactive Sites Branch of the Hazardous Waste Division. He
is very familiar with the R & P Electroplating facility. He has performed inspections of
the facility in the past when the facility was still in operation. He said he performed an
inspection there approximately fifteen years ago. The facility was still in compliance at
that time. He indicated that approximately five years later, another inspector checked
the facility and it was found to be out of compliance.
He confirmed that some removal of contaminated wastes was performed on the site
under the original Emergency Order. The purpose of the original Emergency Order was
to remove any contamination that was considered an immediate threat to human health
and safety. He also confirmed that there is still some contamination on the site, but
there is no evidence to date that the contamination has migrated to the West Fork White
River.
He said that ADEQ placed a fence around the property to keep unauthorized persons
from entering the facility and surrounding area.
INTERVIEW DATA SHEET
PROJECT # FY022167 DATE/TIME: 11/11/02 1:00 PM
NAME: Diana Masterson PHONE# (479) 521-4507
ADDRESS: 1753 Janice Avenue, Fayetteville, AR 72703
AFFILIATION TO PROPERTY (CHECK ONE):
r Current Owner IF Past Owner IF Keysite Mgr:
r Occupant IF Local Gov=t. Official:
❑ Other: Previous Occupant of house located in the NW corner of Lot 7W
Method of contact (check one):
❑ In person r By telephoner In writing
Please answer in good faith and to the extent of your knowledge. Be as specific as reasonably feasible.
CONTENT OF INTERVIEW
Ms. Masterson rented a house previously located on City Lake Road in 1986. She lived
there for approximately one year. The house was located in the northwest corner of
what is now Lot 7W. Aerial photographs show that the house and two structures behind
it had been removed by 1993.
Ms. Masterson said that City water and sewer services were provided at that time. She
said there were mostly houses and pastures along City Lake Road and Pump Station
Road at that time. Warford Auto Salvage and the City Incinerator were the only
developments (other than houses) that she recalled. She said Armstrong Brothers Tools
may have been there in 1986, but she was not sure. She did not recall any known
problems associated with the property with regards to hazardous substances or
petroleum products.
INTERVIEW DATA SHEET
PROJECT # FY022167 DATE/TIME: 11/ 21 /02 11:00 AM
NAME: Emily Williams PHONE# (479) 973-8653
ADDRESS: Fayetteville, AR
AFFILIATION TO PROPERTY (CHECK ONE):
r Current Owner T Past Owner r Keysite Mgr:
❑ Occupant T Local Gov=t. Official:
T Other:
Method of contact (check one):
r In person ❑ By telephone T In writing
Please answer in good faith and to the extent of your knowledge. Be as specific as reasonably feasible.
CONTENT OF INTERVIEW
Mrs. Williams and her family currently lease Lot 11 W from the City of Fayetteville. The
Williams maintain horses on the property. Mrs. Williams confirmed that they had two
temporary structures on the property that are used for storing hay.
She indicated there is evidence that there were some dwellings previously on the
property. There is a septic tank and a foundation from the previous occupants. There is
also a pile of old tires (10-15) on the property. She indicated that she is not aware of
any previous industrial activity or hazardous substances or petroleum products on the
property.
She said that Pat Salmon Trucking (south of Lot 11 W) has a truck washing facility and
an aboveground storage tank. She indicated that she is not aware of any illegal
dumping or hazardous waste activities associated with the Pat Salmon facility.
INTERVIEW DATA SHEET
PROJECT # FY022167 DATE/TIME: 11/ 19 /02 8:30 AM
NAME: Jim Franks PHONE# (501) 682-0854
ADDRESS: 8001 National_ Drive, Little Rock, AR 72209
AFFILIATION TO PROPERTY (CHECK ONE):
IF Current Owner T Past Owner T Keysite Mgr:
T Occupant r Local Gov=t. Official:
❑ Other:_ADEQ Hazardous Waste Division, Manager Inactive Sites Branch
Method of contact (check one):
T In person ❑ By telephone T In writing
Please answer in good faith and to the extent of your knowledge. Be as specific as reasonably feasible.
CONTENT OF INTERVIEW
Mr. Franks is the Manager of ADEQ's Inactive Sites Branch of the Hazardous Waste
Division. He and his staff are very familiar with the R & P Electroplating facility. He said
that some removal of contamination was performed on the site approximately two years
ago. There were some pits that contained cyanide -tainted wastes that were cleaned out
at that time. He said there is still some contamination on the site. The walls, soils and
groundwater underneath the facility are still contaminated. He indicated that the last
time the department had sampled the site, the contamination had not migrated to the
West Fork White River.
He said that the Pummel Brothers still own the property, but the USEPA has an
environmental lien on the property.
PROJECT # FY022167
NAME: Jim Glass
INTERVIEW DATA SHEET
DATE/TIME: 11/18/02 9:45 AM
PHONE# (479) 521-8787 ext. 163
ADDRESS: 2200 Industrial Drive, Fayetteville, AR 72701
AFFILIATION TO PROPERTY (CHECK ONE):
IF Current Owner r Past Owner r Keysite Mgr:
IF Occupant IF Local Gov=t. Official:
❑ Other: Employee of Marshalltown Tools, property north of Lots 13W and 14W
Method of contact (check one):
r In person ❑ By telephoner In writing
Please answer in good faith and to the extent of your knowledge. Be as specific as reasonably feasible.
CONTENT OF INTERVIEW
Mr. Glass has worked for Marshalltown Tools at its Fayetteville location since the facility
was built (over twenty years). He is involved with their storm water testing program.
Marshalltown is permitted to discharge storm water associated with industrial activity
under the General Industrial Storm Water Permit administered by the Arkansas
Department of Environmental Quality (ADEQ).
Mr. Glass said that the property was formerly an undeveloped field before the
Marshalltown facility was built. He said there was a house located on the property facing
Pump Station Road across from Combs Cemetery until just a couple of years ago.
Marshalltown rented the house until it was relocated.
Mr. Glass was not aware of any unusual or hazardous materials on the property owned
by Marshalltown or any of the adjoining properties. He said that all of those lots were
agricultural and/or native pasture when Marshalltown began construction on their
facility.
Mr. Glass also provided some information on the property that is currently the
Marshalltown Distribution Center on Armstrong Avenue (Lot 14E). He said that property
was formerly Hackney Brothers Body Company. He recalled that Marshalltown hired
Haz Mert to pump out a hydraulic lift station pit that was left from Hackney Brothers'
operations. The pit contained only hydraulic fluid and no hazardous substances.
Marshalltown filled in the area with concrete when their distribution center was
constructed.
INTERVIEW DATA SHEET
PROJECT # FY022167 DATE/TIME: 11/ 18 /02 8:30 AM
NAME: Kit Williams PHONE# (479) 575-8313
ADDRESS: Citv Attornev's Office, Favetteville. AR
AFFILIATION TO PROPERTY (CHECK ONE):
r Current Owner T Past Owner r Keysite Mgr
❑ Occupant T Local Gov=t. Official:
IF Other:
Method of contact (check one):
T In person ❑ By telephone T In writing
Please answer in good faith and to the extent of your knowledge. Be as specific as reasonably feasible.
CONTENT OF INTERVIEW
Mr. Williams and his family currently lease Lot 11 W from the City of Fayetteville. The
Williams maintain horses on the property. Mr. Williams said they have two temporary
structures on the property that are used for storing hay.
Mr. Williams indicated there was an old foundation left on the property. He remembered
that there were some metal scraps and other debris that his family cleaned up when
they first occupied the property, but he was not aware of any previous industrial activity
or hazardous substances or petroleum products on the property.
He advised me to interview his wife because she is more familiar with the property (See
interview form for Emily Williams).
PROJECT # FY022167
NAME: Rav Boudreau
INTERVIEW DATA SHEET
DATE/TIME: 11/ 21 /02 5:00 PM
PHONE# (479) 718-7642
ADDRESS: 4500 South School Street, Fayetteville, AR 72701
AFFILIATION TO PROPERTY (CHECK ONE):
❑ Current Owner T Past Owner r Keysite Mgr:
IF Occupant T Local Gov=t. Official:
r Other:
Method of contact (check one):
IF In person ❑ By telephone r In writing
Please answer in good faith and to the extent of your knowledge. Be as specific as reasonably feasible.
CONTENT OF INTERVIEW
Mr. Boudreaux is the Director of Aviation and Economic Development for the City of
Fayetteville. This report was prepared for the city under his authorization. He is not
aware of any environmental lien(s) on the subject properties. He does not have any
specialized knowledge concerning recognized environmental conditions on the subject
sites. He stated that there are no known reductions of property values due to
environmental issues. Mr. Boudreaux requested this Phase I assessment because it is
generally a requirement of lending agencies that represent clients who are considering
purchasing the subject sites.
2002 Photographs
Pile of Gravel and Dirt
North Side of Lot 14W
v
:i
Discarded Water Heater and Other Debris
North Side of Lot 14W
2002 Photographs
33dKfh "k T
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yp
H O &
Discarded Air Conditioner
Lot 13W
Danaher Storm Water Collection Pond
East Side of Lot 15WX
Appendix E
January 21, 2020 City Council Meeting Minutes
Fayetteville AR Industrial Drive Extension EDA Environmental Narrative
City Council Meeting Minutes
January 21, 2020
Page 29 of 33
an Alexander, Fox Hunter Road stated she was glad that the tree issue on Cross Street had
so ewhat resolved. She stated it is unclear who planted the trees. She spoke about the setbac.
comp tibility. She stated she would like for the developers to reconsider the entire de
She spoe about a traffic
ffic study and alternative connections.
Lisa Orton, 663 West Halsell stated she was opposed to the variance. She re ested for City
Council to den it. She spoke about landscape buffers, setbacks, a/theexisg neighborhood
context. She spo about a traffic study.
Trey Marley, 1440 arkham spoke against the variance requeste is against the
development.
Renigene Smeg, 803 North kVe
sted for Counc' to help save Markham Hill from
development. She spoke agains
Council Member Turk stated it and re ested for the ordinance to be held on the
first reading.
Council Member Marsh stated orward issue about adjusting the setback by five
feet to have rear loaded houses, wing she advocates for. She stated it is a reasonable
request.
Council Member Gutierrez stated s is a little bit ore of poking at something that we already
knew the neighbors didn't want fro the beginning. She tated we are losing 25% of the permeable
surface that we were going to ve. She stated they alre y had an agreement and they got the
development. She stated the hould work with what they t and now they are asking for more.
She stated she is not supp ing the ordinance.
Council Member Wiion stated this is more of promises made an&promises broken.
Council Memb Marsh moved to suspend the rules and go to the cond reading. Council
Member M 'on seconded the motion. Upon roll call the motion failed 2. Council Members
Marsh, ion, Petty, Scroggin, and Smith voting yes. Council mbers Turk and
Gutierr voting no. Council Member Bunch was absent during the vot Mayor Jordan
chos o not vote.
ordinance was left on the First Readin;.
Economic Development Administration: A resolution to authorize an application for an 80/20
matching grant from the Economic Development Administration in the amount of $2,084,720.00
for the construction of a road from Industrial Drive to City Lake Road, and to authorize Mayor
Jordan to sign a funding commitment letter confirming that the city has matching funds available
in the amount of $521,180.00.
113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov
City Council Meeting Minutes
January 21, 2020
Page 30 of 33
Devin Howland, Director of Economic Vitality gave a brief description of the resolution. He
stated at Agenda Session Council Member Marsh spoke about wanting to ensure that residents
who work in the Commerce District can access their place of employment through alternative
means of transportation. He stated it is important because the trail runs just to the north of all our
city owned Commerce Park land. He stated he spoke with the administrator at the Northwest
Arkansas Economic Development Administration. He stated if they include a sidewalk in it, it's a
reimbursable part of the grant. He stated it would be an additional $148,000 that would be included
in and would bring the total to $556,317. He stated if this is done, staff advises that the sidewalk
be built on the west side. He requested for the grant to be amended to $556,317.
There was a brief discussion what the cost would be for the project with the additional amount
added for the sidewalk.
Council Member Scroggin: With sidewalks being on the west side, wouldn't the land be worth
more if the sidewalks were on the side where things are going to be? Are they going to tear them
up?
Devin Howland: Staff s concern was it getting damaged in construction with utility work that
might be done and other site improvements. Looking at other parcels that we have had under
contract to sell in this area, sidewalks were a requirement in that, just as they were if this was a
Master Street Plan road.
Council Member Marsh thanked Devin for helping to get the sidewalk.
Devin Howland stated his excitement that EDA wanted to have a partnership.
Council Member Petty: I want to encourage you to reconsider building the entire new length of
the sidewalk on the opposite side of the road. Anybody who comes in and damages the sidewalk
has to replace it anyway. Sidewalks on both sides of the streets is overkill down here.
Council Member Gutierrez moved to amend the resolution to $556,317. Council Member
Scroggin seconded the motion. Upon roll call the motion passed 7-0. Council Members
Marsh, Kinion, Petty, Scroggin, Turk, Smith, and Gutierrez voting yes. Council Member
Bunch was absent during the vote.
Council Member Petty: I am little skeptical of the proposal and its impacts. Would you repeat
what you said at Agenda Session about Water & Sewer infrastructure and if those would be
provided?
Devin Howland: Regarding those being provided to these specific sites, no that would not. We
would intend those cost to be on the company. There is water and sewer at the north side of the
property and there is sewer at the south side where the road turns, as well as water access at South
City Lake Road. We highly envision these parcels developing in a systematic order, so the utilities
would be run and we can take advantage of that.
Council Member Petty: What would you anticipate a land sale for one of these parcels would be?
113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov
City Council Meeting Minutes
January 21, 2020
Page 31 of 33
Devin Howland: Items in the past have been between $16,000 to $20,000 an acre.
Council Member Petty: How many acres?
Devin Howland: 46.
Council Member Petty: How much money did we put in the Commerce Park?
Devin Howland stated he would have check into it.
Council Member Petty: Mayor, do you know?
Mayor Jordan: No.
Council Member Petty stated he was not going to vote for the resolution. He stated there are
much more impactful uses of more than $500,000. He stated the city has the tendency to provide
utilities and lower the purchase price when it is asked for.
Council Member Scroggin: Do we have any idea of the impact on property taxes? Does that have
a lot to do with what gets built there?
Devin Howland: Correct. That would be dependent upon that public land going back on to the
private. I don't think you'd see a massive influx of property tax. It depends on what gets built and
the valuation of the building.
Council Member Smith: Is this speculative or do you have a sales tax generator lined up that you
are expecting will come in and be ready to buy soon?
Devin Howland stated companies that you see in the commerce Park, 70% of sales tax comes
from retail and restaurants. He stated retail and restaurants are the main drivers, but some sales tax
does come from manufacturers. He spoke about job creation.
Council Member Smith: Do we have prospects that are ready to buy here if only they can get to
it or is this a speculative deal and then we will go hunting for somebody to sell it to?
Devin Howland stated we have interest in the Commerce Park, but it comes and goes. He stated
in the past we did bring several that never came through. He stated even with the City Council
approving the contract, there was a law change that affected us a little bit on the ability to directly
sell this land. He stated that has been corrected now where we can. He spoke about the Chamber
being very confident in their ability to market the site.
Council Member Smith: This would add to your inventory of land you can market?
Devin Howland: Correct.
113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar_gov
City Council Meeting Minutes
January 21, 2020
Page 32 of 33
Council Member Gutierrez: Thank you for finding the opportunity for the sidewalk. It is an
important part of putting our energy out there for what we want to get. We want to get those higher
paying jobs and opportunities for more employers. We need to step up on our economic
development to make spaces to attract employers. We need to market it properly, but I have full
confidence you are getting that together. I am supporting this.
Council Member Scroggin: If we approve this, will it be a done deal? If you get the grant will it
come back to us again?
Devin Howland: It will have to come back to approve the acceptance of the grant. This enables
us to apply with the funding commitment letter.
Council Member Scroggin: That will give more time to look at some of these questions.
Mayor Jordan: What is the time on the application?
Devin Howland stated he has been advised to get this in by March. He spoke about giving enough
time to not rush. He spoke about an environmental assessment.
There was a brief discussion about the deadline.
Council Member Turk thanked staff for considering the environmental assessment. She stated it
is important for the city to do that kind of review.
Devin Howland spoke about the environmental component in the Commerce Park.
Council Member Gutierrez moved to approve the resolution. Council Member Kinion
seconded the motion. Upon roll call the resolution passed 6-1. Council Members Marsh,
Kinion, Scroggin, Turk, Smith, and Gutierrez voting yes. Council Member Petty voting no.
Council Member Bunch was absent during the vote.
Resolution 38-20 as recorded in the office of the City Clerk
nd §34.08 Parking Revenue Fund: An ordinance to amend §34.08 Parking Revenu Find
to create w Residential District Parking Fund, to approve a loan in�amouo,000.00
from the Genenew Residential District Parking Fund budget
adjustment.
City Attorney Kit Williams read the
Paul Becker, Chief Fina�i fficer gave a brief descirlpfiQi of the ordinance.
Coun ' ember Scroggin moved to suspend the rules and go to the d reading. Council
ember Smith seconded the motion. Upon roll call the motion passed 7-0. cil Members
113 West Mountain Fayetteville, AR 72701 (479) 575-8323 www.fayetteville-ar.gov
FAYETTEVILLE INDUSTRIAL DRIVE EXTENSION
EDA GRANT APPLICATION
PRELIMINARY ENGINEERING REPORT
CITY OF
FAYETTEVILLE
ARKANSAS
113 WEST MOUNTAIN STREET
FAYETTEVILLE, AR 72701
E Ufi►►►
ARKANSAS ►�i
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Submitted to
UNITED STATES ECONOMIC DEVELOPMENT ADMINISTRATION
AUSTIN REGIONAL OFFICE
903 SAN JACINTO, SUITE 206
AUSTIN, TX 78701
March 2020
TABLE OF CONTENTS
CITY OF FAYETTEVILLE, ARKANSAS
INDUSTRIAL DRIVE EXTENSION EDA GRANT APPLICATION
PRELIMINARY ENGINEERING REPORT
Tableof Contents........................................................................................................... i
1. Description of Project Components........................................................................ 1
2. Verification Statement.............................................................................................. 1
3. General Layout Drawings.........................................................................................1
4. Feasibility Analysis...................................................................................................1
5. Method of Construction............................................................................................ 1
6. Anticipated Construction Contracts........................................................................ 2
7. Construction Cost Estimates................................................................................... 2
8. Fair Market Appraisal................................................................................................ 2
9. Permits.......................................................................................................................2
10. Project Schedule..................................................................................................... 2
List of Figures
Figure 1 Area Location and Vicinity Maps................................................................ 3
Figure2 USGS Topographic Map............................................................................ 4
Figure 3 Preliminary Site Plan.................................................................................. 5
Figure 4 Preliminary Cost Estimate.......................................................................... 6
Fayetteville AR Industrial Drive Extension Preliminary Engineering Report TOC
Description of Project Components
The City of Fayetteville is located in Washington County in Northwest Arkansas, a region
with robust growth and a strong business community. Fayetteville is bordered by the City
of Springdale to the north and the City of Greenland to the south. Figure 1 on page 3
shows the area location and vicinity maps.
The City of Fayetteville is proposing to construct an approximately 2,600-foot street
extension to connect South Industrial Drive and South City Lake Road in the city's
Commerce District. The proposed street section is approximately 40 feet in width including
a 28-foot wide asphalt street with concrete curb and gutter, and a 6-foot wide green space
and a 5-foot wide concrete sidewalk on one side. The total project site is approximately
60 acres of undeveloped natural area. The proposed street extension will provide access
to approximately 47 acres of city -owned land, allowing the development of five parcels.
Approximately 13 acres of environmentally sensitive area will be preserved.
2. Verification Statement
All project components described in this Preliminary Engineering Report are consistent
with the EDA investment project description that is provided in Section B.2 of Form ED-
900 (General Application for EDA Programs).
3. General Layout Drawings
The proposed project is located in Section 27, Township 16 North, Range 30 West in the
City of Fayetteville, Washington County, Arkansas. The project site is located in southeast
Fayetteville south of Arkansas Highway 16 (151h Street) and east of U.S. Highway 71 B
(School Avenue). Figure 2 on page 4 shows the USGS topographic map of the proposed
project area. Figure 3 on page 5 shows the preliminary site plan.
4. Feasibility Analysis
The existing site for the proposed project consists of approximately 60 acres of land owned
by the City of Fayetteville that is intended to be developed as future phases of the City's
industrial park. A small tributary to the West Fork of the White River, runs in a north -south
direction along the south-eastern edge of the proposed project site. The proposed project
area is located to the west of a 100-year floodplain, which will be part of 13 acres which
will be preserved. No construction will take place in the floodplain, therefore no significant
impact to the project nor the floodplain is anticipated. No major construction problems are
anticipated for this project.
Method of Construction
Competitive sealed bidding will be used to procure the Contractor that will furnish and
install the components of the proposed project. No portion of the work will be accomplished
through the use of design build, construction management at risk (CMAR), the City of
Fayetteville's own forces, or a third -party construction manager. The project delivery
method will be in the traditional design/bid/build format with a sealed competitive bid
process.
Fayetteville AR Industrial Drive Extension EDA Preliminary Engineering Report
6. Anticipated Construction Contracts
It is anticipated that the proposed improvements for the City of Fayetteville's Industrial
Drive Extension will be installed under one, single, prime contract. Multiple contracts are
not proposed for this project.
7. Construction Cost Estimates
Figure 4 on page 6 shows the preliminary cost estimate.
8. Fair Market Appraisal
This project includes the purchase of approximately .4 acres of right-of-way across a
vacant lot to provide a connection to City Lake Road. In 2017, the City of Fayetteville had
an appraisal done on this parcel in order to purchase a temporary construction easement
for the installation of a new sewer main. The right of way purchase cost in the estimate
was based on this appraisal. Once the design for the project has reached the 60% stage
and the exact right-of-way amount is determined, an updated appraisal will be ordered for
the purchase of the right-of-way.
Permits
Permits that may be needed for the project include:
• United States Army Corps of Engineers Section 404 Permit — Not yet applied
• Arkansas Department of Energy and Environment Division of Environmental Quality
Construction Stormwater Permit — Not yet applied
• Arkansas Department of Transportation Special Permit — Not yet applied
• Arkansas Department of Transportation Utility Permit — Not yet applied
• City of Fayetteville Grading, Drainage and Utility Permit — Not yet applied
• City of Fayetteville Street and Right -Of -Way Excavation Permit — Not yet applied
• City of Fayetteville Temporary Street or Lane Closure Permit — Not yet applied
10. Project Schedule
The following table includes the proposed project schedule.
PROJECT TASK
NUMBER OF MONTHS TO
COMPLETE
ESTIMATED START
DATE
Design
6
August 2020
Permitting
3
November 2020
Right-of-way Acquisition
2
November 2020
Bidding/AwardingBidding/Awarding Contract
3
March 2021
Construction
9
June 2021
Fayetteville AR Industrial Drive Extension EDA Preliminary Engineering Report 2
Figure 1. Proposed Project Area Location and Vicinity Maps
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AREA
LOCATION MAP
NOT TO
SCALE
a
�Tb Springdale
15th St °
72 Pump PROJECT
Station Rd LOCATION
TO Fort Smith
VICINITY MAP
NOT TO SOME
ECONOMIC DEVELOPMENT
CITY OF
ADMINTION
I
GRANT AIPPLLIICATION
FAYETTEVI LLE
INDUSTRIAL DRIVE EXTENSION
ARKAN 4J(t
AREA LOCATION AND YACWITY MAPS
i." lit
Cw
cm.
Fayetteville AR Industrial Drive Extension EDA Preliminary Engineering Report 3
Figure 2. Proposed Project Area USGS Topographic Map
CITY OF
FAYETTEVILLE
ARKANSAS
Section 27, Township 16 North, Range 30 West
Fayetteville Quadrangle
UTM Coordinates: 15 N 3988446 E 396784
z•-30'
e9
ECONOMIC DEVELOPMENT
ADMINISTRAT70M
GRANT APPUCA77ON
INDUSTRIAL DRIVE EXTENSION
USGS TOPOGRMMC MAP
rw.r tom
Fayetteville AR Industrial Drive Extension EDA Preliminary Engineering Report 4
Figure 3. Proposed Project Preliminary Site Plan
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PROPOSED T 00L S
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? -{UTILITIES Di
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ECONOMIC DEVELOPMENT
ADMINISTRAT70M
GRANTAPPLJCA77ON
CITY OF Section 27, Township 18 North, Range 30 YYest
FAYETTEVILLE Fayetteville Quadrangle INDUSTRIAL DRIVE EXTENSION
ARKANSAS WN Coordinates:15 N 39884" E M784 PIWUM S" PLM
--_
Fayetteville AR Industrial Drive Extension EDA Preliminary Engineering Report 5
Figure 4. Preliminary Cost Estimate
City of Fayetteville
rp Industrial Drive
""""Ay ..=a.,.. Figure 4 Prelimina Cost Estimate
ITEM
DESCRIPTION
QTY.
UWT
UNRCOST
EXTENDED COST
i
Mobilization
1
LS
x
$ 95,000.00
$ 95,000.00
2
Insurance and Banding
1
LS
x
$ 11.000.00
=
S 11.000.00
3
Construction Control (Staking)
1
LS
x
$ 7.500,00
$ 7,500.00
4
Trench 6 Excavation Safety Systems
1
LS
x
S 5,000.00
=
S 5,000, 00
5
Traffic Control E Maintenance
1
LS
x
S 1,000.00
$ 1,000A0
6
Erosion Control
1
LS
x
S 8,000,00
-
$ 8.000,00
7
Clearing. Grubbing. & Demolition
1
LS
x
$ 20,000.00
=
$ 20,000.00
8
R&D Existing Curb and Gutter
300
LF
x
$ 11.00
_
$ 3,300,00
9
Unclassified Excavation
5400
CY
x
$ 24,00
=
$ 129,600,00
10
Select Embankment
6500
CY
x
$ 33.00
$ 214,600,00
11
Embankment
2000
CY
x
$ 28.00
=
S 56,000.00
12
Roek Excavation
50
CY
x
S 200.00
S 10,000.00
13
Subgrads Preparation
MM
SY
x
$ 5.50
=
S 44,000.00
14
4- Topsoil Placement
7600
SY
x
S 7.00
-
S 53,200.00
15
Solid Sod
7600
SY
x
$ 6.00
=
$ 45,600,00
16
Lhadercut and $tare BacktiN
250
CY
x
$ 50,00
=
$ 12,500.00
17
1a' Reinforced Concrete Poe(RCP)
2600
LF
z
$ 94.00
$ 218,400.00
18
Siam Wow Drop iri st
18
EA
z
$ 5,500,00
=
$ 99,000.00
19
Inlet Extension
18
EA
x
$ 1.230.00
=
$ 22,140.00
20
Class 7 Aggregate Base Course
2340
Ton
■
$ 40.00
=
S 93,600.00
21
HMAC Surface Course (PG70.22)
880
TON
x
S 120.00
S 105,600.00
22
HMAC Binder Course (PG70422)
1760
TON
x
S 130.00
=
$ 228,800.00
23
18' Concrete Cab 6 Gutter
5250
LF
x
$ 20.00
=
$ 105.000.00
24
4- Concrete Sidewalk wlCtass 7 Base
1590
SY
x
$ 60,00
=
5 95,400.00
25
Tree Prot ecaan Fencing
500
LF
z
$ 11.00
$ 5,500.00
26
Traffic Signs
1
LS
x
$ 1,500.00
=
$ 1,500,00
27
Right of Wayiiin*ment Acquisition
17480
SF
x
$ 0.60
=
$ 10,488,00
Total Estimated Construction Costs
S 1,701,628.00
Contingency (20%)
S 340,325.60
Sub -Total
S 2,041,953.60
Engineering & Construction Management (15%)
$ 306,366.40
Total Estimated Project Cost
$ 2,348,320.00
Fayetteville AR Industrial Drive Extension EDA Preliminary Engineering Report
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October 27, 2020
Mayor Lioneld Jordan
Fayetteville City Council
113 W. Mountain St.
Fayetteville, AR 72701
Dear MayorJordan and Council Aldermen,
I strongly support the acceptance of the Federal Grant funds from Economic Development Administration
for a road extension in the Commerce District. This grant for $2,000,000will only require a 20% match by
the City or $500,000. The Economic Development bond's first use will generate an immediate 500% return
and open over 40 acres for small to medium scale light manufacturing facilities in Fayetteville.
The Chamber requests approval of the resolution to accept this grant.
The estimated costs are listed below
• Construction: $1,844,216.00
• Architectural and Engineering: $211,941.00
• Administrative/NWAEDD (3%of Construction and Engineering): $75,000
• Contingencies: $368,843
• Total Grant Ask: $2,500,000
• City of Fayetteville 20% Match: $500,000
This project supports the City's economic development goals as outlined in our contract. The area that
will be opened is ideal for small to medium sized light scale manufacturing facilities. By creating the
opportunity for expansion in the commerce district, we also create access to higher paying jobs for
residents who live nearby. This project contributes to the sustainability of a manufacturing base in
Fayetteville and will ensure that Fayetteville remains competitive in this space. The type jobs typical of
the Commerce District pay well above the City average and therefore improves the standard of living for
all Fayetteville and Northwest Arkansas residents.
Thank yo for ur con )ide tion
k
Stevicla rk
President and Chief Exectutive Officer
Fayetteville Chamber of Commerce
21 W. Mountain St., Ste. 300 72701
City of Fayetteville, Arkansas - Budget Adjustment Form (Legistar)
Budget Year Division Adjustment Number
/Org2 ECONOMIC DEVELOPMENT (050)
2020
Requestor: D. Howland
BUDGET ADJUSTMENT DESCRIPTION / JUSTIFICATION:
Staff is recommending authorizing the acceptance of a $2,000,000.00 grant from the Economic Development
Administration and appropriating $509,364.00 in question six Economic Development Bond Funds for the 20% match
Staff also recommends approval of a budget adjustment.
RESOLUTION/ORDINANCE
COUNCIL DATE: 1 1 /1 7/2020
LEGISTAR FILE ID#: 2020-0944
M atthelw M addQx,
1012712020 145 PM
Budget Director Date
TYPE:
D - (City Council)
JOURNAL #:
GLDATE: 11/17/2020
CHKD/POSTED:
TOTAL
2,000,000 2,000,000
v.20200820
Increase / (Decrease)
Project.Sub#
Account Number
Expense Revenue
Project
Sub.Detl
AT
Account Name
4601.860.7600-4309.00
- 2,000,000
46060
7600
RE
Federal Grants - Capital
4601.860.7600-5809.00
2,000,000 -
46060
7600
EX
Improvements - Street
4606.860.7600-5809.00
509,364
46060
7600
EX
Improvements - Street
4606.860.7999-5899.00
(509,364)
46060
7999
EX
Unallocated - Budget
H:\Budget Adjustments\2020_Budget\City Council\11-17-2020\2020-0944 BA Commerce District Grant
III