RESTORE COUNCIL FINANCIAL ASSISTANCE STANDARD

Gulf Coast Ecosystem Restoration Council

August 2015

RESTORE COUNCIL

FINANCIAL

ASSISTANCE

STANDARD TERMS AND CONDITIONS

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RESTORE Council Standard Terms and Conditions – August 2015

RESTORE COUNCIL

FINANCIAL ASSISTANCE STANDARD TERMS AND CONDITIONS

Table of Contents

A. STATUTORY AND NATIONAL POLICY REQUIREMENTS ........................................... 1

B. PROGRAMMATIC REQUIREMENTS ................................................................................ 1

.01 Performance (Technical) Reports .................................................................................... 2

.02 Reporting on Real Property ............................................................................................. 3

.03 Unsatisfactory Performance ............................................................................................. 3

.04 Programmatic Changes .................................................................................................... 3

.05 Other Federal Awards with Similar Programmatic Activities ......................................... 3

.06 Non-Compliance with Award Provisions ........................................................................ 4

.07 Prohibition against Assignment by the Non-Federal Entity ............................................ 4

.08 Disclaimer Provisions ...................................................................................................... 4

C. FINANCIAL REQUIREMENTS ............................................................................................ 4

.01 Financial Reports ............................................................................................................. 4

.02 Financial Management ..................................................................................................... 5

.03 Award Payments .............................................................................................................. 6

.04 Federal and Non-Federal Sharing .................................................................................... 7

.05 Program Income ............................................................................................................... 7

.06 Budget Changes and Transfer of Funds among Categories ............................................. 8

.07 Indirect (Facilities and Administrative [F&A]) Costs ..................................................... 9

.08 Incurring Costs or Obligating Federal Funds Outside of the Period of Performance .... 11

.09 Tax Refunds ................................................................................................................... 11

RESTORE Council Standard Terms and Conditions – August 2015

D. INTERNAL CONTROLS ..................................................................................................... 12

E. PROPERTY STANDARDS.................................................................................................. 12

.01 Standards ........................................................................................................................ 12

.02 Insurance coverage......................................................................................................... 12

.03 Real Property ................................................................................................................. 13

.04 Federally-owned and Exempt Federally-owned Property ............................................. 14

.05 Equipment ...................................................................................................................... 14

.06 Supplies .......................................................................................................................... 15

.07 Intangible Property......................................................................................................... 15

.08 Property Trust Relationship ........................................................................................... 16

F. PROCUREMENT STANDARDS ........................................................................................ 16

G. NON-DISCRIMINATION REQUIREMENTS .................................................................... 17

.01 Statutory Provisions ....................................................................................................... 17

.02 Other Provisions............................................................................................................. 18

.03 Title VII Exemption for Religious Organizations ......................................................... 19

H. RECORDS RETENTION ..................................................................................................... 19

I. AUDITS ................................................................................................................................ 20

.01 Organization-Wide, Program-Specific, and Project Audits ........................................... 20

.02 Audit Resolution Process ............................................................................................... 21

J. DEBTS .................................................................................................................................. 22

.01 Payment of Debts Owed the Federal Government ........................................................ 22

.02 Late Payment Charges ................................................................................................... 22

.03 Effect of Judgment Lien on Eligibility for Federal Grants, Loans, or Programs........... 23

K. GOVERNMENTWIDE DEBARMENT AND SUSPENSION ............................................ 23

L. LOBBYING RESTRICTIONS ............................................................................................. 23

.01 Statutory Provisions ....................................................................................................... 23

.02 Disclosure of Lobbying Activities ................................................................................. 23

M. REMEDIES FOR NONCOMPLIANCE ............................................................................... 24

N. CODES OF CONDUCT AND SUBAWARD, CONTRACT, AND SUBCONTRACT

PROVISIONS ....................................................................................................................... 26

.01 Code of Conduct for Recipients ..................................................................................... 26

.02 Applicability of Award Provisions to Subrecipients ..................................................... 26

.03 Competition and Codes of Conduct for Subawards ....................................................... 28

iii

RESTORE Council Standard Terms and Conditions – August 2015

.04 Applicability of Provisions to Subawards, Contracts, and Subcontracts ....................... 28

.05 Subaward and/or Contract to a Federal Agency ............................................................ 31

O. AMENDMENTS AND CLOSEOUT ................................................................................... 32

P. ENVIRONMENTAL COMPLIANCE ................................................................................. 32

.01 The National Environmental Policy Act (42 U.S.C. § 4321 et seq.) ............................. 32

.02 The Endangered Species Act (16 U.S.C. § 1531 et seq.)............................................... 33

.03 Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. § 1801 et

seq.) ................................................................................................................................ 33

.04 Clean Water Act Section 404 (33 U.S.C. § 1344 et seq.) .............................................. 33

.05 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 No. 13186,

Responsibilities of Federal Agencies to Protect Migratory Birds ................................. 33

.06 National Historic Preservation Act (16 U.S.C. § 470 et seq.) ....................................... 34

.07 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”) ............................................................... 34

.08 The Flood Disaster Protection Act (42 U.S.C. § 4002 et seq.) ...................................... 34

.09 Executive Order 11988 (“Floodplain Management”), Executive Order 13690

(“Establishing a Federal Flood Risk Management Standard and a Process for Further

Soliciting and Considering Stakeholder Input”), and Executive Order 11990

(“Protection of Wetlands”) ............................................................................................ 34

.10 Executive Order 13112 (“Invasive Species”) ................................................................ 35

.11 The Coastal Zone Management Act (16 U.S.C. § 1451 et seq.) .................................... 35

.12 The Coastal Barriers Resources Act (16 U.S.C. § 3501 et seq.).................................... 35

.13 The Wild and Scenic Rivers Act (16 U.S.C. § 1271 et seq.) ......................................... 35

.14 The Safe Drinking Water Act (42 U.S.C. § 300 et seq.)................................................ 35

.15 The Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.) ................... 36

.16 The Comprehensive Environmental Response, Compensation, and Liability Act

(Superfund) (42 U.S.C. § 9601 et seq.).......................................................................... 36

.17 Executive Order 12898 (“Environmental Justice in Minority Populations and Low

Income Populations”)..................................................................................................... 36

.18 Rivers and Harbors Act (33 U.S.C. 407) ....................................................................... 36

.19 Marine Protection, Research and Sanctuaries Act (Pub. L. 92-532, as amended),

National Marine Sanctuaries Act (16 U.S.C. 1431 et seq.), and Executive Order 13089

(“Coral Reef Protection”) .............................................................................................. 36

RESTORE Council Standard Terms and Conditions – August 2015

.20 Executive Order 13653 (“Preparing the United States for the Impacts of Climate

Change”) ........................................................................................................................ 37

.21 Farmland Protection Policy Act (7 U.S.C. 4201 et seq.) ............................................... 37

.22 Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) ......................................... 37

Q. MISCELLANEOUS REQUIREMENTS .............................................................................. 37

.01 Criminal and Prohibited Activities ................................................................................ 37

.02 Political Activities .......................................................................................................... 37

.03 Drug-Free Workplace .................................................................................................... 38

.04 Foreign Travel ................................................................................................................ 38

.05 Increasing Seat Belt Use in the United States ................................................................ 39

.06 Research Involving Human Subjects ............................................................................. 39

.07 Federal Employee Expenses .......................................................................................... 39

.08 Minority Serving Institutions Initiative ......................................................................... 40

.09 Research Misconduct ..................................................................................................... 40

.10 Publications, Videos, Signage and Acknowledgment of Sponsorship .......................... 40

.11 Care and Use of Live Vertebrate Animals ..................................................................... 41

.12 Homeland Security Presidential Directive 12 ................................................................ 41

.13 Compliance with Department of Commerce Bureau of Industry and Security Export

Administration Regulations ........................................................................................... 42

.14 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 ........................................................ 43

.15 The Federal Funding Accountability and Transparency Act of 2006 (“Transparency

Act” or FFATA)—Public Law 109-282, as amended by section 6202(a) of Public Law

110-252 (31 U.S.C. 6101) .............................................................................................. 44

.16 Federal Financial Assistance Planning During a Funding Hiatus or Government

Shutdown ....................................................................................................................... 48

R. CERTIFICATIONS ............................................................................................................... 49

RESTORE Council Standard Terms and Conditions – August 2015

THESE RESTORE COUNCIL FINANCIAL ASSISTANCE STANDARD TERMS AND

CONDITIONS (ST&Cs) ARE INCORPORATED INTO AND MADE A PART OF THE

GRANT AWARD TO WHICH THEY ARE ATTACHED.

A. STATUTORY AND NATIONAL POLICY REQUIREMENTS

The non-Federal entity

(also referred to as “recipient” or “grantee”) and any subrecipients must, in

addition to the assurances made as part of the application, comply and require each of its contractors and

subcontractors employed in the completion of the project to comply with all applicable statutes,

regulations, executive orders (EOs), Office of Management and Budget (OMB) circulars, terms and

conditions, and approved applications. This document provides the Gulf Coast Ecosystem Restoration

Council (“Council”) standard terms and conditions (ST&Cs) for all Council awards. 2 CFR § 5900.101

provides the Council’s adoption of 2 CFR Part 200, giving regulatory effect to the OMB guidance.

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: public laws, regulations, applicable notices published in the Federal Register, EOs, OMB

circulars, the Council ST&Cs, and special award conditions. Special award conditions may amend or take

precedence over the ST&Cs if and when so provided by the ST&Cs.

Certain of the ST&Cs contain, by reference or substance, a summary of the pertinent statutes or

regulations published in the Federal Register or Code of Federal Regulations (C.F.R.), EOs, OMB

circulars, or the assurances (Forms SF-424B and SF-424D). No such provision will be construed so as to

be in derogation of, or an amendment to, any such statute, regulation, EO, OMB circular, or assurance.

B. PROGRAMMATIC REQUIREMENTS

The recipient must use funds only for the purposes identified in the grant award agreement in accordance

with the requirements in 31 C.F.R. § 34.803(d). All activities under the award must meet the eligibility

requirements of the Gulf RESTORE Program as defined in 31 C.F.R. §§ 34.201, 34.202 or 34.203,

according to component.

The OMB Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards

located at 2 C.F.R. part 200 uses the term “non-Federal entity” to generally refer to an entity that carries out a

Federal award as a recipient or subrecipient. Because certain of the provisions of these ST&Cs apply to recipients

rather than subrecipients, or vice versa, for clarity, these ST&Cs use the terms “non-Federal entity”, “recipient”, and

“subrecipient.” 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 as 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.”

RESTORE Council Standard Terms and Conditions – August 2015

.01 Performance (Technical) Reports

a. Non-Federal entities must use OMB-approved governmentwide standard information collections

when providing financial and performance information and, as appropriate and in accordance with

such information collections, are required to relate financial data to the performance accomplishments

of the Federal award. When applicable, recipients must also provide cost information to demonstrate

cost effective practices (e.g., through unit cost data). The Non-Federal entity's performance will be

measured in a way that will help the Council and other non-Federal entities to improve program

outcomes, share lessons learned and spread the adoption of promising practices. Recipients will be

provided with clear performance goals, indicators and milestones as described in 2 C.F.R. § 200.210

“Information contained in a Federal award.”

b. Recipients must submit performance (technical) reports, which may be Form SF-PPR “Performance

Progress Report” or any successor form, or another format as required by the Council, to the Council-

designated grants officer (Grants Officer). Performance reports should be submitted electronically,

unless the recipient makes an arrangement with the Grants Officer for submission in hard copy (no

more than one original and two copies) in accordance with the award conditions.

c. Performance Reports must be submitted with the same frequency as the Federal Financial Report

(Form SF-425), unless otherwise authorized by the Grants Officer. If events occur between scheduled

performance reporting dates that have significant impact upon the activity, project or program, the

recipient must notify the Grants Officer as soon as possible.

d. Performance (technical) reports shall contain brief information as prescribed in the Uniform

Administrative Requirements, Cost Principals and Audit Requirements for Federal Awards (2 C.F.R.

part 200, specifically 2 C.F.R. § 200.328) incorporated into the award, unless otherwise specified in

the award provisions. Specifically, in the “performance narrative” (item 10 on the SF-PPR), the

recipient must provide the following information.

1. Activities and Accomplishments:

i. Summarize activities undertaken during the reporting period;

ii. Summarize any key accomplishments, including milestones and metrics completed for the

period;

iii. List any contracts awarded during the reporting period, along with the name of the contractor

and its principal, the DUNS number of the contractor, the value of the contract, the date of

award, a brief description of the services to be provided, and whether or not local preference

was used in the selection of the contractor; and

iv. If the recipient is authorized to make subawards, list any subawards executed during the

reporting period, along with the name of the entity and its principal, the DUNS number of the

entity, the value of the agreement, the date of award, and a brief description of the scope of

work.

2. Adaptive Management:

i. Indicate if any operational, legal, regulatory, budgetary, and/or ecological risks, and/or any

public controversies, have materialized; if so, indicate what mitigation strategies have been

undertaken to attenuate these risks or controversies; and

ii. Summarize any challenges that have impeded the recipient’s ability to accomplish the approved

scope of work on schedule and on budget.

RESTORE Council Standard Terms and Conditions – August 2015

3. Findings/Events: Summarize any significant findings or events, if applicable.

4. Dissemination Activities: Describe any activities to disseminate or publicize results of the

activity, project, or program, if applicable.

5. Monitoring:

i. Describe all efforts taken to monitor contractor and/or subrecipient performance, to include site

visits, during the reporting period. For subawards, indicate whether the subrecipient submitted

an audit to the recipient, and if so, whether the recipient issued a management decision on any

findings; and

ii. Describe any other activities or relevant information not already provided.

6. Planned Activities: Summarize the activities planned for the next reporting period.

7. Attachments: List and attach any deliverables completed during the performance period or other

materials to be submitted with the report.

.02 Reporting on Real Property

In accordance with 2 C.F.R. § 200.329, the Federal awarding agency or pass-through entity must require a

non-Federal entity to submit reports 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.

If the attached Federal interest is for a period of 15 years or longer, the Council or pass-through entity

may, at its option, require the non-Federal entity to report at various multi-year frequencies as specified in

the terms of the award (e.g., every two years or every three years, not to exceed a five-year reporting

period; or the Council or pass-through entity may require annual reporting for the first three years of a

Federal award and thereafter require reporting every five years).

.03 Unsatisfactory Performance

Failure to perform the work in accordance with the terms of the award and maintain at least a satisfactory

performance as determined by the Council may result in designation of the non-Federal entity as high risk

and the assignment of special award conditions or other further action as provided in Section B.06, “Non-

Compliance with Award Provisions” below.

.04 Programmatic Changes

The non-Federal entity shall report programmatic changes to the Grants Officer in accordance with

2 C.F.R. § 200.308, and shall request prior approvals in accordance with 2 C.F.R. § 200.407.

.05 Other Federal Awards with Similar Programmatic Activities

The non-Federal entity shall immediately provide written notification to the Grants Officer in the event

that, subsequent to receipt of the Council award, other financial assistance is received to support or fund

any portion of the scope of work incorporated into the Council award. The Council will not pay for any

costs that are funded by other sources.

RESTORE Council Standard Terms and Conditions – August 2015

.06 Non-Compliance with Award Provisions

Failure to comply with any or all of the provisions of the award may have a negative impact on future

funding by the Council and may be considered grounds for any or all of the following actions:

withholding of payments pending correction of the deficiency by the non-Federal entity and/or more

severe enforcement action by the Council or pass-through entity in accordance with 2 C.F.R. § 200.338;

disallowance of (that is, denial of both use of funds and any applicable matching credit for) all or part of

the cost of the activity or action not in compliance; suspension or termination of all or any portion of the

award; initiation of suspension or debarment proceedings as authorized under 2 C.F.R. part 180 and any

Council regulations and policies promulgated pursuant to its authority (or in the case of a pass-through

entity, recommendation that such a proceeding be initiated by the Council); withholding of further awards

for the project or program; or enforcement of other remedies that may be legally available. See also 2

C.F.R. §§ 200.339 through 200.342.

.07 Prohibition against Assignment by the Non-Federal Entity

The non-Federal entity shall not transfer, pledge, hypothecate, mortgage, or otherwise assign the award,

or any interest therein, or any claim arising thereunder, to any party or parties, including without

limitation any bank, trust company or other financing or financial institution, without the express written

approval of the Grants Officer.

.08 Disclaimer Provisions

a. The United States expressly disclaims any and all responsibility or liability to the non-Federal entity

or third persons for any actions of the non-Federal entity or third persons resulting in death, bodily

injury, personal or property damage, or any other damage, loss or liability in connection with or

resulting in any way from the performance of this award or any subaward or subcontract under this

award.

b. Acceptance of this award by the non-Federal entity does not in any way establish or constitute an

agency relationship between the United States and the non-Federal entity.

C. FINANCIAL REQUIREMENTS

.01 Financial Reports

a. In accordance with 2 C.F.R. § 200.327, the recipient shall submit a “Federal Financial Report” (Form

SF-425 or any successor form, or another format as required by the Council) on a semi-annual basis.

Semi-annual reporting periods will be specified in the grant award for either the periods ending

March 31 and September 30, or any portion thereof, or June 30 and December 31, or any portion

thereof, unless otherwise specified in a special award condition. Reports are due no later than 30 days

following the end of each reporting period. A final Form SF-425 shall be submitted within 90 days

after the expiration of the project period.

b. The report should be submitted to the Grants Officer electronically, unless the recipient makes an

arrangement with the Grants Officer for submission in hard copy (no more than one original and two

copies), in accordance with the award conditions.

RESTORE Council Standard Terms and Conditions – August 2015

c. The recipient must report to the Council at the conclusion of the grant period, or other period

specified by the Council, on the use of funds pursuant to the award in accordance with the

requirements in 31 C.F.R. § 34.803(e).

d. The recipient must forecast cash requirements/draws semi-annually, for the periods October 1 to

March 31 and April 1 to September 30, throughout the life of the grant. Forecasted cash requirements

must be updated with the submission of each “Federal Financial Report.”

.02 Financial Management

a. In accordance with 2 C.F.R. § 200.302(a), each State, including a state’s administrative agents and the

Gulf Consortium of Florida counties, 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 other non-Federal entities’ 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 – including preparation of accurate, current and complete SF-

425, Performance (Technical) Report, reporting on subawards, and any additional reports required by

any additional award conditions. The financial management system also must be sufficient to trace

funds to a level of expenditures adequate to establish that such funds have been used according to the

Federal statutes, regulations – including without limitation the Resources and Ecosystem

Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act of 2012

(RESTORE Act), Council and Treasury RESTORE Act regulations – and the terms and conditions of

the Federal award. See also 2 C.F.R. § 200.450 “Lobbying.”

b. The financial management system of each non-Federal entity must provide all information required

by 2 C.F.R. § 200.302(b) and maintain detailed records sufficient to account for the receipt,

obligation and expenditure of grant funds in accordance with the requirements in 31 C.F.R. §

34.803(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.” Specifically,

the financial management system must provide for:

1. Identification and tracking of all Council awards received and expended by the Catalog of Federal

Domestic Assistance (CFDA) title and number, Federal award identification number and year,

name of the Federal agency, and name of the pass-through entity, if any;

2. Records that adequately identify the source and application of all funds for Federally-funded

activities, including information pertaining to Federal awards, authorizations, obligations,

unobligated balances, assets, expenditures, income and interest, and are supported by source

documentation; and

3. Effective control over, and accountability for, all Federal funds, and all property and assets

acquired with Federal funds. The recipient must adequately safeguard all assets and ensure that

they are used solely for authorized purposes.

c. The recipient must establish written procedures to implement the requirements set forth in

Subsection, C.03 “Award Payments,” below, as well as written procedures to determine the

allowability of costs in accordance with 2 C.F.R. Part 200, subpart E “Cost Principles,” and the terms

and conditions of this award.

RESTORE Council Standard Terms and Conditions – August 2015

.03 Award Payments

a. The reimbursement method of payment will be used under this award, unless otherwise specified in a

special award condition. The Grants Officer will determine the appropriate method of payment.

Payments are made through electronic funds transfers directly to the non-Federal entity’s bank

account and in accordance with the requirements of the Debt Collection Improvement Act of 1996

(31 U.S.C. § 3701 et. seq.) and the Cash Management Improvement Act (31 U.S.C. § 6501 et. seq.).

1. Consistent with 2 C.F.R. § 200.305(a), for States, payments are governed by the 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.”

2. 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.

b. The Council Award Number must be included on all payment-related correspondence, information,

and forms.

c. Unless otherwise provided for in the award terms, payments under this award will be made using the

Department of Treasury’s Automated Standard Application for Payment (ASAP)

system. Under the

ASAP system, payments will be made through preauthorized electronic funds transfers in accordance

with the requirements of the Debt Collection Improvement Act of 1996. Awards paid under the

ASAP system will contain a special award condition, clause or provision describing enrollment

requirements and any controls or withdrawal limits set in the ASAP system. Recipients enrolled in the

ASAP system are not required to submit a “Request for Advance or Reimbursement” (Form SF-270

or successor form), in order to receive payments relating to their award. Pre-approval prior to

requesting payments may be required for recipients that are determined by the Council to be in a high

risk category or noncompliant (see 2 C.F.R. § 200.205 “Federal awarding agency review of risk posed

by applicants,” and see section M “Remedies for Noncompliance” below).

1. In order to receive payments under ASAP, recipients are required to enroll with the Department

of Treasury, Financial Management Service, Regional Financial Centers, which enables them to

use the on-line and Voice Response System (VRS) method of withdrawing funds from their

ASAP established accounts.

2. The following information will be required to make withdrawals under ASAP: (i) ASAP account

number, i.e., the Federal award number found on the cover sheet of the award; (ii) Agency

Location Code (ALC); and (iii) Region Code.

d. When expressly allowed through a special award condition, advances shall be limited to the minimum

amounts necessary to meet immediate disbursement needs, but in no event shall advances exceed the

amount of cash required for a 30-day period. Funds advanced but not disbursed in a timely manner and

any accrued interest thereon must be promptly returned to the Council. The Grants Officer may

periodically request documentation from the non-Federal entity verifying that the elapsed time

between the transfer of funds and disbursement has been minimized. If a non-Federal entity

demonstrates an unwillingness or inability to establish procedures that will minimize time elapsing

Department of Treasury’s Automated Standard Application for Payment (ASAP) system -

https://www.fiscal.treasury.gov/fsservices/gov/pmt/asap/asap_home.htm

, verified on 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

between transfer of funds and disbursement or if the non-Federal entity otherwise fails to continue to

qualify for the advance payment method, the Grants Officer may change the method of payment to

reimbursement only.

e. Where the use of an alternative system other than ASAP is provided for in the award terms, requests

for payment will be submitted to the Grants Officer.

1. Form SF-3881, “ACH Vendor/Miscellaneous Payment Enrollment Form,” must be completed

before the first award payment can be made via the “Request for Advance or Reimbursement”

(Form SF-270) request.

2. When advance payment is expressly allowed for by special award condition, the non-Federal

entity must submit the request no more frequently than monthly, and advances will be approved

for periods to cover only expenses anticipated over the following 30 days. The non-Federal entity

must complete the “ACH Vendor Miscellaneous Payment Enrollment Form” (Form SF-3881 or

successor form), and Form SF-270, and submit those forms to the Grants Officer.

.04 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 shall be calculated by applying the approved Federal and non-Federal cost share

ratios to actual allowable costs. If actual allowable costs are greater than the total approved budget,

the Federal share shall not exceed the total Federal dollar amount authorized by the award.

b. The non-Federal share, whether in cash or in-kind, 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 in-kind contributions. In any case the non-Federal entity must meet its cost share commitment

over the life of the award. The non-Federal entity must create and maintain sufficient records

sufficient to justify all non-Federal sharing requirements and to facilitate questions and audits. See

Section I “Audits” below for audit requirements, and see 2 C.F.R. § 200.306 for additional

requirements regarding cost sharing.

.05 Program Income

a. Non-Federal entities are encouraged to earn income to defray program costs where appropriate. Any

program income shall be earned and applied consistent with the requirements of 2 C.F.R. § 200.307.

b. The recipient must maintain detailed records sufficient to account for the receipt, obligation, and

expenditure of grant funds including the tracking of program income. Program income must be

included in the non-Federal entity’s approved budget and tracked in accordance with the requirements

in 31 C.F.R. § 34.803(b).

c. All program income must be documented in the Federal financial report submitted to the Council for

the period in which the income was earned.

RESTORE Council Standard Terms and Conditions – August 2015

.06 Budget Changes and Transfer of Funds among Categories

a. Requests for changes to the approved budget must be made in accordance with 2 C.F.R. § 200.308

“Revision of budget and program plans” and submitted in writing to the Grants Officer who will

make the final determination on such requests and notify the non-Federal entity in writing thereof.

1. Construction Awards. For construction Federal awards, the non-Federal entity must request prior

written approval promptly from the Grants Officer for budget revisions whenever one or more of

the following applies:

i. The revision results from changes in the scope or the objective of the project or program;

ii. The need arises for additional Federal funds to complete the project; or

iii. A revision is desired which involves specific costs for which prior written approval

requirements may be imposed consistent with applicable OMB cost principles listed in 2

C.F.R. part 200, Subpart E—“Cost Principles.”

2. Non-Construction Awards. For non-construction Federal awards, recipients must request prior

written approval promptly from the Grants Officer for budget revisions whenever one or more of

the following applies:

i. Change in the scope or the objective of the project or program;

ii. Change in a key person specified in the application or the Federal award;

iii. The disengagement from the project for more than three months, or a 25 percent

reduction in time devoted to the project, by the approved project director or principal

investigator;

iv. The inclusion, unless waived by the Council, of costs that require prior approval in

accordance with 2 C.F.R. part 200 Subpart E—“Cost Principles” or 45 C.F.R. Part 75

Appendix IX “Principles for Determining Costs Applicable to Research and

Development under Awards and Contracts with Hospitals,” or 48 C.F.R. Part 31

“Contract Cost Principles and Procedures,” as applicable;

v. The transfer of funds budgeted for participant support costs as defined in 2 C.F.R. §

200.75 “Participant support costs to other categories of expense”;

vi. The subawarding, transferring or contracting out of any work under a Federal award

unless (a) described in the application and funded in the approved Federal award, or

(b)applicable to the acquisition of supplies, material, equipment or general support

services only; or

vii. Changes in the amount of approved cost-sharing or matching provided by the non-

Federal entity. No other prior approval requirements for specific items may be imposed

unless a deviation has been approved by OMB. See also 2 C.F.R. §§ 200.102

“Exceptions” and 200.407 “Prior written approval.”

3. Both Construction and Non-Construction Activities in Award. If a single award provides support

for construction and non-construction work, the recipient must request prior written approval

from the Grants Officer before making any fund or budget transfers between the two types of

work supported.

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 the Simplified

Acquisition Threshold ($150,000 as of 12/26/2013) or less. For awards in which the Federal share of

the project exceeds the Simplified Acquisition Threshold, the recipient must request prior written

approval from the Grants Officer for transfers of funds among direct cost categories when the

RESTORE Council Standard Terms and Conditions – August 2015

cumulative amount of such direct cost transfers exceeds ten percent of the total budget

as last

approved by the Grants Officer. The 10% threshold applies to the total Federal funds authorized by

the Grants Officer at the time of the transfer request. 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 the

prior written approval of the Grants Officer. No transfer that enables any Federal appropriation, or

part thereof, to be used for an unauthorized purpose will be permitted. The foregoing provision does

not prohibit the recipient from requesting Grants Officer approval for revisions to the budget. See 2

C.F.R. § 200.308 (as applicable) for specific requirements concerning budget revisions and transfer of

funds between budget categories.

c. The recipient is not authorized at any time to transfer amounts budgeted for direct costs to the indirect

costs line item or vice versa without the prior written approval of the Grants Officer.

.07 Indirect (Facilities and Administrative [F&A]) Costs

a. Indirect (facilities and administrative [F&A]) costs will not be allowable charges against an award

unless permitted under the award, specifically included as a line item in the award’s approved budget

and consistent with 2 C.F.R. §§ 200.414 “Indirect (F&A) costs” and Subpart E “Cost Principles.”

b. Indirect costs of recipients are subject to the three percent (3%) cap on administrative expenses stated

in 33 U.S.C. § 1321(t)(1)(B)(iii) and 31 C.F.R. § 34.204. The three percent cap on administrative

expenses applies only to recipients and does not flow down to subrecipients.

c. Excess indirect costs may not be used to offset unallowable direct costs.

d. Indirect costs charged must be consistent with the indirect cost rate agreement negotiated between the

non-Federal entity and its cognizant agency (defined as the Federal agency that is responsible for

reviewing, negotiating, and approving cost allocation plans or indirect cost proposals, see 2 C.F.R. §

200.19) and must be included in the recipient’s budget. The Council will accept approved indirect

cost rates unless otherwise authorized by a Federal statute or regulation, or requirements at 2 C.F.R. §

200.414(c) are met.

1. If indirect costs are permitted and the non-Federal entity wishes to include indirect costs in its

budget, but the non-Federal entity has not previously established an indirect cost rate with a

Federal agency, the requirements for determining the relevant cognizant agency and developing

and submitting indirect (F&A) cost rate proposals and cost allocation plans are contained in

Appendices III – VII to 2 C.F.R. Part 200 as follows:

o Appendix III to 2 C.F.R. Part 200 – Indirect (F&A) Costs Identification and Assignment,

and Rate Determination for Institutions of Higher Education (IHEs);

o Appendix IV to 2 C.F.R. Part 200 – Indirect (F&A) Costs Identification and Assignment,

and Rate Determination for Nonprofit Organizations;

o Appendix V to 2 C.F.R. Part 200 – State/Local Governmentwide Central Service Cost

Allocation Plans;

The cumulative amount of direct cost transfers is calculated by summing the negative variances between the

approved and proposed budgets. Variance is calculated by subtracting the proposed budget amount for each cost

category from the approved budget amount for the category. Only variances less than zero are totaled. The

cumulative negative variance is then divided by the total grant award budget to determine the percentage transferred,

i.e., cumulative % of transfer(s) = {[Σ (negative variances)] / total award budget} x 100.

RESTORE Council Standard Terms and Conditions – August 2015

o Appendix VI to 2 C.F.R. Part 200 – Public Assistance Cost Allocation Plans; and

o Appendix VII to 2 C.F.R. Part 200 – States and Local Government and Indian Tribe

Indirect Cost Proposals.

The cognizant agency for governmental units or agencies not specifically identified by OMB will

be determined based on the Federal agency providing the largest amount of Federal funds. See 2

C.F.R. §200.416 “Cost allocation plans and indirect cost proposals.” When the Council is not the

oversight or cognizant Federal agency, 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.

2. For those organizations for which the Council is cognizant or has oversight, the Council or its

designee will either negotiate a fixed rate with carry-forward provisions for the non-Federal entity

or, in some instances, will limit its review to evaluating the procedures described in the non-

Federal entity’s cost allocation plan. Indirect cost rates and cost allocation methodology reviews

are subject to future audits to determine actual indirect costs.

3. Within 90 days after the award start date, the non-Federal entity shall submit to the address listed

below documentation (indirect cost proposal, cost allocation plan, etc.) necessary to perform the

review. The non-Federal entity shall provide the Grants Officer with a copy of the transmittal

letter.

Gulf Coast Ecosystem Restoration Council Office

Attn: Senior Grants Management Officer

500 Poydras Street, Suite 1117

New Orleans, LA 70130

If the non-Federal entity fails to submit the required documentation to the Council 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 Council, oversight or cognizant Federal agency determines

there is a finding of good and sufficient cause to excuse the non-Federal entity’s delay in

submitting the documentation, an extension of the 90-day due date may be approved by the

Grants Officer.

4. The non-Federal entity may use the fixed rate proposed in the indirect cost plan until such time as

the Council provides a response to the submitted plan. Actual indirect costs must be calculated

annually and adjustments made through the carry-forward provision used in calculating the

following year’s rate. This calculation of actual indirect costs and the carry-forward provision is

subject to audit. Indirect cost rate proposals must be submitted annually. Organizations that have

previously established indirect cost rates must submit a new indirect cost proposal to the

cognizant agency within six months after the close of each of the recipients’ fiscal years.

e. The maximum dollar amount of allocable indirect costs for which the Council will reimburse the non-

Federal entity shall be 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 a cognizant or oversight Federal Agency for indirect costs and applicable to the

period in which the cost was incurred, provided that the rate is approved in writing on or before

RESTORE Council Standard Terms and Conditions – August 2015

the award end date, subject to the three percent (3%) cap on administrative expenses provided in

33 U.S.C. § 1321(t)(1)(B)(iii) and 31 C.F.R. § 34.204.

f. In addition, a non-Federal entity that is a State, local government, Indian tribe, institution of higher

education, or nonprofit organization and has never received a negotiated indirect cost rate may elect

to charge a de minimis rate of 10% of modified total direct costs. See also 2 C.F.R. § 200.414(f).

.08 Incurring Costs or Obligating Federal Funds Outside of the

Period of Performance

a. The non-Federal entity shall not incur costs or obligate funds for any purpose pertaining to the

operation of the project, program, or activities beyond the period of performance, i.e., the time during

which the non-Federal entity may incur new obligations to carry out the work authorized under the

Federal award. See 2 C.F.R. §§ 200.77 and 200.309.

1. The Council or pass-through entity must include start and end dates of the period of performance

in the Federal award.

2. All activities supported through an award must occur and be completed during the approved

period of performance, whether funded directly or through a subaward or subcontract, and all

obligated costs must be liquidated within 90 days following the end date of the period of

performance.

3. The only costs which may be authorized for a period of not to exceed 90 days following the end

of the project period are those solely associated with close-out activities. Close-out activities are

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-day closeout period upon a request by the non-Federal entity as provided in 2 C.F.R. §

200.343.

b. Unless otherwise authorized in 2 C.F.R. § 200.343 or a special award condition, any extension of the

project period can only be authorized by the Grants Officer in writing. Verbal or written assurances of

funding from anyone other than the Grants Officer shall not constitute authority to obligate funds for

programmatic activities beyond the end of the project period.

c. Pre-Award Costs. Pre-award costs are those incurred prior to the effective date of the Federal award

directly pursuant to the negotiation and in anticipation of the Federal award where such costs are

necessary for efficient and timely performance of the scope of work. Such costs are allowable only to

the extent that they would have been allowable if incurred after the date of the Federal award and

only with the written approval of the Grants Officer. The recipient must use funds obligated and

disbursed under the award only during the period of performance specified in the award document.

See 2 C.F.R. § 200.458.

d. The Council has no obligation to provide any additional prospective funding. Any amendment of the

award to increase funding and to extend the project period is at the sole discretion of the Council.

.09 Tax Refunds

Refunds of Federal Insurance Contributions Act (FICA) (26 U.S.C. §§ 3101-3128) or Federal

Unemployment Tax Act (FUTA) (26 U.S.C. §§ 3301-3311) taxes received by the non-Federal entity

RESTORE Council Standard Terms and Conditions – August 2015

during or after the period of performance must be refunded or credited to the Council whenever the

benefits were financed with Federal funds under the award. The non-Federal entity shall contact the

Grants Officer immediately upon receipt of these refunds. The non-Federal entity shall in addition refund

portions of FICA/FUTA taxes determined to belong to the Federal Government, including refunds

received after the period of performance ends.

D. INTERNAL CONTROLS

Consistent with 2 C.F.R. § 200.303, each non-Federal entity:

a. Must establish and maintain effective internal control over the Federal award that provides reasonable

assurance that the non-Federal entity is managing the Federal award in compliance with Federal

statutes, regulations, and the terms and conditions of the Federal award. These internal controls must

be in compliance with guidance in “Standards for Internal Control in the Federal Government”

issued by the Comptroller General of the United States or the “Internal Control Integrated

Framework,”

issued by the Committee of Sponsoring Organizations of the Treadway Commission

(COSO).

b. Must comply with Federal statutes, regulations, and the terms and conditions of the Federal award.

c. Must evaluate and monitor the non-Federal entity’s compliance with statute, regulations and the terms

and conditions of Federal award.

d. Must take prompt action when instances of noncompliance are identified including noncompliance

identified in audit findings.

e. Must take reasonable measures to safeguard protected personally identifiable information and other

information the Council or pass-through entity designates as sensitive or the non-Federal entity

considers sensitive consistent with applicable Federal, state and local laws regarding privacy and

obligations of confidentiality.

E. PROPERTY STANDARDS

.01 Standards

The non-Federal entity must comply with the property standards as stipulated in 2 C.F.R. §§ 200.310 to

200.316.

.02 Insurance coverage

Recipients must provide insurance coverage for real property and equipment acquired or improved with

Federal funds equivalent to that provided for property owned by the non-Federal entity. Federally-owned

“Standards for Internal Control in the Federal Government” issued by the Comptroller General of the United States

- http://www.gao.gov/assets/80/76455.pdf

, verified on 8/18/2015.

“Internal Control Integrated Framework,” issued by the Committee of Sponsoring Organizations of the Treadway

Commission (COSO), Executive Summary -

http://www.coso.org/documents/Internal%20Control-

Integrated%20Framework.pdf, verified on 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

property need not be insured unless required by the terms and conditions of the Federal award. See 2

C.F.R. § 200.310.

.03 Real Property

a. Real property or an interest in real property may not be acquired under an award without prior written

approval of the Grants Officer.

b. Title of real property. Subject to the obligations and conditions set forth in this section, title to real

property acquired or improved under a Federal award will vest upon acquisition in the non-Federal

entity.

c. Use. Except as otherwise provided by Federal statutes or by the Council, real property must be used

for the originally authorized purpose as long as needed for that purpose, during which time the non-

Federal entity must not dispose of or encumber its title or any other interest therein.

d. Willing Sellers. Land or interest in land may only be acquired by purchase, exchange or donation

from a willing seller in accordance with the requirements in 31 C.F.R. § 34.803(f).

e. Federal Acquisitions. Funds may not be used to acquire land in fee title by the Federal Government

unless the exceptions in 31 C.F.R. § 34.803(g) are met.

f. Disposition. When real property is no longer needed for the originally authorized purpose, the non-

Federal entity must obtain disposition instructions from the Council or pass-through entity. The

instructions will provide that the non-Federal entity do one of the following:

1. Retain title after compensating the Council. The amount paid to Council will be computed by

applying the Council's percentage of participation in the cost of the original purchase (and costs

of any improvements) to the fair market value of the property. However, if the non-Federal entity

is disposing of real property acquired or improved with a Federal award and acquiring

replacement real property under the same Federal award, the net proceeds from the disposition

may be used as an offset to the cost of the replacement property.

2. Sell the property and compensate the Council. The amount due to the Council will be calculated

by applying the Council's percentage of participation in the cost of the original purchase (and cost

of any improvements) to the proceeds of the sale after deduction of any actual and reasonable

selling and fixing-up expenses. If the Federal award has not been closed out, the net proceeds

from sale may be offset against the original cost of the property. When the non-Federal entity is

directed to sell property, it must utilize sales procedures that provide for competition to the extent

practicable and result in the highest possible return.

3. Transfer title to the Council or to a third party designated or approved by the Council. The non-

Federal entity is entitled to be paid an amount calculated by applying the non-Federal entity's

percentage of participation in the purchase of the real property (and cost of any improvements) to

the current fair market value of the property.

g. The Grants Officer may require the non-Federal entity to submit the Tangible Personal Property

Report (Form SF-428 or successor form), and/or Real Property Status Report (Form SF-429 or

successor form), including applicable attachments to each form, in connection with the reporting of

tangible personal property or of real property acquired or improved, in whole or in part, under a

Council financial assistance award. The Grants Officer may also require the non-Federal entity to

RESTORE Council Standard Terms and Conditions – August 2015

submit Form SF-428 and/or Form SF-429, or successor forms, in connection with a non-Federal

entity’s request to acquire, encumber, dispose of, or take any other action pertaining to tangible

personal property or to real property acquired or improved, in whole or in part, under a Council

financial assistance award.

.04 Federally-owned and Exempt Federally-owned Property

a. Title to Federally-owned property

remains vested in the Federal government. The non-Federal entity

must submit annually an inventory listing of Federally-owned property in its custody to the Grants

Officer. Upon completion of the Federal award or when the property is no longer needed, the non-

Federal entity must report the property to the Grants Officer for further Council utilization. If the

Council has no further need for the property, it must declare the property excess and report it for

disposal to the appropriate Federal disposal authority, unless the Council has statutory authority to

dispose of the property by alternative methods (e.g., the authority provided by the Federal

Technology Transfer Act (15 U.S.C. § 3710 (i)) to donate research equipment to educational and non-

profit organizations in accordance with Executive Order 12999, “Educational Technology: Ensuring

Opportunity for All Children in the Next Century.”). The Council will issue appropriate instructions

to the non-Federal entity. The Council may exercise this option when statutory authority exists.

b. Absent statutory authority and specific terms and conditions of the Federal award, title to exempt

Federally-owned property acquired under the Federal award remains with the Federal government.

c. The Grants Officer may require the non-Federal entity to submit the Tangible Personal Property

Report (Form SF-428 or successor form), and/or Real Property Status Report (Form SF-429 or

successor form), including applicable attachments to each form, in connection with the reporting of

Federally-owned property that is in the non-Federal entity’s custody pursuant to a Council financial

assistance award or with a non-Federal entity’s request to acquire, encumber, dispose of, or take any

other action pertaining to Federally-owned property.

.05 Equipment

a. Recipients must comply with the equipment standards provided in 2 C.F.R. §§ 200.313 “Equipment”

and 200.439 “Equipment and other capital expenditures.”

b. 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.

c. Use, management, and disposition of equipment acquired.

1. For recipients that are States: The recipient must use, manage and dispose of equipment acquired

under this award in accordance with state laws and procedures.

2. For recipients that are not States: Equipment must be used by the recipient in the program or

project for which it was acquired as long as needed, whether or not the project or program

Federally-owned property as defined in 2 C.F.R. § 200.312 means property acquired under a Federal award where

the title vests with the Federal government. Exempt Federally-owned property means property acquired under a

Federal award where the Federal awarding agency has chosen to vest title to the property to the non-Federal entity

without further obligation to the Federal Government, based upon the explicit terms and conditions of the Federal

award.

RESTORE Council Standard Terms and Conditions – August 2015

continues to be supported by the Federal award. Before disposing of equipment during the period

of performance, the recipient must seek disposition instructions from the Grants Officer for

equipment acquired under this award if the current fair market value of the equipment is greater

than $5,000 per unit. Disposition instructions must be requested by submitting a completed

“Tangible Personal Property Report” (SF-428 or any successor form) and the “Disposition

Request/Report” (SF-428-C or any successor form). In addition, not later than 60 days after the

end of the period of performance, the recipient must submit to the Grants Officer a completed SF-

428 and “Final Report Form” (SF-428-B or any successor form) if the recipient retains any

equipment with a current fair market value greater than $5,000 per unit.

.06 Supplies

a. Title to supplies vests in the non-Federal entity upon acquisition. If residual inventory of unused

supplies exceeds $5,000 in total aggregate value upon termination or completion of the project or

program and the supplies are not needed for any other Federal award, then the non-Federal entity may

retain the supplies for use on other activities or sell them, but must, in either case, compensate the

Federal government for its share. The amount of compensation must be computed in the same manner

as for equipment as prescribed in 2 C.F.R. § 200.313 “Equipment”; see 200.313(e)(2) for the

calculation methodology. See also 2 C.F.R. § 200.453 “Materials and supplies costs, including costs

of computing devices.” The recipient must report the value and the retention or sale of such supplies

by submitting to the Grants Officer a completed “Tangible Personal Property Report” (SF-428 or any

successor form) and “Final Report Form” (SF-428-B or any successor form) no later than 60 days

after the end of the period of performance.

b. As long as the Federal government retains an interest in the supplies, the non-Federal entity must not

use supplies acquired under a Federal award to provide services to other organizations for a fee that is

less than private companies charge for equivalent services, unless specifically authorized by Federal

statute.

.07 Intangible Property

a. Title to intangible

property acquired under a Federal award vests upon acquisition in the non-Federal

entity.

b. The non-Federal entity must use intangible property for the originally-authorized purpose, and must

not encumber the property without the prior written approval of the Council. 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).

c. The non-Federal entity may copyright any work that is subject to copyright and was developed, or for

which ownership was acquired, under a Federal award. The Council reserves a royalty-free, perpetual,

nonexclusive and irrevocable license to reproduce, publish, distribute, exhibit, and/or otherwise use

and exploit the work throughout the world in all media now known or hereafter devised, and to

authorize others to do so for Federal purposes.

Intangible property as defined by 2 C.F.R. § 200.59 means property having no physical existence, such as

trademarks, copyrights, patents and patent applications and property, such as loans, notes and other debt

instruments, lease agreements, stock and other instruments of property ownership (whether the property is tangible

or intangible).

RESTORE Council Standard Terms and Conditions – August 2015

d. The non-Federal entity is subject to applicable regulations governing patents and inventions,

including governmentwide regulations issued by the Department of Commerce at 37 C.F.R. part 401,

“Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under

Government Awards, Contracts and Cooperative Agreements.”

e. The Federal government has the right, perpetually throughout the world in all media now known or

hereafter devised, to:

1. Obtain, reproduce, publish, distribute, exhibit, and/or otherwise use and exploit the data produced

under a Federal award; and

2. Authorize others to do so for Federal purposes.

f. Freedom of Information Act (FOIA). Pursuant to 2 C.F.R. § 200.315(e), in response to a FOIA

request for research data relating to published research findings

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 Council will request, and the non-Federal entity must provide, within a reasonable time, the

research data

so that such data can be made available to the public through the procedures

established under the FOIA. If the Council obtains the research data solely in response to a FOIA

request, the Council may charge the requester a reasonable fee equal to the full incremental cost of

obtaining the research data that reflects the costs incurred by the Council and the non-Federal entity.

Pursuant to 5 U.S.C. § 552(a)(4)(A), this fee is in addition to any fees the Council may assess under

the FOIA.

.08 Property Trust Relationship

Real property, equipment and intangible 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. The Council may require the non-Federal entity to record

liens or other appropriate notices of record to indicate that personal or real property has been acquired or

improved with a Federal award and that use and disposition conditions apply to the property.

F. PROCUREMENT STANDARDS

Pursuant to 2 C.F.R. § 200.317, 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

Published research findings (as defined by 2 C.F.R. § 200.315(e)(2)) means findings are published in a peer-

reviewed scientific or technical journal; or a Federal agency publicly and officially cites the research findings in

support of an agency action that has the force and effect of law. Used by the Federal government in developing an

“agency action that has the force and effect of law” is defined as when an agency publicly and officially cites the

research findings in support of an agency action that has the force and effect of law.

As defined by 2 C.F.R. § 200.315(e)(3), research data means the recorded factual material commonly accepted in

the scientific community as necessary to validate research findings, but not any of the following: preliminary

analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues.

This “recorded” material excludes physical objects (e.g., laboratory samples). Research data also do not include:

trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are

published, or similar information which is protected under law; and personnel and medical information and similar

information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as

information that could be used to identify a particular person in a research study.

RESTORE Council Standard Terms and Conditions – August 2015

State will comply with 2 C.F.R. § 200.322 “Procurement of recovered materials,” and the State must

ensure that every purchase order or other contract includes any clauses required by section 2 C.F.R. §

200.326 “Contract provisions.” All other non-Federal entities, including subrecipients of a State, will

follow the requirements of 2 C.F.R. §§ 200.318 “General procurement standards” through 200.326

“Contract provisions.”

a. For recipients that are States: When executing procurement actions under the award, the recipient

must follow the same policies and procedures it uses for procurements from its non-Federal funds.

The recipient must ensure that every purchase order or other contract contains any clauses required by

federal statutes and EOs and their implementing regulations, including all of the provisions listed in

Appendix II to 2 C.F.R. Part 200 “Contract Provisions for Non-Federal Entity Contracts under

Federal Awards,” as well as any other provisions required by law or regulations.

b. For recipients that are not States: The recipient must follow all procurement requirements set forth in

2 C.F.R. §§ 200.318, 200.319, 200.320, 200.321, 200.323, 200.324, and 200.325. In addition, all

contracts executed by the recipient to accomplish the approved scope of work must contain any

clauses required by federal statutes and EOs and their implementing regulations, including all of the

provisions listed in Appendix II to 2 C.F.R. Part 200 “Contract Provisions for Non-Federal Entity

Contracts under Federal Awards.”

G. NON-DISCRIMINATION 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 non-Federal entity shall comply with

the non-discrimination requirements below:

.01 Statutory Provisions

a. Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and any Council regulations and

policies promulgated pursuant to its authority prohibit discrimination on the grounds of race, color, or

national origin under programs or activities receiving Federal financial assistance;

b. Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) prohibits discrimination

on the basis of sex under Federally assisted education programs or activities;

c. The Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. §§ 12101 et seq.) 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 thereto, as well as public or

private entities that provide public transportation;

d. Section 504 of the Rehabilitation Act of 1973, as amended (29 U.S.C. § 794), and any Council

regulations and policies promulgated pursuant to its authority prohibit discrimination on the basis of

handicap under any program or activity receiving or benefiting from Federal assistance.

e. Revised ADA Standards for Accessible Design for Construction Awards revised regulations

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) which adopted new enforceable accessibility standards called the “2010 ADA

RESTORE Council Standard Terms and Conditions – August 2015

Standards for Accessible Design” (2010 Standards). All new construction and alteration projects shall

comply with the 2010 Standards.

f. The Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.), and any Council

regulations and policies promulgated pursuant to its authority prohibit discrimination on the basis of

age in programs or activities receiving Federal financial assistance;

g. Any other applicable non-discrimination law(s).

.02 Other Provisions

a. Parts II and III of EO 11246, “Equal Employment Opportunity,” (30 FR 12319, 1965), as amended by

EO 11375 (32 FR 14303, 1967) and EO 12086 (43 FR 46501, 1978), requiring Federally-assisted

construction contracts to include the nondiscrimination provisions of §§ 202 and 203 of that EO and

Department of Labor regulations implementing EO 11246 (41 C.F.R. § 60-1.4(b), 1991).

b. EO 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 LEP persons can have meaningful access to them.

c. Pilot Program for Enhancement of Employee Whistleblower Protections. The National Defense

Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. No. 112-239, enacted January 2, 2013

and codified at 41 U.S.C. § 4712) includes a pilot program of whistleblower protection. It applies to

all Council awards, subawards, or contracts under awards issued beginning July 1, 2013 through

January 1, 2017. The following provision implements that law:

In accordance with 41 U.S.C. § 4712, an employee of a non-Federal entity 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, subaward, or a contract under a Federal award

or subaward, a gross waste of Federal funds, an abuse of authority relating 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, subaward, or

contract under a Federal award or subaward. These persons or bodies include:

1. A Member of Congress or a representative of a committee of Congress.

2. An Inspector General.

3. The Government Accountability Office.

4. A Federal employee responsible for contract or grant oversight or management at the relevant

agency.

5. An authorized official of the Department of Justice or other law enforcement agency.

6. A court or grand jury.

7. 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 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.

RESTORE Council Standard Terms and Conditions – August 2015

.03 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 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 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.

H. RECORDS RETENTION

a. The recipient must retain all records pertinent to this award for a period of no less than three years,

beginning on a date as described in 2 C.F.R. § 200.333. While electronic storage of records (backed up

as appropriate) is preferable, the recipient has the option to store records in hardcopy (paper) format.

For the purposes of this section, the term “records” includes but is not limited to:

1. Copies of all contracts and all documents related to a contract, including the Request for Proposal

(RFP), all proposals/bids received, all meeting minutes or other documentation of the evaluation

and selection of contractors, any disclosed conflicts of interest regarding a contract, all signed

conflict of interest forms (if applicable), all conflict of interest and other procurement rules

governing a particular contract, and any bid protests;

2. Copies of all subawards, including the funding opportunity announcement or equivalent, all

applications received, all meeting minutes or other documentation of the evaluation and selection

of subrecipients, any disclosed conflicts of interest regarding a subaward, and all signed conflict of

interest forms (if applicable);

3. All documentation of site visits, reports, audits, and other monitoring of contractors (vendors) and

subrecipients (if applicable);

4. All financial and accounting records, including records of disbursements to contractors (vendors)

and subrecipients, and documentation of the allowability of Administrative Costs charged to this

award;

5. All supporting documentation for the performance outcome and other information reported on the

recipient’s Financial Reports and Performance (Technical) Reports; and

6. Any reports, publications, and data sets from any research conducted under this award.

b. If any litigation, claim, investigation, or audit relating to this award or an activity funded with award

funds is started before the expiration of the three year period, the records must be retained until all

litigation, claims, investigations, or audit findings involving the records have been resolved and final

action taken.

RESTORE Council Standard Terms and Conditions – August 2015

I. AUDITS

a. Under the Government Accounting Office’s authorities (5 U.S.C. § 701 et seq.) and 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 Treasury Office of Inspector General (OIG), Government Accounting

Office (GAO) and the Council are authorized to audit Council awards. See Section 1608 of the

RESTORE Act; and see 31 C.F.R. §§ 34.205, 34.406, 34.508 and 34.805.

b. The Treasury OIG (as specified in the RESTORE Act), or any of his or her duly authorized

representatives, the GAO and the Council shall have timely and unrestricted access to 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, in

order to make audits, inspections, excerpts, transcripts, or other examinations as authorized by law.

c. If the Treasury OIG requires a program audit on a Council 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 the Council, or any other Federal, state, or local audit entity.

d. The Treasury OIG, the GAO, and the Council shall have the right during normal business hours to

conduct announced and unannounced onsite and offsite physical visits of recipients and their

subrecipients and contractors corresponding to the duration of their records retention obligation for

this award.

.01 Organization-Wide, Program-Specific, and Project Audits

a. Organization-wide or program-specific audits must be performed in accordance with the Single Audit

Act Amendments of 1996, as implemented by 2 C.F.R. part 200, Subpart F, “Audit Requirements.”

Recipients that are subject to the provisions of 2 C.F.R. part 200, Subpart F and that expend $750,000

or more in a year in Federal awards must have an audit conducted for that year in accordance with the

requirements contained in 2 C.F.R. part 200, Subpart F. A copy of the audit shall be submitted to the

Bureau of the Census, which has been designated by OMB as a central clearinghouse, by electronic

submission to the Federal Audit Clearinghouse website.

If it is necessary to submit by paper, the

address for submission is:

Federal Audit Clearinghouse

Bureau of the Census

1201 E. 10th Street

Jeffersonville, IN 47132

b. Except for the provisions for biennial audits provided in paragraphs (1) and (2) of this section, audits

required must be performed annually. Any biennial audit must cover both years within the biennial

period.

1. A State, local government, or Indian tribe that is required by constitution or statute, in effect on

January 1, 1987, to undergo its audits less frequently than annually, is permitted to undergo its

audits pursuant to this part biennially. This requirement must still be in effect for the biennial

period.

Federal Audit Clearinghouse website - http://harvester.census.gov/sac/, verified on 6/5/2015.

RESTORE Council Standard Terms and Conditions – August 2015

2. Any nonprofit organization that had biennial audits for all biennial periods ending between July

1, 1992, and January 1, 1995, is permitted to undergo its audits pursuant to this part biennially.

c. Council programs may have specific audit guidelines that will be incorporated into the award. When

the Council 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 C.F.R. § 200.507. The non-

Federal entity 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 and to the OIG at

OIGCounsel@oig.treas.gov

or if e-mail is unavailable, submission to the OIG can be made at the

following address:

Treasury Office of Inspector General

1500 Pennsylvania Ave. NW

Washington, DC 20220

.02 Audit Resolution Process

a. An audit of the award may result in the disallowance of costs incurred by the non-Federal entity and

the establishment of a debt (account receivable) due the Council. For this reason, the non-Federal

entity 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 non-Federal entity whose award is audited has the following opportunities to dispute the proposed

disallowance of costs and the establishment of a debt:

1. Unless the Inspector General determines otherwise, the non-Federal entity has 30 days after the

date of the transmittal of the draft audit report to submit written comments and documentary

evidence.

2. The non-Federal entity has 30 days after the date of the transmittal of the final audit report to

submit written comments and documentary evidence. There will be no extension of this deadline.

3. The Council will review the documentary evidence submitted by the non-Federal entity and

notify the non-Federal entity of the results in an Audit Resolution Determination Letter. The non-

Federal entity has 30 days after 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 non-Federal entity to submit written comments and documentary evidence

that 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 interest on the debt. If the Audit Resolution

Determination 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.

5. The Council will review the non-Federal entity’s appeal and notify the non-Federal entity of the

results in an Appeal Determination Letter. After the opportunity to appeal has expired or after the

appeal determination has been rendered, the Council will not accept any further documentary

evidence from the non-Federal entity. No other administrative appeals to the Council are

available.

RESTORE Council Standard Terms and Conditions – August 2015

J. DEBTS

.01 Payment of Debts Owed the Federal Government

a. The non-Federal entity must promptly pay any debts determined to be owed the Federal Government.

Council debt collection procedures are set out in 2 C.F.R. part 200, Subpart D. In accordance with 2

C.F.R. § 200.345, delinquent debt includes any funds paid to the 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, constituting a debt to the Federal government (this includes a post-delinquency

payment agreement) unless other satisfactory payment arrangements have been made. In accordance

with 2 C.F.R. § 200.345, failure to pay a debt by the due date, or if there is no due date, within 90

calendar days after demand, shall 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. parts 900 through 999.

The Council will transfer any debt that is more than 180 days delinquent to the Bureau of the Fiscal

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 any Council regulations and policies promulgated pursuant to its

authority, and may result in the Council taking further action as specified in Section B.06 “Non-

Compliance With Award Provisions” Above. Funds for payment of a debt shall not come from other

Federally-sponsored programs. Verification that other Federal funds have not been used will be made

(e.g., during on-site visits and audits).

b. If a non-Federal entity fails to repay a debt within 90 calendar days after the demand, the Council

may reduce the debt by: (1) Making an administrative offset against other requests for

reimbursements; (2) Withholding advance payments otherwise due to the non-Federal entity; or (3)

Other action permitted by Federal statute. See 2 C.F.R. § 200.345(a).

.02 Late Payment Charges

a. Interest shall be assessed on the delinquent debt in accordance with section 3717(a) of the Debt

Collection Act of 1982, as amended (31 U.S.C. § 3701 et seq.). The minimum annual interest rate to

be assessed is the Department of the Treasury’s Current Value of Funds Rate (CVFR).

The CVFR

is published by the Department of the Treasury in the Federal Register

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 (6%) per year or such higher rate as

authorized by law.

c. Administrative charges, that is, the costs of processing and handling a delinquent debt, are determined

by the Council.

Department of the Treasury’s Current Value of Funds Rate (CVFR) webpage -

https://www.fiscal.treasury.gov/fsreports/rpt/cvfr/cvfr_home.htm

, verified 8/18/2015.

Federal Register website - http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR and

http://www.federalregister.gov/, verified 8/18/2015.

Treasury Financial Manual Bulletin website - http://tfm.fiscal.treasury.gov/v1/bull.html, verified 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

.03 Effect of Judgment Lien on Eligibility for Federal Grants, Loans,

or Programs

Pursuant to 28 U.S.C. § 3201(e), unless waived by the Council 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.

K. GOVERNMENTWIDE DEBARMENT AND SUSPENSION

The non-Federal entity shall comply with the provisions of 2 C.F.R. Part 180, “OMB Guidelines To

Agencies on Governmentwide Debarment and Suspension (Nonprocurement),” which generally prohibit

entities, and their principals, that have been debarred, suspended, or voluntarily excluded from

participating in Federal nonprocurement transactions either through primary or lower tier covered

transactions, and which sets forth the responsibilities of recipients of Federal financial assistance

regarding transactions with other persons, including subrecipients and contractors.

L. LOBBYING RESTRICTIONS

.01 Statutory Provisions

The non-Federal entity shall comply with 2 C.F.R. § 200.450 (“Lobbying”), which incorporates the

provisions of 31 U.S.C. § 1352, the “New Restrictions on Lobbying” published at 55 FR 6736 (February

26, 1990), and OMB guidance and notices on lobbying restrictions. In addition, non-Federal entities must

comply with any Council regulations and policies promulgated pursuant to its authority. 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. Executive lobbying costs, i.e., costs incurred in attempting to improperly influence

either

directly or indirectly an employee or officer of the executive branch of the Federal government to give

consideration or to act regarding a Federal award or a regulatory matter, are unallowable costs. See 2

C.F.R. § 200.450(b) and (c).

.02 Disclosure of Lobbying Activities

The non-Federal entity receiving in excess of $100,000 in Federal funding shall submit a completed

Form SF-LLL or any successor form, “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 non-Federal entity

must submit any required Forms SF-LLL, including those received from subrecipients, contractors, and

subcontractors, to the Grants Officer. See 31 U.S.C. § 1352.

To improperly influence means 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.

RESTORE Council Standard Terms and Conditions – August 2015

M. REMEDIES FOR NONCOMPLIANCE

a. If a non-Federal entity fails to comply with Federal statutes, regulations or the terms and conditions

of a Federal award, the Council or pass-through entity may impose additional conditions, as

described in 2 C.F.R. § 200.207 “Specific conditions” (e.g., requiring additional reporting or more

frequent submission of the Financial or Performance (Technical) Reports; requiring additional

activity, project, or program monitoring; requiring the recipient or one or more of its subrecipients to

obtain technical or management assistance; or establishing additional actions that require prior

approval). If the Council or pass-through entity determines that noncompliance cannot be remedied

by imposing additional conditions, pursuant to 2 C.F.R. § 200.338, the Council or pass-through

entity may take one or more of the following actions, as appropriate in the circumstances:

1. Temporarily withhold cash payments pending correction of the deficiency by the non-Federal

entity or more severe enforcement action by the Council or pass-through entity.

2. Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the

cost of the activity or action not in compliance.

3. Wholly or partly suspend or terminate the Federal award.

4. Initiate suspension or debarment proceedings as authorized under 2 C.F.R. part 180 and Council

regulations (or in the case of a pass-through entity, recommend such a proceeding be initiated by

the Council).

5. Withhold further Federal awards for the project or program.

6. Take other remedies that may be legally available.

The Council will notify the recipient in writing of the Council’s proposed determination that an

instance of non-compliance has occurred, provide details regarding the instance of noncompliance,

and indicate the remedy that the Council proposes to pursue. The recipient will then have 30 calendar

days to respond and provide information and documentation contesting the Council’s proposed

determination or suggesting an alternative remedy. The Council will consider information provided

by the recipient and issue a final determination in writing, which will state the Council’s final

findings regarding noncompliance and the remedy to be imposed.

b. RESTORE Act-Specific Remedy for Non-compliance

1. If the Council determines that the recipient has expended funds to cover the cost of any ineligible

activities, in addition to the remedies available in this section, the Council, in coordination with

the U.S. Department of Treasury (“Treasury”), will make no additional payments to the recipient

from the RESTORE Trust Fund, including no payments from the RESTORE Trust Fund for

activities, projects, or programs under any other RESTORE Act Component until the recipient

has either (a) deposited an amount equal to the amount expended for the ineligible activities in the

RESTORE Trust Fund, or (b) the Council, in coordination with Treasury, has authorized the

recipient to expend an equal amount from the recipient’s own funds for an activity that meets the

requirements of the RESTORE Act. See 33 U.S.C. § 1321(t)(1)(G) and (H), and see 31 C.F.R. §

34.804 “Noncompliance.”

RESTORE Council Standard Terms and Conditions – August 2015

2. If the Council determines that the recipient has materially violated the terms of the award, the

Council, in coordination with Treasury, will make no additional funds available to the recipient

from any part of the RESTORE Trust Fund until the recipient corrects the violation.

c. In extraordinary circumstances, the Council may require that any of the remedies above take effect

immediately upon notice in writing to the recipient. In such cases, the recipient may contest the

Council’s determination or suggest an alternative remedy in writing to the Council, and the Council

will issue a final determination.

d. Instead of, or in addition to, the remedies listed above, the Council may refer the noncompliance to

the Treasury OIG for investigation or audit, pursuant to 31 C.F.R. § 34.805 “Treasury Inspector

General.” The Council will refer all allegations of fraud, waste, or abuse to the Treasury OIG.

e. Termination. In accordance with 2 C.F.R. § 200.339, when a Federal award is terminated or partially

terminated, both the Council or pass-through entity and the non-Federal entity remain responsible for

compliance with the requirements in 2 C.F.R. §§ 200.343 “Closeout” and 200.344 “Post-closeout

adjustments and continuing responsibilities.”

1. The Federal award may be terminated in whole or in part as follows:

i. By the Council or pass-through entity, if a non-Federal entity fails to comply with the

terms and conditions of a Federal award;

ii. By the Council or pass-through entity for cause;

iii. By the Council or pass-through entity with the consent of the non-Federal entity, in

which case the two parties will agree upon the termination conditions, including the

effective date and, in the case of partial termination, the portion to be terminated; or

iv. By the non-Federal entity upon sending to the Council or pass-through entity 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 the Council or pass-

through entity determines in the case of partial termination that the reduced or modified

portion of the Federal award or subaward will not accomplish the purposes for which the

Federal award was made, the Council or pass-through entity may terminate the Federal

award in its entirety.

2. The Council or pass-through entity is required to provide a notice of termination to the non-

federal entity, pursuant to 2 C.F.R. § 200.340:

i. If the Federal award is terminated for the non-Federal entity’s failure to comply with the

Federal statutes, regulations, or terms and conditions of the Federal award, the

notification must state that the termination decision may be considered in evaluating

future applications received from the non-Federal entity.

ii. Upon termination of a Federal award, the Council will provide the information required

under FFATA to the Federal Web site established to fulfill the requirements of FFATA,

and update or notify any other relevant governmentwide systems or entities of any

indications of poor performance as required by 41 U.S.C. § 417b and 31 U.S.C. § 3321

and implementing guidance at 2 C.F.R. part 77. See also 2 C.F.R. part 180 for the

requirements for Suspension and Debarment.

RESTORE Council Standard Terms and Conditions – August 2015

N. CODES OF CONDUCT AND SUBAWARD, CONTRACT, AND

SUBCONTRACT PROVISIONS

.01 Code of Conduct for Recipients

a. The non-Federal entity must immediately report any indication of fraud, waste, abuse or potential

criminal activity pertaining to grant funds to the Council, Treasury and the Treasury Inspector

General in accordance with the requirements in 31 C.F.R. § 34.803(a).

b. Pursuant to the certification in Form SF-424B, paragraph 3, or equivalent, the non-Federal entity 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

conflict of interest, or personal gain in the administration of this award.

c. Non-Federal entities must comply with the requirements of 2 C.F.R. § 200.318 “General procurement

standards,” including maintaining written standards of conduct covering conflicts of interest and

governing the performance of its employees engaged in the selection, award and administration of

contracts. No employee, officer or agent shall 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. Such a

conflict of interest would arise when the employee, officer or agent, any member of his or her

immediate family, his or her partner, or an organization which employs or is about to or planning to

employ any of the foregoing parties, has a financial or other interest in or a tangible personal benefit

from a firm considered for a contract. The officers, employees and agents of the non-Federal entity

must neither solicit nor accept any gratuities, favors or anything of monetary value from contractors

or parties to subcontracts. However, non-Federal entities may set written standards of conduct for

circumstances in which the financial interest is not substantial or the gift is an unsolicited item of

nominal value. Such standards must provide for disciplinary actions to be taken for violations of the

standards of conduct by officers, employees or agents of the non-Federal entity.

.02 Applicability of Award Provisions to Subrecipients

a. The non-Federal entity shall require all subrecipients, including lower tier subrecipients, under the

award to comply with the provisions of the award, including applicable cost principles, administrative

provisions, audit requirements, and all associated terms and conditions. See 2 C.F.R. part 200,

Subpart D, “Subrecipient Monitoring and Management” and see 2 C.F.R. § 200.101(b)(1).

Additionally, the non-Federal entity must perform all responsibilities required of a pass-through

entity, as specified in 2 C.F.R. Part 200, including evaluating and documenting a subrecipient’s risk

of noncompliance; providing training and technical assistance necessary to complete the subaward

activities; monitoring the performance of the subrecipient; and taking any necessary enforcement

actions against a noncompliant subrecipient. See 2 C.F.R. § 200.331 “Requirements for pass through

entities.”

b. Prior to dispersing funds to a subrecipient, the recipient must execute a legally-binding written

agreement with the entity receiving the subaward in accordance with the requirements in 31 C.F.R. §

34.803(c). The written agreement shall extend all applicable program requirements to the

subrecipient. The written agreement must include a requirement that the contractor or subrecipient

retain all records in compliance with 2 C.F.R. § 200.333.

c. A non-Federal entity is responsible for subrecipient monitoring, including the following:

RESTORE Council Standard Terms and Conditions – August 2015

1. Federal Award Identification. The non-Federal entity must ensure that each subaward includes

the following information and applicable compliance requirements at the time of the subaward. If

any of these data elements change, the pass through entity must include the changes in a

subsequent subaward modification. When some of this information is not available, the pass-

through entity must provide the best information available to describe the Federal award and

subaward.

i. Subrecipient name (which must match the registered name in DUNS);

ii. Subrecipient’s DUNS number (see 2 C.F.R. § 200.32 “Data Universal Numbering

System (DUNS) number”);

iii. Federal Award Identification Number (FAIN);

iv. Federal Award Date (see 2 C.F.R. § 200.39 “Federal award date”);

v. Subaward Period of Performance Start and End Date;

vi. Amount of Federal Funds Obligated by this action;

vii. Total Amount of Federal Funds Obligated to the subrecipient;

viii. Total Amount of the Federal Award;

ix. Federal award project description, as required to be responsive to the Federal Funding

Accountability and Transparency Act (FFATA);

x. Name of Federal awarding agency, pass-through entity and contact information for

awarding official;

xi. CFDA Number and Name; the pass-through entity must identify the dollar amount made

available under each Federal award and the CFDA number at time of disbursement;

xii. Identification of whether the award is for research and development (R&D); and

xiii. Indirect cost rate for the Federal award (including whether the de minimis rate is charged

per 2 C.F.R. § 200.414 “Indirect (F&A) costs”).

2. Award Monitoring. The non-Federal entity is responsible for oversight of the operations of the

Federal award supported activities. The non-Federal entity must monitor its activities under

Federal awards to assure that compliance with applicable Federal requirements and performance

expectations are being achieved. Monitoring by the non-Federal entity must cover each program,

function or activity. See 2 C.F.R. §§ 200.328 “Monitoring and reporting program performance,”

and 200.331 “Requirements for pass-through entities.” The non-Federal entity shall monitor

activities of the subrecipient through reporting, site visits, regular contact, or other means, as

necessary to ensure that the subaward is used solely for authorized purposes, in compliance with

Federal statutes, regulations and the terms and conditions of the subaward; and that subaward

performance goals are achieved. Pass-through entity monitoring of the subrecipient must include:

i. Reviewing financial and programmatic reports required by the pass-through entity.

ii. Following-up and ensuring that the subrecipient takes timely and appropriate action on all

deficiencies pertaining to the Federal award provided to the subrecipient from the pass-

through entity detected through audits, on-site reviews, and other means.

iii. Issuing a management decision for audit findings pertaining to the Federal award

provided to the subrecipient from the pass-through entity as required by 2 C.F.R. §

200.521 “Management decision.”

3. Subrecipient Audits. The non-Federal entity is responsible for ensuring that subrecipients

expending $750,000 or more in Federal awards during the subrecipient’s fiscal year have met the

audit requirements of 2 C.F.R. part 200, Subpart F, “Audit Requirements,” and that the required

audits are completed within nine (9) months after the end of the subrecipient’s audit period. In

addition, the non-Federal entity is required to issue a management decision on audit findings

within six (6) months after receipt of the subrecipient’s audit report, and to ensure that the

RESTORE Council Standard Terms and Conditions – August 2015

subrecipient takes timely and appropriate corrective action on all audit findings. Pursuant to 2

C.F.R. § 200.505, in cases of continued inability or unwillingness to have an audit conducted in

accordance with this part, Federal agencies and pass-through entities must take appropriate action

as provided in 2 C.F.R. § 200.338 “Remedies for noncompliance.”

.03 Competition and Codes of Conduct for Subawards

a. Unless otherwise approved in writing in advance by the Grants Officer, all subawards will be made in

a manner to provide, to the maximum extent practicable, open and free competition in accordance

with the requirements of 2 C.F.R. §§ 200.317 through 200.326 “Procurement Standards.” The non-

Federal entity must be alert to organizational conflicts of interest as well as other practices among

subrecipients that may restrict or eliminate competition. In order to ensure objective subrecipient

performance and eliminate unfair competitive advantage, subrecipients that develop or draft work

requirements, statements of work, or requests for proposals shall be excluded from competing for

such subawards.

b. The non-Federal entity 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. No employee, officer, or agent must 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. Such a

conflict of interest would arise when the employee, officer, or agent, any member of his or her

immediate family, his or her partner, or an organization which employs or is about to or planning to

employ any of the foregoing parties, has a financial or other interest in or a tangible personal benefit

from a firm considered for a contract. The officers, employees, and agents of the non-Federal entity

shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors or

parties to subcontracts. However, non-Federal entities may set standards of conduct for circumstances

in which the financial interest is not substantial or the gift is an unsolicited item of nominal value.

Such standards must provide for disciplinary actions to be taken for violations of the standards of

conduct by officers, employees or agents of the non-Federal entity.

c. If the non-Federal entity has a parent, affiliate or subsidiary organization that is not a State, local

government or Indian tribe, the non-Federal entity must also maintain written standards of conduct

covering organizational conflicts of interest, wherein relationships with a parent company, affiliate or

subsidiary organization cause the non-Federal entity to be or appear to be unable to be impartial in

conducting a procurement action involving such related organization.

d. 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 may 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 may also result from non-financial gain to the individual,

such as benefit to reputation or prestige in a professional field.

.04 Applicability of Provisions to Subawards, Contracts, and

Subcontracts

a. The non-Federal entity shall include the following notice in each request for applications or bids for a

subaward, contract, or subcontract, as applicable:

RESTORE Council Standard Terms and Conditions – August 2015

Applicants or bidders for a lower tier covered transaction (except procurement contracts for goods

and services under $25,000 not requiring the consent of a Council official) are subject to 2 C.F.R.

Part 180, “OMB Guidelines to Agencies on Governmentwide Debarment and Suspension

(Nonprocurement).” In addition, applicants or 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

relevant statutes, including among others, the provisions of 31 U.S.C. 1352, as well as the common

rule, “New Restrictions on Lobbying,” published at 55 FR 6736 (February 26, 1990), including

definitions, and the Office of Management and Budget “Governmentwide Guidance for New

Restrictions on Lobbying,” and notices published at 54 FR 52306 (December 20, 1989), 55 FR 24540

(June 15, 1990), 57 FR 1772 (January 15, 1992), and 61 FR 1412 (January 19, 1996).

When the recipient makes a subaward to a subrecipient that is authorized to enter into contracts for

the purpose of completing the subaward scope of work, the recipient must require the subrecipient to

comply with the requirements contained in this section.

b. Pursuant to 2 C.F.R. Appendix II to part 200, “Contract Provisions for Non-Federal Entity Contracts

Under Federal Awards,” and in addition to other provisions required by the Federal agency or non-

Federal entity, all contracts made by the non-Federal entity under the Federal award must contain

provisions covering the following, as applicable:

1. Contracts for more than the Simplified Acquisition Threshold ($150,000 as of 12-26-2013),

which is the inflation adjusted amount determined by the Civilian Agency Acquisition Council

and the Defense Acquisition Regulations Council (Councils) as authorized by 41 U.S.C. § 1908,

must address administrative, contractual or legal remedies in instances where contractors violate

or breach contract terms, and provide for such sanctions and penalties as appropriate.

2. All contracts in excess of $10,000 must address termination for cause and for convenience by the

non-Federal entity including the manner by which it will be effected and the basis for settlement.

3. Equal Employment Opportunity. Except as otherwise provided under 41 C.F.R. part 60, all

contracts that meet the definition of “Federally assisted construction contract” in 41 C.F.R. part

60-1.3 must include the equal opportunity clause provided under 41 C.F.R. 60-1.4(b), in

accordance with EO 11246, “Equal Employment Opportunity” (30 F.R. 12319, 12935, 3 C.F.R.

part, 1964-1965 Comp., p. 339), as amended by EO 11375, “Amending Executive Order 11246

Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. part 60,

“Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department

of Labor.”

4. Davis-Bacon Act. When required by Federal program legislation, all prime construction contracts

in excess of $2,000 awarded by non-Federal entities must include a provision for compliance with

the Davis-Bacon Act (40 U.S.C. §§ 3141-3144, and 3146-3148) as supplemented by Department

of Labor regulations (29 C.F.R. part 5, “Labor Standards Provisions Applicable to Contracts

Covering Federally Financed and Assisted Construction”). In accordance with the statute,

contractors must be required to pay wages to laborers and mechanics at a rate not less than the

prevailing wages specified in a wage determination made by the Secretary of Labor. In addition,

contractors must be required to pay wages not less than once a week. The non-Federal entity must

place a copy of the current prevailing wage determination issued by the Department of Labor in

each solicitation. The decision to award a contract or subcontract must be conditioned upon the

acceptance of the wage determination. The non-Federal entity must report all suspected or

reported violations to the Council. The contracts must also include a provision for compliance

with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of

RESTORE Council Standard Terms and Conditions – August 2015

Labor regulations (29 C.F.R. part 3, “Contractors and Subcontractors on Public Building or

Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act

provides that each contractor or subrecipient must be prohibited from inducing, by any means,

any person employed in the construction, completion, or repair of public work, to give up any

part of the compensation to which he or she is otherwise entitled. The non-Federal entity must

report all suspected or reported violations to the Council.

5. Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701-3708). Where applicable, all

contracts awarded by the non-Federal entity in excess of $100,000 that involve the employment

of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and

3704, as supplemented by Department of Labor regulations (29 C.F.R. part 5). Under 40 U.S.C. §

3702 of the Act, each contractor must be required to compute the wages of every mechanic and

laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work

week is permissible provided that the worker is compensated at a rate of not less than one and a

half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The

requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer

or mechanic must be required to work in surroundings or under working conditions which are

unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies

or materials or articles ordinarily available on the open market, or contracts for transportation or

transmission of intelligence.

6. Rights to Inventions Made Under a Contract or Agreement. If the Federal award meets the

definition of “funding agreement” under 37 C.F.R. § 401.2(a) and the non-Federal entity or

subrecipient wishes to enter into a contract with a small business firm or nonprofit organization

regarding the substitution of parties, assignment or performance of experimental, developmental,

or research work under that “funding agreement,” the non-Federal entity or subrecipient must

comply with the requirements of 37 C.F.R. part 401, “Rights to Inventions Made by Nonprofit

Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative

Agreements,” and any implementing regulations issued by the awarding agency.

7. Mandatory standards and policies relating to energy efficiency which are contained in the state

energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42

U.S.C. § 6201).

8. Debarment and Suspension (Executive Orders 12549 and 12689). A contract award (see 2 C.F.R.

§ 180.220) must not be made to parties listed on the governmentwide Excluded Parties List

System in the System for Award Management (SAM), in accordance with the OMB guidelines at

2 C.F.R. part 180 that implement Executive Orders 12549 (3 C.F.R. part 1986 Comp., p. 189) and

12689 (3 C.F.R. part 1989 Comp., p. 235), “Debarment and Suspension.” The Excluded Parties

List System in SAM

contains the names of parties debarred, suspended, or otherwise excluded

by agencies, as well as parties declared ineligible under statutory or regulatory authority other

than Executive Order 12549.

9. Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352). Contractors that apply or bid for an award

of $100,000 or more must file the required certification, a “Disclosure of Lobbying Activities”

(Form SF-LLL or successor form). Each tier certifies to the tier above that it will not and has not

used Federal appropriated funds to pay any person or organization for influencing or attempting

to influence an officer or employee of any agency, a member of Congress, officer or employee of

Congress, or an employee of a member of Congress in connection with obtaining any Federal

System for Award Management (SAM) website - https://www.sam.gov, verified 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

contract, grant or any other award covered by 31 U.S.C. § 1352. Each tier must also disclose any

lobbying with non-Federal funds that takes place in connection with obtaining any Federal award.

Such disclosures are forwarded from tier-to-tier up to the Federal award recipient. The Form SF-

LLL must 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 non-Federal entity must submit all

disclosure forms received, including those that report lobbying activity on its own behalf, to the

Grants Officer within 30 days following the end of the calendar quarter.

10. Procurement of recovered materials (section 6002 of the Solid Waste Disposal Act, as amended

by the Resource Conservation and Recovery Act). A state agency or agency of a political

subdivision of a State and its contractors must comply with requirements of Section 6002

including procuring only items designated in guidelines of the Environmental Protection Agency

(EPA) at 40 C.F.R. part 247 that contain the highest percentage of recovered materials

practicable, consistent with maintaining a satisfactory level of competition, where the purchase

price of the item exceeds $10,000 or the value of the quantity acquired by the preceding fiscal

year exceeded $10,000; procuring solid waste management services in a manner that maximizes

energy and resource recovery; and establishing an affirmative procurement program for

procurement of recovered materials identified in the EPA guidelines.

11. Pilot Program for Enhancement of Employee Whistleblower Protections. The National Defense

Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L. No. 112-239, enacted January 2,

2013 and codified at 41 U.S.C. § 4712) includes a pilot program of whistleblower protection. It

applies to all Council awards, subawards, or contracts under awards issued beginning July 1,

2013 through January 1, 2017. Non-Federal entities 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. See section G.02 (c) of this

document.

c. The recipient must include in its legal agreement or contract with the subrecipient a requirement that

the subrecipient make available to the Council, the Treasury OIG, and the GAO any documents,

papers or other records, including electronic records, of the subrecipient, that are pertinent to this

award, in order to make audits, investigations, examinations, excerpts, transcripts, and copies of such

documents. This right also includes timely and reasonable access to the subrecipient’s personnel for

the purpose of interview and discussion related to such documents. This right of access shall continue

as long as records are required to be retained.

d. The recipient and any subrecipients, contractors, or subcontractors must comply with provisions of

the Hatch Act (5 U.S.C. §§1501-1508 and 7324-7328), as applicable, which limit the political

activities of employees whose principal employment activities are funded in whole or in part with

federal funds.

e. When contracting, the non-Federal entity must take all necessary affirmative steps, as prescribed in 2

C.F.R. § 200.321(b), to assure that minority businesses, women’s business enterprises, and labor

surplus area firms are used when possible.

.05 Subaward and/or Contract to a Federal Agency

a. The non-Federal entity, subrecipient, contractor, and/or subcontractor shall not sub-grant or

sub-contract any part of the approved project to any agency or employee of the Council and/or other

RESTORE Council Standard Terms and Conditions – August 2015

Federal department, agency, or instrumentality without the prior written approval of the Grants

Officer.

b. Requests for approval of such action must be submitted in writing to the Grants Officer. The Grants

Officer will notify the non-Federal entity in writing of the final determination.

O. AMENDMENTS AND CLOSEOUT

a. Amendments to an award must be requested in writing and require the written approval of the Grants

Officer. The recipient must provide an explanation for the reason an amendment is requested. The

Council reserves the right to amend the terms of the award when required by law or regulation.

b. The non-Federal entity must comply with the closeout requirements as stipulated in 2 C.F.R. §

200.343. Closeout of the award does not affect any of the post-closeout adjustments and continuing

responsibilities under 2 C.F.R. § 200.344.

P. ENVIRONMENTAL COMPLIANCE

Environmental impacts must be considered by Federal decision-makers in deciding whether or not to

approve: (1) a proposal for Federal assistance; (2) such 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. Non-Federal entities must comply with all applicable

environmental laws, regulations and policies. Additionally, recipients may be required to assist the

Council in complying with laws, regulations and policies applicable to Council actions. Laws,

regulations, and policies potentially applicable to Council actions and/or recipients may include but are

not limited to the statutes and EOs listed below. The Council does not make independent determinations

of compliance with laws such as the Clean Water Act. Rather, the Council may require a recipient to

provide information to the Council to demonstrate that the recipient has complied with or will comply

with all such requirements. In some cases, if additional information is required after an application is

selected, funds may be withheld by the Grants Officer under a special award condition requiring the

recipient to submit additional information sufficient to enable the Council to make an assessment

regarding compliance with applicable environmental laws, regulations and policies.

If a recipient is permitted to make any subawards, the recipient must include all of the environmental

statutes, regulations and EOs listed below in any agreement or contract with a subrecipient, and require

the subrecipient to comply with all of these and to notify the recipient if the subrecipient becomes aware

of any impact on the environment that was not noted in the recipient’s approved application package.

.01 The National Environmental Policy Act (42 U.S.C. § 4321 et seq.)

Council approval of financial assistance awards may be subject to the environmental review requirements

of the National Environmental Policy Act (NEPA). In such cases, recipients of financial assistance awards

may be required to assist the Council in complying with NEPA. For example, applicants may be required

to assist the Council by providing information on a proposal’s potential environmental impacts, or

drafting or supplementing an environmental assessment or environmental impact statement if the Council

determines such documentation is required. Independent of the Council’s responsibility to comply with

RESTORE Council Standard Terms and Conditions – August 2015

NEPA, where appropriate, projects or programs funded by the Council may trigger Federal agency NEPA

compliance duties involving a separate Federal action, such as the issuance of a Federal permit.

.02 The Endangered Species Act (16 U.S.C. § 1531 et seq.)

Council approval of financial assistance for project implementation is subject to compliance with section

7 of the Endangered Species Act (ESA). Recipients must identify any impact or activities that may

involve a Federally-listed threatened or endangered species, or their designated critical habitat. Section 7

of the ESA requires every Federal agency to ensure that any action it authorizes, funds or carries out, in

the United States or upon the high seas, is not likely to jeopardize the continued existence of any listed

species or result in the destruction or adverse modification of designated critical habitat. Federal agencies

have the responsibility for ensuring that a protected species or habitat does not incur adverse effects from

actions taken under Federal assistance awards, and for conducting the required consultations with the

National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service under the Endangered

Species Act, as applicable.

.03 Magnuson-Stevens Fishery Conservation and Management Act

(16 U.S.C. § 1801 et seq.)

Recipients of financial assistance awards must identify to the Council 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 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 Endangered Species Act, Clean Water Act, Fish and Wildlife Coordination

Act, or other applicable statutes.

.04 Clean Water Act Section 404 (33 U.S.C. § 1344 et seq.)

Clean Water Act (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).

.05 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 No. 13186, Responsibilities of Federal Agencies

to Protect Migratory Birds

A number of 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 conservation of migratory bird

populations when a Federal action will have a measurable negative impact on migratory birds.

RESTORE Council Standard Terms and Conditions – August 2015

.06 National Historic Preservation Act (16 U.S.C. § 470 et seq.)

Council approval of financial assistance awards may be subject to Section 106 of the National Historic

Preservation Act (NHPA). In such cases, recipients of financial assistance awards may be requested to

assist the Council in identifying any adverse effects the award may have on properties included on or

eligible for inclusion on the National Register of Historic Places. Pursuant to 36 C.F.R. § 800.2(c)(4),

applicants and recipients may also be requested to assist the Council in initiating consultation with State

or Tribal Historic Preservation Officers, Indian tribes, Native Hawaiian Organizations or other applicable

interested parties as necessary to the Council’s responsibilities to identify historic properties, assess

adverse effects to them, and determine ways to avoid, minimize or mitigate adverse effects on historic

properties.

Pursuant to guidelines issued by the National Park Service under the Abandoned Shipwreck Act (43

U.S.C. §§ 2101-2106), state and Federal agencies whose activities may disturb, alter, damage, or destroy

State-owned shipwrecks must take into account the effect of the proposed activity on any state-owned

shipwreck and afford the state agencies assigned management responsibility for state-owned shipwrecks a

reasonable opportunity to comment on the proposed activity.

.07 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”)

Recipients 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. Recipients shall not use a facility that

the Environmental Protection Agency (EPA) has placed on EPA’s List of Violating Facilities (this list is

incorporated into the Excluded Parties List System which is part of SAM) in performing any award that is

nonexempt under subpart J of 2 C.F.R. part 1532.

.08 The Flood Disaster Protection Act (42 U.S.C. § 4002 et seq.)

Flood insurance, when available, is required for Federally-assisted construction or acquisition in areas

having special flood hazards and flood-prone areas. When required, recipients will ensure that flood

insurance is secured for their project(s).

.09 Executive Order 11988 (“Floodplain Management”), Executive

Order 13690 (“Establishing a Federal Flood Risk Management

Standard and a Process for Further Soliciting and Considering

Stakeholder Input”), and Executive Order 11990 (“Protection of

Wetlands”)

Recipients must identify proposed actions located in a floodplain and/or wetlands to enable the Council to

determine whether there is an alternative to minimize any potential harm. Floodplains are identified

through a climate-informed science approach, adding 2-3 feet of elevation to the 100-year floodplain, or

using the 500-year floodplain.

RESTORE Council Standard Terms and Conditions – August 2015

.10 Executive Order 13112 (“Invasive Species”)

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.

.11 The Coastal Zone Management Act (16 U.S.C. § 1451 et seq.)

Federally funded projects must be consistent with a coastal state’s approved management program for the

coastal zone.

.12 The Coastal Barriers Resources Act (16 U.S.C. § 3501 et seq.)

Only in certain circumstances may Federal funding be provided for actions within a Coastal Barrier

System. The Coastal Barriers Resources Act generally prohibits new Federal expenditures, including

Federal grants, within specific units of the Coastal Barrier Resources System (CBRS). Although the Act

restricts Federal expenditures for coastal barrier development, Section 6(a)(6)(A) contains an exemption

for projects relating to the study, management, protection, or enhancement of fish and wildlife resources

and habitats, including recreational projects. Section 6(a)(6)(G) also exempts nonstructural projects for

shoreline stabilization that are designed to mimic, enhance or restore natural stabilization systems.

However, care must be taken when interpreting any exemptions described, as they are limited to projects

that are consistent with the purpose of this Act as interpreted by the lead agency, Department of Interior.

Applicants should work with the U.S. Fish and Wildlife Service, which reviews proposals to determine

whether a project falls within a protected unit and if so, whether an exception applies. Maps of the CBRS

are available through the interactive U.S. Fish and Wildlife Service

Coastal Barrier Resources System

Mapper.

.13 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. Funded projects in the National Wild and Scenic Rivers system must be consistent

with Wild and Scenic Rivers Act requirements.

.14 The Safe Drinking Water Act (42 U.S.C. § 300 et seq.)

The Sole Source Aquifer program under this statute precludes Federal financial assistance for any project

that the EPA determines may contaminate a designated sole source aquifer through a recharge zone so as

to create a significant hazard to public health.

U.S. Fish and Wildlife Service Interactive Coastal Barrier Resources System Mapper -

http://www.fws.gov/cbra/Maps/Mapper.html

, verified 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

.15 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 of Federal funds that are state agencies or political subdivisions of states give

preference in their procurement programs to the purchase of recycled products pursuant to EPA

guidelines.

.16 The Comprehensive Environmental Response, Compensation,

and Liability Act (Superfund) (42 U.S.C. § 9601 et seq.)

The Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) (42 U.S.C. §

9601 et seq.), as amended by the Community Environmental Response Facilitation Act, provides the

President with broad, discretionary response authorities to address actual and threatened releases of

hazardous substances, as well as pollutants and contaminants where there is an imminent and substantial

danger to public health and the environment. Section 103 of this Act contains specific reporting

requirements and responsibilities and section 117 of the Act contains specific provisions designed to

ensure meaningful public participation in the response process.

.17 Executive Order 12898 (“Environmental Justice in Minority

Populations and Low Income Populations”)

This Order identifies and addresses adverse human health or environmental effects of programs, policies

and activities on low income and minority populations. Consistent with EO 12898, recipients may be

requested to help identify and address, as appropriate, disproportionate impacts to low income and

minority populations which could result from their project.

.18 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.

.19 Marine Protection, Research and Sanctuaries Act (Pub. L. 92-

532, as amended), National Marine Sanctuaries Act (16 U.S.C.

1431 et seq.), and Executive Order 13089 (“Coral Reef

Protection”)

The Marine Protection, Research and Sanctuaries Act prohibits dumping of material into ocean waters

beyond the territorial limit without a permit. Recipients must identify any potential ocean dumping of

materials, obtain the appropriate permit, if applicable, and notify the Council. Under the National Marine

Sanctuaries Act, Federal agencies are required to protect National Marine Sanctuary resources. Recipients

must identify actions that are in or may affect a National Marine Sanctuary and notify the Council. EO

13089 requires that any actions authorized or funded by Federal agencies not degrade the condition of

coral reef ecosystems. Recipients must identify any action that might affect a coral reef ecosystem and

notify the Council.

RESTORE Council Standard Terms and Conditions – August 2015

.20 Executive Order 13653 (“Preparing the United States for the

Impacts of Climate Change”)

This EO requires Federal agencies to identify and support smarter, more climate-resilient investments by

States, local communities and tribes, including by providing incentives through agency guidance and

grants. Recipients must identify and describe any project elements that promote climate resilience.

.21 Farmland Protection Policy Act (7 U.S.C. 4201 et seq.)

This act requires agency programs, to the extent possible, be compatible with state, local and private

programs and policies to protect farmland from irreversible conversion to nonagricultural uses. Recipients

must identity any irreversible conversion of farmland to nonagricultural uses as a result of their project.

.22 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 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.

Q. MISCELLANEOUS REQUIREMENTS

.01 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 Amendments Act and the False Statements Act (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 et seq.), 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.

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 compensation under an employment contract. The Copeland “Anti-Kickback” Act also applies

to contractors and subcontractors pursuant to 40 U.S.C. § 3145.

.02 Political Activities

The non-Federal entity must comply, as applicable, with provisions of the Hatch Act (5 U.S.C.

§§1501-1508) which limit the political activities of employees whose principal employment

activities are funded in whole or in part with Federal funds.

RESTORE Council Standard Terms and Conditions – August 2015

.03 Drug-Free Workplace

The non-Federal entity shall comply with the provisions of the Drug-Free Workplace Act of 1988

(Pub. L. No. 100-690, Title V, Sec. 5153, as amended by Pub. L. No. 105-85, Div. A, Title VIII, Sec.

809, as codified at 41 U.S.C. § 8102) and any Council regulations and policies promulgated pursuant to

its authority, which require that the non-Federal entity take steps to provide a drug-free workplace.

.04 Foreign Travel

a. The non-Federal entity may not use funds from this award for travel outside of the United States

unless the Grants Officer provides prior written approval. The non-Federal entity 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 C.F.R. §§ 301-10.131 through 301-10.143.

b. 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 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.

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/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 in effect. For more information about the current bilateral and multilateral

agreements, visit the GSA website.

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.

d. If a foreign air carrier is anticipated to be used for any portion of travel under a Council financial

assistance award the non-Federal entity must obtain prior written 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 shall make the final determination and notify the non-Federal entity in

writing. 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 the non-Federal entity improperly

used a foreign air carrier.

GSA Fly America Act website - http://www.gsa.gov/portal/content/103191, verified 8/18/2015.

Department of State Open Skies Agreements website - http://www.state.gov/e/eb/tra/ata/index.htm, verified

8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

.05 Increasing Seat Belt Use in the United States

Pursuant to EO 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.

.06 Research Involving Human Subjects

a. 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 special award condition, or otherwise in writing by the Grants

Officer.

b. Federal policy defines a human subject as a living individual about whom an investigator conducting

research obtains (1) data through intervention or interaction with the individual, or (2) identifiable

private information. Research means a systematic investigation, including research development,

testing and evaluation, designed to develop or contribute to generalizable knowledge.

c. Department of Commerce regulations at 15 C.F.R. part 27, applying to all Federal departments and

agencies, require that recipients 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 shall submit appropriate documentation to the Federal Program Officer for

approval by the appropriate Council officials. This documentation may include:

1. Documentation establishing approval of the project by an institutional review board (IRB)

approved for Federal-wide use under Department of Health and Human Services guidelines (see

also 15 C.F.R. § 27.103);

2. Documentation to support an exemption for the project under 15 C.F.R. § 27.101(b);

3. Documentation to support deferral for an exemption or IRB review under 15 C.F.R. § 27.118;

4. 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 or conducted, or costs incurred and/or charged

for human subjects research, until the appropriate documentation is approved in writing by the Grants

Officer. 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.

.07 Federal Employee Expenses

Federal agencies are generally barred from accepting funds from a non-Federal entity to pay

transportation, travel or other expenses for any Federal employee. 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, Council policy prohibits the acceptance of gifts, including travel

payments for Federal employees, from recipients or applicants, regardless of the source.

RESTORE Council Standard Terms and Conditions – August 2015

.08 Minority Serving Institutions Initiative

Pursuant to EOs 13555 (“White House Initiative on Educational Excellence for Hispanics”), 13270

(“Tribal Colleges and Universities”), and 13532 (“Promoting Excellence, Innovation, and Sustainability

at Historically Black Colleges and Universities”), the Council is strongly committed to broadening the

participation of minority serving institutions (MSIs) in its financial assistance programs. The Council’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. The Council encourages

all recipients to include meaningful participation of MSIs. Institutions eligible to be considered MSIs are

listed on the Department of Education website.

.09 Research Misconduct

The Council 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 the Council

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. Federal award funds expended

on an activity that is determined to be invalid or unreliable because of research misconduct may result in

appropriate enforcement action under the award, up to and including award termination and/or suspension

or debarment. The Council requires that any allegation that contains sufficient information to proceed

with an inquiry be submitted to the Grants Officer, who will also notify the Treasury OIG of such

allegation. Once the non-Federal entity has investigated the allegation, it shall submit its findings to the

Grants Officer. The Council may accept the non-Federal entity’s findings or proceed with its own

investigation. The Grants Officer will inform the non-Federal entity of the Council’s final determination.

.10 Publications, Videos, Signage and Acknowledgment of

Sponsorship

a. 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 projects (e.g., scientific research).

b. Recipients are required to submit a copy of any publication materials, including but not limited to

print, recorded or Internet materials, to the Council.

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 the Council.

d. Any signage produced with funds from the award or informing the public about the activities funded

in whole or in part by the award, must first be approved in writing by the Grants Officer.

e. Recipients are responsible for assuring that every publication of material based on, developed under,

or otherwise produced under a Council financial assistance award, except scientific articles or papers

RESTORE Council Standard Terms and Conditions – August 2015

appearing in scientific, technical or professional journals, contains the following disclaimer or other

disclaimer approved in writing by the Grants Officer:

This [report/video/etc.] was prepared by [non-Federal entity name] using Federal funds under award

[number] from the RESTORE Council. The statements, findings, conclusions, and recommendations

are those of the author(s) and do not necessarily reflect the views of the RESTORE Council.

.11 Care and Use of Live Vertebrate Animals

Recipients 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 Council financial assistance award without the prior written approval of the Grants Officer.

.12 Homeland Security Presidential Directive 12

If the performance of a grant 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 days), such personnel must undergo the personal identity

verification credential process. In the case of foreign nationals, the Council 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 that 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 shall comply with the Council personal identity verification procedures

that implement Homeland Security Presidential Directive 12, “Policy for a Common Identification

Standard for Federal Employees and Contractors,” FIPS PUB 201, and OMB Memorandum M-05-24.

The non-Federal entity 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 an award if the subrecipient or contractor fails to comply with the requirements provided

below. The non-Federal entity shall insert the following term in all subawards and contracts when the

subaward non-Federal entity or contractor is required to have routine physical access to a Federally-

controlled facility or routine access to a Federally-controlled information system:

a. The subrecipient or contractor shall comply with the Council 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.

b. 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 the Council: (1) When

RESTORE Council Standard Terms and Conditions – August 2015

no longer needed for subaward or contract performance; (2) Upon completion of the subrecipient or

contractor employee’s employment; or (3) Upon subaward or contract completion or termination.

.13 Compliance with Department of Commerce Bureau of Industry

and Security Export Administration Regulations

a. This clause applies to the extent that this financial assistance award involves access to export-

controlled items.

b. In performing this financial assistance award, the non-Federal entity may gain access to 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 reexports provisions. The non-

Federal entity shall establish and maintain effective export compliance procedures at Council and

non-Council facilities throughout performance of the financial assistance award. At a minimum, these

export compliance procedures must include adequate controls of physical, verbal, visual, and

electronic access to export-controlled items, including by foreign nationals.

c. Definitions

1. Export-controlled items. Items (commodities, software, or technology), that are subject to the

EAR (15 C.F.R. §§ 730-774), implemented by the Department of Commerce’s Bureau of

Industry and Security. These are generally known as “dual-use” items, items with both a military

and commercial application.

2. 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 C.F.R. § 734.2(b)(2)(ii).

A release may take the form of visual inspection, oral exchange 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 may be

required for deemed exports or reexports.

d. The non-Federal entity shall control access to all export-controlled items that it possesses or that

comes into its possession in performance of this financial assistance award, to ensure that access to,

or release of, such items are restricted, or licensed, as required by applicable Federal laws, EOs,

and/or regulations, including the EAR.

e. As applicable, non-Federal entity personnel and associates at Council sites shall be informed of any

procedures to identify and protect export-controlled items.

f. To the extent the non-Federal entity wishes to provide foreign nationals with access to export-

controlled items, the non-Federal entity shall be responsible for obtaining any necessary licenses,

including licenses required under the EAR for deemed exports or deemed reexports.

g. Nothing in the terms of this financial assistance award is intended to change, supersede, or waive the

requirements of applicable Federal laws, EOs or regulations.

h. Compliance with the foregoing 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 of munitions items subject to the

RESTORE Council Standard Terms and Conditions – August 2015

International Traffic in Arms Regulations (ITAR) (22 C.F.R. §§ 120-130), including releases of such

items to foreign nationals.

i. The non-Federal entity shall include this Subsection .13, including this Subparagraph i, in all lower

tier transactions (subawards, contracts, and subcontracts) under this financial assistance award that

may involve access to export-controlled items.

.14 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

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 non-Federal entity engages in certain

activities related to trafficking in persons. The Council incorporates the following award term required by

2 C.F.R. § 175.15(b).

Award Term from 2 C.F.R. § 175.15(b):

I. Trafficking in persons.

a. Provisions applicable to a non-Federal entity that is a private entity.

1. You as the non-Federal entity, your employees, subrecipients under this award, and

subrecipients’ employees may not—

i. Engage in severe forms of trafficking 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.1 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.1 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 our agency at 2 C.F.R. Part 1326, “Nonprocurement Debarment and

Suspension.”

b. Provision applicable to a non-Federal entity 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.1 of this award term;

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.1 of this award term through

conduct that is either—

i. Associated with performance under this award; or

See 2 C.F.R. § 175.15(b) - http://www.gpo.gov/fdsys/pkg/CFR-2012-title2-vol1/pdf/CFR-2012-title2-vol1-

sec175-15.pdf, verified 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

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 our agency at 2 C.F.R. Part 1326,

“Nonprocurement Debarment and Suspension.”

c. Provisions applicable to any non-Federal entity.

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 or b 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. ii. Another person engaged in the performance of the project or 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.

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).

.15 The Federal Funding Accountability and Transparency Act of

2006 (“Transparency Act” or FFATA)—Public Law 109-282, as

amended by section 6202(a) of Public Law 110-252 (31 U.S.C.

6101)

a. Searchable Website Requirements. The Federal Funding Accountability and Transparency Act of

2006 (FFATA) requires 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 the USA Spending website.

Recipients and subrecipients must include the following

required data elements in their application:

USASpending.gov website - www.USASpending.gov, verified 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

• Name of entity receiving award;

• Award amount;

• Transaction type, funding agency, Catalog of Federal Domestic Assistance Number, and

descriptive award title;

• Location of entity, primary location of performance (City/State/Congressional

District/Country); and

• Unique identifier of entity.

b. Reporting Subawards and Executive Compensation. Prime grant recipients awarded a new Federal

grant greater than or equal to $25,000 on or after October 1, 2010, other than those funded by the

Recovery Act, are subject to FFATA subaward reporting requirements as outlined in the OMB

guidance issued August 27, 2010. The prime non-Federal entity is required to file a FFATA subaward

report by the end of the month following the month in which the prime non-Federal entity awards any

sub-grant 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 C.F.R. Part 170.

Award Term from Appendix A of 2 C.F.R. Part 170:

I. 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. 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.1 of this award term

to the FFATA Subaward Reporting System (FSRS).

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 the FSRS

website specify.

b. Reporting Total Compensation of Non-Federal Entity 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—

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 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, as defined at 2 C.F.R. 170.320 (and subawards); and

2 C.F.R. § 170.320 on GPO website - http://www.gpo.gov/fdsys/pkg/CFR-2011-title2-vol1/pdf/CFR-2011-title2-

vol1-part170-appA.pdf, verified 8/18/2015.

Federal Funding Accountability and Transparency Act Subaward Reporting System - http://www.fsrs.gov,

verified 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

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.

)

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 in the System for Award Management (SAM),

and

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 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—

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

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 U.S. Security and Exchange Commission total

compensation filings at http://www.sec.gov/answers/execomp.htm.)

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 non-Federal entity.

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 1 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 any 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;

U.S. Security and Exchange Commission Executive Compensation “Fast Facts” -

http://www.sec.gov/answers/execomp.htm

, verified on 8/18/2015.

System for Award Management (SAM) - https://www.sam.gov, verified on 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

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 non-Federal entity award to an eligible subrecipient.

ii. The term does not include your procurement of property and services needed to carry

out the project or program (for further explanation, see 2 C.F.R. § 200.330).

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 non-Federal entity) under this award; and

ii. Is accountable to you 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 non-Federal entity’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.

c. System for Award Management (SAM) and Universal Identifier requirements.

1. Requirement for SAM. 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 the 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.

2. Requirement for unique entity identifier. If you are authorized to make subawards under this

award, you:

i. 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 to you.

ii. May not make a subaward to an entity unless the entity has provided its unique entity

identifier to you.

RESTORE Council Standard Terms and Conditions – August 2015

3. Definitions for purposes of this award term:

i. System for Award Management (SAM) 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 Internet site.

ii. Unique entity identifier means the identifier required for SAM registration to uniquely

identify business entities.

iii. 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:

(A) A Governmental organization, which is a State, local government, or Indian

Tribe;

(B) A foreign public entity;

(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

non-Federal entity.

iv. 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 you received this award

and that you as the non-Federal entity award to an eligible subrecipient.

(B) The term does not include your procurement of property and services needed to

carry out the project or program (for further explanation, see 2 C.F.R. § 200.330).

agreement that you consider a contract.

v. Subrecipient means an entity that:

(A) Receives a subaward from you under this award; and

(B) Is accountable to you for the use of the Federal funds provided by the subaward.

.16 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.

a. Unless there is an actual rescission of funds for specific grant obligations, recipients of 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 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

System for Award Management (SAM) - https://www.sam.gov, verified on 8/18/2015.

RESTORE Council Standard Terms and Conditions – August 2015

Grants Officer, as appropriate, may attempt to provide such involvement, direction, or clearance prior

to the shutdown or advise recipients 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 of construction awards, or are otherwise 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 may remain operational during a government shutdown. As applicable, recipients

that do not require Council approval to draw down advance funds from their ASAP accounts may be

able to do so during a shutdown. The 30-day limitation on the drawdown of advance funds will apply

notwithstanding a government shutdown and advanced funds held for more than 30 days shall be

returned with interest.

R. CERTIFICATIONS

At a minimum, the non-Federal entity must comply with the certifications and requirements in 31 C.F.R.

§ 34.802, assurances (Forms SF-424B and SF-424D, or equivalent, as applicable), and any required

Council-specific certifications. Other certifications may be required by 2 C.F.R. part 200. Certifications

must be signed by an authorized senior official of the entity receiving grant funds who can legally bind

the organization or entity, and who has oversight for the administration and use of the funds in question.