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[RUS-Designation]
(Project location, State)
COMMUNITY-ORIENTED CONNECTIVITY BROADBAND
GRANT AGREEMENT
dated as of [date]
between
[GRANTEE’S NAME],
as Grantee
and
THE UNITED STATES OF AMERICA
as Grantor
UNITED STATES DEPARTMENT OF AGRICULTURE
RURAL UTILITIES SERVICE
COMMUNITY-ORIENTED CONNECTIVITY BROADBAND
GRANT AGREEMENT
THIS COMMUNITY-ORIENTED CONNECTIVITY BROADBAND GRANT
AGREEMENT (the “Agreement,”) dated as of [date], is between [GRANTEE’S NAME]
(hereinafter “Grantee,”) a [corporation, cooperative, limited liability company, local government,
Indian tribal government, or other entity] existing under the laws of [State], and the UNITED
STATES OF AMERICA, acting through the Administrator of the Rural Utilities Service (“RUS”).
The Catalog of Federal Domestic Assistance Number for RUS’s Community-Oriented Connectivity
Broadband
Grant
Program
is
10.863.
WHEREAS, the Grantee has applied for financial assistance (“Application”) to RUS to finance a project
providing service at the Broadband Grant Speed in rural areas as described in the Application (the Application, and any
revisions thereto, all as approved in writing by RUS, hereinafter the “Scope of Work Plan”);
WHEREAS, RUS is willing to extend financial assistance in the form of a grant (the “Grant”) to the Grantee,
pursuant to the Community Oriented Connectivity Broadband Grant Program (7 C.F.R. Part 1739) and all applicable
federal regulations, on the terms and conditions stated herein; and
WHEREAS, The Grantee is willing to secure the grant and its other obligations to RUS on the terms stated
herein;
THEREFORE, for and in consideration of the premises and the mutual covenants herein contained, the parties
agree and bind themselves as follows:
ARTICLE I - DEFINITIONS
The terms defined herein include both the plural and the singular. Unless otherwise specifically provided, all
accounting terms not otherwise defined herein shall have the meanings assigned to them, and all determinations and
computations herein provided for shall be made in accordance with Accounting Requirements.
“Accounting Requirements” shall mean compliance with U.S. Generally Accepted Accounting Principles
(GAAP) acceptable to RUS as well as compliance with the requirements of 2 C.F.R. part 200, Uniform Administrative
Requirements, Cost Principles, and Audit Requirements for Federal Awards (and by adoption, 48 C.F.R. § 31.2 of the
Federal Acquisition Regulations).
“Advance” or “Advances” shall mean an advance or advances made by RUS pursuant to this Agreement.
“Application” shall have the meaning as defined in the first recital hereof.
“Broadband Grant Speed” means the minimum bandwidth described in the NOFA under which the Grantee
applied, and which the Grantee must deliver to every customer in the RUS Funded Service Area.
“Community Connect Regulations” shall mean the regulations promulgated under 7 C.F.R. Part 1739.
“Critical Community Facility” shall have the meaning as defined in 7 C.F.R. § 1739.3.
“Department” shall mean the United States Department of Agriculture.
“Expiration Date” shall have the meaning as defined in Section 3.1(b) hereof.
“Laws” shall have the meaning as defined in paragraph (e) of Article II.
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“Matching Contribution” shall have the meaning as defined in Section 4.2(d) hereof.
“NOFA” shall mean the Notice of Funds Availability under which the Grantee applied, and was awarded the
Grant.
“Project” shall have the meaning as defined in Section 3.2(a) hereof.
“RUS Funded Service Area” shall mean the proposed funded service area as proposed by the Grantee in its
Application and awarded under the Grant, or, as applicable, the service area of any other current RUS grantee or
borrower which is receiving RUS financing.
“RUS Regulations” shall mean the rules, regulations and bulletins of general applicability published by RUS
from time to time, as such rules, regulations and bulletins exist at the date of applicability thereof, and shall also include
any rule and regulations of any Federal entity which RUS is required by law to implement. Any reference to specific
RUS Regulations shall mean the version of and cite to such regulation effective at the date of applicability thereof.
“Scope of Work Plan” shall have the meaning as defined in the first recital hereof.
ARTICLE II - REPRESENTATIONS AND WARRANTIES OF THE GRANTEE
Recognizing that RUS is relying hereon, the Grantee represents and warrants, as of the date of this Agreement,
as follows:
(a)
Organization; Power, Etc. The Grantee: (i) is the type of organization specified in the first paragraph
hereof, duly organized, validly existing, and in good standing under the laws of the State identified in
the first paragraph hereof; (ii) is duly qualified to do business and is in good standing in each
jurisdiction in which the transaction of its business make such qualification necessary; (iii) has all
requisite and legal power to own and operate its assets and to carry on its business and to enter into
and perform its obligations under this Agreement; (iv) has duly and lawfully obtained and maintained
all material licenses, certificates, permits, authorizations and approvals which are necessary to the
conduct of its business or required by applicable Laws; and (v) is eligible to obtain the financial
assistance from RUS contemplated by this Agreement.
(b)
Authority. The execution, delivery and performance by the Grantee of this Agreement and the
performance of the transactions contemplated hereby and thereby have been duly authorized by all
necessary action and do not violate any provision of law or any charter, articles of incorporation,
organizational documents or bylaws of the Grantee or result in a breach of, or constitute a default
under, any agreement, security agreement, note or other instrument to which the Grantee is a party or
by which it may be bound. The Grantee has not received any notice from any other party to any of the
foregoing that a default has occurred or that any event or condition exists that with the giving of notice
or lapse of time or both would constitute such a default.
(c)
Consents. No consent, approval, authorization, order, filing, qualification, license, or permit of any
governmental authority is necessary in connection with the execution, delivery, performance or
enforcement of this Agreement, except such as have been obtained and are in full force and effect.
(d)
Binding Agreement. This Agreement is, or when executed and delivered will be, the legal, valid, and
binding obligation of the Grantee, enforceable in accordance with its terms, subject only to limitations
on enforceability imposed in equity or by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors’ rights generally.
(e)
Compliance with Laws. The Grantee is in compliance in all material respects with all federal, state
and local laws, rules, regulations, ordinances, codes and orders (collectively, “Laws.”)
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(f)
Information Submitted with Application. All information, reports, and other documents and data
submitted to RUS in connection with the Application were, at the time the same were furnished,
complete, and correct in all material respects. Any financial statements or data submitted to RUS in
connection with the Application present fairly, in all material respects, the financial position of the
Grantee and the results of its operations in conformity with Accounting Requirements. Since the date
thereof, there has been no material adverse change in the financial condition or operations of the
Grantee.
(g)
Principal Place of Business. The principal place of business and chief executive office of the
Borrower is at the address of the Borrower specified in Schedule 1 hereto.
(h)
Ratification. By executing this Agreement, the Grantee affirms and ratifies all statements,
representations and written documents that it has submitted to RUS in connection with this Grant.
(i)
Recipient and Subrecipient Reporting. The Grantee has the necessary processes and systems in place
to comply with the reporting requirements for first-tier sub-awards and executive compensation under
the Federal Funding Accountability and Transparency Act of 2006, unless Grantee is exempt from
such reporting requirements pursuant to 2 C.F.R. Part 170.
ARTICLE III – THE GRANT
SECTION 3.1 Grant Amount and Expiration Date
(a)
Grant Amount. RUS agrees to make and the Grantee agrees to accept, on the terms and conditions
stated in this Agreement, a Grant, in the maximum amount specified in Schedule 1 hereto.
(b)
Expiration Date. The Grant, and the obligation of RUS to advance the Grant, or any portion thereof,
shall expire on a date three (3) years from the date hereof (“Expiration Date.”) No portion of the
Grant will be advanced by RUS to the Grantee after the Expiration Date. RUS, in its sole discretion,
may approve extensions of the Expiration Date, provided that the Grantee notify RUS, in writing at
least ten days prior to the Expiration Date, of the reasons and need for an extension, together with a
suggested, revised Expiration Date.
(c)
No Research and Development. The Grant is not for Research and Development purposes, as defined
in 2 C.F.R. § 200.87.
SECTION 3.2 Project
(a)
Grant Purpose. The Grant has been made solely to finance the project specifically described in the
Scope of Work Plan (hereinafter also the “Project”) in order to furnish or improve service at the
Broadband Grant Speed to rural areas.
(b)
Changes to the Scope of Work. The Grantee shall obtain the prior written approval of RUS for any
material change to the scope, design, activities, construction, or objectives of the Project, including,
but not limited to, the technologies to be used, the communities to be served, the community-oriented
connectivity plan as set forth by the Grantee in its Application for this Grant, or to any changes to
discrete budget line items, or the amount of Grant funds allocated thereto, within the overall Project.
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ARTICLE IV – CONDITIONS OF FUNDING
SECTION 4.1 General Conditions
In connection with the execution and delivery of this Agreement, each of the following conditions shall be
satisfied (all documents, certificates and other evidence of such conditions are to be satisfactory to RUS in its discretion):
(a)
Legal Matters. All legal matters incident to the consummation of the transactions hereby contemplated
shall be satisfactory to counsel for RUS;
(b)
Executed Grant Agreement. RUS shall receive duly executed originals of this Agreement;
(c)
Articles of Incorporation, Charter, Bylaws and Organizational Documents. With respect to corporate
and cooperative grantees, RUS shall have received copies of the Grantee’s articles of incorporation or
charter and bylaws. With respect to limited liability companies or similar grantees, RUS shall have
received copies of the Grantee’s organization documents;
(d)
Authorizations. RUS shall have received evidence satisfactory to it that all documents and
proceedings of the Grantee necessary for duly authorizing the execution, delivery and performance of
this Agreement have been obtained and are in full force and effect;
(e)
Approvals. RUS shall have received evidence satisfactory to it that the Grantee has duly registered
when and where required by law with all state, federal and other public authorities and regulatory
bodies and obtained all authorizations, certificates, permits, licenses, franchises and approvals
necessary for, or required as a condition of, the validity and enforceability of this Agreement and for
the construction and operation of the Project;
(f)
Opinion of Counsel. RUS shall receive an opinion of counsel for the Grantee (who shall be acceptable
to RUS) in form and content acceptable to RUS;
(g)
ACH. That Grantee agrees to use of the Automated Clearing House (ACH) Payment System that
deposits funds directly into the bank account Grantee designates; and
(h)
Fidelity Bond Coverage. RUS has received from the Grantee for Grants in the amount of $100,000 or
more, except Grantees which are units of government, evidence, satisfactory to RUS, that the Grantee
has obtained fidelity bond coverage, from a surety doing business with the United States listed in 31
C.F.R. § 223, in an amount at least fifteen percent (15%) of the Grant, covering all officers,
employees, or agents of the Grantee authorized to receive, disburse, or receive and disburse the Grant
funds. Notwithstanding, for existing RUS Borrowers, RUS may waive this fidelity bond coverage
requirement, if after evaluation, RUS has determined that adequate fidelity bond coverage is already
maintained by the Grantee as an RUS Borrower under an existing loan or guarantee agreement
between the Grantee and RUS.
SECTION 4.2 Conditions to Advances
The obligations of RUS to approve any Advance of the Grant is subject to the satisfaction of each of the
following conditions precedent on or before the date of such Advance (all documents, certificates and other evidence of
such conditions precedent are to be satisfactory to RUS in its discretion):
(a)
Continuing Representations and Warranties. That the representations and warranties of the Grantee
contained in this Agreement be true and correct on and as of the date of such Advance as though made
on and as of such date.
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(b)
Requisitions and Supporting Documentation. That RUS shall have received, not more frequently than
once a month, a completed Standard Form 270, Request for Advance or Reimbursement (hereinafter
“Request for Advance,”) bearing the original signature of the officer, employee, or agent of the
Grantee authorized to receive, disburse, or receive and disburse the Grant, and supporting
documentation from the Grantee in accordance with this Agreement and RUS Regulations. All
Advances shall be limited to the minimum amounts required for the Grantee’s immediate disbursement
needs and shall be requested by the Grantee only for actual immediate cash requirements of the
Grantee. All Advances shall either be provided on a reimbursement basis, supported by
documentation, including, but not limited to, paid third-party invoices, employee timesheets or lease
agreements, or based on unpaid third-party invoices for eligible grant purposes.
(c)
Certification of Authority. That RUS has received from the Grantee a duly authorized and executed
certification of authority designating an officer, employee, or agent of the Grantee as the person or
persons authorized to execute and submit, on behalf of the Grantee, the Request for Advance.
(d)
Matching Contribution. Evidence that the Grantee has complied with the Matching Contribution
requirement as defined and set forth in 7 C.F.R. § 1739.14 and 2 C.F.R. § 200.306, and as required by
the terms of this Agreement (“Matching Contribution”).
(e)
Compliance with Agreement. That Grantee is in material compliance with this Agreement.
(f)
Additional Documents. The Grantee agrees to provide RUS with such additional documents as RUS
may request.
(g)
Additional Conditions. That Grantee has met all additional conditions specified in Schedule 1 hereto.
ARTICLE V – AFFIRMATIVE COVENANTS
SECTION 5.1 Generally
Unless otherwise agreed to in writing by RUS, while this Agreement is in effect, the Grantee shall duly observe
each of the affirmative covenants contained in this Article V.
SECTION 5.2 Use of Advances
(a)
The Grantee shall expend the Grant funds only for approved purposes as set forth in the Scope of
Work Plan in accordance with 2 C.F.R. § 200.305, the Community Connect Regulations, the
Accounting Requirements, and the Request(s) for Advance. The Grant shall not be expended to cover
any costs incurred in connection with the Project prior to the date of receipt by RUS of the
Application. The Grantee acknowledges that RUS approval for any Request for Advance shall not be
a waiver of any provision or requirement contained or cited herein, but shall be subject to a subsequent
compliance review.
(b)
Additionally, consistent with the Community Connect Regulations, Grant funds may only be used to
finance: (1) the construction, acquisition, or leasing of facilities, including spectrum, land or buildings,
used to deploy service at the Broadband Grant Speed to all residential and business customers located
within the RUS Funded Service Area and all participating Critical Community Facilities , including
funding for up to ten Computer Access Points to be used in the Community Center. Leasing costs will
only be covered through the advance of funds period included in the award documents; (2) the
improvement, expansion, construction, or acquisition of a Community Center and provision of
Computer Access Points. Grant funds for the Community Center will be limited to ten percent of the
requested grant amount; (3) the cost of providing the necessary bandwidth for service free of charge to
the Critical Community Facilities for 2 years; and (4) shall not be used for operating expenses unless
specifically permitted in subparagraphs (1)-(3) above.
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SECTION 5.3 Unused and Disallowed Advances
(a)
The Grantee shall return to RUS forthwith all or any advanced portion of the Grant not disbursed by
the Grantee for the Project or not needed to complete the Project at the completion of the Project.
(b)
The Grantee shall reimburse RUS for any advanced funds whose original expenditure has been
disallowed by a RUS compliance review. Disallowances shall be satisfied, as directed by RUS, by
either administrative offset against requests for Advances or repaying the disallowed amount directly
to the United States Treasury.
SECTION 5.4 Financial Books
(a)
In accordance with 2 C.F.R. § 200.333, the Grantee shall maintain, at its premises, such books,
documents, papers, or other records and supporting documents, including, but not limited to, thirdparty invoices, receipts, timesheets, and bills of sale, adequate to identify the purposes for which and
the manner in which Grant and other funds were expended on the Project. The Grantee shall maintain
all such records and copies of forms or financial reports, submitted to RUS in connection with the
Grant, for the longest of: (i) three years from the date the Grantee submits its final annual Project
performance activity report; (ii) three years from resolution of disputed items with RUS; or (iii) three
years from disposition of property acquired with Grant funds during the term of the Grant.
(b)
In accordance with 2 C.F.R. § 200.333, the Grantee shall maintain complete, accurate, and current
disclosure of the financial results of each Project in accordance with the Community Connect
Regulations and Accounting Requirements. The source and application of funds shall be readily
identified by the continuous maintenance of updated records, with all accounting records being
supported by source documentation. Established procedures shall be used for determining the
reasonableness, allowability, and allocation of costs in accordance with the Community Connect
Regulations and the Accounting Requirements.
SECTION 5.5 Rights of Inspection and Compliance Reviews
(a)
In accordance with 2 C.F.R. § 200.336, the Grantee shall afford RUS, the Office of Inspector General
of the Department and the General Accounting Office, through their representatives, reasonable
opportunity, at all times during business hours and upon prior notice, to access and inspect the Project,
and any and all books, records, accounts, including electronic books, records, accounts, and electronic
mail messages, regardless of the physical form or characteristics, invoices, timesheets, contracts,
leases, payrolls, canceled checks, statements, other documents, and papers of every kind belonging to
or in any way pertinent to the Grant, and to make copies, audits, examinations, excerpts or extracts
therefrom.
(b)
The Grantee shall afford RUS, reasonable opportunity, at all times during business hours and upon
prior notice, to conduct a compliance review to determine compliance with this Agreement and to
determine whether expenditures and disbursements of the Grant were for approved purposes, and/or in
accordance with the Grantee’s Request(s) for Advance and the supporting documentation thereto.
SECTION 5.6 Financial Audits
(a) The Grantee shall provide RUS with an audit for each year in which a portion of the Grant is expended, in
accordance with the following provisions:
(i)
For-Profit Entities. The Grantee shall provide an independent audit report to RUS within 120 days
after the as of audit date in accordance with 7 C.F.R. § 1773, Policy on Audits of RUS Borrowers.
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(ii)
State, Local Government, or Non-Profit Organization. The Grantee shall provide RUS with an audit
for each year in which it expends $750,000 or more in Grant funds for such year. Such audit shall be
conducted in accordance with Subpart F (Audit Requirements) of 2 C.F.R. part 200, and must be
submitted to RUS within the earlier of (i) 30 calendar days after receipt of the auditor’s report or (ii)
nine months after the end of the Grantee’s audit period.
(b) If the Grantee expends less than $750,000 of Grant funds during a fiscal year of the Grantee, the Grantee
shall be exempt from the auditing requirements specified in (a) above for such fiscal year of the Grantee.
SECTION 5.7 Annual Project Performance Activity Report
In accordance with 2 C.F.R. § 200.328, the Grantee shall provide RUS with a Project performance report which
will be due annually on or before January 31st of the following year in which all or any portion of the Grant is first
advanced and continuing in subsequent years until completion of the Project. The Project performance reports shall
include, but are not limited to: (i) a comparison of actual accomplishments to the objectives established for the period;
(ii) a description of any problems, delays, or adverse conditions which have occurred, or are anticipated, and which may
affect the attainment of overall Project objectives, prevent the meeting of time schedules or objectives, or preclude the
attainment of particular Project work elements during established time periods, accompanied by a statement of action
taken or planned to resolve the situation; and (iii) objectives and timetables established for the next reporting period. The
final annual Project performance report shall be due ninety (90) days after the Expiration Date, termination of the Grant,
the Project completion, or the final disbursement of the Grant by the Grantee, whichever event occurs last, and must
provide an evaluation of the success of the Project in meeting the objectives of the program. The final report may serve
as the last annual report.
SECTION 5.8 Miscellaneous Information to be Provided to RUS
The Grantee shall furnish to RUS such information regarding the condition, financial or otherwise, or operations
of the Grantee as RUS may, from time to time, reasonably request.
SECTION 5.9 Obligations with Respect to the Construction, Operation and Maintenance of the Project
(a)
Project Management and Operation. The Grantee shall be responsible for managing the day-to-day
operations of the Project and will operate the Project in an efficient and economic manner as well as
maintaining the Project in good repair. The Grantee shall provide the service described in the
Application and, if the Project is owned, leased or operated by participants other than the Grantee, the
Grantee shall monitor such participants and ensure the Project is operated in accordance with
representations in the Application.
(b)
Construction in Accordance with Scope of Work Plan. The Grantee shall cause the Project to be
constructed and completed in accordance with the discrete budget line items within the overall Scope
of Work Plan.
(c)
Procurement Requirements. The Grantee shall conduct all procurement transactions, regardless of
whether by sealed bids or by negotiation, in a manner that provides maximum open and free
competition.
(d)
General Insurance Requirements. The Grantee shall take out and maintain insurance on the Project
and any other property acquired with the Grant in accordance with 2 C.F.R. § 200.310, and shall take
out and maintain the fidelity bond coverage required in Subsection 4.1(h) hereof.
SECTION 5.10 Compliance with Laws
The Grantee will comply with all applicable federal statutes, regulations, and requirements that govern the
Application, the Project, and use of federal grant funds for this Grant, including but not limited to 2 C.F.R. part 200, and
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(i) the Contract Work Hours and Safety Standards Act (40 U.S.C. §§ 3701-3708), (ii) the Clean Air Act (42 U.S.C. §§
7401-7671q), and (iii) the Federal Water Pollution Control Act (33 U.S.C. §§ 1251-1387).
SECTION 5.11 Nondiscrimination
(a)
Equal Opportunity Provisions in Construction Contracts. The Grantee shall incorporate or cause to
be incorporated into any “federally assisted construction contract” (as defined in Executive Order
11246 (30 Fed. Reg. 12,319 (1965)), thereafter amended by Executive Order 11375 (32 Fed. Reg.
14,330 (1967)), and supplemented at 41 C.F.R. § Part 60, the equal opportunity clause provided under
41 C.F.R. § 60-1.3, in accordance with Executive Order 11246, “Equal Employment Opportunity” (30
Fed. Reg. 12,319, 12,935), as amended by Executive Order 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,” which is paid for in whole or in part with funds obtained from RUS or borrowed on the
credit of the United States pursuant to a grant, contract, loan, insurance or guarantee, or undertaken
pursuant to any RUS program involving such grant, contract, loan, insurance or guarantee. The
Grantee shall include the equal opportunity provisions set forth in Attachment 1 hereto, entitled Equal
Opportunity Contract Provisions, into every federally assisted construction contract.
(b)
Equal Opportunity Contract Provisions Also Bind the Grantee. The Grantee further agrees that it
shall be bound by such equal opportunity clause in any federally assisted construction work which it
performs itself other than through the permanent work force directly employed by an agency of
government.
(c)
Codes of Conduct. The Grantee shall maintain written standards of conduct governing the
performance of its employees engaged in the award and administration of contracts in accordance with
2 C.F.R. part 200.
(d)
Sanctions and Penalties. The Grantee agrees that it shall cooperate actively with RUS and the
Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal
opportunity clause and the rules, regulations and relevant orders of the Secretary of Labor, that it shall
furnish RUS and the Secretary of Labor such information as they may require for the supervision of
such compliance, and that it shall otherwise assist the administering agency in the discharge of RUS’
primary responsibility for securing compliance. The Grantee further agrees that it shall refrain from
entering into any contract or contract modification subject to Executive Order 11246 with a contractor
debarred from, or who has not demonstrated eligibility for, Government contracts and federally
assisted construction contracts pursuant to Part II, Subpart D of Executive Order 11246 and shall carry
out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon
contractors and subcontractors by RUS or the Secretary of Labor pursuant to Part II, Subpart D of
Executive Order 11246. In addition, the Grantee agrees that if it fails or refuses to comply with these
undertakings RUS may cancel, terminate or suspend in whole or in part this Agreement, may refrain
from extending any further assistance under any of its programs subject to Executive Order 11246
until satisfactory assurance of future compliance has been received from the Grantee, or may refer the
case to the Department of Justice for appropriate legal proceedings.
SECTION 5.12 Additional Project Funding
The Grantee shall ensure that adequate funding is in place to complete the Project and will, after obtaining the
prior written approval of RUS, obtain loans or funds or receive binding commitments for supplemental funding in an
amount needed to ensure completion of the Project.
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SECTION 5.13 Community Center
Prior to the Expiration Date the Grantee shall provide a Community Center within the RUS Funded Service
Area that affords the public free access as well as instruction in the use of broadband Internet service. The Community
Center must be open and accessible to area residents before, during, and after normal working hours and on Saturdays or
Sundays.
SECTION 5.14 Broadband Service
Prior to the Expiration Date, and consistent with the Community Connect Regulations, the Grantee shall:
(a)
Offer service at the Broadband Grant Speed to all residential and business customers within the RUS
Funded Service Area;
(b)
Offer free service at the Broadband Grant Speed to all Critical Community Facilities within the RUS
Funded Service Area for at least 2 years starting from the time service becomes available to each
Critical Community Facility; and
(c)
Provide a Community Center with at least two (2) Computer Access Points and wireless access at the
Broadband Grant Speed free of all charges to all users for at least 2 years.
SECTION 5.15 Matching Contribution
Grantee has contributed or demonstrated, to the satisfaction of RUS, available cash reserves in an account(s) of
the Grantee equal to at least 15% of the Grant to satisfy its Matching Contribution requirement. Grantee may only use
the Matching Contribution solely for the Project and shall not include as its Matching Contribution any financial
assistance from federal sources unless there is a federal statutory exception specifically authorizing the federal financial
assistance to be considered as such. At the end of every calendar quarter, the Grantee must submit a schedule to RUS
that identifies how the Matching Contribution was used to support the Project until the total contribution is expended.
SECTION 5.16 Project Construction Start
The Grantee shall start construction (physical placement of facilities) of the Project within 180 days from
the date hereof.
SECTION 5.17 SAM Registration and DUNS Number
The Grantee shall comply with the additional requirements set forth in Attachment 2 regarding System for
Award Management (SAM) formerly the Central Contractor Registration (CCR) and Data Universal Numbering System
(DUNS) Numbers. For the purposes of this Agreement the term “you” in Attachment 2 shall mean “Grantee” as defined
hereunder. The Grantee’s DUNS Number is specified in Schedule I hereto.
SECTION 5.18 Subawards and Executive Compensation
The Grantee shall comply with the additional requirements set forth in Attachment 3 regarding Subawards and
Executive Compensation. For the purposes of this Agreement the term “you” in Attachment 3 shall mean Grantee” as
defined hereunder.
SECTION 5.19 Additional Affirmative Covenants
The Grantee shall comply with the additional affirmative covenants set forth in Schedule 1 hereto.
ARTICLE VI – NEGATIVE COVENANTS
SECTION 6.1 General
Unless otherwise agreed to in writing by RUS, while this Agreement is in effect, the Grantee shall duly observe
each of the negative covenants set forth in this Article VI.
SECTION 6.2 Contracts
The Grantee shall not, without the prior written consent of RUS, enter into any contract or contracts for the
operation or maintenance of the Project and shall not enter into any contract for the use by others of the Project.
SECTION 6.3 Historic Preservation
The Grantee shall not, without the prior written consent of RUS, use any Advance to construct any facility which
shall involve any district, site, building, structure or object which is included in, or eligible for inclusion in, the National
Register of Historic Places maintained by the Secretary of the Interior pursuant to the Historic Sites Act of 1935 and the
National Historic Preservation Act of 1966.
SECTION 6.4
Prohibition Against Internal Confidentiality Agreements
(a) The Grantee shall not require its employees, contractors, or subrecipients to sign or comply with internal
confidentiality agreements or statements prohibiting or otherwise restricting them from lawfully reporting that waste,
fraud, or abuse to a designated investigative or law enforcement representative of a Federal department or agency
authorized to receive such information.
(b) The Grantee shall notify its employees, contractors, or subrecipients that the prohibitions and restrictions of
any internal confidentiality agreements that may currently be in effect that are inconsistent with paragraph (a) of this
section are no longer in effect.
(c) The prohibition in paragraph (a) above does not contravene requirements imposed by a Federal department
or agency governing the nondisclosure of classified information.
(d) If RUS determines that the Grantee is not in compliance with paragraph (a) or (b) of this section:
(1) RUS shall cease to make Grant funds available under this Agreement and shall prohibit
the Grantee’s use of Grant funds under this award, in accordance with sections 743 and 744 of
Division E of the Consolidated Appropriations Act, 2016 (Pub. L. 114-113), or any successor
provision of law; and
(2) RUS may pursue other remedies available due to the Grantee’s material failure to comply
with award terms and conditions.
SECTION 6.5 Additional Negative Covenants
The Grantee shall comply with the additional negative covenants set forth in Schedule 1 hereto.
ARTICLE VII – TERMINATION, SUSPENSION AND OTHER REMEDIES
SECTION 7.1 Termination of the Grant by RUS
(a)
Termination of the Grant by RUS. RUS, in its sole discretion, may terminate the Grant, in whole or in
part:
(i)
if RUS does not receive this Agreement, duly executed on behalf of the Grantee, within one
hundred twenty (120) days from the date hereof;
(b)
SECTION 7.2
(ii)
if all conditions to the Grant, and all conditions to advance stated herein are not satisfied
within one hundred twenty (120) days from the date hereof;
(iii)
if construction of the Project has not commenced within 180 days from the date hereof;
(iv)
if RUS has determined that the Grantee has failed to materially comply with the terms and
conditions of this Agreement, including but not limited to meeting the milestones set forth in
the Build-Out Plan in the Application, or that the Grantee has failed to strictly comply with
any federal regulation cited herein;
(v)
if any representation or warranty made by the Grantee in the Application, request for
Advance, this Agreement, any certification, or other supporting documentation thereunder
shall prove to be incorrect in any material respect at the time made;
(vi)
if the Grantee fails to expend, or fails to provide RUS with evidence satisfactory to RUS that
it has spent, Grant funds in accordance with the Accounting Requirements, the Scope of
Work Plan, and the Request(s) for Advance submitted to RUS prior to the advance of funds;
(vii)
if the Grantee shall forfeit or otherwise be deprived of its charter, articles of organization,
franchises, permits, easements, consents, or licenses required to carry on any material portion
of its business, or an event occurs which can reasonably be expected to result in its
dissolution or termination;
(viii)
if a court having proper jurisdiction shall enter a decree or order for relief with respect to the
Grantee in an involuntary case under any applicable bankruptcy, insolvency, or other similar
law now or hereafter in effect: (A) appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator, or similar official or (B) ordering the winding up or liquidation of its
affairs; or the Grantee shall commence a voluntary case under any applicable bankruptcy
insolvency or other similar law now or hereafter in effect, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian or trustee, of a substantial part
of its property, or make any general assignment for the benefit of creditors; or
(ix)
upon the dissolution or liquidation of the Grantee, or upon the filing for dissolution or
liquidation by the Grantee.
Notice of Termination. RUS shall provide the Grantee with written notice of termination of the Grant
as provided in Section 8.1 hereof, setting forth the reason(s) for termination. The termination of the
Grant shall be effective as of the date of receipt of such notice of termination by the Grantee.
Termination of the Grant by the Grantee
In accordance with 2 C.F.R. § 200.339(a)(4) and 2 C.F.R.§ 200.339(b), the Grantee may terminate the Grant by
providing written notification to RUS, setting forth the reasons for such termination, the effective date, and, in the case of
a partial termination, the portion of Grant funds to be terminated. In the case of a partial termination, if RUS determines
that the remaining portion of the Grant will not accomplish the Project, then RUS may terminate the Grant in its entirety,
and request reimbursement of all advanced Grant funds.
SECTION 7.3
Mutual Termination of the Grant by RUS and the Grantee
In accordance with 2 C.F.R. § 200.339(a)(3) and 2 C.F.R. § 200.339(b), RUS and the Grantee may mutually
agree, in writing, to terminate the Grant upon certain conditions, specifying the effective date of the termination, and in
the case of a partial termination of the Grant, any unadvanced portion of the Grant to be terminated and any advanced
portion of the Grant to be returned to RUS.
SECTION 7.4 Effect of Termination of the Grant
Upon termination of the Grant pursuant to Sections 7.1, 7. 2 or 7.3 hereof and in accordance with 2 C.F.R. §
200.339(b): (1) the Grantee shall not incur any new obligations after the effective date of the termination with respect to
the Grant, (2) the Grantee shall cancel as many outstanding obligations as possible, and seek to mitigate the costs of any
outstanding obligations, and (3) any unadvanced portion of the Grant not required for the Project shall not be available
for advance by RUS and any advanced portion of the Grant not required by the Grantee for completion of the Project
shall be immediately returned to RUS.
SECTION 7.5
Suspension of Advances
RUS may suspend the Grant, in whole or in part, in accordance with 2 C.F.R. § 200.338, for the reasons
specified in Section 7.1 hereof as a basis for Grant termination.
(a)
Suspension Procedure. RUS shall issue to the Grantee a suspension notice stating the reasons for the
suspension, any corrective action which the Grantee may be required to take, and the effective date of
the suspension. The suspension shall remain in effect until RUS provides written notice to the Grantee
that all corrective actions which RUS may have prescribed have been taken, or until RUS provides the
Grantee with written notification of the termination of the suspension.
(b)
Effect of Suspension. New obligations shall not be incurred by the Grantee during the suspension,
following the date of notice of suspension, unless specifically authorized by RUS, in writing. RUS
will allow necessary allowable costs which the Grantee could not reasonably avoid during the
suspension, if the obligations were properly incurred prior to the date of the suspension and not in
anticipation of the suspension or termination. During the suspension, appropriate adjustments shall be
made to the Grant by RUS in order that credit not be given to the Grantee for disbursements made in
payment of unauthorized obligations incurred by the Grantee during the suspension. RUS may also
make adjustments by disallowing all or part of the costs of the Project that are not in compliance with
this Agreement or RUS may withhold subsequent Advances.
SECTION 7.6 Failure to Document Grant Expenditures and Misappropriation
(a)
(b)
Upon a determination by RUS that the Grantee did not document Grant expenditures for allowable
costs, as required in the Accounting Requirements, or that the Grantee did not utilize the Grant in the
manner and exclusively for the Project as approved by RUS, RUS may, in its sole discretion:
(i)
Disallow all or a part of the expenditures and disbursements of the Grant and require the
Grantee to deposit such funds into a separate account to be applied toward other approved
Project purposes or to reimburse the Government;
(ii)
Suspend making Advances;
(iii)
Terminate the Grant; and/or
(iv)
Take any other action RUS determines to be necessary including, without limitation,
exercising any right or remedy available herein or at law.
If any representation or warranty made by the Grantee in the Application, Request for Advance, this
Agreement, any certification, or other supporting documentation thereunder shall prove to be incorrect
in any material respect at the time made, RUS may, in its sole discretion:
(i)
Suspend making Advances;
(ii)
Require the Grantee to reimburse the Government for all or any part of the Grant;
(iii)
Terminate the Grant; and/or
(iv)
Take any other action RUS determines to be necessary including, without limitation,
exercising any right or remedy available herein or at law.
ARTICLE VIII - MISCELLANEOUS
SECTION 8.1 Notices
.
All notices, requests and other communications provided for herein including, without limitation, any
modifications of, or waivers, requests or consents under, this Agreement shall be given or made in writing (including,
without limitation, by telecopy) and delivered to the intended recipient at the “Address for Notices” specified below; or,
as to any party, at such other address as shall be designated by such party in a notice to each other party. Receipt of all
such communications shall be deemed to have occurred when transmitted by telecopier or personally delivered or, in the
case of a mailed notice, upon receipt, in each case given or addressed as provided for herein. The Addresses for Notices
of the respective parties are as follows:
RUS
Rural Utilities Service
United States Department of Agriculture
1400 Independence Avenue, S.W.
Washington, D.C. 20250-1500
Attention: Administrator
Fax: (202) 690-4654
Grantee
See Schedule 1
With a copy to:
See Schedule 1
With a copy to:
See Schedule 1
SECTION 8.2 Expenses
To the extent allowed by law, the Grantee shall pay all costs and expenses of RUS, including reasonable fees of
counsel, incurred in connection with the enforcement of the Agreement or with the preparation for such enforcement if
RUS has reasonable grounds to believe that such enforcement may be necessary.
SECTION 8.3 No Waiver
No failure on the part of RUS to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof nor shall any single or partial exercise by RUS of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
SECTION 8.4 Governing Law
This Agreement shall be governed by and construed in accordance with applicable federal law, and in the
absence of controlling federal law, by the laws of the State identified in the first paragraph herein, except those that
would render such choice of law ineffective.
SECTION 8.5 Successors and Assigns
(a)
This Agreement shall be binding upon and inure to the benefit of the Grantee and RUS and their
respective successors and assigns, except that the Grantee may not assign or transfer its rights or
obligations hereunder without the prior written consent of RUS.
(b)
Pursuant to federal claims collection laws, RUS’ claims hereunder may be transferred to other agencies
of the United States; in the event of such transfer, all security interests, rights and remedies hereby
granted or conferred on RUS shall pass to and inure to the benefit of any such successor agency.
SECTION 8.6 Complete Agreement; Waivers and Amendments
Subject to RUS Regulations, this Agreement is intended by the parties to be a complete and final expression of
their agreement. However, RUS reserves the right to waive its rights to compliance with any provision of this
Agreement. No amendment, modification, or waiver of any provision hereof, and no consent to any departure of the
Grantee herefrom, shall be effective unless approved in writing by RUS in the form of either a RUS Regulation or other
writing signed by or on behalf of RUS, and then such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given.
SECTION 8.7 Headings
The headings and sub-headings contained in the titling of this Agreement are intended to be used for
convenience only and do not constitute part of this Agreement.
SECTION 8.8 Severability
If any term, provision or condition, or any part thereof, of this Agreement shall for any reason be found or held
invalid or unenforceable by any governmental agency or court of competent jurisdiction, such invalidity or
unenforceability shall not affect the remainder of such term, provision or condition nor any other term, provision or
condition, and this Agreement shall survive and be construed as if such invalid or unenforceable term, provision or
condition had not been contained therein.
SECTION 8.9 Schedules, Attachments, and Counterparts
Each Schedule and Attachment hereto and referred to herein is each an integral part of this Agreement.
Moreover, this Agreement may be executed in several counterparts, each of which shall be deemed to be an original.
SECTION 8.10 Authority of Representatives of RUS
In the case of any consent, approval or waiver from RUS that is required under this Agreement, such consent,
approval or waiver must be in writing and signed by an authorized RUS representative to be effective. As used in this
Section, “authorized RUS representative” means the Administrator of RUS, and also means a person to whom the
Administrator has officially delegated specific or general authority to take the action in question.
SECTION 8.11 Amendment of Laws and RUS Regulations
Nothing contained herein shall restrict in any way RUS’ right to amend, rescind or supplement any of the RUS
Regulations or to seek such changes to existing Laws.
SECTION 8.12 Interest on Disallowed Amounts
Disallowed and reimbursable Advance amounts hereunder shall accrue interest payable to RUS from the date
RUS delivers to the Grantee a written demand for payment. Interest shall accrue at a rate equal to the lesser of (a) twelve
percent (12%) per annum or (b) the maximum interest rate permissible by law. Termination of the Grant will not affect
the right of RUS to disallow expenditures and recover, in full, any amount on the basis of a subsequent audit or other
review or the Grantee’s obligation to return any disallowed expenditures.
15
SECTION 8.13 No Third Party Beneficiary
This Agreement is exclusively between RUS and the Grantee, and does not nor is intended to create any privity
of contract with any other party not a party hereto, nor to imply a contract in law or fact. Any funds advanced by RUS to
the Grantee are intended to finance the Grantee’s Project. Any approvals given by RUS to the Grantee are solely for the
benefit of RUS. RUS is not obligated to advance grant funds on any contract, or otherwise, between the Grantee and any
other party, nor intends to assume, at any time, direct obligations for payment for work, goods, or other performance
under such contracts. The obligation to pay any amounts due under such contracts is solely the responsibility of the
Grantee. Nothing herein, express or implied, is intended to, or shall confer upon, any other person any right, benefit , or
remedy of any nature whatsoever under or by reason of the Grant Agreement between RUS and the Grantee.
SECTION 8.14 Disposition of Grant Property
Unless otherwise agreed to in writing by RUS, any and all dispositions of Grant property shall be made in
accordance with federal regulations at 2 C.F.R. part 200, as applicable.
SECTION 8.15 Term
This Agreement shall remain in effect until one of the following events has occurred:
(a)
The Grantee and RUS replace this Agreement with another written agreement;
(b)
All of the Grantee’s obligations under this Agreement have been discharged, including the provision of
service at the Broadband Grant Speed to the Community Center and Critical Community Facilities for
at least two years; or
(c)
This Agreement has been terminated pursuant to the provisions of Article VII hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day
and year first above written.
[GRANTEE’S NAME]
by:___________________________________
Name:
Title:
(Seal)
Attested to by: ________________________
Secretary
UNITED STATES OF AMERICA
by___________________________________
Administrator of the Rural Utilities Service
16
SCHEDULE 1
Article II Representations and Warranties
1.
Paragraph (g) Grantee’s address:
Address Line 1
Address Line 2
City, State ZIP
Article III The Grant
1.
Section 3.1, Maximum Grant Amount:
$0,000,000
Article IV Conditions of Funding
1.
Section 4.2(d) Matching Contribution:
A. The Matching Contribution shall be equal to at least 15% of the Grant.
B. Prior to the advance of any Grant funds by RUS under this Agreement, the Grantee shall submit to RUS
a schedule, satisfactory to RUS, that provides a timeframe for the provision of the Matching Contribution prior to the
expiration of this Agreement.
2.
Section 4.2(g) Additional Conditions:
N/A
Article V Affirmative Covenants
1.
Section 5.17 Grantee’s Data Universal Numbering System (DUNS) Number:
2.
Section 5.19 Additional Affirmative Covenants:
N/A
Article VI Negative Covenants
1.
Section 6.5 Additional Negative Covenants:
N/A
Article VIII Miscellaneous
1.
Section 8.1 Grantee’s address for purposes of notification:
Copy to:
2.
Mr./Ms. First Last
Title
Awardee Name
Address Line 1
Address Line 2
City, State ZIP
Tel: (111) 111-1111
Fax: (111) 111-1111
None
Section 8.1 RUS’s address for purposes of notification:
Copy to:
PETER AIMABLE, Deputy Assistant Administrator
Portfolio Management and Risk Assessment Division
Telecommunications Program
Rural Utilities Service
U.S. Department of Agriculture
1400 Independence Avenue, SW
17
Stop 1595, South Building, Room 2837
Washington, DC 20250-1599
18
ATTACHMENT 1
EQUAL OPPORTUNITY CONTRACT PROVISIONS
During the performance of this contract, the contractor agrees as follows:
(a)
The contractor shall not discriminate against any employee or applicant for employment because of race, color,
religion, sex, sexual orientation, gender identity, or national origin. The contractor shall take affirmative action
to ensure that applicants are employed, and that employees are treated during employment without regard to
their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following:
employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination;
rates of pay or other forms of compensation; and selection for training, including apprenticeship. The
contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices
to be provided setting forth the provisions of this non-discrimination clause.
(b)
The contractor shall, in all solicitations or advertisements for employees placed by or on behalf of the
contractor, state that all qualified applicants shall receive consideration for employment without regard to race,
color, religion, sex, sexual orientation, gender identity, or national origin.
(c)
The contractor shall send to each labor union or representative of workers with which he has a collective
bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union
or workers’ representative of the contractor’s commitments under this section, and shall post copies of the
notice in conspicuous place available to employees and applicants for employment.
(d)
The contractor shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the
rules, regulations, and relevant orders of the Secretary of Labor.
(e)
The contractor shall furnish all information and reports required by Executive Order 11246 of September 24,
1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and shall permit
access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes
of investigation to ascertain compliance with such rules, regulation, and orders.
(f)
In the event of the contractor’s non-compliance with the non-discrimination clauses of this contract or with any
of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or part
by the Government, and the contractor may be declared ineligible for further Government contracts or federally
assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of
September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive
Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise
provided by law.
(g)
The contractor shall include the portion of the sentence immediately preceding paragraph (a) and the provisions
of paragraphs (a) through (g) in every subcontract or purchase order unless exempted by rules, regulations, or
orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24,
1965, so that such provisions shall be binding upon each subcontractor or vendor. The contractor shall take
such action with respect to any subcontract or purchase order as the administering agency may direct as a means
of enforcing such provisions, including sanctions for non-compliance; provided, however, that in the event a
contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of
such direction by the administering agency, the contractor may request the United States to enter into such
litigation to protect the interests of the United States.
19
ATTACHMENT 2
SYSTEM FOR AWARD MANAGEMENT AND UNIVERSAL IDENTIFIER REQUIREMENTS
A. Requirement for System for Award Management (SAM) formerly Central Contractor Registration (CCR). Unless you
are exempted from this requirement under 2 C.F.R. § 25.110, you as the recipient must maintain the currency of your
information in SAM until you submit the final financial report required under this award or receive the final payment,
whichever is later. This requires that you review and update the information at least annually after the initial
registration, and more frequently if required by changes in your information or another award term.
B. Requirement for Data Universal Numbering System (DUNS) Numbers. If you are authorized to make subawards
under this award, you:
1. Must notify potential subrecipients that no entity (see definition in paragraph C of this award term) may receive
a subaward from you unless the entity has provided its DUNS number to you.
2. May not make a subaward to an entity unless the entity has provided its DUNS number to you.
C. Definitions. For purposes of this award term:
1. 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 SAM Internet site (currently at http://www.sam.gov).
2. Data Universal Numbering System (DUNS) number means the nine-digit number established and assigned by
Dun and Bradstreet, Inc. (D & B) to uniquely identify business entities. A DUNS number may be obtained
from D & B by telephone (currently 866-705-5711) or the Internet (currently at
http://fedgov.dnb.com/webform).
3. Entity, as it is used in this award term, means all of the following, as defined at 2 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;
c. A domestic or foreign nonprofit organization;
d. A domestic or foreign for-profit organization; and
e. A Federal agency, but only as a subrecipient under an award or subaward to a non-Federal entity.
4. Subaward:
a. This term means a legal instrument to provide support for the performance of any portion of the substantive
project or program for which you received this award and that you as the recipient 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. part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards).
c. A subaward may be provided through any legal agreement, including an agreement that you consider a
contract.
5. 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.
20
ATTACHMENT 3
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
http://www.fsrs.gov.
ii. For subaward information, report no later than the end of the month following the month in which the
obligation was made. (For example, if the obligation was made on November 7, 2010, the obligation must
be reported by no later than December 31, 2010.)
3. What to report. You must report the information about each obligating action that the submission instructions
posted at http://www.fsrs.gov specify.
b. Reporting Total Compensation of Recipient Executives.
1. Applicability and what to report. You must report total compensation for each of your five most highly
compensated executives for the preceding completed fiscal year, if-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
iii. The public does not have access to information about the compensation of the executives through periodic
reports filed under section 13(a) or 15(d) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(a),
78o(d)) or section 6104 of the Internal Revenue Code of 1986. (To determine if the public has access to the
compensation information, see the U.S. Security and Exchange Commission total compensation filings at
http://www.sec.gov/answers/execomp.htm.)
2. Where and when to report. You must report executive total compensation described in paragraph b.1. of this
award term:
i. As part of your registration profile at http://www.sam.gov.
ii. By the end of the month following the month in which this award is made, and annually thereafter.
c. Reporting of Total Compensation of Subrecipient Executives.
1. Applicability and what to report. Unless you are exempt as provided in paragraph d. of this award term, for
21
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 recipient.
ii. By the end of the month following the month during which you make the subaward. For example, if a
subaward is obligated on any date during the month of October of a given year (i.e., between October 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;
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
22
project or program for which you received this award and that you as the recipient award to an eligible
subrecipient.
ii. The term does not include your procurement of property and services needed to carry out the project or
program (for further explanation, see 2 C.F.R. part 200, Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards).
iii. A subaward may be provided through any legal agreement, including an agreement that you or a
subrecipient considers a contract.
4. Subrecipient means an entity that:
i. Receives a subaward from you (the recipient) under this award; and
ii. Is accountable to you for the use of the Federal funds provided by the subaward.
5. Total compensation means the cash and noncash dollar value earned by the executive during the recipient's or
subrecipient's preceding fiscal year and includes the following (for more information see 17 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.
23
| File Type | application/pdf |
| File Title | RURAL UTILITIES SERVICE |
| Author | kkuchno |
| File Modified | 2016-06-24 |
| File Created | 2016-06-24 |