6-010. Attachment 10 CFI Grant Program Terms and Conditions FY2022-2023.pdf

FEDERAL HIGHWAY ADMINISTRATION

GENERAL TERMS AND CONDITIONS

UNDER THE

FISCAL YEAR 2022 and FISCAL YEAR 2023 CHARGING AND FUELING

INFRASTRUCTURE (CFI) GRANT PROGRAM

March 1, 2024

TABLE OF CONTENTS

Contents

GENERAL TERMS AND CONDITIONS

Article 1 PURPOSE

1.1 Purpose

Article 2 FHWA ROLE

2.1 Federal Highway Administration (FHWA) Responsibilities

Article 3 RECIPIENT ROLE

3.1 Statements on the Project

3.2 Statements on Authority and Capacity

3.3 USDOT FHWA Reliance

3.4 Project Delivery

3.5 Rights and Powers Affecting the Project

3.6 Notification of Changes to Key Personnel

3.7 Subaward to Designated Subrecipient

3.8 Designated Subrecipient Statements and Responsibilities

Article 4 AWARD AMOUNT, OBLIGATION, AND TIME PERIODS

4.1 Federal Award Amount

4.2 Federal Obligations

4.3 Budget Period

4.4 Period of Performance

Article 5 STATEMENT OF WORK, SCHEDULE, AND BUDGET CHANGES

5.1 Notification Requirement

5.2 Scope and Statement of Work Changes

5.3 Schedule Changes

5.4 Budget Changes

5.5 FHWA Acceptance of Changes

Article 6 GENERAL REPORTING TERMS

6.1 Report Submission

6.2 Alternative Reporting Methods

Article 7 PROGRESS AND FINANCIAL REPORTING

7.1 Project Progress and Financial Reports and Recertifications

7.2 Final Progress Reports and Financial Information

Article 8 PERFORMANCE REPORTING

8.1 Baseline Performance Measurement

8.2 Post-construction Performance Measurement

8.3 Project Outcomes Report

8.4 Performance Reporting Survival

Article 9 NONCOMPLIANCE AND REMEDIES

9.1 Noncompliance Determinations

9.2 Remedies

9.3 Other Oversight Entities

Article 10 AGREEMENT TERMINATION

10.1 FHWA Termination

10.2 Closeout Termination

10.3 Post-Termination Adjustments

10.4 Non-Terminating Events

10.5 Other Remedies

Article 11 MONITORING, FINANCIAL MANAGEMENT, CONTROLS, AND RECORDS

11.1 Recipient Monitoring and Record Retention

11.2 Financial Records and Audits

11.3 Internal Controls

11.4 USDOT Record Access

11.5 Title 23 Oversight Responsibilities

Article 12 CONTRACTING AND SUBAWARDS

12.1 Minimum Wage Rates

12.2 Buy America

12.3 Small and Disadvantaged Business Requirements

12.4 Engineering and Design Services

12.5 Prohibition on Certain Telecommunications and Video Surveillance Services or

Equipment

12.6 Pass-through Entity Responsibilities

12.7 Subaward and Contract Authorization

12.8 Requirement to Contract with a Private Entity

12.9 Consultation with Indian Tribes

Article 13 COSTS, PAYMENTS, AND UNEXPENDED FUNDS

13.1 Limitation of Federal Award Amount

13.2 Projects Costs

13.3 Timing of Project Costs

13.4 Recipient Recovery of Federal Funds

13.5 Unexpended Federal Funds

13.6 Timing of Payments to the Recipient

13.7 Payment Method

13.8 Information Supporting Expenditures

13.9 Reimbursement Frequency

Article 14 LIQUIDATION, ADJUSTMENTS, AND FUNDS AVAILABILITY

14.1 Liquidation of Recipient Obligations

Article 15 AGREEMENT MODIFICATIONS

15.1 Bilateral Modifications

15.2 Unilateral Contact Modifications

15.3 FHWA Unilateral Modifications

15.4 Other Modifications

Article 16 CLIMATE CHANGE AND ENVIRONMENTAL JUSTICE

16.1 Climate Change and Environmental Justice

Article 17 EQUITY AND BARRIERS TO OPPORTUNITY

17.1 Equity and Barriers to Opportunity

Article 18 LABOR AND WORK

18.1 Labor and Work

Article 19 Civil Rights and Title VI

19.1 Civil Rights and Title VI

19.2 Legacy Infrastructure and Facilities

Article 20 CRITICAL INFRASTRUCTURE SECURITY AND RESILIENCE

20.1 Critical Infrastructure Security and Resilience

Article 21 FEDERAL FINANCIAL ASSISTANCE, ADMINISTRATIVE, AND NATIONAL

POLICY REQUIREMENTS

21.1 Uniform Administrative Requirements for Federal Awards

21.2 Federal Law and Public Policy Requirements

21.3 Federal Freedom of Information Act

21.4 History of Performance

21.5 Whistleblower Protection

21.6 External Award Terms and Obligations

21.7 Incorporated Certifications

Article 22 ASSIGNMENT

22.1 Assignment Prohibited

Article 23 WAIVER

23.1 Waivers

Article 24 ADDITIONAL TERMS AND CONDITIONS

24.1 Effect of Urban or Rural Designation

24.2 Disclaimer of Federal Liability

24.3 Relocation and Real Property Acquisition

24.4 Equipment Disposition

24.5 Environmental Review

24.6 Railroad Coordination

Article 25 MANDATORY AWARD INFORMATION

25.1 Information Contained in a Federal Award

25.2 Federal Award Identification Number

25.3 Recipient’s Unique Entity Identifier

Article 26 CONSTRUCTION AND DEFINITIONS

26.1 Schedules

26.2 Exhibits

26.3 Construction

26.4 Integration

26.5 Definitions

Article 27 AGREEMENT EXECUTION AND EFFECTIVE DATE

27.1 Counterparts

27.2 Effective Date

Index of Definitions

Designated Subrecipient ................................................................................. Schedule A, Section 9

Recipient…............................................................................................... Project-Specific Agreement Project-Specific Agreement ………………………………………………………………………….33

Environmental Review Entity Federal Share

FHWA

General Terms and Conditions

NOFO

OMB

Private Entity …………………………………………………………………………………… 33 Program Statute Project Project Closeout Project Cost Savings

Technical Application

GENERAL TERMS AND CONDITIONS

The Infrastructure Investment and Jobs Act, Section 11401 of Pub. L No. 117-58 (Nov. 15, 2021) (the “IIJA”) made funds available to the United States Department of Transportation (“USDOT”) for fiscal year (FY) 2022 and FY 2023 for the Charging and Fueling Infrastructure (CFI) Discretionary Grant Program to strategically deploy publicly accessible electric vehicle charging infrastructure, hydrogen fueling infrastructure, propane fueling infrastructure, and natural gas fueling infrastructure along designated alternative fuel corridors or in certain other locations within communities that will be accessible to all drivers of electric vehicles, hydrogen vehicles, propane vehicles, and natural gas vehicles. The CFR is codified at 23 U.S.C. 151(f)(2).

On March 14, 2023, the USDOT posted a funding opportunity at Grants.gov for “Charging and Fueling Infrastructure” grant and funding opportunity number 693JJ323NF00004. The notice of funding opportunity (“NOFO”) solicited applications for Federal financial assistance under the FY 2022 and FY 2023 program. On January 11, 2024, the USDOT announced application selections under the NOFO for the FY 2022 and FY 2023 CFI grant program.

These General Terms and Conditions are incorporated by reference in the project-specific agreement under the FY 2022 and FY 2023 CFI discretionary grant program. The term “Recipient” is defined in the project-specific agreement. The project-specific agreement includes schedules A through K. The project-specific agreement may include special terms and conditions in project-specific articles or schedules.

ARTICLE 1

PURPOSE

1.1 Purpose. The purpose of this award is to fund the eligible project defined in the project-specific agreement that has been selected to receive a FY 2022 or FY 2023 CFI Grant. The parties will accomplish that purpose by achieving the following objectives:

(1) timely completing the Project; and

(2) ensuring that this award does not substitute for non-Federal investment in the Project, except as proposed in the Technical Application, as modified by schedule E.

ARTICLE 2

FHWA ROLE

2.1 Federal Highway Administration (FHWA) Responsibilities.

(a) The FHWA is the operating administration under the United State Department of Transportation (“USDOT”) responsible for the administration of the Grant Program, the approval and execution of the project-specific agreement, and any modifications to the project-specific under section 15.1.

https://Grants.gov

ARTICLE 3

RECIPIENT ROLE

3.1 Statements on the Project. The Recipient states that:

(1) all material statements of fact in the Technical Application were accurate when that application was submitted; and

(2) schedule E documents all material changes in the information contained in that application.

3.2 Statements on Authority and Capacity. The Recipient states that:

(1) it has the authority to receive Federal financial assistance under the project-specific agreement;

(2) it has the legal authority to complete the Project;

(3) it has the capacity, including institutional, managerial, and financial capacity, to comply with its obligations under the project-specific agreement;

(4) not less than the difference between the total eligible project costs listed in section 3 of schedule D and the Grant Amount listed in section 1 of schedule D is committed to fund the Project;

(5) it has sufficient funds available to ensure that infrastructure completed or improved under the project-specific agreement will be operated and maintained in compliance with that agreement and applicable Federal law; and

(6) the individual executing the project-specific agreement on behalf of the Recipient has authority to enter the project-specific agreement and make the statements in this article 3 and in section 21.7 on behalf of the Recipient.

3.3 USDOT FHWA Reliance. The Recipient acknowledges that:

(1) the USDOT FHWA relied on statements of fact in the Technical Application to select the Project to receive this award;

(2) the USDOT FHWA relied on statements of fact in both the Technical Application and the project-specific agreement to determine that the Recipient and the Project are eligible under the terms of the CFI NOFO.

(3) the USDOT FHWA relied on statements of fact in both the Technical Application and the project-specific agreement to establish the terms of the project-specific agreement; and

(4) the USDOT FHWA’s selection of the Project to receive this award prevented awards under the NOFO to other eligible applicants.

3.4 Project Delivery.

(a) The Recipient shall complete the Project under the terms of the project-specific agreement.

(b) The Recipient shall ensure that the Project is financed, constructed, operated, and maintained in accordance with all Federal laws, regulations, and policies that are applicable to the Project.

3.5 Rights and Powers Affecting the Project.

(a) The Recipient shall not take or permit any action that deprive it of any rights or powers necessary to the Recipient’s performance under the project-specific agreement without written approval of the FHWA.

(b) The Recipient shall act promptly, in a manner acceptable to the FHWA, to acquire, extinguish, or modify any outstanding rights or claims of right of others that would interfere with the Recipient’s performance under the project-specific agreement.

3.6 Notification of Changes to Key Personnel. The Recipient shall notify all FHWA representatives who are identified in section 5 of schedule A in writing within 30 calendar days of any change in key personnel who are identified in section 4 of schedule A.

3.7 Subaward to Designated Subrecipient. If section 9 of schedule A identifies a Designated Subrecipient:

(1) the Recipient hereby awards a subaward to the Designated Subrecipient for the purpose described in section 1.1;

(2) the Recipient and the Designated Subrecipient may enter into a separate agreement, to which the FHWA is not a party, assigning responsibilities, including administrative and oversight responsibilities, among the Recipient and the Designated Subrecipient; and

(3) for the purpose of 2 C.F.R. parts 200 and 1201, the Recipient is a pass-through entity.

3.8 Designated Subrecipient Statements and Responsibilities. If section 9 of schedule A identifies a Designated Subrecipient:

(1) the Designated Subrecipient affirms all statements and acknowledgments that are attributed to the Recipient under sections 3.1 and 3.2; and

(2) the Designated Subrecipient assumes the Recipient’s reporting obligations under article 7.

ARTICLE 4

AWARD AMOUNT, OBLIGATION, AND TIME PERIODS

4.1 Federal Award Amount. This FHWA hereby awards a Grant to the Recipient in the amount listed in section 1 of schedule D as the Grant Amount.

4.2 Federal Obligations.

(a) If the Federal Obligation Type identified in section 2 of schedule D is “Single,” then the project-specific agreement obligates for the budget period the amount listed in section 1 of schedule D as the Grant Amount and sections 4.3(c)–4.3(h) do not apply to the project-specific agreement.

(b) If the Federal Obligation Type identified in section 2 of schedule D is “Multiple,” then an amount up to the Grant Amount listed in section 1 of schedule D will be obligated with one initial obligation and one or more subsequent, optional obligations, as described in sections 4.3(c)–4.3(h).

(c) The Obligation Condition Table in section 2 of schedule D allocates the Grant among separate portions of the Project for the purpose of the Federal obligation of funds. The scope of each portion of the Project that is identified in that table is described in section 2 of schedule B.

(d) The project-specific agreement obligates for the budget period only the amounts allocated in the Obligation Condition Table in section 2 of schedule D to portions of the Project for which that table does not list an obligation condition.

(e) The project-specific agreement does not obligate amounts allocated in the Obligation Condition Table in section 2 of schedule D to portions of the Project for which that table lists an obligation condition. The parties may obligate the amounts allocated to those portions of the Project only as described in section 4.3(f) or by modifying the project-specific agreement under article 15.

(f) If the USDOT Payment System identified in section 6 of schedule A is “FMIS,” then for each portion of the Project for which the Obligation Condition Table in section 2 of schedule D lists an obligation condition, the amount allocated in that table to that portion of the Project is obligated if, not later than the statutory lapse date identified in the project-specific agreement as applicable to the Grant Program, the parties execute an instrument, in the form provided in Exhibit D, documenting that:

(1) the FHWA determines that the obligation condition listed in that table for that portion of the Project is satisfied;

(2) the FHWA determines that all applicable Federal requirements for obligating the amount are satisfied; and

(3) the Recipient states that it is not required to request a modification of the project-specific agreement under article 5.

(g) The Recipient shall not request reimbursement of costs for a portion of the Project for which the Obligation Condition Table in section 2 of schedule D lists an obligation condition, unless the amount allocated in that table to that portion of the Project is obligated under section 4.3(f).

(h) For information with respect to the Recipient’s responsibility to contract with a Private Entity to pay the non-Federal cost share, see section 12.8 Requirement to Contract with a Private Entity under Article 12 titled Contracting and Subawards.

(i) The Recipient acknowledges that:

(1) the FHWA is not liable for payments for a portion of the Project for which the Obligation Condition Table in section 2 of schedule D lists an obligation condition, unless the amount allocated in that table to that portion of the Project is obligated under section 4.3(f);

(2) any portion of the Grant that is not obligated under this section 4.3 by the statutory lapse date identified in the project-specific agreement for those funds lapses on the day after that date and becomes unavailable for the Project;

(3) the FHWA may consider the failure to obligate funds by the statutory lapse date identified in the project-specific agreement as applicable to the Grant Program for those funds to be a basis for terminating the project-specific agreement under section 10.1; and

(4) the payment of any non-Federal cost share by a Private Entity is solely a contractual matter between the Recipient and such Private Entity to which the FHWA is not a party.

4.3 Budget Period. The budget period for this award begins on the date of the project-specific agreement and ends on the budget period end date that is listed in section 1 of schedule C or as determined in the FHWA Fiscal Management Information System (“FMIS”). In the project-specific agreement, “budget period” is used as defined at 2 C.F.R. 200.1.

4.4 Period of Performance.

(a) If the USDOT Payment System identified in section 6 of schedule A is “FMIS,” then the period of performance for this award begins on the date of the project-specific agreement and ends on project end date in FMIS.

(b) If the USDOT Payment System identified in section 6 of schedule A is “DELPHI eInvoicing,” then the period of performance for this award is listed on page 1, line 6 of the project-specific agreement.

(c) In the project-specific agreement, “period of performance” is used as defined at 2 C.F.R.

200.1.

ARTICLE 5

STATEMENT OF WORK, SCHEDULE, AND BUDGET CHANGES

5.1 Notification Requirement. The Recipient shall notify all FHWA representatives who are identified in section 5 of schedule A in writing within 30 calendar days of any change in circumstances or commitments that adversely affect the Recipient’s plan to complete the Project. In that notification, the Recipient shall describe the change and what actions the Recipient has taken or plans to take to ensure completion of the Project. This notification requirement under this section 5.1 is separate from any requirements under this article 5 that the Recipient request modification of the project-specific agreement.

5.2 Scope and Statement of Work Changes. If the Project’s activities differ from the activities described in the Technical Application, then the Recipient shall request a modification of the project-specific agreement in Schedule E.

5.3 Schedule Changes. If one or more of the following conditions are satisfied, then the Recipient shall request a modification of the project-specific agreement to update schedule C:

(1) a completion date for the Project or a component of the Project is listed in section 2 of schedule C and the Recipient’s estimate for that milestone changes to a date that is more than six months after the date listed in section 2 of schedule C;

(2) a schedule change would require the budget period to continue after the budget period end date listed in section 1 of schedule C; or

(3) the USDOT Payment System identified in section 6 of schedule A is “DELPHI eInvoicing” and a schedule change would require the period of performance to continue after the period of performance listed on page 1, line 6 of the project-specific agreement.

For other schedule changes, the Recipient shall follow the applicable procedures of the FHWA and document the changes in writing.

5.4 Budget Changes.

(a) The Recipient acknowledges that if the cost of completing the Project increases:

(1) that increase does not affect the Recipient’s obligation under the project-specific agreement to complete the Project; and

(2) the FHWA will not increase the amount of this award to address any funding shortfall.

(b) The Recipient shall request a modification of the project-specific agreement to update schedule D if, in comparing the Project’s budget to the amounts listed in section 3 of schedule D:

(1) the total “Non-Federal Funds” amount decreases; or

(2) the total eligible project costs amount decreases.

(c) For budget changes that are not identified in section 5.4(b), the Recipient shall follow the applicable procedures of the FHWA and document the changes in writing.

(d) If there are Project Cost Savings, then the Recipient may propose to the FHWA, in writing consistent with the FHWA’s requirements, to include in the Project specific additional activities that are within the scope of this award, as defined in section 1.1 and schedule B, and that the Recipient could complete with the Project Cost Savings.

In this agreement, “Project Cost Savings” means the difference between the actual eligible project costs and the total eligible project costs that are listed in section 3 of schedule D, but only if the actual eligible project costs are less than the total eligible project costs that are listed in section 3 of schedule D. There are no Project Cost Savings if the actual eligible project costs are equal to or greater than the total eligible project costs that are listed in section 3 of schedule D.

(e) If there are Project Cost Savings and either the Recipient does not make a proposal under section 5.4(d) or the FHWA does not accept the Recipient’s proposal under section 5.4(d), then:

(1) in a request under section 5.4(b), the Recipient shall reduce the Federal Share by the Project Cost Savings; and

(2) if that modification reduces this award and the FHWA had reimbursed costs exceeding the revised award, the Recipient shall refund to the FHWA the difference between the reimbursed costs and the revised award.

In this agreement, “Federal Share” means the sum of the total “CFI Grant Funds” and “Other Federal Funds” amounts that are listed in section 3 of schedule D.

(f) The Recipient acknowledges that amounts that are required to be refunded under section 5.4(e)(2) constitute a debt to the Federal Government that the FHWA may collect under 2 C.F.R. 200.346 and the Federal Claims Collection Standards (31 C.F.R. parts 900–999).

5.5 FHWA Acceptance of Changes. The FHWA may accept or reject modifications requested under this article 5, and in doing so may elect to consider only the interests of the Grant Program and the FHWA. The Recipient acknowledges that requesting a modification under this article 5 does not amend, modify, or supplement the project-specific agreement unless the FHWA accepts that modification request and the parties modify the project-specific agreement under section 15.1.

ARTICLE 6

GENERAL REPORTING TERMS

6.1 Report Submission. The Recipient shall send all reports required by the project-specific agreement to all FHWA contacts who are listed in section 5 of schedule A.

6.2 Alternative Reporting Methods. The FHWA may establish processes for the Recipient to submit reports required by the project-specific agreement, including electronic submission processes. If the Recipient is notified of those processes in writing, the Recipient shall use the processes required by the FHWA.

ARTICLE 7

PROGRESS AND FINANCIAL REPORTING

7.1 Project Progress and Financial Reports and Recertifications. On or before the 20th day of the first month of each calendar year quarter and until the end of the period of performance, the Recipient shall submit to the FHWA a Quarterly Project Progress Report and Recertification in the format and with the content described in exhibit C. If the date of this agreement is in the final month of a calendar year quarter, then the Recipient shall submit the first Quarterly Project Progress Report and Recertification in the second calendar year quarter that begins after the date of this agreement.

7.2 Final Progress Reports and Financial Information. No later than 120 days after the end of the period of performance, the Recipient shall submit:

(1) a Final Project Progress Report and Recertification in the format and with the content described in exhibit C for each Quarterly Project Progress Report and Recertification, including a final Federal Financial Report (SF-425); and

(2) any other information required under FHWA award closeout procedures.

ARTICLE 8

PERFORMANCE REPORTING

8.1 Baseline Performance Measurement.

(1) The Recipient shall collect data for each performance measure that is identified in the Performance Measure Table in schedule G, accurate as of the Baseline Measurement Date that is identified in schedule G; and

(2) On or before the Baseline Report Date that is stated in schedule G, the Recipient shall submit a Baseline Performance Measurement Report that contains the data collected under this section 8.1 and a detailed description of the data sources, assumptions, variability, and estimated levels of precision for each performance measure that is identified in the Performance Measure Table in schedule G.

8.2 Post-construction Performance Measurement.

(1) For each performance measure that is identified in the Performance Measure Table in schedule G with quarterly measurement frequency, for each of 12 consecutive calendar quarters, beginning with the first calendar quarter that begins after the Project substantial completion date, at least once during the quarter, the Recipient shall collect data for that performance measure;

(2) For each performance measure that is identified in the Performance Measure Table in schedule G with annual measurement frequency, the Recipient shall collect data for that performance measure on at least three separate occasions: (i) once during the four consecutive calendar quarters that begin after the Project substantial completion date; (ii) once during the fourth calendar quarter after the first collection; and (iii) once during the eighth calendar quarter after the first collection; and

(3) Not later than January 31 of each year that follows a calendar year during which data was collected under this section 8.2, the Recipient shall submit to the USDOT a Post-Project Performance Measurement Report containing the data collected under this section 8.2 in the previous calendar year and stating the dates when the data was collected.

If an external factor significantly affects the value of a performance measure collected under this section 8.2, then the Recipient shall identify that external factor in the Post- Project Performance Measurement Report and discuss its influence on the performance measure.

8.3 Project Outcomes Report. The Recipient shall submit to the FHWA, not later than January 31 of the year that follows the final calendar year during which data was collected under section 8.2, a Project Outcomes Report that contains:

(1) a narrative discussion detailing project successes and the influence of external factors on project expectations;

(2) all baseline and post-Project performance measurement data that the Recipient reported in the Baseline Performance Measurement Report and the Post-Project Performance Measurement Reports; and

(3) an ex post examination of project effectiveness relative to the baseline data that the Recipient reported in the Baseline Performance Measurement Report.

8.4 Performance Reporting Survival. The data collection and reporting requirements in this article 8 survive the termination of this agreement.

ARTICLE 9

NONCOMPLIANCE AND REMEDIES

9.1 Noncompliance Determinations.

(a) If the FHWA determines that the Recipient may have failed to comply with the United States Constitution, Federal law, or the terms and conditions of the project-specific agreement, the FHWA may notify the Recipient of a proposed determination of noncompliance. For the notice to be effective, it must be written and the FHWA must include an explanation of the nature of the noncompliance, describe a remedy, state whether that remedy is proposed or effective at an already determined date, and describe the process through and form in which the Recipient may respond to the notice.

(b) If the FHWA notifies the Recipient of a proposed determination of noncompliance under section 9.1(a), the Recipient may, not later than 7 calendar days after the notice, respond to that notice in the form and through the process described in that notice. In its response, the Recipient may:

(1) accept the remedy;

(2) acknowledge the noncompliance, but propose an alternative remedy; or

(3) dispute the noncompliance.

To dispute the noncompliance, the Recipient must include in its response documentation or other information supporting the Recipient’s compliance.

(c) The FHWA may make a final determination of noncompliance only:

(1) after considering the Recipient’s response under section 9.1(b); or

(2) if the Recipient fails to respond under section 9.1(b), after the time for that response has passed.

(d) To make a final determination of noncompliance, the FHWA must provide a notice to the Recipient that states the bases for that determination.

9.2 Remedies.

(a) If the FHWA makes a final determination of noncompliance under section 9.1, the FHWA may impose a remedy, including:

(1) additional conditions on the award;

(2) any remedy permitted under 2 C.F.R. 200.339–200.340, including withholding of payments; disallowance of previously reimbursed costs, requiring refunds from the Recipient to the FHWA; suspension or termination of the award; or suspension and disbarment under 2 C.F.R. part 180; or

(3) any other remedy legally available.

(b) To impose a remedy, the FHWA must provide a written notice to the Recipient that describes the remedy, but the FHWA may make the remedy effective before the Recipient receives that notice.

(c) If the FHWA determines that it is in the public interest, the FHWA may impose a remedy, including all remedies described in section 9.2(a), before making a final determination of noncompliance under section 9.1. If it does so, then the notice provided under section 9.1(d) must also state whether the remedy imposed will continue, be rescinded, or modified.

(d) In imposing a remedy under this section 9.2 or making a public interest determination under section 9.2(c), the FHWA may elect to consider the interests of only the FHWA.

(e) The Recipient acknowledges that amounts that the FHWA requires the Recipient to refund to the FHWA due to a remedy under this section 9.2 constitute a debt to the Federal Government that the FHWA may collect under 2 C.F.R. 200.346 and the Federal Claims Collection Standards (31 C.F.R. parts 900–999).

9.3 Other Oversight Entities. Nothing in this article 9 limits any party’s authority to report activity under the project-specific agreement to the United States Department of Transportation Inspector General or other appropriate oversight entities.

ARTICLE 10

AGREEMENT TERMINATION

10.1 FHWA Termination.

(a) The FHWA may terminate the project-specific agreement and all of its obligations under this agreement if any of the following occurs:

(1) the Recipient fails to obtain or provide any non- Grant contribution or alternatives approved by the FHWA as provided in the project-specific agreement and consistent with schedule D;

(2) a completion date for the Project or a component of the Project is listed in section 2 of schedule C and the Recipient fails to meet that milestone by six months after the date listed in section 2 of schedule C;

(3) the Recipient fails to meet a milestone listed in section 3 of schedule C by the deadline date listed in that section for that milestone;

(4) the Recipient fails to comply with the terms and conditions of the project-specific agreement, including a material failure to comply with the project schedule in schedule C even if it is beyond the reasonable control of the Recipient;

(5) circumstances cause changes to the Project that the FHWA determines are inconsistent with the FHWA’s basis for selecting the Project to receive a Grant;

or

(6) the FHWA determines that termination of the project-specific agreement is in the public interest.

(b) In terminating the project-specific agreement under this section, the FHWA may elect to consider only the interests of the FHWA.

(c) This section 10.1 does not limit the FHWA’s ability to terminate the project-specific agreement as a remedy under section 9.2.

(d) The Recipient may request that the FHWA terminate the project-specific agreement under this section 10.1.

10.2 Closeout Termination.

(a) The project-specific agreement terminates on Project Closeout.

(b) In the project-specific agreement, “Project Closeout” means the date that the FHWA notifies the Recipient that the award is closed out. Under 2 C.F.R. 200.344, Project Closeout should occur no later than one year after the end of the period of performance.

10.3 Post-Termination Adjustments. The Recipient acknowledges that under 2 C.F.R. 200.345– 200.346, termination of the project-specific agreement does not extinguish the FHWA’s authority to disallow costs, including costs that the FHWA reimbursed before termination, and recover funds from the Recipient.

10.4 Non-Terminating Events.

(a) The end of the budget period described under section 4.4 does not terminate the project-specific agreement or the Recipient’s obligations under the project-specific agreement.

(b) The end of the period of performance described under section 4.5 does not terminate the project-specific agreement or the Recipient’s obligations under the project-specific agreement.

(c) The cancellation of funds under section 6 of schedule D does not terminate the project-specific agreement or the Recipient’s obligations under the project-specific agreement.

10.5 Other Remedies. The termination authority under this article 10 supplements and does not limit the FHWA’s remedial authority under article 9 or 2 C.F.R. part 200, including 2 C.F.R.

200.339–200.340.

ARTICLE 11

MONITORING, FINANCIAL MANAGEMENT, CONTROLS, AND RECORDS

11.1 Recipient Monitoring and Record Retention.

(a) The Recipient shall monitor activities under this award, including activities under subawards and contracts, to ensure:

(1) that those activities comply with the project-specific agreement; and

(2) that funds provided under this award are not expended on costs that are not allowable under this award or not allocable to this award.

(b) If the Recipient makes a subaward under this award, the Recipient shall monitor the activities of the subrecipient in compliance with 2 C.F.R. 200.332(d).

(c) The Recipient shall retain records relevant to the award as required under 2 C.F.R.

200.334.

11.2 Financial Records and Audits.

(a) The Recipient shall keep all project accounts and records that fully disclose the amount and disposition by the Recipient of the award funds, the total cost of the Project, and the amount or nature of that portion of the cost of the Project supplied by other sources, and any other financial records related to the project.

(b) The Recipient shall keep accounts and records described under section 11.2(a) in accordance with a financial management system that meets the requirements of 2 C.F.R.

200.301–200.303, 2 C.F.R. 200 subpart F, and title 23, United States Code, and will facilitate an effective audit in accordance with 31 U.S.C. 7501–7506.

(c) The Recipient shall separately identify expenditures under the fiscal year of the Grant Program in financial records required for audits under 31 U.S.C. 7501–7506.

Specifically, the Recipient shall:

(1) list expenditures under that program separately on the schedule of expenditures of Federal awards required under 2 C.F.R. 200 subpart F, including the Federal Fiscal Year (“FY”) in the program name; and

(2) list expenditures under that program on a separate row under Part II, Item 1 (“Federal Awards Expended During Fiscal Period”) of Form SF-SAC, including the Federal Fiscal Year (“FY”) in column c (“Additional Award Identification”).

11.3 Internal Controls. The Recipient shall establish and maintain internal controls as required under 2 C.F.R. 200.303.

11.4 USDOT Record Access. The FHWA may access Recipient records related to this award under 2 C.F.R. 200.337.

11.5 Title 23 Oversight Responsibilities. This award is subject to the oversight program at 23 U.S.C. 106(g).

ARTICLE 12

CONTRACTING AND SUBAWARDS

12.1 Minimum Wage Rates. The Recipient shall include, in all contracts in excess of $2,000 for construction work to be performed on a Federal-aid highway (or work that is treated as if performed on a Federal-aid highway) under the Project that involves labor, provisions establishing minimum rates of wages, to be predetermined by the United States Secretary of Labor, in accordance with 23 U.S.C. 113 and 23 U.S.C. 109(s)(2), as applicable, that contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for the work.

12.2 Buy America.

(a) Steel, iron, and manufactured products used in the Project are subject to 23 U.S.C. 313, as implemented by the FHWA. The Recipient acknowledges that the project-specific agreement is neither a waiver of 23 U.S.C. 313(a) nor a finding under 23 U.S.C. 313(b).

(b) Construction materials used in the Project are subject to the domestic preference requirement at § 70914 of the Build America, Buy America Act, Pub. L. No. 117-58, div.

G, tit. IX, subtit. A, 135 Stat. 429, 1298 (2021), as implemented by Office of Management and Budget (OMB), USDOT, and FHWA. The Recipient acknowledges that the project-specific agreement is neither a waiver of § 70914(a) nor a finding under § 70914(b).

(c) Under 2 C.F.R. 200.322, as appropriate and to the extent consistent with law, the Recipient should, to the greatest extent practicable under this award, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. The Recipient shall include the requirements of 2 C.F.R. 200.322 in all subawards including all contracts and purchase orders for work or products under this award.

12.3 Small and Disadvantaged Business Requirements. The Recipient shall comply with 49 C.F.R. part 26 (“Participation by disadvantaged business enterprises in Department of Transportation financial assistance programs”). For the purpose of 49 C.F.R. 26.3 that part applies to the Recipient.

12.4 Engineering and Design Services. As applicable, the Recipient shall award each contract or sub- contract for program management, construction management, planning studies, feasibility studies, architectural services, preliminary engineering, design, engineering, surveying, mapping, or related services that is negotiated under the Brooks Act, 40 U.S.C.

1101-1104 as implemented in 23 U.S.C. 112(b)(2), or an equivalent qualifications-based requirement prescribed for or by the Recipient and approved in writing by the USDOT.

12.5 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment. The Recipient acknowledges that Section 889 of Pub. L. No. 115-232 and 2 C.F.R. 200.216 prohibit the Recipient and all subrecipients from procuring or obtaining certain telecommunications and video surveillance services or equipment under the Grant award.

12.6 Pass-through Entity Responsibilities. If the Recipient makes a subaward under the Grant award, the Recipient shall comply with the requirements on pass-through entities under 2 C.F.R. parts 200 and 1201, including 2 C.F.R. 200.331–200.333 and 23 U.S.C. 106(g)(4) where applicable.

12.7 Subaward and Contract Authorization.

(a) If the FHWA Office for Subaward and Contract Authorization identified in section 7 of schedule A is “FHWA Division,” then the Recipient shall comply with subaward and contract authorization requirements under 23 C.F.R chapter I.

(b) If the FHWA Office for Subaward and Contract Authorization identified in section 7 of schedule A is “FHWA Office of Acquisition and Grants Management,” then the Recipient may be required to obtain prior written approval from the FHWA agreement officer pursuant to 2 C.F.R. 200.308 and 23 C.F.R. 172 as applicable for the subaward or contracting out of any CFI Planning Grant work under the project-specific agreement above the Simplified Acquisition Threshold. Approvals under 2 C.F.R. 200.308 will be contingent upon a fair and reasonable price determination on the part of the Recipient and the agreement officer’s concurrence on that determination. This provision does not apply to the acquisition of supplies, material, equipment, or general support services.

12.8 Requirement to Contract with a Private Entity

(a) If the award is designated as “Corridor” in section 1 of schedule F, then the Recipient must enter into a contract with a Private Entity for the acquisition and installation of the charging and fueling infrastructure provided for under the Grant award as required by 23 U.S.C. 151(f)(6)(A). The Recipient may also enter into a contract with a Private Entity for the operations and maintenance of the charging and fueling infrastructure provided for under the Grant award as provided by 23 U.S.C. 151(f)(6)(C).

(b) If the award is designated as “Community” in section 1 of schedule F, then the Recipient may enter into a contract with a Private Entity for the acquisition, construction, installation, operations or maintenance of the charging and fueling infrastructure provided for under the Grant award as provided by 23 U.S.C.

151(f)(8)(H).

(c) For a contract awarded under a Corridor award, the Recipient must require the Private Entity to pay the non-Federal cost share for the portion of the contract value that includes acquisition, installation, operations, and maintenance of charging and fueling infrastructure as required by 23 U.S.C. 151(f)(6)(A), 23 U.S.C. 151(f)(6)(C), and 23 U.S.C. 151(f)(10)(B). As provided in section 4.2, the Recipient shall be ultimately responsible for meeting the non-Federal share under the award.

(d) For a contract awarded under a Community award, the Recipient must require the Private Entity to pay the non-Federal cost share for the portion of the contract value that includes acquisition, construction, installation, operations, and maintenance of charging and fueling infrastructure as required by 23 U.S.C. 151(f)(8)(H) and 23 U.S.C.

151(f)(10)(B). As provided in section 4.2, the Recipient shall be ultimately responsible for meeting the non-Federal share under the award.

(e) As provided at 23 U.S.C. 151(f)(6)(E)(i), contracts awarded for the acquisition and installation of charging and fueling infrastructure under award may provide for revenue sharing between the Recipient and the Private Entity. Pursuant to 23 U.S.C.

151(f)(6)(E)(ii), any revenues received by the Recipient under such an arrangement must be used only for projects that are eligible under title 23, United States Code.

12.9 Consultation with Indian Tribes. As provided at 23 U.S.C. 151(f)(6)(B), any charging and fueling infrastructure acquired or installed with funds awarded under 23 U.S.C. 151(f) shall be located along alternate fuel corridors that have been designed under 23 U.S.C. 151 only if any affected Indian Tribes are consulted prior to the designation. Accordingly, prior to commencing any work for the acquisition or installation of charging and fueling infrastructure under the award, the Recipient must produce documentation demonstrating that any affected Tribes have been consulted concerning such acquisition and installation.

Such consultation may be satisfied through other applicable required processes, such as the Section 106 (of the National Historic Preservation Act) process.

ARTICLE 13

COSTS, PAYMENTS, AND UNEXPENDED FUNDS

13.1 Limitation of Federal Award Amount. Under the Grant Program award, the FHWA shall not provide funding greater than the amount obligated under section 4.3, and FMIS as applicable. The Recipient acknowledges that the FHWA is not liable for payments exceeding that amount, and the Recipient shall not request reimbursement of costs exceeding that amount.

13.2 Projects Costs.

(a) The Grant Program award is subject to the cost principles at 2 C.F.R. 200 subpart E, including provisions on determining allocable costs and determining allowable costs.

(b) Operating Assistance. As provided at 23 U.S.C. 151(f)(6)(C), if included within the scope of the award, the Recipient may use grant funds for operating assistance (as defined at 23 U.S.C. 151(f)(6)(C)(ii)) for any charging and fueling infrastructure that has been acquired and installed with funds awarded under 23 U.S.C. 151(f). Eligibility for any such operating assistance is limited to a period of 5 years after the date of installation, and the amounts allowed for such assistance may not exceed the amount of the contract for the acquisition and installation of the charging and fueling infrastructure.

(c) Traffic Control Devices. As provided at 23 U.S.C. 151(f)(6)(D), if included within the scope of the award, the Recipient may use grant funds to acquire and install traffic control devices for charging and fueling infrastructure that has been acquired and installed with funds awarded under 23 U.S.C. 151(f). The amounts allowed for the acquisition and installation of such traffic control devices may not exceed the amount of the contract for the acquisition and installation of the charging and fueling infrastructure. Any such traffic control devices must comply with the Manual of Uniform Traffic Control Devices.

(d) Education and Community Engagement. As provided at 23 U.S.C. 151(f)(8)(K), for any award designated as “Community” in section 1 of schedule F, and where included within the scope of such award, the Recipient may not use more than 5 percent of the grant award for the costs for educational and community engagement activities to develop and implement education programs through partnerships with schools, community organizations, and vehicle dealerships to support the use of zero-emission vehicles and associated infrastructure.

13.3 Timing of Project Costs.

(a) The Recipient shall not charge to the Grant Program award costs that are incurred after the budget period.

(b) Except as permitted under section 13.3(d)-(f), the Recipient shall not charge to the Grant award costs that were incurred before the date of the project-specific agreement.

(c) The execution of the project-specific agreement will terminate and supersede any previous FHWA approval for the Recipient to incur costs under the Grant Program award for the Project. Section 5 of schedule D is the exclusive FHWA approval of costs incurred before the date of the project-specific agreement.

(d) Reserved.

(e) If the USDOT Payment System identified in section 6 of schedule A is “DELPHI eInvoicing” and section 5 of schedule D identifies a pre-award approval under 2 C.F.R.

200.458, then the Recipient may charge to the Grant Program award, for payment from the Grant Program grant or other Federal amounts, costs that were incurred before the date of the project-specific agreement, were consistent with that approval, and would have been allowable if incurred during the budget period.

13.4 Recipient Recovery of Federal Funds. The Recipient shall make all reasonable efforts, including initiating litigation, if necessary, to recover Federal funds if the FHWA determines, after consultation with the Recipient, that those funds have been spent fraudulently, wastefully, or in violation of Federal laws, or misused in any manner under this award. The Recipient shall not enter a settlement or other final position, in court or otherwise, involving the recovery of funds under the Grant award unless approved in advance in writing by the FHWA.

13.5 Unexpended Federal Funds. Any Federal funds that are awarded at section 4.1 but not expended on allocable, allowable costs remain the property of the United States.

13.6 Timing of Payments to the Recipient.

(a) Reimbursement is the payment method for the Grant Program.

(b) The Recipient shall not request reimbursement of a cost before the Recipient has entered into an obligation for that cost.

13.7 Payment Method.

(a) If the USDOT Payment System identified in section 6 of schedule A is “FMIS,” then the Recipient shall follow FMIS procedures to request and receive reimbursement payments under this award.

(b) If the USDOT Payment System identified in section 6 of schedule A is “DELPHI eInvoicing,” then the Recipient shall use the DELPHI eInvoicing System to request reimbursement under this award unless the FHWA agreement officer provides written approval for the Recipient to use a different request and payment method.

(c) The FHWA may deny a payment request that is not submitted using the method identified in this section 13.7.

13.8 Information Supporting Expenditures.

(a) If the USDOT Payment System identified in section 6 of schedule A is “DELPHI eInvoicing,” then when requesting reimbursement of costs incurred or credit for cost share incurred, the Recipient shall electronically submit the SF 271 (Outlay Report and Request for Reimbursement for Construction Programs) or the SF 270 (Request for Advance or Reimbursement), as applicable, shall identify the Federal share and the Recipient’s share of costs, and shall submit supporting cost detail to clearly document all costs incurred. As supporting cost detail, the Recipient shall include a detailed breakout of all costs incurred, including direct labor, indirect costs, other direct costs, and travel.

(b) If the Recipient submits a request for reimbursement that the FHWA determines does not include or is not supported by sufficient detail, the FHWA may deny the request or withhold processing the request until the Recipient provides sufficient detail.

13.9 Reimbursement Frequency. If the USDOT Payment System identified in section 6 of schedule A is “DELPHI eInvoicing,” then the Recipient shall not request reimbursement more frequently than monthly.

ARTICLE 14

LIQUIDATION, ADJUSTMENTS, AND FUNDS AVAILABILITY

14.1 Liquidation of Recipient Obligations.

(a) The Recipient shall liquidate all obligations of award funds under the project-specific agreement not later than the earlier of (1) 120 days after the end of the period of performance or (2) the statutory funds cancellation date identified in section 6 of schedule F.

(b) Liquidation of obligations and adjustment of costs under the project-specific agreement follow the requirements of 2 C.F.R. 200.344–200.346.

ARTICLE 15

AGREEMENT MODIFICATIONS

15.1 Bilateral Modifications. The parties may amend, modify, or supplement the project-specific agreement by mutual agreement in writing signed by the FHWA and the Recipient. Either party may request to amend, modify, or supplement the project-specific agreement by written notice to the other party.

15.2 Unilateral Contact Modifications.

(a) The Recipient may update the contacts who are listed in section 3 of schedule A by written notice to all of the FHWA contacts who are listed in section 5 of schedule A and section 2.2.

(b) The FHWA may update the contacts who are listed in section 5 of schedule by written notice to all of the Recipient contacts who are listed in section 3 of schedule A.

15.3 FHWA Unilateral Modifications.

(a) The FHWA may unilaterally modify the project-specific agreement to comply with Federal law, including the Program Statute.

(b) To unilaterally modify the project-specific agreement under this section 15.3, the FHWA must provide a notice to the Recipient that includes a description of…