6-Commonwealth Terms Conditions NPS 7C FA 48.0.pdf

Attachment B Nonpoint Source Management

7C-FA-48.0

Commonwealth Standard Terms and Conditions

Grant Version

(Revised - 10/1/2023)

1. DEFINITIONS

Capitalized terms used in these Commonwealth standard terms and conditions that are not otherwise defined in these provisions have the meanings specified in the agreement to which they are attached.

2. INDEMNIFICATION

The Grantee shall indemnify and defend the Commonwealth against all third-party claims, suits, demands, losses, damages, costs, and expenses, including without limitation, litigation expenses, attorneys' fees, and liabilities, arising out of or in connection with any activities performed by the Grantee or its employees and agents pursuant to this agreement, as determined by the Commonwealth in its sole discretion.

3. NONDISCRIMINATION/SEXUAL HARASSMENT

a. Representations. The Grantee represents that it is presently in compliance with and will remain in compliance with all applicable federal, state, and local laws, regulations, and policies relating to nondiscrimination and sexual harassment for the term of the agreement. The Grantee shall, upon request and within the time periods requested by the Commonwealth, furnish all necessary employment documents and records, including EEO-1 reports, and permit access to its books, records, and accounts by the Commonwealth for the purpose of ascertaining compliance with provisions of this Nondiscrimination/Sexual Harassment Clause.

b. Nondiscrimination/Sexual Harassment Obligations. The Grantee shall not:

i. in any manner discriminate in the hiring of any employee(s) for the performance of the activities required under this agreement or any subgrant agreement, contract, or subcontract, by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the

Pennsylvania Human Relations Act (“PHRA”) and applicable federal laws, against any citizen of this Commonwealth who is qualified and available to perform the work to which the employment relates.

ii. in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, against or intimidate any of its employees.

iii. in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of the PHRA and applicable federal laws, in the provision of services under this agreement or any subgrant agreement, contract, or subcontract.

iv. in any manner discriminate by reason of race, gender, creed, color, sexual orientation, gender identity or expression, or in violation of PHRA and applicable federal laws, against any subgrantee, contractor, subcontractor, or supplier who is qualified to perform the work to which this agreement relates.

v. in any manner discriminate against employees by reason of participation in or decision to refrain from participating in labor activities protected under the Public Employee Relations Act, Pennsylvania Labor Relations Act, or

National Labor Relations Act, as applicable, and to the extent determined by entities charged with the Acts’ enforcement and shall comply with any provision of law establishing organizations as employees’ exclusive representatives.

c. Establishment of Grantee Policy. The Grantee shall establish and maintain a written nondiscrimination and sexual harassment policy that complies with the applicable law and these Nondiscrimination/Sexual Harassment provisions and shall inform its employees in writing of the policy. The policy must contain a provision that states that sexual harassment will not be tolerated and employees who practice it will be disciplined. For the entire period of this agreement, the

Grantee shall: (1) post its written nondiscrimination and sexual harassment policy or these Nondiscrimination/Sexual Harassment provisions conspicuously in easily accessible and well-lighted places customarily frequented by employees at or near where the grant activities are performed; or (2) provide electronic notice of the policy or this clause to its employees not less than annually.

d. Notification of Violations. The Grantee’s obligations pursuant to these provisions are ongoing from the effective date and through the Expiration Date of the agreement. Accordingly, the Grantee shall notify the Commonwealth if, at any time during the term of this agreement, it becomes aware of any actions or occurrences that would result in violation of these provisions.

e. Cancellation or Termination of Agreement. The Commonwealth may cancel or terminate this agreement and all money due or to become due under this agreement may be forfeited for a violation of the terms and conditions of these

Nondiscrimination/Sexual Harassment provisions. In addition, the granting agency may proceed with debarment or suspension and may place the Grantee in the

Contractor Responsibility File.

f. Subgrant Agreements, Contracts, and Subcontracts. The Grantee shall include these Nondiscrimination/Sexual Harassment provisions in its subgrant agreements, contracts, and subcontracts with all subgrantees, contractors, and subcontractors providing goods or services under this agreement. The incorporation of these provisions in the Grantor’s subgrants, contracts, or subcontracts does not create privity of contract between the Commonwealth and any subgrantee, contractor, or subcontractor, and no third-party beneficiaries are created by those provisions. If the Grantee becomes aware of a subgrantee’s, contractor’s, or subcontractor’s violation of these provisions, the Grantee shall use its best efforts to ensure the subgrantee’s, contractor’s, or subcontractor’s compliance with these provisions.

4. GRANTEE INTEGRITY

a. Definitions. For purposes of these Grantee Integrity Provisions, the following definitions apply:

i. “Affiliate” means two or more entities where (a) a parent entity owns more than 50% of the voting stock of each of the entities; (b) a common shareholder or group of shareholders owns more than 50% of the voting stock of each of the entities; or (c) the entities have a common proprietor or general partner.

ii. “Grantee” means the individual or entity, that has entered into this agreement with the Commonwealth.

iii. “Grantee Related Parties” means any Affiliates of the Grantee and the

Grantee’s executive officers, Pennsylvania officers and directors, or owners of five percent or more interest in the Grantee.

iv. “Financial Interest” means ownership of more than a five percent interest in any business or holding a position as an officer, director, trustee, partner, employee, or holding any position of management.

v. “Gratuity” means tendering, giving, or providing anything of more than nominal monetary value including, but not limited to, cash, travel, entertainment, gifts, meals, lodging, loans, subscriptions, advances, deposits of money, services, employment, or contracts of any kind. The exceptions set forth in Governor’s Code of Conduct, Executive Order 1980-

18, as may be amended, 4 Pa. Code §7.153(b), apply.

vi. “Non-Solicitation Award Process” means a method of awarding grants based on predetermined criteria, without the solicitation of grant applications.

b. Representations and Warranties.

i. Grantee Representation and Warranties. The Grantee represents, to the best of its knowledge and belief, and warrants that within the last five years neither the Grantee nor Grantee Related Parties have:

1. been indicted or convicted of a crime involving moral turpitude or business honesty or integrity in any jurisdiction;

2. been suspended, debarred, or otherwise disqualified from entering into any contract with any governmental agency;

3. had any business license or professional license suspended or revoked;

4. had any sanction or finding of fact imposed as a result of a judicial or administrative proceeding related to fraud, extortion, bribery, bid rigging, embezzlement, misrepresentation or anti-trust; and

5. been, and are not currently, the subject of a criminal investigation by any federal, state, or local prosecuting or investigative agency or civil anti-trust investigation by any federal, state, or local prosecuting or investigative agency.

ii. Contractor Explanation. If the Grantee cannot make the representations and warranties set forth above at the time of its submission of its grant application or if the agreement is awarded pursuant to a Non-Solicitation

Award Process at the time of the execution of the agreement, the Grantee shall submit a written explanation outlining the reasons why it cannot make those representations and warranties. The Commonwealth may, based on its evaluation of the explanation provided, determine whether it is in the

Commonwealth’s best interest to execute the agreement.

iii. Further Representations. By submitting any bills, invoices, or requests for payment pursuant to the agreement, the Grantee further represents that it has not violated any of these Grantee Integrity Provisions during the term of the agreement.

iv. Notice. The Grantee shall immediately notify the Commonwealth, in writing, if at any time during the term of the agreement it becomes aware of any event that would cause the Contractor's certification or explanation to change. The Grantee acknowledges that the Commonwealth may, in its sole discretion, terminate the agreement for cause if it learns that any of the certifications made in these Grantee Integrity Provisions are currently false or misleading due to intervening factual circumstances or were false or misleading or should have been known to be false or misleading when entering into the agreement.

c. Contractor Responsibilities. During the term of this agreement, the Grantee shall:

i. maintain the highest standards of honesty and integrity.

ii. take no action in violation of any applicable laws, regulations, or other requirements applicable to the Grantee that govern Commonwealth contracting or grant administration.

iii. establish and implement a written business integrity policy that includes, at a minimum, the requirements of these Grantee Integrity Provisions as they relate to the Grantee’s activity with the Commonwealth and Commonwealth employees and ensure that its employees comply with the policy.

iv. not accept, agree to give, offer, confer, agree to confer, or promise to confer, directly or indirectly, any gratuity or pecuniary benefit to any person, or to influence or attempt to influence any person in violation of any federal or state law, regulation, executive order, statement of policy, management directive, or bulletin applicable to the award of grants or the administration of this agreement.

v. not have a financial interest in any other subgrantee, contractor, subcontractor, or supplier providing services, labor, or material under this agreement, unless the financial interest is disclosed to the Commonwealth in writing and the Commonwealth consents to Grantee’s financial interest.

The Grantee must disclose the financial interest to the Commonwealth at the time of submission of its grant application, or if a Non-Solicitation

Award Process is used, no later than the date the Grantee signs the agreement. The Commonwealth shall be deemed to have consented if the required disclosure is received and all of the required Commonwealth signatures are affixed.

vi. comply with the requirements of the Lobbying Disclosure Act (65 Pa.C.S.

§ 13A01 et seq.) regardless of the method of award.

vii. comply with the requirements of Section 1641 of the Pennsylvania Election

Code (25 P.S. § 3260a) if this agreement was awarded pursuant to a Non-

Solicitation Award Process.

viii. immediately notify the Commonwealth or the Office of the State Inspector

General, in writing, when the Grantee has reason to believe that any breach of ethical standards as set forth in law, the Governor’s Code of Conduct, or these Grantee Integrity Provisions has occurred or may occur, including, but not limited to, contact by a Commonwealth officer or employee, which, if acted upon, would violate the ethical standards.

d. Investigations. If a State Inspector General investigation is initiated, the Grantee shall:

i. reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of the State Inspector General for investigations of the Grantee’s compliance with the terms of this or any other agreement between the Grantee and the Commonwealth that results in the suspension or debarment of the Grantee. The Grantee shall not be responsible for investigative costs for investigations that do not result in the Grantee’s suspension or debarment.

ii. cooperate with the Office of the State Inspector General in its investigation of any alleged Commonwealth agency or employee breach of ethical standards and any alleged Grantee non-compliance with these Grantee

Integrity Provisions and make identified Grantee employees and volunteers available for interviews at reasonable times and places.

iii. upon the inquiry or request of an Inspector General, provide, or if appropriate, make promptly available for inspection or copying, any information of any type or form deemed relevant by the Office of the State

Inspector General to Grantee's integrity and compliance with these provisions. This information may include, but is not limited to, the

Grantee's business or financial records, documents or files of any type or form that refer to or concern this agreement.

e. Termination. For violation of any of these Grantee Integrity Provisions, the

Commonwealth may terminate this agreement and any other contract with the

Grantee, claim liquidated damages in an amount equal to the value of anything received in breach of these Grantee Integrity provisions, claim damages for all additional costs and expenses incurred in obtaining another grantee to complete performance under this agreement, and debar and suspend the Grantee from doing business with the Commonwealth. These rights and remedies are cumulative, and the use or non-use of any one does not preclude the use of all or any other. These rights and remedies are in addition to those the Commonwealth may have under law, statute, regulation, or otherwise.

f. Subcontracts. The Grantee shall include these Grantee Integrity Provisions in its subgrant agreements, contracts, and subcontracts with all subgrantees, contractors, and subcontractors providing goods or services under this agreement. The incorporation of this provision in the Grantee’s subgrant agreements, contracts, and subcontracts shall not create privity of contract between the Commonwealth and any subgrantee, contractor, or subcontractor, and no third-party beneficiaries are created by the inclusion of these provisions. If the Grantee becomes aware of a subgrantee’s, contractor’s, or subcontractor’s violation of these provision, the

Grantee shall use its best efforts to ensure their compliance with these provisions.

5. CONTRACTOR RESPONSIBILITY

a. Definition. For the purpose of these provisions, the term “Contractor” means as any person, including, but not limited to, a bidder, offeror, loan recipient, grantee or lessor, who has furnished or performed or seeks to furnish or perform, goods, supplies, services, leased space, construction or other activity, under a contract, grant, lease, purchase order or reimbursement agreement with the Commonwealth.

The term also includes a permittee, licensee, or any agency, political subdivision, instrumentality, public authority, or other public entity in the Commonwealth.

b. Contractor Representations.

i. The Contractor represents for itself and its subgrantees, contractors, and subcontractors required to be disclosed or approved by the Commonwealth, that as of the date of its execution of this agreement, that neither the

Contractor, nor any of its subgrantees, contractors, and subcontractors, are under suspension or debarment by the Commonwealth or any governmental entity, instrumentality, or authority and, if the Contractor cannot make this representation, the Contractor shall submit, along with the agreement, a written explanation of why the certification cannot be made.

ii. The Contractor represents that, as of the date of its execution of this agreement, it has no tax liabilities or other Commonwealth obligations, or has filed a timely administrative or judicial appeal, if any liabilities or obligations exist, or is subject to a duly approved deferred payment plan if any liabilities exist.

c. Notification. The Contractor shall notify the Commonwealth if, at any time during the term of the agreement, it becomes delinquent in the payment of taxes, or other

Commonwealth obligations, or if it or, to the best of its knowledge, any of its subgrantees, contractors, or subcontractors are suspended or debarred by the

Commonwealth, the federal government, or any other state or governmental entity.

The Contractor shall provide this notification within 15 days of the date of suspension or debarment.

d. Default. The Contractor’s failure to notify the Commonwealth of its suspension or debarment by the Commonwealth, any other state, or the federal government constitutes an event of default of the agreement with the Commonwealth.

e. Reimbursement. The Contractor shall reimburse the Commonwealth for the reasonable costs of investigation incurred by the Office of State Inspector General for investigations of the Contractor's compliance with the terms of this agreement or any other agreement between the Contractor and the Commonwealth that results in the suspension or debarment of the Contractor. These costs include, but are not limited to, salaries of investigators, including overtime; travel and lodging expenses; and expert witness and documentary fees. The Contractor shall not be responsible for investigative costs for investigations that do not result in the

Contractor's suspension or debarment.

f. Suspension and Debarment List. The Contractor may obtain a current list of suspended and debarred Commonwealth contractors by visiting the eMarketplace website at http://www.emarketplace.state.pa.us and clicking the Debarment list tab.

6. AMERICANS WITH DISABILITIES ACT

a. No Exclusion. Pursuant to the Americans with Disabilities Act, 42 U.S. Code §

12101, et seq., no qualified individual with a disability may, on the basis of the disability, be excluded from participation in this contract or from activities provided for under this agreement.

b. Compliance. For all goods and services provided pursuant to this agreement, the

Contractor shall comply with Title II of the Americans with Disabilities Act, the

"General Prohibitions Against Discrimination” set forth in 28 C. F. R. § 35.130, and all other regulations promulgated under Title II of the Americans with

Disabilities Act that apply to state and local governments.

c. Indemnification. The Contractor shall indemnify the Commonwealth against all third-party claims, suits, demands, losses, damages, costs, and expenses, including without limitation, litigation expenses, attorneys' fees, and liabilities, arising out of or in connection with the contractor's failure to comply with the provisions of paragraph a, as determined by the Commonwealth in its sole discretion.

7. APPLICABLE LAW AND FORUM

This contract is governed by and must be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania (without regard to any conflict of laws provisions) and the decisions of the Pennsylvania courts. The Contractor consents to the jurisdiction of any court of the Commonwealth of Pennsylvania and any federal courts in

Pennsylvania and waives any claim or defense that such forum is not convenient or proper.

Any Pennsylvania court or tribunal has in personam jurisdiction over the Contractor, and the Contractor consents to service of process in any manner authorized by Pennsylvania law. This provision may not be interpreted as a waiver or limitation of the

Commonwealth’s rights or defenses.

8. RIGHT TO KNOW LAW

a. Applicability. The Pennsylvania Right-to-Know Law, 65 P.S. §§ 67.101-3104, (“RTKL”) applies to this contract.

b. Grantee Assistance. If the Commonwealth needs the Grantee’s assistance in any matter arising out of the RTKL related to this contract, the Commonwealth shall notify the Grantee that it requires the Grantee’s assistance, and the Grantee shall provide to the Commonwealth:

i. access to, and copies of, any document or information in the Grantee’s possession (Requested Information) arising out of this contract that the

Commonwealth reasonably believes is a public record under the RTKL, within ten calendar days after receipt of written notification; and

ii. any other assistance as the Commonwealth may reasonably request, in order to comply with the RTKL with respect to this contract.

c. Trade Secret or Confidential Proprietary Information. If the Grantee considers the Requested Information to include a Trade Secret or Confidential Proprietary

Information, as those terms are defined by the RTKL, or other information that the

Contractor considers exempt from production under the RTKL, the Grantee shall notify the Commonwealth and provide, within seven calendar days of receipt of the written notice a written statement, signed by a representative of the Grantee, that explains why the requested material is exempt from public disclosure under the

RTKL. If the Commonwealth determines that the Requested Information is clearly not exempt from disclosure, the Grantee shall provide the Requested Information to the Commonwealth within five business days of receipt of written notice of the

Commonwealth’s determination.

d. Reimbursement

i. Commonwealth Reimbursement. If the Grantee fails to provide the

Requested Information and the Commonwealth is ordered to produce the

Requested Information, the Grantee shall reimburse the Commonwealth for any damages, penalties, or costs that the Commonwealth may incur as a result of the Grantee’s failure, including any statutory damages assessed against the Commonwealth.

ii. Contractor Reimbursement. The Commonwealth will reimburse the

Grantee for any costs that the Grantee incurs as a direct result of complying with these provisions only to the extent allowed under the fee schedule established by the Office of Open Records or as otherwise provided by the

RTKL.

e. Challenges of Commonwealth Release. The Grantee may file a legal challenge to any Commonwealth decision to release a record to the public with the Office of

Open Records, or in the Pennsylvania Courts, however, the Grantee shall reimburse the Commonwealth for any legal expenses incurred by the Commonwealth as a result of the challenge, including any damages, penalties or costs that the

Commonwealth may incur as a result of the Grantee’s legal challenge, regardless of the outcome.

f. Waiver. As between the parties, the Grantee waives all rights or remedies that may be available to it as a result of the Commonwealth’s disclosure of Requested

Information pursuant to the RTKL.

g. Survival. The Grantee’s obligations contained in this Section survive the termination or expiration of this contract.

9. OFFSET

The Commonwealth may set off the amount of any state tax liability or other obligation of the Grantee, or its subsidiaries, owed to the Commonwealth against any payments due the

Grantee under any contract between the Commonwealth and Grantee.

10. AUTOMATED CLEARING HOUSE (ACH) PAYMENTS

a. Payment Method. The Commonwealth shall make payments to the Grantee through the Automated Clearing House (ACH). Within 10 days of the grant award, the Grantee must submit or must have submitted its ACH information within its user profile in the Commonwealth's Master Database. The Grantee may enroll to receive remittance information via electronic addenda and email (e-Remittance).

ACH and e-Remittance information is available at the following:

https://www.budget.pa.gov/Services/ForVendors/Pages/Direct-Deposit-and-e-

Remittance.aspx

b. Unique Identifier. The Grantee must submit a unique invoice number with each invoice submitted. The Commonwealth shall list the Grantee’s unique invoice number on its ACH remittance advice to enable the Grantee to properly apply the state agency’s payment to the respective invoice or program.

c. ACH Information in the Commonwealth's Master Database. The Grantee shall ensure that the ACH information contained in Commonwealth’s Master Database is accurate and complete. The Grantee’s failure to maintain accurate and

d. complete information may result in delays in payments.

11. WORKER PROTECTION AND INVESTMENT

The Grantee shall comply with all applicable Pennsylvania state labor laws and worker safety laws including, but not limited to, the following:

a. Construction Workplace Misclassification Act;

b. Employment of Minors Child Labor Act;

c. Minimum Wage Act;

d. Prevailing Wage Act;

e. Equal Pay Law;

f. Employer to Pay Employment Medical Examination Fee Act;

g. Seasonal Farm Labor Act;

h. Wage Payment and Collection Law;

i. Industrial Homework Law;

j. Construction Industry Employee Verification Act;

k. Act 102: Prohibition on Excessive Overtime in Healthcare;

l. Apprenticeship and Training Act; and

m. Inspection of Employment Records Law.

Attachment C Nonpoint Source Management

DEPARTMENT OF ENVIRONMENTAL PROTECTION

GENERAL GRANT CONDITIONS

1. Legality. The Grantee shall perform all work under this agreement in accordance with applicable statutes, rules, and regulations of the Federal, State, and local governments.

2. Subcontracts. The Grantee may not enter into contract or agreement for the execution of the Project activities or provision of services to the Project (other than purchases of supplies, or standard commercial or maintenance services) that is not incorporated in the approved Project Scope of Work or approved in advance by the Department. The approved contract or agreement must provide that the Grantee will retain ultimate control and responsibility for the Project, and that the subcontractor is bound by these conditions and any other requirements applicable to the Contractor in the conduct of the Project.

3. Changes. Minor adjustments to this agreement may be made via a letter of mutual consent signed by the parties. Any significant adjustments to this agreement must be in made in the form of a formally executed amendment. It is within the sole discretion of the Department to determine if any adjustment is considered to be minor or major.

A. Changes that can be made by letter of mutual consent may include:

i The addition of work tasks incidental to the original scope of work when no changes to the contract budget or Performance Period are required.

ii Relocation of the Project to a different location within the same watershed area using the same work planned in the original Statement of Work in Attachment

A with the same environmental outcomes.

iii Reallocation of budget category dollar amounts to and from other budget categories if the maximum grant award amount payable by Department to

Grantee is not exceeded. If no project budget is included in this agreement, deviations from any budget that is part of the project file must be reviewed and approved by the Department designated project advisor.

iv The addition of funds to the total Grant Award for the purpose of continuing work described in Attachment A.

v The extension of the Period of Performance that does not require a change in the scope of the work.

B. Changes requiring a formally executed amendment may include:

i Modification of the Statement of Work in Attachment A to change the scope of work to be completed such as utilizing different methods that will yield different environmental outcomes.

4. Suspension. If the Department determines, in its sole discretion, that the terms and conditions of the agreement are not materially being met, the Department may, upon written notice to the Grantee, suspend the agreement until the Grantee has taken corrective action to the satisfaction of the Department, or until the agreement is terminated.

5. Assignment. In actual economic practice, overcharges by the Grantee's suppliers resulting from violations of State or Federal antitrust laws are, in fact, borne by the Commonwealth.

As part of the consideration for the award of the grant, the Grantee assigns to the

Commonwealth all right, title, and interest in and to any claims the Grantee now has or may hereafter acquire under State or Federal antitrust laws relating to the goods or services that are the subject of this agreement.

6. Termination. The Department may terminate the agreement, in whole or in part, at any time before the Project Completion Date:

A. if it, in its sole discretion, determines that terms and conditions of the Agreement have not been met, by providing written notice of termination to the Grantee.

Payments or recoveries by the Department will be in accordance with the legal rights and obligations of the parties.

B. if anticipated state or Federal funds are not obtained or continued at a sufficient level, by providing written notice of termination to the Grantee.

C. for its convenience or for any other reason if the Department determines, in its sole discretion, that termination is in the best interest of the Commonwealth, or is otherwise appropriate, by providing written notice of termination to the Grantee.

Payments or recoveries by the Department will be in accordance with the legal rights and obligations of the parties.

7. Extension of Time. Extensions of the period of performance are minor adjustments that may be accomplished by a letter of mutual consent signed by the parties, subject to the approval of the Commonwealth’s Comptroller.

8. Conflict of Interest

A. Interest of Parties and Others. No officer, member, employee, independent contractor, or elected official of the Commonwealth and no member of its governing body who exercises any functions or responsibilities in the review or approval of activities being performed under this agreement may participate in any decision relating to this agreement that affects his or her personal interest or the interest of any corporation, partnership, or association in which he or she is directly or indirectly interested; nor may any such officer, member, elected official, or employee of the Commonwealth or any member of its governing body have any interest, direct or indirect, in this agreement or the proceeds of the grant award.

B. Interest of Contractor. The Grantee represents and warrants that it presently has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of its work under this agreement. The

Grantee further covenants that in the performance of this agreement, it shall not knowingly employ any person having such interest. The Grantee further represents and warrants that no member of the board of directors of the Grantee or any of its officers have an adverse interest.

9. Payments. The Department shall make payment to the Grantee as stipulated in the agreement or Attachment A, as applicable. The Grantee shall pay its subcontractors or vendors for purchases or work performed under this agreement within 45 days of receipt of payment from the Department for the applicable reimbursement request. If the Grantee has a current environmental violation, the Department may withhold payment until the environmental violation is resolved to the satisfaction of the Department.

10. Interest Payments. For purposes of the interest payments required under 72 P.S. § 1507, if the Department directs the Grantee to perform additional work that is not included in the agreement, and no amendment to the agreement has been executed by the parties for the additional work, or if the term of the agreement has expired, payment is not due under the agreement until after the required amendment for the additional work or time extension has been fully executed by all of the parties.

11. Fiscal Records. The Grantee shall maintain complete and accurate books, records, documents, correspondence, and other evidence pertaining to the costs and expenses of this agreement (“Records") at its principal office or place of business. The Records must properly reflect all costs, direct and indirect, of labor, materials, equipment, supplies, and services, and other costs and expenses of whatever nature for which funding has been provided under this agreement, and in accordance with generally accepted accounting principles and the Department's fiscal regulations and guidelines.

12. Retention of Records. The Grantee shall maintain the Records retain and make them available for audit for a period of three years after final payment is made and the agreement has expired or terminated, and all other pending matters are resolved.

13. Right to Audit. The Grantee shall grant the Department and the Office of Auditor General, or any of their duly authorized representatives, access to the Records for the purpose of conducting an audit of financial transactions, compliance with the terms of the agreement, and evaluation of the Grantee’s performance. The Department may choose to examine excerpts, copies, and transcriptions of the Records during the course of an audit.

14. Copyright and Patent Indemnity. The Grantee shall indemnify and defend the

Commonwealth against all claims, suits, demands, losses, damages, costs, and expenses, including without limitation, litigation expenses, attorneys' fees, and liabilities, arising out of or in connection with any alleged infringement of any copyright or patent related to the work, services, materials, reports, supplies, and computer programs provided by the

Grantee under this agreement.

15. Copyright and Publication Rights. All publication rights and copyrights, in the documentation produced by the Grantee in connection with the grant activities or work performed under this agreement, rests with the Department. The Grantee shall not publish any of the results of the work without the written permission of the Department.

16. Sensitive Information. The Grantee shall not publish or otherwise disclose, any information or data obtained under the agreement from private individuals, organizations, or public agencies, including the Department, (“Sensitive Information’) in a publication whereby

Sensitive Information furnished by or about any person or establishment can be identified, except with the consent of that person or establishment. This limitation does not apply to information that the Grantee solely discloses to the Commonwealth or to matters of public record. Personal data, including names and addresses obtained in conjunction with grant activities (“Personal Data”), may not be used in any manner other than that contained in the scope of work. The Grantee shall not sell or use Personal Data to create solicitation lists of any kind, including donor solicitation lists.

17. Indirect Costs – If the Grantee requests payment for indirect costs it incurred performing the Project work set forth in the Statement of Work, the Grantee shall specify the method of determining those costs and provide sufficient documentation to support those costs.

Regardless of the method used to calculate indirect costs, the amount charged must not exceed actual costs incurred.

18. Independent Contractor - Nothing contained in this agreement is intended or may be construed to, in any respect, create or establish the relationship of partners between the parties, or as constituting the Grantee as the representative or general agent of the

Department for any purpose whatsoever.

19. Severability - The provisions of this agreement are severable. If any phrase, clause, sentence, or provision of this agreement is declared to be contrary to the Constitution of

Pennsylvania or of the United States or of the laws of the Commonwealth the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this agreement and the applicability thereof to any government, agency, person, or circumstance will not be affected.

20. Non-English Translations - This agreement has been prepared and written in English. Any non-English translation provided is for convenience only and is not valid or legally binding.

Attachment D Nonpoint Source Management

SPECIAL REQUIREMENTS/

SPECIAL CONDITIONS

A. Payment Terms:

1. Payments provided will be made for reimbursement of costs incurred by the Grantee upon presentation of properly certified documents.

2. Financial statements for payment of work shall be submitted using the Application for

Reimbursement form and its accompanying supplemental as provided by the

Department, and shall include in detail the various items of cost incurred during the period covered including but not limited to, salary, wages, mileage, lodging, meals, materials and supplies determined by the Department to be necessary to carry out the workplan. Reimbursement for lodging, meals, and mileage will be limited to applicable state rates. All requests must be accompanied by a work progress report detailing work completed during the request period. Grantee should refer to the primer for fitting charges within budget categories provided by the Department when preparing financial statements for payment.

3. Grantee may not purchase promotional items with grant funds. Alcoholic beverages may not be purchased under any circumstances.

4. Payments for reimbursable items shall be made on a quarterly basis; or more frequently at the discretion of the Department. Payment will be made to the Grantee based upon costs verified by the Department.

5. Payments will be made to the Grantee only if the Grantee is in full compliance with the terms and conditions of this agreement. If the Department determines that the Grantee has failed to comply with the terms and conditions of this agreement, the payment to the Grantee of the full amount of the grant may be jeopardized. In such event, the

Department will determine the dollar amount equating to such failure to comply; and, the Grantee will not be paid that amount. In addition, such lack of performance may adversely affect the Department’s determination of the Grantee’s responsibility to receive future Department grants.

6. An amount up to 10% of the total payment may be retained for the final payment which will be made after all items in the workplan, including a final report, are satisfactorily completed

7. Prior to final payment, a final report and any deliverables identified in the workplan

(such as OM&R Plan, as-built drawings, water quality data, contingency plan, or AMD

Treatment System Form for Datashed), shall be submitted to the Department along with a final Application for Reimbursement documenting costs incurred as part of A.5. The

Grantee shall also provide project and best management practice data via the

PracticeKeeper database so that the required Accomplishments Report may be generated. The final report and final Application for Reimbursement must be submitted to the Department within 30 days of the project completion date. If the Grantee submits to the Department within 30 days after the Project completion date, an acceptable final report and Application for Reimbursement in accordance with this agreement as determined by the Department, the Grantee will receive reimbursement of actual expenditures incurred up to the maximum grant amount, as adjusted by Paragraph A.5 above. If the Grantee submits an acceptable final report and Application for

Reimbursement:

a) Thirty-one to 60 days after the Project completion date, the Grantee will receive reimbursement of actual expenditures incurred up to 95% of the maximum grant amount, as adjusted by Paragraph A.5 above.

b) Sixty-one to 90 days after the Project completion date, the Grantee will receive reimbursement of actual expenditures incurred up to 90% of the maximum grant amount, as adjusted by Paragraph A.5 above.

c) More than 90 days after the Project completion date, the Department may decline to pay the final Application for Reimbursement and/or may not have the ability to pay the final Application for Reimbursement due to grant or appropriation lapse dates.

The Department reserves the right to waive the payment reduction provisions in subparagraphs a. and b. for extraordinary circumstances 1) due to causes determined by the Department, in its sole discretion, to be beyond the control of the Grantee; and

2) not foreseeable at the time of contract execution which prevent timely submission of an acceptable final report.

8. In addition to reimbursements under Paragraph A.1. and in order to obtain working capital for use in accordance with this agreement, the Grantee may submit a working capital payment request upon execution of this agreement. The payment request shall equal 20% of the total grant amount. Upon receipt of the Grantee’s written request justifying the need for a payment and upon the Department’s determination and EPA’s approval that the request represents payment needed to cover cash expenditures during a specified quarter, the Department agrees to make the payment. At the end of each quarter, the Grantee will submit documentation of actual expenses on the Department’s

Application for Reimbursement Form. The final reimbursement request must include documentation of working capital. If, at the project completion date, the total allowable expenditures are less than all payments including the working capital payment the unused funds must be returned to the Department.

9. Misuse or failure to use funds will require repayment of grant funds to the Department under any of the following conditions:

a) if Grantee fails to carry out the workplan after all or any part of the funds have been paid to the Grantee;

b) if the Grantee does not use or improperly uses all or a portion of funds in accordance with this agreement; or

c) any reason stated in this agreement.

If the Department is entitled to repayment of all or a portion of the funds, the repayment to the Commonwealth of Pennsylvania, shall be forwarded to the Department for the principal and total of any interest accrued from the disbursement date.

B. Reporting Requirements:

1. A work progress report must be submitted at least quarterly. The report must outline the completion status for each work element and give reasons for significant deviations from the scheduled plan of work and how such deviations will be corrected.

2. The Grantee shall immediately notify the Department, in writing, of any unusual development or circumstances which could significantly change or otherwise delay the work outlined in the workplan.

3. Any printed or electronically-generated document produced by the Grantee under this agreement that is selected by the Department for the purpose of printing, distribution or posting on the Department’s website or other electronic media, shall be provided by the Grantee to the Department in an electronic format. Specifically, the document must be received as either a Microsoft Word or Adobe Acrobat PDF document. The electronic file must be submitted either on a flash drive, OneDrive, cloud-based sharing tool or submitted as an attachment to an electronic mail message. Large files may be compressed using the ".zip" compression scheme.

4. The final report, as well as any other document resulting from this project, shall contain a statement indicating that the project was financed in part or in whole by a Federal

Environmental Protection Agency Grant provided by the Pennsylvania Department of

Environmental Protection. This includes news releases or materials produced for media events. The following statement shall also be included in the final documentation: "The views expressed herein are those of the author(s) and do not necessarily reflect the views of EPA, DEP, or any of its subagencies."

5. The final report shall contain all required work elements and deliverables listed in the workplan, and include measurable environmental results achieved as a result of the project for projects implementing best management practices. The Grantee shall provide project and best management practice data via the PracticeKeeper database so that the required Accomplishments Report may be generated.

6. The Grantee must provide the final report to the Department in an electronic format.

7. If the project includes an outreach component (such as printed materials, electronic media, outreach event, workshop, or press release) or permanent signage, these items must contain the EPA and DEP logos and the following statement, “Financial support for this project is provided by the Pennsylvania Department of Environmental

Protection under Section 319 of the Clean Water Act, administered by the U.S.

Environmental Protection Agency.

C. Miscellaneous Requirements:

1. Grantee is required to comply with the program guidelines associated with this grant program as well as any guidance documents provided by the Department.

2. If the Grantee will be using a contractor to perform services to complete this project, the Code of Federal Regulations (40 CFR 31.36) requires that all procurement transactions be conducted in a manner to provide full and open competition.

3. Technical equipment and nonexpendable supplies (such as water quality monitoring equipment, IT products, websites) purchased by the Grantee shall be the property of the

Grantee provided that such equipment or supplies are utilized by the Grantee to benefit the purposes of this project.

4. Funding and/or technical assistance provided from this grant to any agricultural operation shall be utilized in accordance with either:

a) United States Department of Agriculture (USDA) Natural Resources Conservation

Service (NRCS) Nutrient Management Standard Code 590 as adopted at the state level and at such time when USDA NRCS adapts guidelines at the state level for

Comprehensive Nutrient Management Plan (CNMP), all funding for such purposes will have to adhere to Nutrient Management Standard 590 and CNMP guidelines, or:

b) State program requirements and technical standards which are functionally equivalent to those identified in the final USDA NRCS Comprehensive Nutrient

Management Guidelines.

5. Grantee shall advise and receive approval from their Project Advisor of any deviation from the budget and workplan. The Grantee shall provide their Project Advisor with the project description and timeline, estimated pollutant load reductions and the model used, and revised Task and Deliverable Budget Worksheet for review and approval by the Department. In accordance with paragraph 3 of Attachment C, the Department will determine how the change will need to be documented.

6. Any riparian buffer planting funded under this grant must extend a minimum of 50 feet from the top of the adjoining stream bank to any fencing which may be constructed.

The grantee should seek landowner approval to exceed this minimum width wherever the current land use allows. Fencing installed will be specific to the animals currently maintained on the land and will be designed to restrict access to the riparian corridor and the stream. Details of the installation will be negotiated between the Grantee and the landowner, based on the specific requirements of the land use.

7. Prior to implementation of any agricultural Best Management Practice (BMP) utilizing funds provided under this agreement, approval is required by the Project Advisor unless the specific location and BMP is identified in the workplan. Failure to get the

Department Project Advisor’s approval could result in the Grantee being ineligible to receive reimbursement for this BMP under this agreement.

8. The Grantee and any subgrantees shall ensure that best management practices cost shared under this agreement are properly operated and maintained for the intended purposes for the scheduled life of the practice. Such practices shall be operated and maintained in accordance with commonly accepted standards. EPA and the

Commonwealth of Pennsylvania have the right to periodically inspect the project during the life span of this project to ensure that operation and maintenance are occurring. If it is determined that the Grantee or subgrantee is not operating and maintaining practices in an appropriate manner, EPA or the Department can request a refund for that practice supported by the grant. If the Grantee or subgrantee sells or loses control of the land under the grant and the new owner or controller is not eligible to participate in the program or refuses to assume responsibility under the contract, the

Grantee or subgrantee may be required to refund all or a portion of the grant.

9. Any pollutant reduction credits realized from the grant funded portion of this project, and recognized by the Department, are the property of the Commonwealth of

Pennsylvania, which maintains full ownership thereof. The Grantee releases all rights, claims, title or ownership to the pollutant reduction credits that are generated as a result of the grant funded portion of the work specified in this agreement.

10. If the Grantee is working on land the Grantee neither owns nor controls, the Grantee and the Landowner(s) will enter into a site access agreement, giving DEP and the

Grantee the right to enter upon the premises to perform the work described in

Attachment A workplan. The Grantee shall submit a Landowner-Grantee Agreement to the Department prior to construction or installation of a management practice.

11. If the workplan includes installation of a management practice in a watershed requiring a Watershed-Based Implementation Plan, the Grantee cannot begin installation of the management practice(s) prior to completion and Department approval of the

Watershed-Based Implementation Plan.

12. If water quality sampling data are being collected using funds under this agreement, a

Quality Assurance Project Plan (QAPP) must be followed in accordance with specific federal regulations (40 CFR 31.45 and 30.54).