Attachment B_Harrision Elevation_IDA Subreceipient Agreement2.pdf

CDBG-DR IDA Subrecipient Agreement Page 1 of 46

ATTACHMENT B

NEW YORK STATE

COMMUNITY DEVELOPMENT BLOCK GRANT AGREEMENT

IDA PROGRAM

SUBRECIPIENT AGREEMENT

[Subrecipient Name and Project]

Resilient Investments through Support and Capital

Project No. [__________]

AGREEMENT, made effective as of the [__]th day of [_________], 202_ (“Effective Date”), between the Housing Trust Fund Corporation (“HTFC”), represented by the Office of Resilient Homes and Communities (“RHC” and, together with HTFC, the "Corporation"), with offices at 38-40 State Street, Hampton Plaza, 4th Floor, Albany, New York, 12207, and ("Subrecipient"), a municipal corporation with offices at .

WHEREAS, the United States Department of Housing and Urban Development (HUD) has allocated Community Development Block Grant Disaster Recovery (“CDBG-DR”) funding to the State of New York to support long-term recovery efforts in response to Hurricane Ida (FEMA DR-4615), through the publication of the Federal Register, Vol.87, No. 100, May 24, 2022, as may be amended, (“87 Fed. Reg. 31,636”), and Federal Register, Vol. 88, No. 11, January 18, 2023, as may be amended, (“88 Fed. Reg. 3,198" collectively with 87 Fed. Reg.

31,636 the “Federal Register”); and

WHEREAS, this allocation was made available through the Disaster Relief Supplemental

Appropriations Act, 2022 (Pub. L.117-43) approved September 30, 2021 (the Appropriations Act) and the Continuing Appropriations Act, 2023 (Pub. L. 117-180) approved September 30, 2022 (the “2023 Appropriations Act); for necessary expenses related to disaster relief, long-term recovery, restoration of infrastructure, and housing and economic revitalization in the most impacted and distressed areas resulting from a qualifying major disaster in 2020 or 2021 (Pub. L. 117-43), and 2021 and 2022 (Pub. L. 117-180) , subject to the Federal statutes and regulations governing CDBG grants, as modified by exceptions and waivers previously granted and which may hereafter be granted by HUD; and

WHEREAS, pursuant to the CDBG-DR Grant Program and 87 Fed. Reg. 31,636, the State has received an allocation of CDBG-DR funds from HUD in the amount of $41,262,000; and

WHEREAS, pursuant to the CDBG-DR Grant Program and 88 Fed. Reg. 3,198, the State has received a second allocation of CDBG-DR funds from HUD in the amount of $26,966,000;

and

WHEREAS, eligible applicants are units of local/county government; state agencies and

CDBG-DR IDA Subrecipient Agreement Page 2 of 46 authorities; soil and water conservation districts; public schools (K-12) and universities; first responders, including volunteer fire and EMS districts; and not-for-profit entities eligible to receive federal funds and capable of completing work in one or more eligible counties (Dutchess, Nassau, Orange, Rockland, Suffolk, and Westchester Counties); and

WHEREAS, Subrecipient has applied to the Corporation for CDBG-DR funds to finance activities within its service area, as described in Subrecipient's CDBG-DR grant application;

and

WHEREAS, the Corporation has selected Subrecipient to implement the eligible CDBG- DR activities described herein.

NOW, THEREFORE, the Corporation and the Subrecipient (“the Parties”) agree that the Grant Funds (as defined below) will be administered in accordance with the following terms and conditions:

1. Contents of Agreement

The following documents are incorporated by reference into this Agreement as if fully set out herein: (a) the Sub-recipient's approved Application and accompanying submissions, as modified by the terms of this Agreement or any subsequent amendment approved by the Corporation; (b) the Corporation's CDBG Grant Administration Manual and its Program Guidelines (as now in effect and as may be revised from time to time); (c) applicable Federal and State law and regulations, as may be amended, including, but not limited to, Department of Housing and Urban Development ("HUD") regulations found at 24 CFR Part 570; (d) Schedule A “Scope of Work”; Schedule B "Awarded Budget”; Schedule C “Special Conditions”; Schedule D "Period of Affordability"; Schedule E “Federal Award Information”;

and Appendix I “Equal Opportunity Requirements”, attached hereto.

The Subrecipient shall thoroughly familiarize itself with the nature and scope of the Scope of Services under this Agreement (“Services”) and with matters which may affect this Scope of Services, including the Law governing the Scope of Services and this Agreement.

“Law” shall mean all existing and future Federal, State, and local statutes, laws, codes, ordinances, decrees, rules, regulations, requirements, required permits and licenses, and orders of any governmental authority, entity, or agency whether Federal, State, municipal, local, or other government body or subdivision, including the regulations governing CDBG- DR funds and the requirements for contracting with the State of New York. Any failure by the Subrecipient to thoroughly familiarize itself with and understand such matters shall not relieve the Subrecipient of its obligations under this Agreement. Changes in Law which require changes in the Services, or in Subrecipient’s means and methods, shall not entitle Subrecipient to any adjustment in the Price. For the avoidance of doubt, a change in Law shall include a change in the interpretation or administration of any Law, administrative protocols or procedures.

2. Subrecipient Program The Corporation will obligate CDBG-DR funding for, and Subrecipient will be responsible for performing, the activities detailed in the application submitted to the Corporation. Such

CDBG-DR IDA Subrecipient Agreement Page 3 of 46 funding is provided to meet a National Objective in accordance with 24 CFR Part 570 and the Federal Register and to provide the services as set forth in Schedule A.

A. Project Acceptance

The project budget set forth in this agreement specifies allowable funding for administrative costs, program delivery costs, and/or project costs. The Subrecipient shall not engage in, or in any way commit funding for, through a contract or other mechanism, construction or any other activities that could have an environmental impact or limit the choice of reasonable alternatives to the proposed project (“Restricted Activities”).

Prior to undergoing Environmental Review and receiving Authority to Use Grant Funds (each as defined below), the schedule for a proposed project set forth in Schedule A shall provide, with reasonable specificity, a proposed schedule for the proposed project as well as a description and schedule for activities proposed to be conducted in each phase of the proposed project.

B. Environmental Review This project is subject to environmental review under the National Environmental Policy Act (NEPA) and State Environmental Quality Review Act (SEQRA). Corporation environmental clearance must be secured prior to any choice limiting action, as defined by HUD, including but not limited to, site acquisition, tree or brush clearing, soil preparations, demolition, asbestos abatement, or any construction activities. Clearance will not be issued until:

(i) the Corporation has completed a county-wide Tier 1 environmental review;

(ii) the Subrecipient has certified on the HUD Request for Release of Funds prepared by the Corporation that it will comply with any conditions to address issues in the environmental review;

(iii) a Request for Release of Funds has been approved by HUD;

(iv) the Subrecipient has completed the template site-specific Tier 2 documentation and submitted to the Corporation for approval; and

(v) the Corporation issues a site-specific clearance letter stating that the federally required review per the National Environmental Policy Review Act (NEPA), as applicable, is complete, for that specific site.

(vi) As this program allows for reimbursements per [insert provision that allows reimbursement in this program] the reimbursement costs will not be released until a Tier 2 demonstrating compliance with reimbursement requirements is approved by the Corporation.

The Subrecipient shall cooperate and provide any analysis or information reasonably requested by the Corporation to conduct the Environmental Review for the proposed project. The Subrecipient is required to comply and cooperate with the Corporation in meeting all terms and conditions under this Agreement including to obtain the ‘Authority to Use Grant Funds’ and submit the first request for funds to Corporation within 180 days of the date of the effective date of this Agreement.

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Upon completion of the Environmental Review, the Corporation may: (i) upon HUD’s issuance of the Authority to Use Grant Funds for a proposed project, initiate the proposed project; (ii) approve an alternative or modified project identified through the Environmental Review Process and, notwithstanding anything to the contrary contained in the Agreement, unilaterally adjust the Grant Funds amount accordingly; or (iii) cancel the project and, notwithstanding anything to the contrary contained in the Agreement, unilaterally reduce the Grant Funds by an amount equal to the amount otherwise allocated to construction or other implementation phase of the proposed project.

Subrecipient shall not be reimbursed for any costs until all environmental conditions of 24 CFR Part 58 have been fully satisfied and Corporation has issued the environmental clearance required thereunder, unless the activity is exempt under section 58.34 or falls under a categorical exclusion listed in section 58.35(b), as pre-determined by the Corporation.

Environmental Review will consist of two tiers. Tier 1 will be conducted by the Corporation and generate a Tier 2 template that must be completed by the Subrecipient or its designee and submitted to the Corporation for approval prior to any Choice Limiting Actions related to the site that is the subject of the Tier 2 review. Following the completion of the Tier 1 Environmental Review and approval of the proposed project’s initiation, the Corporation will notify the Subrecipient in writing (“Clearance Letter”) that Subrecipient may commit funds for activities necessary for program implementation.

However, site specific activities cannot commence until the Subrecipient has prepared and submitted, and the Corporation has approved, the Tier 2 review for a particular site.

The Corporation will notify the Subrecipient in writing of Tier 2 approvals.

C. Project Phase If construction/implementation is authorized by the Corporation in the Clearance Letter, Subrecipient must comply with any and all conditions or required mitigation set forth in the Environmental Review documents, and shall document compliance with such measures, as well as any permit requirements, or other applicable requirements of Federal and State environmental laws, including worker health and safety requirements.

The Subrecipient shall provide reports to the Corporation to document compliance with the requirements referenced above for the entirety of the construction phase, including any and all pre-occupancy or final clearance items.

If a proposed project is not completed as proposed by the scope reviewed in either the Tier 1 or Tier 2 environmental review, program delivery and project costs are not eligible as there is no CDBG-eligible activity. Costs incurred and funds disbursed for projects that do not advance are subject to repayment.

The Subrecipient shall comply with the terms of the Special Conditions of this Agreement, as set forth herein as Schedule C. As a cost-incurred program, tasks and deliverables must be conducted in a manner satisfactory to the Corporation and in compliance with applicable Federal and State requirements, laws, and regulations. In

CDBG-DR IDA Subrecipient Agreement Page 5 of 46 the event the Corporation’s funds do not cover 100% of the agreed upon budget (see Section 4 Budget) for the Subrecipient Program Description, Subrecipient must identify committed supplemental funding. Substandard performance or any election by Subrecipient to discontinue work, as reasonably determined by the Corporation in its sole discretion, will constitute noncompliance with this Agreement. If Subrecipient does not take action to correct such substandard performance or discontinuance of work within a reasonable period of time (as determined by the Corporation) after being notified by the Corporation, the Corporation may choose (a) not to reimburse Subrecipient for noncompliant and/or unallowable work, (b) take action to suspend or terminate this Agreement, (c) recapture awarded funds, or (d) other actions as permitted under applicable law. Nothing in this Agreement shall waive or otherwise limit the actions the Corporation may take or the remedies the Corporation may seek as a result of any noncompliance by Subrecipient, including but not limited to suspending or debarring Subrecipient from future State benefits.

D. Supervision of Services.

The Subrecipient shall perform the Scope of Services contained herein in a diligent, safe and workmanlike manner that conforms to generally accepted industry and professional practices, and the care and skill ordinarily exercised, for such Scope of Services. The Subrecipient will perform work under this Agreement by competent personnel under the management, supervision, and direction or employment of the Subrecipient.

Corporation may, upon reasonable prior notification, call meetings which shall be attended by representatives of the Subrecipient. Subrecipient will cooperate with Corporation at all times during the performance of the Scope of Services and promptly review and act upon, as is commercially reasonable, all Corporation recommendations and proposals. Subrecipient will cooperate with Corporation in promptly completing and submitting all documents and records required by Corporation or other authorized representative of Corporation or the State of New York and otherwise comply with all applicable orders, administrative rules, regulations and procedures of Corporation for the proper administration of the Services.

3. Term

The period of performance for all activities (with the exception of those activities required for the close-out and final audit) assisted pursuant to this Agreement shall commence as of the date of this Agreement (“Effective Date”) and shall end two (2) years from the “Effective Date” (“Initial Term”). Thereafter, at Corporation’s sole discretion, Corporation may exercise up to two (2) two-year extensions (“Extension Terms”), at additional cost to Corporation based upon costs to be negotiated, not to exceed a total of six (6) years (inclusive of the Initial Term and all Extension Terms). However, under no circumstances shall the term of this Agreement exceed the period of performance of the grant agreement between HUD and the Corporation. Any extensions of this Agreement shall be mutually agreed to by the Parties in writing through an amendment to the Agreement. Any funds not properly used by the end of the term, including Program Income (as defined herein), unless

CDBG-DR IDA Subrecipient Agreement Page 6 of 46 approved otherwise in writing by the Corporation, promptly shall be remitted, in full and without off-set or deduction, to the Corporation. If approved in writing by the Corporation, the term of this Agreement and the provisions herein shall be extended to cover any additional time period during which the Subrecipient remains in control of CDBG funds or other CDBG assets, including Program Income.

4. Budget

Subrecipient’s budget for the activities detailed in the Subrecipient Program Description is set forth in Schedule B “Awarded Budget”. The Corporation may also require additional budget information, and Subrecipient shall provide such supplementary budget information in a timely fashion in the form and content prescribed by the Corporation. Any change to budgeted amounts must be approved in writing by the Corporation before such changes are allowed and reimbursable.

5. Grant Funds

It is expressly agreed and understood that the total amount to be paid by the Corporation under this Agreement shall not exceed $ (“Grant Funds”). Subrecipient shall under no circumstances exceed the total Grant Funds amount without a properly and fully executed amendment placed against this Agreement. Corporation will not be obligated to remit payment to the Subrecipient for any fees or expenses (including termination costs and reimbursements) if to do so would exceed the total Grant Funds amount, and Subrecipient shall not be obligated to continue performance if to do so would cause the Subrecipient’s fees to exceed the Grant Funds amount, unless and until an amendment is executed.

The amount of Grant Funds that the Corporation has agreed to provide Subrecipient under this Agreement is expressly conditioned upon the Corporation’s receipt of such funds from HUD pursuant to the 2023 Appropriations Act. The Corporation reserves the right to reduce the Grant Funds if funding from HUD is not provided at the currently anticipated levels and/or if the actual costs for the approved activities are less than those set forth in the Budget.

In the event Subrecipient is awarded, granted, or provided with additional funds from any other source, which includes funds that Subrecipient uses or intends to use to fund, in part or in whole, programs, projects or activities contemplated by this Agreement or any subsequent amendment hereto, Subrecipient shall immediately notify the Corporation of such funds, the amount, the source, and the conditions for their use. Subrecipient further agrees to provide any additional information the Corporation requests related to such funds.

The Subrecipient may not engage in, or in any way commit funding for, a contract or other mechanism, construction work, real estate acquisition, or any other activities that could have an environmental impact or limit the choice of reasonable alternatives to the proposed project until Subrecipient has received the Authority to Use Grant Funds.

6. Disbursement of Grant Funds; Duplication of Benefits

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A. Subrecipient is required to submit requests for Grant Funds in accordance with the provisions of this Agreement, program guidelines, and the program policy and procedures which are established by the Corporation. No payment by the Corporation of an improper, unauthorized, or unallowable request shall constitute a waiver of the Corporation’s right, whether before, during, or after making any payment, to: (a) challenge the validity of such payment; (b) enforce all rights and remedies set forth in this Agreement or provided under applicable law; (c) require and receive a full repayment or refund of all payments made under this Agreement; or (d) take corrective or remedial administrative action including, without limitation, suspension or termination of Subrecipient’s funding under this Agreement.

B. Subrecipient shall certify in a statement made by a senior official with each request for Grant Funds that to the best of his or her knowledge, based on the information available to Subrecipient at the time and after making due inquiry, that: (a) all statements and representations previously made regarding this Agreement are correct and complete;

and (b) the funds do not duplicate reimbursement of costs and services from any other source. Subrecipient shall not carry out any of the activities under this Agreement in a manner that results in a prohibited duplication of benefits as defined by Section 312 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 USC 5155) and described in the Federal Registers. Specifically, Section 312 prohibits any person, business concern, or other entity from receiving “any part of such loss as to which he has received financial assistance under any other program or from insurance or any other source.” 42 USC 5155 (a). A duplication occurs when Federal financial assistance is provided to a beneficiary to address losses resulting from a Federally declared emergency or disaster, and the beneficiary has received (or would receive, by acting reasonably to obtain available assistance) financial assistance for the same costs from any other source (including insurance), and the total amount received exceeds the total need for those costs. The amount of the duplication is the amount of assistance provided in excess of need.

C. The use of Grant Funds is conditioned upon Subrecipient incurring allowable costs permitted under the terms of this Agreement or as otherwise pre-approved, in writing, by the Corporation.

D. In the event applicable State or Federal Government authorities disallow any of the costs incurred by Subrecipient, Subrecipient shall immediately remit any funds received by Subrecipient for the unallowable costs to the Corporation. Subrecipient may request, and the Corporation shall reasonably consider, Subrecipient’s request, that the Corporation challenge the State or Federal determination and pursue other legal recourse to secure these funds; however, the Corporation maintains the sole discretion in deciding whether to pursue such funds and may request that Subrecipient pay any costs associated with such effort, and may require that Subrecipient return the questioned funds until a final outcome is reached.

E. To ensure compliance with Section 508 of the Housing and Community Development Act (“HCD Act”), units of general local government applying for or receiving CDBG-DR funds from the State must provide citizens with adequate opportunity to participate in the planning, implementation, and assessment of the CDBG program. Any such UGLG must provide adequate information to citizens, obtain views and proposals of citizens, CDBG-DR IDA Subrecipient Agreement Page 8 of 46 and provide opportunity to comment on the UGLG’s previous community development performance.

7. General Conditions A. Compliance; Monitoring

Subrecipient agrees to comply with the requirements of Title 24 of the Code of Federal Regulations, Part 570 (HUD’s regulations concerning Community Development Block Grants), and the Federal Register, including any regulations referenced therein except:

(1) Subrecipient does not assume Corporation’s environmental responsibilities described in 24 CFR 570.604; and

(2) Subrecipient does not assume Corporation’s responsibility for initiating the review process under the provisions of 24 CFR Part 52.

Where waivers or alternative requirements are provided for in the applicable Federal Register Notices published by HUD (“HUD Notices”), including but not limited to those published on May 24, 2022, Federal Register, Vol.87, No. 100, (“87 Fed. Reg. 31,636”), as may be amended, and January 18, 2023, Federal Register, Vol. 88, No. 11, (“88 Fed.

Reg. 3,198") as may be amended, such requirements, including any regulations referenced therein, shall apply.

Subrecipient also agrees to comply with all other applicable Federal, State and local laws, regulations, HUD notices, policies, and guidelines, including those of the Corporation, whether existing or to be established, provided the same are applied to activities occurring after the date the policy or guideline was established, governing the Grant Funds provided under this Agreement. In the event a conflict arises between the provisions of this Agreement and any of the foregoing, the Federal, State, and local laws, regulations, HUD notices, policies, and guidelines shall control and this Agreement shall be interpreted in a manner so as to allow for the terms contained herein to remain valid and consistent with such Federal. State, and local laws, regulations, HUD notices, policies and guidelines. In the event of a conflict between the Federal, State and local laws, the most restrictive law will apply. Subrecipient further agrees to utilize Grant Funds available under this Agreement to supplement rather than supplant funds otherwise available.

The Corporation will monitor the performance of Subrecipient in accordance with regulations of Subrecipient Monitoring and Management, 2 CFR 200.331 through 2 CFR 200.333, to ensure compliance with all of the requirements of this Agreement and the goals and performance standards as stated in this Agreement and the Subrecipient Program Description. Subrecipient shall provide the Corporation all necessary reporting information as required by Corporation. Substandard performance as determined by the Corporation will constitute noncompliance with this Agreement. If action to correct such substandard performance is not taken by Subrecipient within the frame specified by the Corporation, the Corporation may impose additional conditions on Subrecipient and its use of CDBG-DR funds consistent with 2 CFR 200.208, suspend or terminate this Agreement, or initiate other remedies for noncompliance as appropriate and permitted

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B. Independent Contractor Nothing contained in this Agreement is intended to, or shall be construed in any manner, as creating or establishing the relationship of employer/employee between the Parties. Subrecipient shall at all times remain an “independent contractor” with respect to the efforts to be performed under this Agreement. The Corporation shall be exempt from payment of all Unemployment Compensation, FICA, retirement, life and/or medical insurance, Workers’ Compensation Insurance, Disability Insurance, and Paid Family Leave Benefits Law Insurance, on behalf of Subrecipient and its employees and subcontractors, as Subrecipient is an independent entity. Subrecipient shall provide evidence that it maintains all such coverages as required by State and Federal laws, and by this Agreement

C. Hold Harmless To the fullest extent permitted by law, Subrecipient shall and hereby agrees to hold harmless, defend (with counsel acceptable to the Corporation) and indemnify the Corporation and each and all of its successors, affiliates, or assigns, and any of their employees, officers, directors, attorneys, consultants, agents, managers, and affiliates, from and against any and all damages, costs, attorneys’ fees, claims, expenses, injuries, property damage, causes of action, violations of law, violations of this Agreement, any infringement of copyright, royalty, or other proprietary rights in consequence of any design(s) created and/or specifications prepared in accordance with the Agreement or Scope of Services, any injuries or damages resulting from defects, malfunction, misuse, etcetera of Subrecipient-provided equipment or materials, and losses of any form or nature arising from or related to the conduct (including any acts, omissions, malfeasance, negligence, or willful misconduct) of Subrecipient, or anyone under Subrecipient’s direction or control or for whose acts or omissions Subrecipient may be deemed responsible or liable (collectively, “Subrecipient”), in the performance of the efforts called for in this Agreement. This indemnity shall expressly include, but is not limited to, the obligation of Subrecipient to indemnify and reimburse the Corporation for any and all attorneys’ fees and other litigation or dispute resolution costs incurred or to be incurred in the Corporation’s enforcement of this Agreement or any portion thereof against Subrecipient or otherwise arising in connection with Subrecipient including, but not limited to, Subrecipient’s breach, violation, or other non-compliance with this Agreement. This clause shall survive indefinitely the termination of this Agreement for any reason.

D. Non-Liability Nothing contained in this Agreement or elsewhere shall impose any liability or duty whatsoever on the State, the Corporation, or any agency or subdivision of the foregoing except as otherwise expressly stated in this Agreement.

E. Statute of Limitations No action shall lie or be maintained against the State or the Corporation upon any claim based upon or arising out of this Agreement or the work performed hereunder or

CDBG-DR IDA Subrecipient Agreement Page 10 of 46 anything done in connection therewith, unless such action shall be commenced within one (1) year from the termination or expiration of this Agreement or six (6) months from the accrual of the cause of action, whichever is earlier.

F. Insurance During the Term, and any Extension Terms, the Subrecipient shall take all adequate measures to safeguard against the risk of liability for damages and/or injuries or death of employees of the Subrecipient, contractors and subcontractors, and of any other persons. Prior to the commencement of work, and prior to any expiration or anniversary of any respective insurance policy terms, the Subrecipient shall provide the Corporation with insurance certificates evidencing the following insurance types and limits: (a) comprehensive general liability coverage in a minimum amount of one million dollars per occurrence and two million dollars aggregate naming the Corporation and the State of New York as “additional insureds”; b) excess or umbrella insurance in the amount of one million dollars per occurrence and two million dollars aggregate, naming the Corporation and the State of New York as “additional insureds”;

c) Comprehensive Automobile Liability insurance (if applicable) in the amount specified by the Corporation; d) Property insurance (if applicable) ; e) crime/fidelity coverage in an amount not less than the largest anticipated disbursement request for Program funds naming the Corporation as loss payee; and f) statutory Workers Compensation, Disability, and Paid Family Leave Benefits Insurance covering employers’ liability, workers compensation coverage, disability benefits coverage, and paid family leave coverage as required by the provisions of the Workers Compensation Law (WCL) of the State of New York. The general liability and excess insurance policies shall be written on an occurrence basis and shall apply on a primary, non-contributory basis irrespective of any other insurance whether collectible or not. All insurance policies shall be procured and maintained with New York State licensed carriers of insurance.

Subrecipient will furnish to Corporation certificates of insurance evidencing all required insurance prior to the commencement of work. Further, Subrecipient will provide copies of the full and complete policies, with all endorsements, to Corporation upon its request but no later than prior to the first disbursement of funds.

It is understood and agreed that neither the purchase nor maintenance of any type of insurance by Subrecipient or its subcontractors shall in any way be construed or deemed to limit, discharge, waive or release Subrecipient or any subcontractors of any tier from any of the obligations or risks accepted by them, or to be a limitation on the nature or extent of said obligations and risks.

Within two (2) business days of having received any notice of non-renewal, cancellation, termination, or rescindment for any type of insurance required herein; the Subrecipient shall provide the Corporation with a copy of such notice, either by facsimile or email (in pdf format) to the signatory hereof, together with an explanation of any efforts taken to reinstate such coverage. The Subrecipient may not cancel, terminate, or fail to renew any insurance policy required herein, unless and until the

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Subrecipient has received the Corporation’s written consent thereto. Failure to purchase and maintain adequate or proper certification of insurance, specifically including Corporation and the State of New York as “additional insureds” shall be deemed a breach of contract.

An ACORD Certificate of Insurance is an acceptable form to submit evidence of all forms of insurance coverage except Workers’ Compensation Insurance, Disability

Benefits Insurance, and Paid Family Leave Benefits Insurance.

Notwithstanding the above, for construction or facility improvement performed by Subrecipient, Subrecipient shall, at a minimum, comply with the bonding requirements at 2 CFR Part 200, subpart D.

G. Corporation Recognition

If requested by the Corporation, Subrecipient shall ensure recognition of the role of HUD and the Corporation in providing funding, services, and efforts through this

Agreement. If requested by the Corporation, all activities, facilities, and items utilized pursuant to this Agreement shall be prominently labeled as to the role of HUD and of the Corporation. In addition, Subrecipient will include a reference to the support provided herein in all publications made possible with funds made available under this Agreement. The Corporation reserves the right to direct specific reasonable requirements on a case-by-case basis, including but not limited to, the size and content, waiver, removal or addition of such recognition.

H. Amendments This Agreement may be amended provided that such amendments make specific reference to this Agreement, comply with programmatic policies, procedures, and guidelines, are executed in writing by a duly authorized representative of each Party, and approved by the Corporation’s governing body. Such amendments shall not invalidate this Agreement, nor relieve or release the Parties from their obligations under this Agreement. The Corporation may, in its sole discretion, amend this Agreement to conform with Federal, State, or local governmental guidelines, policies, and available funding amounts, or for other reasons. If such amendments result in a change in the Grant Funds or the Subrecipient Program Description or extend the Term of this Agreement, such modifications will be incorporated in a written amendment signed by the Parties.

The Corporation may, at its sole discretion, provide need-based awards to commit additional grant funds specifically for the continuance or expansion of CDBG eligible activities. The Corporation may, at its sole discretion, also provide multi-year grant agreements based on the Corporation’s available CDBG funds. Additional funds are subject to board approval.

I. Suspension or Termination from Event of Default

i. The Corporation may suspend or terminate this Agreement if Subrecipient materially fails to comply with any terms of this Agreement or if an Event of Default, as defined below, shall occur. In such cases, all obligations on the part of the

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Corporation to make any further payment of Grant Funds shall, if the Corporation so elects, terminate and the Corporation may, in its discretion, exercise any of the remedies set forth herein; provided, however, that the Corporation may make any payments after the happening of an Event of Default without thereby waiving the right to exercise such remedies, and without becoming liable to make any further payment(s).

The following shall constitute an Event of Default hereunder: a) if the Subrecipient fails, in the opinion of the Corporation, to comply with or perform any provision, condition or covenant contained in this Agreement, any applicable State or Federal law or regulation, or the program policies and procedures established by the Corporation; b) if at any time any presentation or warranty made by the Subrecipient shall be incorrect or materially misleading; c) if a lien for the performance of work or the furnishing of labor or materials is filed against the Program or any improvement financed thereunder and remains unsatisfied, undischarged or unbonded at the time of any request for disbursement or for a period of twenty (20) days after the date of filing of such lien; d) if the Subrecipient shall fail to comply with any of the terms of any mortgage, deed of trust, security agreement, loan agreement, credit agreement or other instrument executed in favor of any other party; e) if the Subrecipient has failed to commence or complete the Project for any reason except those beyond Subrecipient’s control within the Term of the agreement; f) ineffective or improper use of funds provided under this Agreement; g) submission by Subrecipient to the Corporation of reports that are untimely, incorrect, or incomplete in any material respect; or h) Subrecipient is found to be non-responsible (as defined below in subsection K).

ii. Upon the happening of an Event of Default, the Corporation may, in its discretion, exercise any one or more of the following remedies, either concurrently or consecutively, and the pursuit of any one of such remedies shall not preclude the Corporation from pursuing any other remedies contained herein or otherwise provided at law or in equity: a) terminate this Agreement, provided that the Subrecipient is given at least thirty (30) days prior written notice; b) commence a legal or equitable action to enforce performance of this Agreement; c) withhold or suspend payment of Grant Funds; d) exercise any corrective or remedial action to include, but not be limited to, advising the Subrecipient to suspend, discontinue or refrain from incurring costs for any activities in question or requiring the Subrecipient to reimburse the Corporation for the amount of Grant Funds expended or used in an unauthorized manner or for an unauthorized purpose; or e) require repayment of Grant Funds in whole or in part.

iii. In the event this Agreement is terminated by the Corporation for any reason, or upon the closeout of the Project, unless the Subrecipient obtains the prior written consent of the Corporation to the contrary, all unspent Grant Funds held by the Subrecipient shall immediately be turned over to the Corporation, and the Corporation shall have no further liability or obligation under this Agreement;

provided, however, that nothing herein is intended to relieve the Corporation of its

CDBG-DR IDA Subrecipient Agreement Page 13 of 46 obligation to pay for services properly performed by the Subrecipient prior to such termination. Notwithstanding any such termination or closeout, the Subrecipient shall remain liable to the Corporation for any unspent Grant Funds, the expenditure or use of the Grant Funds in a manner or for a purpose not authorized by this Agreement, or damages as a result of any breach of this Agreement by the Subrecipient. The Corporation shall have the right, at any time prior or subsequent to any such termination or closeout, to pursue any and all available remedies, including seeking injunctive or other equitable relief, to enforce the provisions of this Agreement and to recover Grant Funds which are unspent, expended, or used in an unauthorized manner or for an unauthorized purpose.

iv. This Agreement may also be terminated for convenience by the Corporation, in whole or in part, by setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if in the case of a partial termination, the Corporation determines that the remaining portion of the award will not accomplish the purpose for which the award was made, the Corporation may terminate and recapture the award in its entirety.

v. In the event that the Agreement is terminated for cause, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports prepared by the Subrecipient under this Agreement shall become Corporation’s property and the Subrecipient shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder.

Notwithstanding the above, the Subrecipient shall not be relieved of liability to Corporation for damages sustained by Corporation, by virtue of any breach of the Agreement by the Subrecipient, and Corporation may withhold any payments to the Subrecipient for the purpose of set-off until such time as the exact amount of damages due Corporation from the Subrecipient is determined.

J. Notice of Investigation or Default

The Subrecipient shall notify the Corporation within five (5) calendar days after obtaining knowledge of

i. the commencement of any investigation or audit of its activities by any governmental agency;

ii. the alleged default by the Subrecipient under any mortgage, deed of trust, security agreement, Loan agreement or credit instrument executed in connection with the Project; or

iii. the allegation of ineligible activities, misuse of the project funds, or failure to comply with the terms of the Subrecipient's approved application. Upon receipt of such notification, the Corporation may, in its discretion, withhold or suspend payment of some or all of the project funds for a reasonable period of time while it conducts a review of the Project’s activities and expenditures.

K. Vendor Responsibility

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Pursuant to State Finance Law Section 163 (9)(f) and N.Y. Comp. Codes R. & Regs.

Tit. 9 § 8.192 and N.Y. Comp. Codes R. & Regs. Tit. 9 § 9.6, the Corporation must determine the entity with which they contract to be a responsible entity. Subrecipient must be found to be responsible at the time of award and must remain responsible throughout the Term and any Extended Terms of the Agreement. If requested by the Corporation, Subrecipient agrees to present evidence of its status as a responsible entity. In the event of failure to produce requested documents or failure of the Corporation’s responsibility review to produce a positive finding of responsibility, the Corporation reserves the right to suspend work under this Agreement. The Corporation is authorized to terminate this Agreement for cause upon a determination that the Subrecipient is non-responsible.

L. Access to Records

Subrecipient shall furnish, and shall cause each of its own sub-subrecipients, contractors and subcontractors to furnish within a reasonable time, all information and reports required hereunder and will permit access to its books, records, and accounts by Corporation, HUD or its agent, the Comptroller General of the United States, or other authorized Federal officials for purposes of investigation to ascertain compliance with the rules, regulations and provisions stated herein.

M. Ownership and Use of Documents

i. The Subrecipient agrees that all plans, specifications, drawings and other documents of any kind whatsoever, and in whatever medium expressed, prepared by the Subrecipient pursuant to this Agreement, and all rights therein (including trademarks, trade names, rights of use, copyrights and/or other proprietary rights shall be and remain the sole property of Corporation (whether or not Corporation or the Subrecipient terminates this Agreement for any reason whatsoever).

ii. Submission or distribution of documents to meet official regulatory requirements or for other purposes in connection with this Agreement is not to be construed as publication in derogation of Corporation’s rights. For the avoidance of doubt, Corporation shall own all right, title, and interest in and to all documents, as well as all other physical deliverables (including models, renderings, and other presentation materials) prepared and/or furnished by Subrecipient to Corporation pursuant to the Agreement. Except as expressly provided in this Agreement, the Subrecipient shall not use (or distribute) any material relating to this Agreement without Corporation’s prior written consent.

iii. This Section shall survive the termination or expiration of this Agreement.

N. Subrecipient Representations and Warranties

The Subrecipient represents, covenants and warrants that:

i. Subrecipient is a company in good standing and qualified to carry on business in the State of New York and has the approval, capacity, and authority to enter into this Agreement and to perform the obligations of the Subrecipient under this Agreement;

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ii. This Agreement does not in any way conflict with any other agreements of the Subrecipient;

iii. The Subrecipient possesses the business, professional, and technical expertise, and training required to perform the Services;

iv. The Subrecipient has or shall obtain, or cause to be obtained, all personnel necessary, with appropriate education, experience and expertise, to undertake and provide the Services in a manner satisfactory to Corporation;

v. The Subrecipient possesses the equipment, facilities, and employees to perform the obligations under this Agreement;

vi. The Subrecipient and/or its facilities, employees, or agents, have been issued, as of the date of this Agreement and throughout the Term and any Extended Terms of the Agreement, all material permits, licenses, certificates, or approvals required by applicable Law necessary to perform the Services; and

vii. That all documents, including, but not limited to, invoices, billings, back-up information for invoices, and reports submitted by the Subrecipient to Corporation in connection with the Services are complete and accurate to the best of the knowledge of the Subrecipient. The Subrecipient represents that Corporation, for whatever purpose, may rely upon all such documents and the data therein as being complete and accurate. The Subrecipient agrees to promptly notify Corporation upon discovery of any instances where the Subrecipient becomes aware of any discrepancies in relation to documents under this Section.

8. Administrative Requirements

A. Financial Management

i. Accounting Standards Subrecipient agrees to comply with 2 CFR Part 200, as modified by 24 CFR 570.502, and to adhere to the accounting principles and procedures required therein, utilize adequate internal controls, and maintain necessary source documentation for all costs incurred.

ii. Cost Principles Subrecipient shall administer the program in conformance with 2 CFR Part 200, subpart E, as applicable to “Cost Principles for State, Local, and Indian Tribal Governments” (formerly OMB Circular A-87), “Cost Principles for Non-profit Organizations” (formerly A-122), “Cost Principles for Educational Institutions” (formerly A-21). These principles shall be applied for all costs incurred whether charged on a direct or indirect basis (if allowed).

iii. Inspection and Acceptance

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Subrecipient shall only tender for acceptance those items that conform to the requirements of this Agreement. Corporation reserves the right to inspect or test any deliverables or Services that have been tendered for acceptance and may require re-performance of nonconforming Services. If reperformance will not correct the defects or is not possible, Corporation may seek adequate consideration for acceptance of nonconforming Services. Corporation must exercise its post-acceptance rights within a reasonable time after the defect was discovered or should have been discovered

iv. Payment Process and Accounting Procedures

i. Payment for all Services shall be made in United States currency.

ii. Payment will be made upon receipt of an accurate and complete invoice from the Subrecipient for Services rendered. Corporation reserves the right to refuse payment on any portion thereof, until such portion is acceptably presented.

iii. Subrecipient is solely responsible for all of its costs and any other expenses necessarily and incidentally incurred in order to complete the Services.

iv. All amounts paid by Corporation to the Subrecipient are subject to audit by the Corporation.

v. Payment received hereunder shall be the full and complete satisfaction of any and every claim resulting from the approved items in any invoice.

vi. Corporation’s payment of all or a part of an invoice shall neither relieve the Subrecipient of any of its obligations under this Agreement nor constitute a waiver of any claims by Corporation.

B. Documentation and Record Keeping

i. Records to Be Maintained Subrecipient shall maintain all records required by applicable law to be maintained, including but not limited to the Federal regulations specified in: (a) 2 CFR Part 200;

(b) 24 CFR 570.506; and (c) the Federal Register and all other applicable HUD notices that are pertinent to the activities to be funded under this Agreement, as well as any additional records required by the Corporation. Such records shall include but not be limited to:

• Records providing a full description of each activity undertaken;

• Records demonstrating that each activity undertaken meets one of the National Objectives of the CDBG program as modified by the Federal Registers;

• Records required to determine the eligibility of activities;

• Records required to document the acquisition, improvement, use, or disposition of real property acquired or improved with CDBG-DR funds, as applicable;

• Records documenting compliance with the fair housing and equal opportunity components of the CDBG program, as applicable;

• Financial records as required by (1) 24 CFR 570.502; and (2) 2 CFR Part 200;

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• Other records necessary to document compliance with Subpart K of 24 CFR Part 570.

At a minimum, Subrecipient shall maintain records required by 24 CFR 570.506 as if the requirements in 24 CFR 570.506 were directly imposed upon Subrecipient and additionally include any recordkeeping requirements imposed by the Federal Registers.

ii. Retention

Subrecipient shall retain all financial records, supporting documents, statistical records, and all other records pertinent to the Agreement for seven (7) years following the final disbursement of the Grant Funds. However, no records, supporting documents, statistical records and all other records may be destroyed without receiving written consent from HTFC, which shall not occur, for Subrecipients who are units of local government, sooner than three (3) years from closeout of the HUD grant.