NAE_FY23_FHWA_-_General_Terms_and_Conditions_-_Oct_2024.docx

U.S. Department of Transportation

General Terms and Conditions Under the FISCAL YEAR 2023 NEIGHBORHOOD ACCESS AND EQUITY PROGRAM:

FHWA Projects

DRAFT; NOT INTENDED FOR EXECUTION

Revision date: October 1, 2024

DRAFT; NOT INTENDED FOR EXECUTION

Revised 2017-04-18

Table of Contents

Index of Definitions

General Terms and Conditions The Inflation Reduction Act, Pub. L. No. 117-169 (Aug. 16, 2022) (the “IRA”) made funds available to the United States Department of Transportation (the “USDOT”) for fiscal year 2022 to remain available until September 30, 2026, to carry out the Neighborhood Access and Equity (NAE) Grant Program by providing competitive grants to improve walkability, safety, and affordable transportation access; remove, remediate, reuse, replace, retrofit, or cap a dividing or burdening surface transportation facility (as defined in the Notice of Funding Opportunity); build or improve complete streets, multiuse trails, regional greenways, or active transportation networks and spines; provide affordable access to essential destinations, public spaces, or transportation links and hubs; or mitigate or remediate negative impacts on the human or natural environment resulting from a dividing or burdening facility. The USDOT program administering those funds is the Reconnecting Communities and Neighborhoods Program (the “RCN Program”). These General Terms and Conditions apply specifically to NAE Program awards.

On July 5, 2023, the USDOT posted a funding opportunity at Grants.gov with funding opportunity title “Neighborhood Access and Equity Discretionary Grant Program” and funding opportunity number DOT-NAE-FY23-01. The notice of funding opportunity posted at Grants.gov, as amended on August 21, 2023, (the “NOFO”) solicited applications for Federal financial assistance under the fiscal year 2023 NAE Program. On March 13, 2024, the USDOT announced application selections under the NOFO.

These general terms and conditions are incorporated by reference in a project-specific agreement under the fiscal year 2023 RCN Program. The term “Recipient” is defined in the project-specific portion of the agreement. The project-specific portion of the agreement includes schedules A through J. The project-specific portion of the agreement may include special terms and conditions in project-specific articles.

Article 1 Purpose

1.1 Purpose.

In this section, the term “facility,” is used as defined at 23 U.S.C. 177(c).

Article 2 USDOT Role

2.1 Division of USDOT Responsibilities.

2.2 USDOT Program Contacts.

If the Capital-Planning Designation in section 1 of schedule F is “Planning”:

FHWA NAE Program Manager—Planning Grants Kenneth Petty Federal Highway Administration Office of Planning, Environment, and Realty 1200 New Jersey Avenue SE Room E72-330 Washington, DC 20590

(202) 366-6654 Kenneth.Petty@dot.gov If the Capital-Planning Designation in section 1 of schedule F is “Capital Construction”:

FHWA NAE Program Manager—Capital Construction Grants Karen Perritt Federal Highway Administration Office of Planning, Environment, and Realty 1200 New Jersey Avenue SE Room E76-326 Washington, DC 20590

(202) 366-9482 karen.perritt@dot.gov And for all awards under the RCN Program:

OST RCN Program Manager United States Department of Transportation Office of Infrastructure Deployment (OST P-40) 1200 New Jersey Avenue SE Washington, DC 20590 ReconnectingCommunities@dot.gov Article 3 Recipient Role

3.1 Statements on the Project.

The Recipient states that:

3.2 Statements on Authority and Capacity.

The Recipient states that:

3.3 USDOT Reliance.

The Recipient acknowledges that:

3.4 Project Delivery.

3.5 Rights and Powers Affecting the Project.

3.6 Notification of Changes to Key Personnel.

The Recipient shall notify all USDOT representatives who are identified in section 5 of schedule A in writing within 30 calendar days of any change in key personnel who are identified in section 4 of schedule A.

3.7 Subaward to Designated Subrecipient.

If section 9 of schedule A identifies a Designated Subrecipient:

3.8 Designated Subrecipient Statements and Responsibilities.

If section 9 of schedule A identifies a Designated Subrecipient:

Article 4 Award Amount, Obligation, and Time Periods

4.1 Federal Award Amount.

The USDOT hereby awards a Neighborhood Access and Equity (NAE) Program Grant to the Recipient in the amount listed in section 1 of schedule D as the NAE Program Grant Amount.

4.2 Federal Funding Source. If section 4 of schedule F identifies the Funding Source as “General Fund,” then the NAE Grant is from NAE Program funding that was made available in fiscal year 2022 to be available until September 30, 2026, to be available until September 30, 2026, at IRA, tit. VI, subt. E § 60501.

4.3 Federal Obligations.

4.4 Budget Period.

The budget period for this award begins on the date of this agreement and ends on the budget period end date that is listed in section 1 of schedule C. In this agreement, “budget period” is used as defined at 2 C.F.R. 200.1.

4.5 Period of Performance.

Article 5 Statement of Work, Schedule, and Budget Changes

5.1 Notification Requirement.

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

5.2 Scope and Statement of Work Changes.

If the Project’s activities differ from the activities described in schedule B, then the Recipient shall request a modification of this agreement to update schedule B.

5.3 Schedule Changes.

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

5.4 Budget Changes.

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

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

(f) The Recipient acknowledges that amounts that are required to be refunded under section 5.4(e)(2) constitute a debt to the Federal Government that the USDOT may collect under 2 C.F.R. 200.346 and the Standards for Administrative Collection of Claims (31 C.F.R. part 901).

USDOT Acceptance of Changes.

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

Article 6 General Reporting Terms

6.1 Report Submission.

The Recipient shall send all reports required by this agreement to all USDOT contacts who are listed in section 5 of schedule A and the USDOT contacts who are listed in section 2.2.

6.2 Alternative Reporting Methods.

The Administering Operating Administration may establish processes for the Recipient to submit reports required by this agreement, including electronic submission processes. If the Recipient is notified of those processes in writing, the Recipient shall use the processes required by the Administering Operating Administration.

6.3 Paperwork Reduction Act Notice.

Under 5 C.F.R. 1320.6, the Recipient is not required to respond to a collection of information that does not display a currently valid control number issued by the Office of Management and Budget (the “OMB”). Notwithstanding any other term of this agreement, the due date for any information collections required under this agreement, including the reporting requirements in articles 7 and 8, is the later of (1) the due date stated with the requirement and (2) the 30th day after OMB approves that information collection.

Article 7 Progress and Financial Reporting

7.1 Quarterly Project Progress Reports and Recertifications.

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

7.2 Final Progress Reports and Financial Information.

No later than 120 days after the end of the period of performance, the Recipient shall submit:

Article 8 Performance Measurement and Reporting

8.1 Baseline Performance Measurement.

If the Capital-Planning Designation in section 1 of schedule F is “Capital Construction,” then:

8.2 Post-construction Performance Measurement.

8.3 Project Outcomes Report.

If the Capital-Planning Designation in section 1 of schedule F is “Capital Construction,” then the Recipient shall submit to the USDOT, not later than January 31 of the year that follows the final calendar year during which data was collected under section 8.2(a), a Project Outcomes Report that contains:

8.4 General Performance Measurement Requirements.

For each performance measure that is enumerated in schedule G, the Recipient shall ensure that all data collections under this article 8 are completed in a manner consistent with the description, location, and other attributes associated with that performance measure in schedule G.

8.5 Outcome Measurement and Reporting Survival.

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

Article 9 Noncompliance and Remedies

9.1 Noncompliance Determinations.

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

9.2 Remedies.

9.3 Other Oversight Entities.

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

Article 10 Agreement Termination

10.1 USDOT Termination.

10.2 Closeout Termination.

10.3 Post-Termination Adjustments.

The Recipient acknowledges that under 2 C.F.R. 200.345–200.346, termination of the agreement does not extinguish the USDOT’s authority to disallow costs, including costs that the USDOT reimbursed before termination, and recover funds from the Recipient.

10.4 Non-Terminating Events.

10.5 Other Remedies.

The termination authority under this article 10 supplements and does not limit the USDOT’s remedial authority under article 9 or 2 C.F.R. part 200, including 2 C.F.R. 200.339–200.340.

Article 11 Monitoring, Financial Management, Controls, and Records

11.1 Recipient Monitoring and Record Retention.

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

(c) The Recipient shall retain records relevant to the award as required under 2 C.F.R. 200.334.

11.2 Financial Records and Audits.

11.3 Internal Controls.

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

11.4 USDOT Record Access.

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

11.5 Oversight Responsibilities.

This award is subject to the oversight requirements of title 23, United States Code.

Article 12 Contracting and Subawards

12.1 Minimum Wage Rates.

The Recipient shall include, in all contracts in excess of $2,000 for work on the Project that involves labor, provisions establishing minimum rates of wages, to be predetermined by the United States Secretary of Labor, in accordance with 23 U.S.C. 113, that contractors shall pay to skilled and unskilled labor, and such minimum rates shall be stated in the invitation for bids and shall be included in proposals or bids for the work.

12.2 Buy America.

12.3 Small and Disadvantaged Business Requirements.

(a) If any funds under this award are administered by or through a State Department of Transportation, the Recipient shall expend those funds in compliance with the requirements at 49 C.F.R. part 26 (“Participation by disadvantaged business enterprises in Department of Transportation financial assistance programs”).

(b) If any funds under this award are not administered by or through a State Department of Transportation, the Recipient shall expend those funds in compliance with the requirements at 2 C.F.R. 200.321 (“Contracting with small businesses, minority businesses, women’s business enterprises, veteran-owned businesses, and labor surplus area firms”).

12.4 Engineering and Design Services.

As applicable, the Recipient shall award each contract or sub-contract for program management, construction management, planning studies, feasibility studies, architectural services, preliminary engineering, design, engineering, surveying, mapping, or related services with respect to the project in the same manner that a contract for architectural and engineering services is negotiated under the Brooks Act, 40 U.S.C. 1101-1104 as implemented in 23 U.S.C. 112(b)(2), or an equivalent qualifications-based requirement prescribed for or by the Recipient and approved in writing by the USDOT.

12.5 Prohibition on Certain Telecommunications and Video Surveillance Services or Equipment.

The Recipient acknowledges that Section 889 of Pub. L. No. 115-232 and 2 C.F.R. 200.216 prohibit the Recipient and all subrecipients from procuring or obtaining certain telecommunications and video surveillance services or equipment under this award.

12.6 Pass-through Entity Responsibilities.

If the Recipient makes a subaward under this award, the Recipient shall comply with the requirements on pass-through entities under 2 C.F.R. parts 200 and 1201, including 2 C.F.R. 200.331–200.333.

12.7 Subaward and Contract Authorization.

Article 13 Costs, Payments, and Unexpended Funds

13.1 Limitation of Federal Award Amount.

Under this award, the USDOT shall not provide funding greater than the amount obligated under section 4.3. The Recipient acknowledges that the USDOT is not liable for payments exceeding that amount, and the Recipient shall not request reimbursement of costs exceeding that amount.

13.2 Projects Costs.

This award is subject to the cost principles at 2 C.F.R. 200 subpart E, including provisions on determining allocable costs and determining allowable costs.

13.3 Timing of Project Costs.

13.4 Recipient Recovery of Federal Funds.

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

13.5 Unexpended Federal Funds.

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

13.6 Timing of Payments to the Recipient.

13.7 Payment Method.

13.8 Information Supporting Expenditures.

13.9 Reimbursement Frequency.

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

Article 14 Liquidation, Adjustments, and Funds Availability

14.1 Liquidation of Recipient Obligations.

14.2 Funds Cancellation.

NAE Program funding that is obligated for this award under section 4.3 remains available until September 30, 2031.

Article 15 Agreement Modifications

15.1 Bilateral Modifications.

The parties may amend, modify, or supplement this agreement by mutual agreement in writing signed by the USDOT and the Recipient. Either party may request to amend, modify, or supplement this agreement by written notice to the other party.

15.2 Unilateral Contact Modifications.

15.3 USDOT Unilateral Modifications.

15.4 Other Modifications.

The parties shall not amend, modify, or supplement this agreement except as permitted under sections 15.1, 15.2, or 15.3. If an amendment, modification, or supplement is not permitted under section 15.1, not permitted under section 15.2, and not permitted under section 15.3, it is void.

Article 16 Climate Change and Environmental Justice

16.1 Climate Change and Environmental Justice.

Consistent with Executive Order 14008, “Tackling the Climate Crisis at Home and Abroad” (Jan. 27, 2021), schedule H documents the consideration of climate change and environmental justice impacts of the Project.

Article 17 Equity and Barriers to Opportunity

17.1 Equity and Barriers to Opportunity.

Consistent with Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government” (Jan. 20, 2021), schedule I documents activities related to the Project to improve equity and reduce barriers to opportunity.

17.2 Community Engagement Activities.

This provision is applicable to only Capital Construction Grants and Regional Partnership Challenge Grants, not Planning Grants. The USDOT has determined that, for the purpose of the requirement stated in section F.2.i of the NOFO, through the activities documented in section 3 of schedule I, the Recipient has sufficiently considered community engagement related to the Project.

17.3 Activities to Safeguard Affordability.

This provision is applicable to only Capital Construction Grants and Regional Partnership Challenge Grants, not Planning Grants. The USDOT has determined that, for the purpose of the requirement stated in section F.2.i of the NOFO, through the activities documented in section 4 of schedule I, the Recipient has sufficiently considered safeguards to retain affordability for existing residents and businesses in the Project area and surrounding communities.

Article 18 Labor and Work

18.1 Labor and Work.

Consistent with Executive Order 14025, “Worker Organizing and Empowerment” (Apr. 26, 2021), and Executive Order 14052, “Implementation of the Infrastructure Investment and Jobs Act” (Nov.