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RES 2014-0143 - Agmt with Catholic Charities of the Archdiocese of Omaha for homeless/domestic violence center
E A"A' �Fo� , ;` lh- G ,,` 1 Planning Department / 9 sF OmahajDouglas Civic Center C 1819 Farnam Street Suite 1100 rA k � 11 rR,n _ � ': �,. ; '� � Omaha,Nebraska 68183 ,_ < 4 (402)444-5150 -y=-' 4�ro "1'clefax(402)444-6140 _n FEBR°P f, r James R.Thele City of Omaha "�'� Director Jean Stothert,Mayor January 28, 2014 Honorable President • and Members of the City Council, The attached Resolution approves an Agreement between the City of Omaha and Catholic Charities of the Archdiocese of Omaha, a Nebraska Non-profit Corporation, 3300 North 60th Street, Omaha, Nebraska 68104, in the amount of$11,839.00 to provide emergency shelter to victims of domestic violence. Funds to be paid from the Fiscal Year 2012 Emergency Solutions Grant,Fund No. 12139, Organization No. 129028. The Omaha-Council Bluffs Consortium Consolidated Submission for Community Development Programs: 2013 Action Plan approved by the City Council on January 15,2013,Resolution No. 26, and then amended by City Council on March 19, 2013, Resolution 359 and again on July 5, 2013, Resolution 899. In the consolidated plan and amendments, emergency shelter, rapid re-housing, homelessness prevention and information management were identified and funding priorities for Emergency Solutions Grant dollars. The City of Omaha has received a Fiscal Year 2013 Emergency Solutions Grant Entitlement of $336,089.00 from the U.S. Department of Housing and Urban Development. The City solicited proposals from non-profit organizations through a Request for Proposals process initiated October 1, 2013. Proposals were reviewed by City Planning staff and also by an independent panel convened by the Metro Area Continuum of Care for the Homeless (MACCH). The MACCH panel was charged with the task of making funding recommendations based on Continuum of Care funding priorities. Upon review of the panel's recommendations, the City recommends funding the following homeless programs for the purpose of addressing homelessness in the City of Omaha. Honorable President and Members of the City Council Page 2 Organization Amount Catholic Charities: The Shelter $ 11,839.00 The Stephen Center—Emergency Shelter $ 62,356.00 Siena-Francis House—Emergency Shelter $130,229.00 Heartland Family Service—Rapid Re-housing $ 68,837.00 Together—Rapid Re-housing $ 23,783.00 Iowa Institute for Community Alliances—CoC Data System $ 13,839.00 Total $310,883.00 City Administration $ 25,206.00 Grand Total $336,089.00 As a result of this particular Agreement, Catholic Charities of the Archdiocese of Omaha will provide emergency shelter women and children,working to place at least 60%of these women and children in permanent housing. Catholic Charities of the Archdiocese of Omaha (Contractor) has a current Contract Compliance (CC-1) form on file in the Human Rights and Relations Department. As is City policy,the Human Rights and Relations Department will review the contractor to ensure compliance with the Contract Compliance Ordinance. Honorable President and Members of the City Council Page 3 We urge your favorable consideration of this Resolution. Sincerely, Referred to City Council for Consideration: 11-aee 11/ y l`� 1 ames R. Thele OT Date Mayor's Office Date Planning Director Approved as to Funding: Approved: / r , it, Step n B. Curtiss ate Human Rights & Relations Director ate Finance Director 'c/"'' 1959 dlh AGREEMENT BETWEEN THE CITY OF OMAHA AND CATHOLIC CHARITIES OF THE ARCHDIOCESE OF OMAHA FOR THE USE OF EMERGENCY SOLUTIONS GRANT FUNDS FOR OPERATIONAL FUNDING Table of Contents SECTION 1. DEFINITIONS -ABBREVIATIONS SECTION 2. DUTIES AND CONDITIONS OF CITY FINANCING SECTION 3. DUTIES AND RESPONSIBILITIES OF THE CONTRACTOR SECTION 4. TERM OF THE AGREEMENT SECTION 5. MUTUAL AGREEMENTS BETWEEN CITY AND CONTRACTOR SECTION 6. CONTRACTOR'S COMPLIANCE WITH OTHER FEDERAL REGULATIONS SECTION 7. AUTHORIZED REPRESENTATIVES THIS AGREEMENT is entered into by and between the City of Omaha, a Municipal Corporation in Douglas County, Nebraska (sometimes hereinafter referred to as "City") and Catholic Charities of the Archdiocese of Omaha, a Nebraska Non-profit Corporation, 3300 North 60th Street, Omaha, Nebraska 68104 (sometimes hereinafter referred to as "Contractor") on the terms, conditions and provisions as set forth below: RECITALS: WHEREAS, the City of Omaha is a municipal corporation located in Douglas County, Nebraska, and is organized and exists under the laws of the State of Nebraska, and is authorized and empowered to exercise all powers conferred by the State constitution, laws, Home Rule Charter of the City of Omaha, 1956, as amended, and local ordinances including, but not limited to,the power to contract; and, WHEREAS, the City of Omaha applied for Emergency Solutions Grant Program funds from the U.S. Department of Housing and Urban Development, as stated in the Omaha-Council Bluffs Consortium Consolidated Submission for Community Development Programs: 2013 Action Plan approved by the City Council on January 15, 2013, Resolution No. 26, and as amended by City Council on March 19, 2013, Resolution 359 and on July 5, 2013,Resolution 899, and received a$336,089.00 grant; and, WHEREAS, the Metro Area Continuum of Care for the Homeless identified emergency shelter as a funding priority for the Emergency Solutions Grant Program; and, WHEREAS, Catholic Charities of the Archdiocese of Omaha, through its emergency shelter facility (The Shelter), will provide shelter for victims of domestic violence, as provided in the grant application submitted to the City of Omaha in response to the FY 2013 Emergency Solutions Grant Program Request for Proposals; and, WHEREAS, the City of Omaha has previously provided shelter providers with operational funding; and, WHEREAS,the City of Omaha has allocated $11,839.00 to Catholic Charities of the Archdiocese of Omaha to continue to provide shelter for victims of domestic violence through its facility, The Shelter; and, WHEREAS,the Planning Department and the Mayor recommend approval of this grant; and, WHEREAS, it is beneficial and desirable to provide shelter to victims of domestic violence through Catholic Charities: The Shelter for a twelve-month period. NOW, THEREFORE, in consideration of these mutual covenants, Catholic Charities of the Archdiocese of Omaha and the City of Omaha do hereby agree as follows: SECTION 1. DEFINITIONS- ABBREVIATIONS 1.1 "City" shall mean—the City of Omaha, a Nebraska Municipal Corporation. 1.2 "Contractor" shall mean — Catholic Charities of the Archdiocese of Omaha, a Nebraska Non-profit Corporation, 3300 North 60`" Street, Omaha, Nebraska 68104 (see Exhibit «A» ). 1.3 "Director" shall mean—the Planning Department Director of the City of Omaha. 1.4 "Recipient" shall mean—the City of Omaha. -2- 1.5 "Subrecipient" shall mean — a public or private non-profit agency, authority or organization receiving Emergency Solutions Grant Program funds to undertake eligible activities. In this Agreement, the subrecipient is Catholic Charities of the Archdiocese of Omaha. 1.6 "HUD" shall mean—the U.S. Department of Housing and Urban Development. 1.7 "Emergency Solutions Grant Program (ESGP)" shall mean — the program administered by the City of Omaha and funded under Subtitle B of Title IV of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11371 et seq.). The program purpose is to provide assistance to homeless and near homeless persons in accordance with Federal Regulations in 24 CFR Part 576, the program objectives, priorities, and strategies as stated in the City of Omaha Program Guidelines, the Consolidated Submission for Community Planning and Development, and the most recent ESGP Request for Proposals. 1.8 "ESGP Funds" shall mean — the portion of the Emergency Solutions Grant Program funds awarded to the City as may be available during Program Year 2013 for the use specified herein, in an amount not to exceed $11,839.00, subject to the terms, conditions, and requirements of said Grant. Availability of funds is subject to and conditioned upon actual receipt of same, by the City of Omaha. 1.9 "Homeless Person" shall mean — an individual or family who lacks a fixed, regular, and adequate nighttime residence; and an individual or family who has a primary nighttime residence that is: 1) a supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill), 2) an institution that provides a temporary residence for individuals intended to be institutionalized, or 3) a public or private place not designed for, or ordinarily used as a regular sleeping accommodation for human beings. 1.10 "Grant" shall mean — non-repayable ESGP funds made subject to the terms, conditions and provisions of the grant agreement under which said grant is made. 1.11 "Program Income" shall mean — gross income received by the Recipient or Subrecipient directly generated from the use of ESGP funds. When such income is generated by an activity that is only partially assisted with ESGP funds, the income shall be prorated to reflect the percentage of ESGP funds used. (See Exhibit"B".) 1.12 "Facility" shall mean — The Shelter, a domestic violence emergency shelter run by Catholic Charities of the Archdiocese of Omaha, a Nebraska Non-profit Corporation, 3300 North 60th Street, Omaha,Nebraska 68104 1.13 "Comparable Database" shall mean —a database that is not the Continuum's official HMIS, but an alternative system that victim service providers and legal services providers may use to collect client-level data over time and to generate unduplicated aggregate reports based on the data. Information entered into a comparable database must not be entered directly into or provided to an HMIS. -3 - 1.14 "Application" shall mean — Catholic Charities of the Archdiocese of Omaha application submission on the basis of which ESGP Funds were approved by the City, including any certifications and assurances and any information or documentation required to meet any ESGP Funds conditions. A copy of the Application is maintained as part of the ESGP application by the City of Omaha Planning Department and incorporated herein by this reference. 1.15 "Continuum of Care" shall mean —the coordinated and responsive network of programs and services providing emergency, transitional, and supportive shelter and supportive services to the Omaha area's homeless individuals and families, or near homeless individuals and families. 1.16 "Contract Completion" shall mean — the complete expenditure of awarded funds, the completion of the Scope of Work as defined in Exhibit"C", or the expiration of the time frame of the Agreement, whichever comes first. 1.17 "Scope of Work" shall mean — the housing and/or supportive services to be provided homeless persons for the term of this Agreement; this work is detailed in Exhibit"C". SECTION 2. DUTIES AND CONDITIONS OF CITY FINANCING 2.1 Subject to and conditioned upon actual receipt of same, the City agrees to make available to the Contractor Eleven Thousand, Eight Hundred and Thirty-Nine Dollars ($11,839.00) in ESGP Funds, for the purposes set forth in this Agreement, and as detailed in Exhibit "C" Scope of Work, incorporated herein by this reference. 2.1.1 City funding pursuant to this Section shall be contingent upon receipt of and subject to the availability of ESGP funds in amounts adequate to meet any contractual obligations in force upon the date of execution of the Agreement as well as this proposed obligation. Should adequate funding not be available,the City shall notify the Contractor as soon as reasonably possible. At this time, the responsibilities of the Contractor under Section 3 of this Agreement shall be released, the provisions of Section 5, Paragraph 5.8 will be exercised and the Agreement will be terminated. 2.1.2 Reimbursement shall be on a monthly basis for the attached budget line item expenditures (see Exhibit "D"). Payments shall be made on the basis of monthly requests for payment and shall be reimbursements for actual expenditures. 2.1.3 Monthly billing will be submitted to the Director by Catholic Charities of the Archdiocese of Omaha with the monthly progress report. The monthly bill and monthly progress report is due not later than twenty (20) days following each monthly reporting period. 2.1.4 The City shall review and monitor the required monthly reports that identify the progress/accomplishments of Catholic Charities of the Archdiocese of Omaha, the activities included in this Agreement and contracts entered into with third parties pursuant thereto. 2.1.5 The City shall prepare monthly payment vouchers for Catholic Charities of the Archdiocese of Omaha upon the Contractor's monthly progress report and request for payment. -4- 2.1.6 No financial assistance provided pursuant to this Agreement may be used to replace State or local funds previously used, or designated for use, to assist homeless persons. 2.1.7 The City may deobligate the remaining amounts for services in any year if the actual cost of services for that year is less than the total cost anticipated in the Application. 2.1.8 Eligible Contractors. Contractor shall submit to the Director a certificate verifying that Contractor is an eligible recipient for federal funding, i.e., has not been debarred or suspended by HUD. In addition, certification shall be submitted to the Director from each contractor or subcontractor to be used on the Project to the effect that each contractor or subcontractor has not been debarred or disqualified by HUD (24 C.F.R. Part 5 and 24 C.F.R. 570.609 — see Exhibit "K"). In addition, Contractor hereby certifies that it is in good standing with the Department of Health and Human Services. The Director shall approve all contractors and subcontractors prior to being hired by the Contractor. SECTION 3. DUTIES AND RESPONSIBILITIES OF THE CONTRACTOR PROJECT PERFORMANCE 3.1 The Contractor shall use the ESGP Funds ($11,839.00) solely and exclusively for the express purpose of continuing its services to homeless persons in accordance with Exhibit "C", Scope of Work. REPORTING 3.2 The Contractor shall submit a monthly progress report to the Director delineating the accomplishments of Catholic Charities of the Archdiocese of Omaha the previous 30-day period on the specific activities undertaken pursuant to this Agreement. Monthly progress reports shall contain information on number served by race, ethnicity, household composition, along with subpopulation numbers, number served by housing type as well as other information deemed necessary by the City of Omaha, for the purpose of statistical evaluation, monitoring and coordination of client services(see Exhibit"C"). 3.3 The Contractor shall submit a monthly Reimbursement Request to the Director detailing the operational expenses for which Catholic Charities of the Archdiocese of Omaha is seeking reimbursement. Eligible operational expenses are identified in Exhibit "C", Scope of Work. Invoices along with evidence that the invoices have been paid, i.e., a check register listing each expenditure by check number, payee, date and amount, is to be submitted. -5 - FINANCIAL MANAGEMENT 3.4 Audit. The Contractor shall comply with all provisions and regulations of the Emergency Solutions Grant Program and have an annual audit completed in compliance with OMB Circular A-133. A copy of the audit shall be provided to the Director. OMB Circular A- 133 is attached to this Agreement as Exhibit "E". The auditor shall determine the appropriate type of audit to be conducted; i.e., limited scope or full compliance. A single audit is not an allowable expense unless the Contractor expends total Federal funds over $500,000.00 in each fiscal year. A limited-scope audit may be allowable provided the auditor conducts the audit in accordance with generally accepted auditing standards and the Contractor's expense is less than $500,000.00 in each fiscal year. 3.4.1 Any deficiencies noted in audit reports must be fully cleared by the Contractor within 30 days after receipt of audit by the Contractor. Failure of the Contractor to comply with the above audit requirements will constitute a violation of this Agreement and may result in the withholding of future payments and may constitute a default subject to termination according to Section 5-8 referenced herein. 3.5 Accounting Standards. The Contractor agrees to comply with OMB Circular A-110 and agrees to adhere to the accounting principles and procedures required therein, utilize adequate internal controls, and maintain necessary source documentation for all costs incurred. (Exhibit"J", attached hereto and incorporated herein as though fully set forth.) 3.6 Cost Principals. The Contractor shall comply with the requirements and the standards of OMB Circular No. A-122, "Cost Principles for Nonprofit Organizations" (Exhibit "I"), and with the requirements of OMB Circular A-110 (Exhibit "J"). Both Exhibits are attached hereto and incorporated herein as though fully set forth. 3.7 Release of Information. The Contractor specifically hereby states, agrees and certifies that it is familiar with the limited purpose set forth in the Federal Laws, Rules and Regulations, and in the laws of the State of Nebraska, for which personal information requested may be used and that the information received will be used solely for those limited purposes and not to harass, degrade or humiliate any person. The information released shall be used solely for the limited purpose stated, and the Contractor further agrees to indemnify and hold harmless the City of Omaha for any liability arising out of the improper use by the Contractor of information provided. 3.8 Documentation & Record-Keeping. The Contractor shall maintain such records and accounts, including property, personnel and financial records, as are deemed necessary by the City to assure a proper accounting for all expenses. The Comptroller General of the United States of America or any duly authorized representatives, or any duly authorized representatives of the City of Omaha, as approved by the Planning Director, shall have access to any books, documents, papers, records and accounts of the Contractor or subcontractors which are directly pertinent to this undertaking for the purpose of making audit, examination, excerpts and transcriptions. Such records and accounts shall be retained for five years from the Contract Completion. Any contract entered into by the Contractor with any Subcontractors shall include this Section to ensure said access. 3.8.1 The Contractor shall keep any records and make any reports (including those pertaining to race, ethnicity, gender, and disability status) that HUD may require within the time frame required. -6- 3.9 Homeless Participation in Project. The Contractor must, to the maximum extent practicable, involve homeless individuals and families, through employment, volunteer services, or otherwise, in constructing, rehabilitating, maintaining, and operating the project and in providing supportive services for the project. 3.10 Continuum of Care Requirements. The Contractor shall regularly and reliably attend Metro Area Continuum of Care for the Homeless (MACCH) monthly meetings, ensure that all program information is listed in the MACCH Directory, participate in the MACCH client feedback process, install and implement a comparable database (appropriate to victim service providers as defined in Section 1.13), ensure that all relevant staff are utilizing the MACCH Listserve, pay on a timely basis annual MACCH dues, and participate in the MACCH monthly housing count(as applicable). 3.11 Matching Requirement: The Contractor will provide enough match to not only equal its grant allocation ($11,839.00) but an additional proportional amount that will allow the entire match requirement of the City of Omaha ESGP allocation to be met. (See Exhibit "C", Scope of Work, for the amount of"matching dollars" required by this grant - Item 6.) SECTION 4. TERM OF THE AGREEMENT This Agreement shall be in full force and effect from July 1, 2013 through and including June 30, 2014. The Director may extend the term of this Agreement or adjust the term to coincide with actual expenditure start dates to facilitate the complete expenditure of funds. In no event shall the term be extended beyond December 31, 2014. SECTION 5. MUTUAL AGREEMENTS BETWEEN CITY AND CONTRACTOR 5.1 Captions. Captions used in this Agreement are for convenience and are not used in the construction of this Agreement. 5.2 Applicable Law. Parties to this Agreement shall conform with all existing and applicable City ordinances, resolutions, state laws, federal laws, and all existing and applicable rules and regulations. Nebraska law will govern the terms and the performance under this Agreement. 5.3 Interest of the City. Pursuant to Section 8.05 of the Home Rule Charter, no elected official or any officer or employee of the City shall have a financial interest, direct or indirect, in any City agreement. Any violation of this section with the knowledge of the person or corporation contracting with the City shall render the Agreement voidable by the Mayor or Council. 5.4 Merger. This Agreement shall not be merged into any other oral or written agreement, lease or deed of any type. 5.5 Modification. This Agreement contains the entire agreement of the parties. No representations were made or relied upon by either party other than those that are expressly set forth herein. No agent, employee, or other representative of either party is empowered to alter any of the terms herein unless done in writing and signed by an authorized officer of the respective parties, pursuant to Section 10-142 of the Omaha Municipal Code. -7 - 5.6 Assignment. The Contractor may not assign its rights or obligations under this Agreement without the express prior written consent of the City. 5.7 Strict Compliance. All provisions of this Agreement and each and every document that shall be attached shall be strictly complied with as written, and no substitution or change shall be made except upon written direction from authorized representatives of the parties. 5.8 Termination. This Agreement may be terminated by either party upon thirty (30) days written notice to the other party. Said notice shall be given when received by certified mail at the other party's usual place of business. This Agreement may also be suspended or terminated in accordance with 24 C.F.R. 85.43, Enforcement or 24 C.F.R. 85.44, Termination for Convenience (Exhibit "H"). Upon termination of this Agreement all funds and interest in any account hereunder shall become the property of the City and shall be returned to the City. 5.9 Reversion of Assets. Upon the expiration of this Agreement the Contractor shall transfer to the City of Omaha any ESGP funds on hand at the time of expiration and any accounts receivable attributable to the use of ESGP funds. Additionally, the Contractor shall ensure that any real property under the Contractor's control that was acquired or improved in whole or in part with ESGP funds in excess of$25,000.00 is either: (i) Used to meet one of the national objectives in 24 CFR 570.208 until five years after expiration of the Agreement, or such longer period of time as determined appropriate by the City; or, (ii) Is disposed of in a manner which results in the City being reimbursed in the amount of the current fair market value of the property less any portion thereof attributable to expenditures of non-ESGP funds for acquisition of, or improvement to, the property. Such reimbursement is not required after the period of time specified in accordance with (i) above. 5.10 Indemnification. The Contractor shall indemnify and hold the City harmless from and against: (1) any and all claims arising from contracts between the Contractor and third parties made to effectuate the purposes of this Agreement; and, (2) any and all claims, liabilities or damages arising from the preparation or presentation of any of the work covered by this Agreement. 5.11 Unenforceable Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition of enforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. 5.12 Disclosure of Lobbying. The Contractor shall certify and disclose, to the best of its knowledge and belief,that: -8 - (a) No Federal appropriated funds have been paid or will be paid, by or on behalf of the Contractor,to any person for influencing or attempting to influence an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement. (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Contractor shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. (c) The language of this certification is to be included in the award documents for all subawards at all tiers, (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and all subrecipients shall certify and disclose accordingly. 5.13 Subrecipients. The Contractor shall comply with the requirements and the standards of OMB Circular No. A-122, "Cost Principles for Nonprofit Organizations" (Exhibit "I"), and with the requirements of OMB Circular A-110 (Exhibit"J"). 5.14 Personnel and Participant Conditions. 5.14.1 Contract Compliance Clause. 5.14.1.1 Section 10-192 of the Omaha Municipal Code, Equal Employment Opportunity Clause. The Contractor and its contractors shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, sexual orientation, gender identity, national origin, familial or handicap status. As used herein, the word "treated" shall mean and include, without limitation, the following: recruited, whether by advertising or by other means; compensated; selected for training, including apprenticeship; promoted; upgraded; demoted; downgraded; transferred; laid off; and terminated. The Contractor and its contractors agree to and shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officers setting forth the provisions of this nondiscrimination clause (Exhibit"F"). 5.14.1.2 The Contractor and its contractors or subcontractors shall, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex, age, sexual orientation, gender identity, national origin, familial or handicap status. -9- 5.14.1.3 The Contractor and its contractors or subcontractors shall send to each representative of workers with which he has a collective bargaining agreement or other contract or understanding a notice advising the labor union or workers' representative of the contractor's commitments under the equal employment opportunity clause of the city and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 5.14.1.4 The Contractor and its contractors or subcontractors shall furnish to the Human Rights and Relations Director all federal forms containing the information and reports required by the federal government for federal contracts under federal rules and regulations, including the information required by sections 10-192 to 10-194, inclusive, of the Omaha Municipal Code and shall permit reasonable access to his records. Records accessible to the Human Rights and Relations Director shall be those which related to paragraphs 5.14.1.1 through 5.14.1.7 of this subsection and only after reasonable notice is given the contractor. The purpose of this provision is to provide for investigation to ascertain compliance with the program provided herein. 5.14.1.5 The Contractor and its contractors or subcontractors shall take such actions with respect to any subcontractor as the City may direct as a means of enforcing the provisions of paragraphs 5.14.1.1 through 5.14.1.7 herein, including penalties and sanctions for noncompliance; however, in the event the contractor becomes involved in or is threatened with litigation as the result of such directions by the City, the City will enter into such litigation as is necessary to protect the interests of the City and to effectuate the provisions of this division, and, in the case of contracts receiving federal assistance, the contractor or the City may request the United States to enter into such litigation to protect the interests of the United States. 5.14.1.6 The Contractor and its contractors shall file and shall cause his subcontractors, if any, to file compliance reports with the Contractor's contractor in the same form and to the extent as required by the federal government for federal contracts under federal rules and regulations. Such compliance reports shall be filed with the City's Human Rights and Relations Director. Compliance reports filed at such times as directed shall contain information as to the employment practices, policies, programs and statistics of the Contractor and its subcontractors. 5.14.1.7 The Contractor and its contractors or subcontractors shall include the provisions of Paragraphs 5.14.1.1 through 5.14.1.7 of this section, "Equal Employment Opportunity Clause", and Section 10- 193 in every contract, subcontract or purchase order so that such provisions will be binding upon each subcontractor or vendor. (Code 1980, Section 10-192; Ord.No. 35344, Sections 1, 9-26-00). - 10- 5.14.2 Workers' Compensation. The Contractor shall provide Workers' Compensation Insurance coverage for all employees involved in the performance in this Agreement. 5.14.3 Minority Business/Women Business Enterprise Plan. The Contractor shall make its best efforts to ensure that construction services, contracts and employment opportunities are affirmatively marketed to women and members of minority groups. As used in this Agreement, the term "women and members of minority groups" means a business at least fifty-one percent (51%) owned and controlled by minority group members or women. 5.14.4 Section 3 - Employment of Low-Income Persons (Section 3 of HUD Act of 68, as amended, 1 U.S.C. 1701u). The Contractor shall make its best efforts to comply with Section 3. The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD- assisted projects covered by Section 3 shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (Exhibit"G") 5.14.5 Conflict of Interest. The Contractor agrees to abide by the provisions of 24 C.F.R. 92.356 with respect to conflicts of interest, and covenants that it presently has financial interest and shall not acquire any financial interest, direct or indirect, which would conflict in any manner or degree with the performance of services required under this Agreement. The Contractor further covenants that in the performance of this Agreement no person having such a financial interest shall be employed or retained by the Contractor hereunder. These conflict of interest provisions apply to any person who is an employee, agent, consultant, officer or elected official or appointed official of the City or any designated public agencies or Subrecipients which are receiving funds under the entitlement program. SECTION 6. CONTRACTOR'S COMPLIANCE WITH OTHER FEDERAL REGULATIONS 6.1 Environmental Review. The Developer agrees to comply with the following regulations insofar as they apply to the performance of this Agreement: 6.1.1 Clean Air Act, 42, U.S.C., 1857, et seq. 6.1.2 Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq., as amended 1318 relating to inspection, monitoring entry, reports and information as well as other requirements specified in Section 114 and Section 308, and all regulations and guidelines issued thereunder. 6.1.3 Environmental Protection Agency(EPA)regulations pursuant to 40 C.F.R. Part 50, as amended. 6.1.4 National Environmental Policy Act of 1969. 6.1.5 HUD Environmental Review Procedures (24 C.F.R. Part 58). - 11 - 6.1.6 Flood Disaster Protection Act of 1973 (24 U.S.C. 4106 and P.L. 2234) in regard to the sale, lease or other transfer of land acquired, cleared or improved under the terms of the Agreement as it may apply to provisions of this Agreement. 6.1.7 Lead-Based Paint Regulations at 24 C.F.R. 570.608 and 24 C.F.R. Part 35 and in particular Sub-Part B thereof. Such regulations pertain to all HUD-assisted housing and require that all owners, prospective owners and tenants of properties constructed prior to 1978 be properly notified that such properties may include lead-based paint and require specific treatments according to the amount of HUD funding allocated to the Project. 6.1.8 Historic Preservation requirements set forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and the procedures set forth in 36 C.F.R., Part 800, Advisory Council on Historic Preservation Procedures for Protection of Historic Properties, insofar as they apply to the performance of this Agreement. In general, this requires concurrence from the State Historic Preservation Office for all rehabilitation and demolition of historic properties that are 45 years old or older or that are included on a Federal, State or local historic property list. 6.2 Uniform Relocation Act. The Developer shall comply with the applicable regulations of the Uniform Relocation Act of 1970, as amended (URA) (42 U.S.C. 4601-4655), or Section 104 (d) of the Housing and Community Development Act of 1974, as amended (Section 104 (d)), which require relocation assistance be provided to resident Developers, tenants, businesses and other occupants that are displaced as a result of a federally- assisted project. In the event that the Developer or its agent displaces any tenant- occupant of the property, it shall immediately notify the City in writing of the circumstances surrounding said displacement and comply with 24 C.F.R. 92.353. 6.3 Accessibility Requirements. The Contractor must comply with The Fair Housing Act and with Section 504 of the Rehabilitation Act of 1973 in the provision of reasonable accommodation to prospective clients and must adopt procedures to make available information on the existence and locations of facilities and services that are accessible to persons with a handicap and maintain evidence of implementation of the procedures. 6.4 Non-Discrimination. The Contractor shall not, in the performance of this Agreement, discriminate or permit discrimination in violation of federal or state laws or local ordinances because of race, color, handicap, familial status, marital status, sex, age, political or religious opinions, affiliations or national origin. 6.5 Remedies. If, through any cause,the Contractor shall fail to fulfill in a timely and proper manner any obligations under this Agreement, or violate any of the covenants, representations or agreements hereof, the City may upon written notice terminate this Agreement or such parts thereof as to this Agreement, and may hold the Contractor liable, to the extent permitted by Nebraska Law, for any damages caused to the City by reasons of such default and termination. - 12 - SECTION 7. AUTHORIZED REPRESENTATIVES In further consideration of the mutual covenants herein contained, the parties hereto expressly agree that for the purposes of notice, including legal service of process, during the term of this Agreement, and for the period of any applicable statute or limitations thereafter, the following named individuals shall be authorized representatives of the parties: (1) City of Omaha Director,Planning Department Omaha/Douglas Civic Center 1819 Farnam Street Omaha,NE 68183 (2) Catholic Charities of the Archdiocese of Omaha John Griffith Executive Director 3300 North 60th Street Omaha,Nebraska 68104 1N WITNESS WHEREOF, the parties have executed this Agreement as of the dates indicated below. ATTEST: CITY OF OMAHA: DEPUTY CITY CLERK OF T CITY OF OMAHA MAYOR OF THE CITY OF OMAHA -L-30-/f j 2e9 iy DATE DATE CATHOLIC CHARITIES OF THE ARCHDIOCESE OF OMAHA, a Nebraska Non-profit Corporation: J GRIT' ITH, ecutive Director j -J3 1�( DATE APPROVED AS TO FORM: �/ . / CITY ATTORNEY DATE 1959 dlh - 13 - SCHEDULE OF EXHIBITS Agreement Exhibit Location Description A 1.2 Articles of Incorporation, Directors, Corporate Resolution B 1.7, 1.11 HUD 24 CFR Part 576 C 1.16, 1.17, 2.1, 3.3 Scope of Work D 2.1.2 Annual Operating Budget E 3.4 OMB Circular A-133 F 5.14.1.1 Equal Employment Opportunity Clause G 5.14.1 Section 3 Clause H 5.8 Termination - CFR 85.43 and CFR 85.44 3.6, 5.13 OMB Circular A-122 J 3.5, 3.6, 5.13 OMB Circular A-110 K 2.1.8 Use of Debarred, Suspended or Ineligible Contractors - 14- -17-1599 16:24 F I TZ ER LD SCHORR 402 342 1025 P.02/04 REVISED AND TIED ARTICLES OF INCORPORATION OF CATHOLIC CHARITIES OF TIM ARCHDIOCESE OF OMAHA, INC. Pursuant to Section 21-19,106 of the Nebraska Nonprofit Corporation Act, Catholic Charities of the Archdiocese of Omaha, Inc., has adopted the following Revised and Restated Articles of Incorporation which supersede the original Articles of Incorporation and all amendments thereto: ARTICLE I NAME The name of the corporation,is: Catholic Charities of the Archdiocese of Omaha, Inc. KOV0. 81996 . TICLE'II STall 4F l DURATION SECRETARrS COME Received tiled Aseesdad„, tika aging. -- , The corporation shall have perpetual existence. Au ;; 'l, ARTICLE III ' Cjcuctt - . PURPOSES The purposes for which the corporation is organized are: 1. To centralize and standardize welfare and charitable work in the Archdiocese of Omaha. 2. To provide the point of contact between Archdiocesan charitable agencies, institutions and organizations and all other agencies of similar character,whether public, private;local, county, state or national. 3. To seek out and receive neglected, dependent, destitute or delinquent children and to procure homes in families for them,and to receive by judicial or other legal means any child and to act as legal guardian for such child and to consent to his or her adoption in accordance with the laws of the State of Nebraska. c DO • FEB-17-1999 16 24 FITZGERALD SCHORR 402 342 1025 P.03,04 -- 4. To serve as an agency through which funds may be obtained for the carrying on of charitable purposes. 5. To take property by gift or devise and to otherwise acquire,buy, own, hold, sell,convey, and otherwise deal with and in any real or personal property whatsoever, and to lease or mortgage the same, upon resolution of its board of directors. 6. To engage in such charitable activities as the board of directors may from time to time determine to be appropriate in dealing with the problems which confront individuals, families and children within the Archdiocese of Omaha. • Notwithstanding any other provision of the Articles of Incorporation, the corporation shall not conduct or carry on any activities not permitted to be conducted or carried on by an organization exempt under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or by an organization, contributions to which are:deductible under Section 170(0}(2)of such Internal Revenue Code and regulations pertaining;to such section as they now,exist or hereafter may be amended. TIC IV • BOARD OF DIRECTORS The affairs of the corporation shall be managed by a board of directors,the number, qualifications and terms of which shall be as set forth in the bylaws. The corporation shall have no members. At a meeting of the board of directors called expressly for that purpose, elected directors may be removed by the affirmative vote of a majority of the directors present at such meeting at which a quorum shall be present. ARTICLE V PROHIBITION OF PRIVATE BENEFITS; LIMITATION OF ACTIVITIES: DISSOLUTION ON The corporation shall have no capital stock and shall declare no dividends. No part of the net earnings of the corporation or share in the distribution of any corporate assets on dissolution of the corporation shall inure to the benefit of any organization not qualified . for tax exemption under section 501(c)(3) of the Internal Revenue Code of 1986 and regulations relating thereto, as they now exist or may hereafter be amended, nor to:any member, director, officer of the corporation, or private individual (except that reasonable compensation may be paid for services rendered to or for the corporation affecting one or more of the purposes).. No substantial part of the activities of the corporation shalt be the 2 • ._........... .... .. FEB-17-1999 16:25 FITZGERALD SCHORR 402 342 1025 P.04/04 • «tag 110Kag caring on of propaganda or otherwise attempting to influence legislation and the corporation shall not participate in or intervene in(including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office. The corporation may be dissolved as provided by law. Upon dissolution or any winding up of the affairs of the corporation,the assets of the corporation shall be distributed as the Board of Directors shall direct, exclusively to organizations which would then qualify under the provisions of section 501(c)(3) of the Internal Revenue Code of 1986 and the regulations pertaining thereto as the same may then exist. ARTICLE VI REGISTERED OniC AND REGISTER AGENT The address of the corporation's registered office is 3300 North 60th Street, Omaha, Nebraska 68104 and the registered agent at such office shall be Scot L. Adams. ARTICLE WI NIA1 Except as otherwise provided by the bylaws,the bylaws of the corporation may be adopted, amended or repealed by the board of directors at any regular or special meeting. ARTICLE V AMENDMENT OF aTICliES OF INCQIIPORATION The corporation reserves the right to amend or repeal any provisions contained in these Articles of Incorporation in the manner no an hereafter permitted by law. DATED this 3 day of 1996. • Catholic Charities of the Archdiocese of Omaha, Inc. f `Its Ser„retary.". r.`` • 3 TOTAL. P.04 Catholic Charities 2014 Board of Directors PRESIDENT VICE PRESIDENT TREASURER SECRETARY James D.Honz(Terri) John W.Herdzina(Jacqueline) Mary Theisen(James) John Griffith(Doreen) Lutz&Company,PC Abrahams,Kaslow 16640 Howard Circle 3300 N.60th St. 13616 California St.,Suite 300,68154 &Cassman LLP 68118 Omaha,NE 68104 JHONZ@LUTZCPA.COM. 8712 W Dodge Rd Suite 300 mtheisen@cox.net johng@ccornaha.org 402-496-8800(w) 68114 402-334-1711(h) 402-829-9279(w) 402-333-0126(h) jherdzina@akclaw.com. 402-679-1999© 402-554-0365(f) 402-514-9104(f) 402-392-1250(w) 2011(4) Ruth Wicken(sec.)829-9304 2009(6) 402-392-0816(f) ruthwna,ccomaha.org. 402-392-1250(h) 2010(5) CHAIRMAN OF THE BOARD:Archbishop George J.Lucas The Chancery Office,100 No.62nd St.Omaha,NE 68132,402-558-3100,402-558-3026(f)archbishop@archomaha.org Name Beg. Year Address Email ls`Phone# 2"d Phone# 3rd Phone# Year Dan Burkey(Natalie) 2013 2 Creighton University dburkey@creighton.edu. 402-280- 712-323- 402-280- 2500 California Plaza,68178 2131(w) 4404(h) 2774(f) Steven D.Davidson 2012 3 Baird Hohn LLP sdavidson@bairdholm.com 402-636- 402-493- 402-344- (Sandra B.) 1500 Woodmen Tower 8227(w) 1943(h) 0500(f) 1700 Famam St.,68102 Rev.Michael P.Eckley 2014 1 St.Pius the Tenth mpeckley@archomaha.org 402-558- 402-558- 402-558- 6905 Blondo 68104 8446(w) 4986(f) 8446(h) Bob Gunia(Theresa) 2012 3 Physicians Mutual Bob.gunia@physiciansmutual.com 402-930- 402-553- 2600 Dodge Street 68131 2437(w) 3091(h) Don Heimes(Pat) 2013 2 308 Morton Road donheimes@yahoo.com 402-910- 402-563- P.O.Box 1650 1548(h) 1714(f) Columbus NE 68601 Teresa Coleman Hunter(Stacy) 2009 6 Family Housing teresa@fhasinc.org. 402-934- 402-934- 402-573- Advisory Services 6386(w) 7928(f) 6880(h) 2401 Lake Street,68110 Daniel J.Kennelly(Meg) 2009 6 VP Chief Compliance&Ethics Dan.kennelly@mutualofomaha.com. 402-351- 402-351- 402-330- Officer,Mutual of Omaha 8850(w) 5298(f) 2891(h) Insurance Co.,11-Corporate Compliance&Ethics Division Mutual of Omaha Plaza,68175 John Kuehl(Trisha) D.A.Davidson&Co. jkuehl(hidadco.com 402-392- 402-392- 402-493- Foundation Liaison 1111 N. 102nd 7903(w) 8370(f) 2556(h) Court,Suite 300 68114 Martha Berenice Mora(Lionel) 2014 1 9605 S.27th Avenue 68147 Bereschildcare@msn.com. 402-312- 402-733- 402-733- 3490(h) 5331(w) 0694(f) Jerry J.O'Flanagan(Katherine) 2013 2 First National Bank of Omaha joflanagan@fnni.com. 402-602- 402-496- 1620 Dodge Street,SC 3400, 6096(w) 3167(h) 68197-3400 (Veronica)Sue Regan 2013 2 503 S.249th Circle Wildcatsue78@yahoo.corn. 402-502- (Timothy) Waterloo NE 68069 0308 (h) Ann Schumacher(Mark) 2014 1 Alegent Creighton Health Ann.schumacherfalegent.org. 402-572- 402-572- 402-359- 6901 N 72"d Street 2121(w) 3177(f) 1823 Omaha 68122 Bryan M.Schneider(Heather) 2010 5 Smith Hayes bschneider@smithhayes.com 402-392- 402-392- 402-932- 10250 Regency Circle Ste 400 7891(w) 7833(f) 0317(h) 68114 Mark E.Treinen(Ursula) 2009 6 Valmont Industries,Inc. METfVALMONT.COM 402-963- 402-359- 402-431- 7002 North 2881h St. 1045(w) 6070(f) 8140(h) PO Box 358 Valley NE 68064 Aileen Warren(Thomas) 2011 4 15119 Sahler Street,68116 Aileen.warren@firstdata.com. 402-932- 402-777- 402-222- 9189(h) 8270(w) 6465(f) 12.5.13 UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS, the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNDRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. ohn W. Herdzina 1/10/14_ Please Print Your Name Signature Date 0. UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839); and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution, • /7/C0Arr - 4414fL/eir _ Please Print Your Na ne ignature Dat UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, through its emergency shelter facilities will provide shelter and essential services for homeless persons; and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals; and, WHEREAS, the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW, THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839); and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation, shall be, and hereby is, authorized to take all such actions, including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. Please Print Your Name Signature Date UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals; and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGIIT HUNGRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,'THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839); and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions, including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. James D. Honz 444414 `), � --- 1/10/2014 Please Print Your Name Signature Date UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be, and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. kuctler r Please Print Your Name Signature / Da e UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839); and, IT IS FURTHER RESOLVED that John Griffith, Executive Director of the Corporation,shall be, and hereby is, authorized to take all such actions, including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution, • C�JVv\CLtr \ ( 10 `• Please Print Your Name Signature Date UNANIMOUS CONSENT RESOLUTION WHEREAS, The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS, the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW, THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation, shall be, and hereby is, authorized to take all such actions, including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. 49A57 PlePrint Your Name S' atur Date _ ::arm.+Gs•..+s3ni�as:..� u{��c=+as >K .-c,.�.-��_=..- � ��=.•.-�: �,^ .:_.,m; ...-s —,._.3w a �_. UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons; and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. Please Print Your Name Si n ar Date / 01111/2014 13:27 St Pius X Catholic Church (FAX}402 558 4988 P.0021002 • • UNANIMOUS CONSENT RESOLUTION 'WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, 'WHEREAS,The Shelter/Catholic.Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS, the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,DE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. e�. / 4.JJ . eje/7 ,d/ll//Lf Please Print Your Name Signature Date JAM/10/2014/FRI 04:39 PAI FAX No, P, 001/001 UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the PY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HONORED THIRTY NINE DOLLARS($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant ix the amount of ELEVEN THOUSAND EIGHT I-IUNGRED THIRTY NINE DOLLARS ($11,839); and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution, , Datery 10,2014� Please Print Your Name Signature Jan. 10. 2014 4:35PM No. 0792 P. 1 • UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HONORED THIRTY NINE DOLLARS($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HONORED THIRTY NINE DOLLARS($11,839); and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation, shall be, and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution rib Please Print Your Name S > re ate Jan 1014 05:38p Barb Fogarty 402-222-6465 p,2 UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, through its emergency shelter facilities will provide shelter and essential services for homeless persons; and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS, the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree io enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation, shall be,and hereby is, authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. A Le---e- uw-0-0- 1 66/04,1044_ frAn. Please Print Your Name Signature ate 246) UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, through its emergency shelter facilities will provide shelter and essential services for homeless persons; and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter•and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE, BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND'EIGHT HUNGRED THIRTY NINE DOLLARS($11,839); and, IT IS FURTHER RESOLVED that John Griffith, Executive Director of the Corporation,shall be, and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution, ,DA rl I C L 3 Please Print Your Name Signature Date ENE--12-2014 22:50 DE :DICKY A:1020299268 P.1/1 UNANIMOUS CONSENT R.ESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WIlRREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Brant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($1 1,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,TNERFVORE, BE IT RESOLVED that the Corporation does hereby agree to enter into tin Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839);and, IT IS FURTHER RESOLVED)that Sohn Griffith,Executive Director of the Corporation,shall be,and hereby is, authorized to take all such actions, including the execution of an Agreement with the City of Omaha to carry out the puipose of this Resolution. Please I' Sint Your Name Sig ure Date UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facilities will provide shelter and essential services for homeless persons;and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE,BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution. Dan Burkev /` 9` Please Print Your Name Signature Date UNANIMOUS CONSENT RESOLUTION WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha, through its emergency shelter facilities will provide shelter and essential services for homeless persons; and, WHEREAS,The Shelter/Catholic Charities of the Archdiocese of Omaha,submitted a grant application to the City of Omaha in response to the FY 2013 Emergency Shelter Grant program Request for Proposals;and, WHEREAS,the City of Omaha has allocated ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839)to The Shelter/Catholic Charities of the Archdiocese of Omaha to continue to provide shelter and essential services for homeless persons and families for a twelve month period through its Shelter facilities; NOW,THEREFORE, BE IT RESOLVED that the Corporation does hereby agree to enter into an Agreement with the City of Omaha to accept an Emergency Shelter Grant in the amount of ELEVEN THOUSAND EIGHT HUNGRED THIRTY NINE DOLLARS ($11,839);and, IT IS FURTHER RESOLVED that John Griffith,Executive Director of the Corporation,shall be,and hereby is,authorized to take all such actions,including the execution of an Agreement with the City of Omaha to carry out the purpose of this Resolution, John Aj'1,4,44/1 (I et."( Please Print Your Name Si at re Date - - -..••••.a4 ti/ 75974 Federal R giiter/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations standards developed in consultation Subpart A—General Provisions facility,or correction program or with the Continuum(s)of Care. institution);or §576.1 Applicability and purpose. (G)Otherwise lives in housing that This part implements the Emergency has characteristics associated with • 21.Part 576 is revised to read as Solutions Grants(ESG)program instability and an increased risk of follows: authorized by subtitle B of title IV of the homelessness,as identified in the McKinney-Vento Homeless Assistance recipient's approved consolidated plan; PART 576—EMERGENCY SOLUTIONS Act(42 U.S.C. 11371-11378).The (2)A child or youth who does not GRANTS PROGRAM program authorizes the Department of qualify as"homeless"under this Subpart A—General Provisions Housing and Urban Development(HUD) section,but qualifies as"homeless" to make grants to States,units of general under section 387(3)of the Runaway Sec. purpose local government,and and Homeless Youth Act(42 U.S.C. 576.1 Applicability and purpose. territories for the rehabilitation or 5732a(3)),section 637(11)of the Head 576.2 Definitions. conversion of buildings for use as Start Act(42 U.S.C.9832(11)),section 576.3 Allocation of funding. 41403(6)of the Violence Against . emergency shelter for the homeless,for Subpart e—Program Components and the payment of certain expenses related Women Act of 1994(42 U.S.C.14043e— Eligible Activities to operating emergency shelters,for 2(6)),section 330(h)(5)(A)of the Public 576.100 General provisions and essential services related to emergency Health Service Act(42 U.S.C. expenditure limits. shelters and street outreach for the 254b(h)(5)(A)),section 3(m)of the Food 576.101 Street outreach component. homeless,and for homelessness and Nutrition Act of 2008(7 U.S.C. 576.102 Emergency shelter component. prevention and rapid re-housing 2012(m)),or section 17(b)(15)of the 576.103 Homelessness prevention assistance. Child Nutrition Act of 1966(42 U.S.C. component. 1786(b)(15));or 576.104 Rapid re-housing assistance §576.2 Definitions. (3)A child or youth who does not component. At risk of homelessness means:(1)An qualify as"homeless"under this 576.105 Housing relocation and individual or family who: section,but qualifies as"homeless" stabilization services. (i)Has an annual income below 30 under section 725(2)of the McKinney- 576.106 Short-term and medium-term percent of median family income for the Vento Homeless Assistance Act(42 rental assistance. area,as determined by HUD; U.S.C.11434a(2)),and the parent(s)or 576.107 HMIS component. (ii)Does not have sufficient resources guardian(s)of that child or youth if 576.108 .Administrative activities. or support networks,e.g.,family, living with her or him. 576.109 Indirect costs. friends,faith-based or other social Consolidated plan means a plan rt C—Award and Use of Funds networks,immediately available to prepared in accordance with 24 CFR Subp art part 91.An approved consolidated plan 576.200 Submission requirements and prevent them from moving to an means a consolidated plan that has been emergency shelter or another place grant approval. approvedby HUD in accordance with described in paragraph(1)of the 24 CFR part 91. 576.201 Matching requirement. Continuum ofCare means thegroup `homeless definition in this section; 576.202 Means of carrying out grant and • activities. composed of representatives of relevant (iii)Meets one of the following 576.203 Obligation,expenditure,and organizations,which generally includes payment requirements. conditions: nonprofit homeless providers;victim (A)Has moved because of economic service providers;faith-based Subpart D—Reallocations reasons two or more times during the 60 organizations;governments;businesses; 576.300 In general. days immediately preceding the advocates;public housing agencies; 576.301 Metropolitan cities and urban application for homelessness prevention school districts;social service providers; counties. assistance; mental health agencies;hospitals; 576.302 States. (B)Is living in the home of another universities;affordable housing 576.303 Territories. because of economic hardship; developers;law enforcement; 576.304 Alternative method. (C)Has been notified in writing that organizations that serve homeless and Subpart E—Program Requirements their right to occupy their current formerly homeless veterans,and 576.400 Area-wide systems coordination housing or living situation will be homeless and formerly homeless requirements. terminated within 21 days after the date persons that are organized to plan for of application for assistance; and provide,as necessary, system of 576.401 Evaluation of program participant a Y eligibility and needs. (I))Lives in a hotel or motel and the outreach,engagement,and assessment; 576.402 Terminating assistance. cost of the hotel or motel stay is not paid emergency shelter;rapid re-housing; 576.403 Shelter and housing standards. by charitable organizations or by transitional housing;permanent 576.404 Conflicts of interest. Federal,State,or local government housing;and prevention strategies to 576.405 Homeless participation. programs for low-income individuals; address the various needs of homeless 576.406 Faith-based activities. (E)Lives in a single-room occupancy persons and persons at risk of 576.407 Other Federal requirements. or efficiency apartment unit in which homelessness for a specific geographic 576.408 Displacement,relocation,and there reside more than two persons or area. acquisition. lives in a larger housing unit in which Emergency shelter means any facility, Subpart F—Grant Administration there reside more than 1.5 persons the primary purpose of which is to reside per room,as defined by the U.S. provide a temporary shelter for the 576.500 Recordkeeping and reporting Census Bureau; homeless in general or for specific requirements. (F)Is exiting a publicly funded populations of the homeless and which 576.501 Enforcement. institution,or system of care(such as a does not require occupants to sign Authority:42 U.S.C.11371 et seq.,42 health-care facility,a mental health leases or occupancy agreements.Any U.S.C.3535(d). facility,foster care or other youth project funded as an emergency shelter Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations 75975 under a Fiscal Year 2010 Emergency (iii)Have experienced persistent public housing agency or housing Solutions grant may continue to be instability as measured by two moves or finance agency. funded under ESG. more during the 60-day period Program income shall have the Homeless means: immediately preceding the date of meaning provided in 24 CFR 85.25. (1)An individual or family who lacks applying for homeless assistance;and Program income includes any amount of a fixed,regular,and adequate nighttime (iv)Can be expected to continue in a security or utility deposit returned to residence,meaning: such status for an extended period of the recipient or subrecipient. (i)An individual or family with a time because of chronic disabilities, Program participant means an primary nighttime residence that is a chronic physical health or mental health individual or family who is assisted public or private place not designed for conditions,substance addiction, under ESG program. or ordinarily used as a regular sleeping histories of domestic violence or Program year means the consolidated accommodation for human beings, childhood abuse(including neglect),the program year established by the including a car,park,abandoned presence of a child or youth with a recipient under 24 CFR part 91. building,bus or train station,airport,or disability,or two or more barriers to Recipient means any State,territory, camping ground; employment,which include the lack of metropolitan city,or urban county,or in (ii)An individual or family living in a high school degree or General the case of reallocation,any unit of a supervised publicly or privately Education Development(GED), general purpose local government that is operated shelter designated to provide illiteracy,low English proficiency,a approved by HUD to assume financial temporary living arrangements history of incarceration or detention for responsibility and enters into a grant (including congregate shelters, criminal activity,and a history of agreement with HUD to administer transitional housing,and hotels and unstable employment;or assistance under this part. motels paid for by charitable (4)Any individual or family who: State means each of the several States organizations or by federal,state,or (i)Is fleeing,or is attempting to flee, and the Commonwealth of Puerto Rico. local government programs for low- domestic violence,dating violence, Subrecipient means a unit of general income individuals);or sexual assault,stalking,or other purpose local government or private (iii)An individual who is exiting an dangerous or life-threatening conditions nonprofit organization to which a institution where he or she resided for that relate to violence against the recipient makes available ESG funds. 90 days or less and who resided in an individual or a family member, Territory means each of the following: emergency shelter or place not meant the Virgin Islands,Guam,American including a child,that has either taken for human habitation immediately place within the individual's or family's Samoa,and the Northern Mariana before entering that institution; primary nighttime residence or has Islands. (2)An individual or family who will made the individual or family afraid to Unit of general purpose local imminently lose their primary nighttime return to their primary nighttime government means any city,county, residence,provided that: town,township,parish,village,or other (i)The primary nighttime residence residence; general purpose political subdivision of will be lost within 14 days of the date (ii)Has no other residence;and a State. of application for homeless assistance; (iii)Lacks the resources or support Urban county means a county that (u No subsequent residence has been networks,e.g.,family,friends,faith- was classified as an urban county under identified;and based or other social networks,to obtain 42 U.S.C.5302(a)for the fiscal year (iii)The individual or family lacks the other permanent housing. immediately preceding the fiscal year resources or support networks,e.g., Homeless Management Information for which ESG funds are made available. family,friends,faith-based or other System(HMIS)means the information Victim service provider means a social networks,needed to obtain other system designated by the Continuum of private nonprofit organization whose permanent housing; Care to comply with the HUD's data primary mission is to provide services (3)Unaccompanied youth under 25 collection,management,and reporting to victims of domestic violence,dating years of age,or families with children standards and used to collect client- violence,sexual assault,or stalking. and youth,who do not otherwise level data and data on the provision of This term includes rape crisis centers, qualify as homeless under this housing and services to homeless battered women's shelters,domestic definition,but who: individuals and families and persons at- violence transitional housing programs, (i)Are defined as homeless under risk of homelessness. and other programs. section 387 of the Runaway and Metropolitan city means a city that Homeless Youth Act(42 U.S.C. 5732a), was classified as a metropolitan city §576.3 Allocation of funding. section 637 of the Head Start Act(42 under 42 U.S.C.5302(a)for the fiscal (a) Territories.HUD will set aside for U.S.C.9832),section 41403 of the year immediately preceding the fiscal allocation to the territories up to 0.2 Violence Against Women Act of 1994 year for which ESG funds are made percent,but not less than 0.1 percent,of (42 U.S.C.14043e-2),section 330(h)of available.This term includes the the total amount of each appropriation the Public Health Service Act(42 U.S.C. District of Columbia. under this part in any fiscal year.HUD 254b(h)),section 3 of the Food and Private nonprofit organization means will allocate this set-aside amount to Nutrition Act of 2008(7 U.S.C. 2012), a private nonprofit organization that is each territory based on its proportionate section 17(b)of the Child Nutrition Act a secular or religious organization share of the total population of all of 1966(42 U.S.C.1786(b))or section described in section 501(c)of the territories and its rate of compliance 725 of the McKinney-Vento Homeless Internal Revenue Code of 1986 and with the most recent expenditure Assistance Act(42 U.S.C.11434a); which is exempt from taxation under deadline under§576.203. (ii)Have not had a lease,ownership subtitle A of the Code,has an (b)States,metropolitan cities,and interest,or occupancy agreement in accounting system and a voluntary urban counties.HUD will allocate the permanent housing at any time during board,and practices nondiscrimination amounts that remain after the set-aside the 60 days immediately preceding the in the provision of assistance.A private to territories under paragraph(a)of this date of application for homeless nonprofit organization does not include section to States,metropolitan cities, assistance; a governmental organization,such as a and urban counties,as follows: -"ek 75976 Federal Register/VoLT6; No. 233/Monday, December 5, 2011/Rules and Regulations (1)HUD will provide that the §576.101 Street outreach component. conditions and are provided by licensed percentage of the total amount available (a)Eligible costs.Subject to the medical professionals operating in for allocation to each State, expenditure limit in§576.100(b),ESG community-based settings,including metropolitan city,or urban county is funds may be used for costs of providing streets,parks,and other places where equal to the percentage of the total essential services necessary to reach out unsheltered homeless people are living. amount available under section 106 of to unsheltered homeless people; (ii)ESG funds may be used only for the Housing and Community connect them with emergency shelter, these services to the extent that other Development Act of 1974 for the prior housing,or critical services;and appropriate health services are fiscal year that was allocated to that provide urgent,nonfacility-based care to inaccessible or unavailable within the State,metropolitan city,or urban unsheltered homeless people who are area. county. unwilling or unable to access emergency (iii)Eligible treatment consists of (2)Except as otherwise provided by shelter,housing,or an appropriate assessing a program participant's health health facility.For the purposes of this problems and developing a treatment law,if the amount a metropolitan city or urban county would be allocated section,the term"unsheltered homeless plan;assisting program participants to under paragraph(b)(1)is less than 0.05 people"means individuals and families understand their health needs; percent of the total fiscal year who qualify as homeless under providing directly or assisting program appropriation for ESG,that amount will paragraph(1)(i)of the"homeless" participants to obtain appropriate be added to the allocation for the State definition under§576.2.The eligible emergency medical treatment;and costs and requirements for essential providing medication and follow-up in which the city or county is located. (c)Notification of allocation amount. services consist of: services. HUD will to eachf State, (1)Engagement.The costs of activities (4)Emergency mental health services. to locate,identify,and build (i)Eligible costs are the direct outpatient metropolitan city,urban county,and relationships with unsheltered homeless treatment by licensed professionals of territory that is eligible to receive an people and engage them for the purpose mental health conditions operating in allocation under this section of the of providing immediate support, community-based settings,including amount of its allocation. intervention,and connections with streets,parks,and other places where Subpart B—Program Components and homeless assistance programs and/or unsheltered people are living. Eligible Activities mainstream social services and housing (ii)ESG funds may be used only for programs.These activities consist of these services to the extent that other §576.100 General provisions and making an initial assessment of needs appropriate mental health services are expenditure limits. and eligibility;providing crisis inaccessible or unavailable within the (a)ESG funds may be used for five counseling;addressing urgent physical community. program components:street outreach, needs,such as providing meals, (iii)Mental health services are the emergency shelter,homelessness blankets,clothes,or toiletries;and application of therapeutic processes to actively connecting and providing personal,family,situational,or prevention,rapid re housing assistance, and HMIS;as well as administrative information and referrals to programs occupational problems in order to bring targeted to homeless people and about positive resolution of the problem activities.The five program components mainstream social services and housing or improved individual or family and the eligible activities that may be funded under each set forth in programs,including emergency shelter, functioning or circumstances. §576.101 through§are se 0 Eligible transitional housing,community-based (iv)Eligible treatment consists of administrative activities are set forth in services,permanent supportive housing, crisis interventions,the prescription of §minis8. and rapid re-housing programs.Eligible psychotropic medications,explanation costs include the cell phone costs of about the use and management of (b)The total amount of the recipient's outreach workers during the medications,and combinations of fiscal year grant that may be used for performance of these activities. therapeutic approaches to address street outreach and emergency shelter (2)Case management.The cost of multiple problems. activities cannot exceed the greater of: assessing housing and service needs, (5)Transportation.The transportation (1)60 percent of the recipient's fiscal arranging,coordinating,and monitoring costs of travel by outreach workers, year grant;or the delivery of individualized services social workers,medical professionals,or (2)The amount of Fiscal Year 2010 to meet the needs of the program other service providers are eligible, grant funds committed for homeless participant.Eligible services and provided that this travel takes place assistance activities. activities are as follows:using the during the provision of services eligible (c)The total ESG funds that centralized or coordinated assessment under this section.The costs of may be used foramount of ands thattivities system as required under§576.400(d); transporting unsheltered people to may cannot used r 5 administrativepercent f the conducting the initial evaluation emergency shelters or other service c n of exceedt's fiscal year cent required under§576.401(a),including facilities are also eligible.These costs rverifying and documenting eligibility; include the following: (d)Subject to the cost principles in counseling;developing,securing and (i)The cost of a program participant's OMB Circulars A-87(2 CFR 225)and coordinating services;obtaining Federal, travel on public transportation; A-122(2 CFR 230)and other State,and local benefits;monitoring and (ii)If service workers use their own requirements in this part,employee evaluating program participant progress; vehicles,mileage allowance for service compensation and other overhead costs providing information and referrals to workers to visit program participants; directly related tQ carrying out street other providers;and developing an (iii)The cost of purchasing or leasing outreach,emergency shelter, individualized housing and service a vehicle for the recipient or homelessness prevention,rapid re- plan,including planning a path to subrecipient in which staff transports housing,and HMIS are eligible costs of permanent housing stability. program participants and/or staff those program components.These costs (3)Emergency health services.(i) serving program participants,and the are not subject to the expenditure limit Eligible costs are for the direct cost of gas,insurance,taxes and in paragraph(c)of this section. outpatient treatment of medical maintenance for the vehicle;and Federal Register/Vol. 76, No. 233/Monday, December 5 2011/Rules and Regulations 75977 (iv)The travel costs of recipient or of services for homeless people. substance abuse prevention,literacy, subrecipient staff to accompany or assist Reasonable steps may include steps to English as a Second Language,and program participants to use public increase revenue generation,steps to General Educational Development transportation. maximize cost savings,or steps to (GED).Component services or activities (6)Services for special populations. reduce expenditures in areas other than are screening,assessment and testing; ESG funds may be used to provide services for homeless people. individual or group instruction; services for homeless youth,victim tutoring;provision of books,supplies services,and services for people living §576.102 Emergency shelter component. and instructional material;counseling; with HIV/AIDS,so long as the costs of (a)General.Subject to the and referral to community resources. providing these services are eligible expenditure limit in§576.100(b),ESG (iv)Employment assistance and job under paragraphs(a)(1)through(a)(5)of funds may be used for costs of providing training.The costs of employment this section.The term victim services essential services to homeless families assistance and job training programs are means services that assist program and individuals in emergency shelters, eligible,including classroom,online, participants who are victims of renovating buildings to be used as and/or computer instruction;on-the-job domestic violence,dating violence, emergency shelter for homeless families instruction;and services that assist sexual assault,or stalking,including and individuals,and operating individuals in securing employment, services offered by rape crisis centers emergency shelters. acquiring learning skills,and/or and domestic violence shelters,and (1)Essential services.ESG funds may increasing earning potential.The cost of other organizations with a documented be used to provide essential services to providing reasonable stipends to history of effective work concerning individuals and families who are in an program participants in employment domestic violence,dating violence, emergency shelter,as follows: assistance and job training programs is sexual assault,or stalking. (i)Case management.The cost of an eligible cost.Learning skills include (b)Minimum period ofuse.The assessing,arranging,coordinating,and those skills that can be used to secure recipient or subrecipient must provide monitoring the delivery of and retain a job,including the services to homeless individuals and individualized services to meet the acquisition of vocational licenses and/or families for at least the period during needs of the program participant is certificates.Services that assist which ESG funds are provided. eligible.Component services and individuals in securing employment (c)Maintenance of effort.(1)If the activities consist of: consist of employment screening, recipient or subrecipient is a unit of (A)Using the centralized or assessment,or testing;structured job general purpose local government,its coordinated assessment system as skills and job-seeking skills;special ESG funds cannot be used to replace required under§576.400(d); training and tutoring,including literacy funds the local government provided for (B)Conducting the initial evaluation training and prevocational training; street outreach and emergency shelter required under§576.401(a),including books and instructional material; services during the immediately verifying and documenting eligibility; counseling or job coaching;and referral preceding 12-month period,unless HUD (C)Counseling; to community resources. determines that the unit of general (D)Developing,securing,and (v) Outpatient health services.Eligible purpose local government is in a severe coordinating services and obtaining costs are for the direct outpatient financial deficit. Federal,State,and local benefits; treatment of medical conditions and are (2)Upon the recipient's request,HUD (E)Monitoring and evaluating provided by licensed medical will determine whether the unit of program participant progress; professionals.Emergency Solutions general purpose local government is in (F)Providing information and Grant(ESG)funds may be used only for a severe financial deficit,based on the referrals to other providers; these services to the extent that other recipient's demonstration of each of the (G)Providing ongoing risk assessment appropriate health services are following: and safety planning with victims of unavailable within the community. (i)The average poverty rate in the unit domestic violence,dating violence, Eligible treatment consists of assessing a of general purpose local government's sexual assault,and stalking;and program participant's health problems jurisdiction was equal to or greater than (H)Developing an individualized and developing a treatment plan; 125 percent of the average national housing and service plan,including assisting program participants to poverty rate,during the calendar year planning a path to permanent housing understand their health needs; for which the most recent data are stability. providing directly or assisting program information asn do the .d according to forll)Child care.program participants,pe costs of d care participants medical treatment,preventive mate edical information from U.S.CensusP g includingP Bureau. providing meals and snacks,and care,and health maintenance services, (ii)The average per-capita income in comprehensive and coordinated sets of including emergency medical services; the unit of general purpose local appropriate developmental activities, providing medication and follow-up government's jurisdiction was less than are eligible.The children must be under services;and providing preventive and 75 percent of the average national per- the age of 13,unless they are disabled. noncosmetic dental care. capita income,during the calendar year Disabled children must be under the age (vi)Legal services. (A)Eligible costs for which the most recent data are of 18.The child-care center must be are the hourly fees for legal advice and available,as determined according to licensed by the jurisdiction in which it representation by attorneys licensed and information from the Census Bureau. operates in order for its costs to be in good standing with the bar (iii)The unit of general purpose local eligible. association of the State in which the government has a current annual budget (iii)Education services.When services are provided,and by person(s) deficit that requires a reduction in necessary for the program participant to under the supervision of the licensed funding for services for homeless obtain and maintain housing,the costs attorney,regarding matters that interfere people. of improving knowledge and basic with the program participant's ability to (iv)The unit of general purpose local educational skills are eligible.Services obtain and retain housing. government has taken all reasonable include instruction or training in (B)Emergency Solutions Grant(ESG) steps to prevent a reduction in funding consumer education,health education, funds may be used only for these la ". 75978 Federal Register/Vol. 76, No. 23'3/Monday, December 5, 2011/Rules and Regulations services to the extent that other relationships,parent-child problems,or history of effective work concerning appropriate legal services are symptom management. domestic violence,dating violence, unavailable or inaccessible within the (D)Eligible treatment consists of crisis sexual assault,or stalking. community interventions;individual,family,or (2)Renovation.Eligible costs include (C)Eligible subject matters are child group therapy sessions;the prescription labor,materials,tools,and other costs support,guardianship,paternity, of psychotropic medications or for renovation(including major emancipation,and legal separation, explanations about the use and rehabilitation of an emergency shelter or orders of protection and other civil management of medications;and conversion of a building into an remedies for victims of domestic combinations of therapeutic approaches emergency shelter).The emergency violence,dating violence,sexual to address multiple problems. shelter must be owned by a government assault,and stalking,appeal of veterans (ix)Substance abuse treatment entity or private nonprofit organization. and public benefit claim denials,and services.(A)Eligible substance abuse (3)Shelter operations.Eligible costs the resolution of outstanding criminal treatment services are designed to are the costs of maintenance(including warrants. prevent,reduce,eliminate,or deter minor or routine repairs),rent,security, (D)Component services or activities relapse of substance abuse or addictive fuel,equipment,insurance,utilities, may include client intake,preparation behaviors and are provided by licensed food,furnishings,and supplies of cases for trial,provision of legal or certified professionals. necessary for the operation of the advice,representation at hearings,and (B)ESG funds may only be used for emergency shelter.Where no counseling. these services io the extent that other appropriate emergency shelter is (E)Fees based on the actual service appropriate substance abuse treatment available for a homeless family or performed(i.e.,fee for service)are also services are unavailable or inaccessible individual,eligible costs may also eligible,but only if the cost would be within the community. include a hotel or motel voucher for that less than the cost of hourly fees.Filing (C)Eligible treatment consists of family or individual. fees and other necessary court costs are client intake and assessment,and (4)Assistance required under the also eligible.If the subrecipient is a outpatient treatment for up to 30 days. Uniform Relocation Assistance and Real legal services provider and performs the Group and individual counseling and Property Acquisition Policies Act of services itself,the eligible costs are the drug testing are eligible costs.Inpatient 1970(URA).Eligible costs are the costs subrecipient's employees'salaries and detoxification and other inpatient drug of providing URA assistance under other costs necessary to perform the or alcohol treatment are not eligible §576.408,including relocation services. costs. payments and other assistance to (F)Legal services for immigration and (x)Transportation.Eligible costs persons displaced by a project assisted citizenship matters and issues relating consist of the transportation costs of a with ESG funds.Persons that receive to mortgages are ineligible costs. program participant's travel to and from URA assistance are not considered Retainer fee arrangements and medical care,employment,child care, "program participants"for the purposes contingency fee arrangements are or other eligible essential services of this part,and relocation payments ineligible costs. $ facilities.These costs include the and other URA assistance are not (vii)Life skills training.The costs of following: considered"rental assistance"or teaching critical life management skills (A)The cost of a program "housing relocation and stabilization that may never have been learned or participant's travel on public services"for the purposes of this part. have been lost during the course of transportation; ' (b)Prohibition against involuntary physical or mental illness,domestic (B)If service workers use their own family separation.The age,of a child violence,substance use,and vehicles,mileage allowance for service under age 18 must not be used as a basis homelessness are eligible costs.These workers to visit program participants; for denying any family's admission to services must be necessary to assist the (C)The cost of purchasing or leasing an emergency shelter that uses program participant to function a vehicle for the recipient or Emergency Solutions Grant(ESG) independently in the community. subrecipient in which staff transports funding or services and provides shelter Component life skills training are program participants and/or staff to families with children under age 18. budgeting resources,managing money, serving program participants,and the (c)Minimum period of use. (1) managing a household,resolving cost of gas,insurance,taxes,and Renovated buildings.Each building conflict,shopping for food and needed maintenance for the vehicle;and renovated with ESG funds must be items,improving nutrition,using public (D)The travel costs of recipient or maintained as a shelter for homeless transportation,and parenting. subrecipient staff to accompany or assist individuals and families for not less (viu)Mental health services.(A) program participants to use public than a period of 3 or 10 years, Eligible costs are the direct outpatient transportation. depending on the type of renovation treatment by licensed professionals of (xi)Services for special populations. and the value of the building.The mental health conditions. ESG funds may be used to provide "value of the building"is the reasonable (B)ESG funds may only be used for services for homeless youth,victim monetary value assigned to the building, these services to the extent that other services,and services for people living such as the value assigned by an appropriate mental health services are with HIV/AIDS,so long as the costs of independent real estate appraiser.The unavailable or inaccessible within the providing these services are eligible minimum use period must begin on the community. under paragraphs(a)(1)(i)through date the building is first occupied by a (C)Mental health services are the (a)(1)(x)of this section.The term victim homeless individual or family after the application of therapeutic processes to services means services that assist completed renovation.A minimum personal,family,situational,or program participants who are victims of period of use of 10 years,required for occupational problems in order to bring domestic violence,dating violence, major rehabilitation and conversion, about positive resolution of the problem sexual assault,or stalking,including must be enforced by a recorded deed or or improved individual or family services offered by rape crisis centers use restriction. functioning or circumstances.Problem and domestic violence shelters,and (i)Major rehabilitation.If the areas may include family and marital other organizations with a documented rehabilitation cost of an emergency Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/R 44es and Regulations 75979 , shelter exceeds 75 percent of the value prevention must be provided in (5) Utility payments.ESG funds may of the building before rehabilitation,the accordance with the housing relocation pay for up to 24 months of utility minimum period of use is 10 years. and stabilization services requirements payments per program participant,per (ii)Conversion.If the cost to convert in§576.105,the short-term and service,including up to 6 months of a building into an emergency shelter medium-term rental assistance utility payments in arrears,per service. exceeds 75 percent of the value of the requirements in§576.106,and the A partial payment of a utility bill counts building after conversion,the minimum written standards and procedures as one month.This assistance may only period of use is 10 years. established under§576.400. be provided if the program participant (iii)Renovation other than major or a member of the same household has rehabilitation or conversion.In all other §576.104 Rapid re-housing assistance an account in his or her name with a cases where ESG funds are used for component. utility company or proof of renovation,the minimum period of use ESG funds may be used to provide responsibility to make utility payments. is 3 years. housing relocation and stabilization Eligible utility services are gas,electric, (2)Essential services and shelter services and short-and/or medium-term water,and sewage.No program operations.Where the recipient or rental assistance as necessary to help a participant shall receive more than subrecipient uses ESG funds solely for homeless individual or family move as 24 months of utility assistance within essential services or shelter operations, quickly as possible into permanent any 3-year period. the recipient or subrecipient must housing and achieve stability in that (6)Moving costs.ESG funds may pay provide services or shelter to homeless housing.This assistance,referred to as for moving costs,such as truck rental or individuals and families at least for the rapid re-housing assistance,may be hiring a moving company.This period during which the ESG funds are provided to program participants who assistance may include payment of provided.The recipient or subrecipient meet the criteria under paragraph(1)of temporary storage fees for up to 3 does not need to limit these services or the"homeless"definition in§576.2 or months,provided that the fees are shelter to a particular site or structure, who meet the criteria under paragraph accrued after the date the program so long as the site or structure serves the (4)of the"homeless"definition and live participant begins receiving assistance same type of persons originally served in an emergency shelter or other place under paragraph(b)of this section and with the assistance(e.g.,families with described in paragraph(1)of the before the program participant moves children,unaccompanied youth, "homeless"definition.The rapid re- into permanent housing.Payment of disabled individuals,or victims of housing assistance must be provided in temporary storage fees in arrears is not domestic violence)or serves homeless accordance with the housing relocation eligible. persons in the same area where the and stabilization services requirements ( )Services costs.Subject to the recipient or subrecipient originally in§576.105,the short-and medium- general restrictions under§576.103 and provided the services or shelter. term rental assistance requirements in §576.104,ESG funds may be used to (d)Maintenance of effort.The §576.106,and the written standards and pay the costs of providing the following maintenance of effort requirements procedures established under§576.400. services: under§576.101(c),which apply to the (1)Housing search and placement. use of ESG funds for essential services §576.105 Housing relocation and Services or activities necessary to assist related to street outreach,also apply for stabilization services. program participants in locating, the use of such funds for essential (a)Financial assistance costs.Subject obtaining,and retaining suitable services related to emergency shelter. to the general conditions under permanent housing,include the §576.108 Homelessness prevention §576.103 and§576.104,ESG funds may following: component. be used to pay housing owners,utility (i)Assessment of housing barriers, used to provide companies,and other third parties for needs,and preferences; ESG funds may be housing relocation and the following costs: (ii)Development of an action plan for stabilization locating;housin services and short-and/or medium-term (1)Rental application fees.ESG funds g g; may pay for the rental housing (iii)Housing search; rental assistance necessary to prevent an (iv)Outreach to and negotiation with application fee that is charged by the individual or family from moving into owners; owner to all applicants. (v)Assistance with submittingrental an emergency shelter or another place (2)Security deposits.ESG funds may applications "homeless"defidescribed in nitt'onh in §576.2.This Pay for a security deposit that is equal (vi)Ass ssm nt of hous ng fo leases; assistance,referred to as homelessness to no more than 2 months'rent. compliance with Emergency Solutions prevention,may be provided to (3)Last month's rent.If necessary to Grant(ESG)requirements for individuals and families who meet the obtain housing for a program habitability,lead-based paint,and rent criteria under the"at risk of participant,the last month's rent may be reasonableness; homelessness"definition,or who meet paid from ESG funds to the owner of (vii)Assistance with obtaining the criteria in paragraph(2),(3),or(4) that housing at the time the owner is utilities and making moving of the"homeless"definition in§576.2 paid the security deposit and the first arrangements;and and have an annual income below 30 month's rent.This assistance must not (viii)Tenant counseling. percent of median family income for the exceed one month's rent and must be (2)Housing stability case area,as determined by HUD.The costs included in calculating the program management.ESG funds may be used to of homelessness prevention are only participant's total rental assistance, pay cost of assessing,arranging, eligible to the extent that the assistance which cannot exceed 24 months during coordinating,and monitoring the is necessary to help the program any 3-year period. delivery of individualized services to participant regain stability in the (4) Utility deposits.ESG funds may facilitate housing stability for a program program participant's current pay for a standard utility deposit participant who resides in permanent permanent housing or move into other required by the utility company for all housing or to assist a program permanent housing and achieve stability customers for the utilities listed in participant in overcoming immediate in that housing. Homelessness paragraph(5)of this section. barriers to obtaining housing.This • 75980 Federal Register/Vol. 76, No. 233/Monday,'December 5, 2011/Rules and Regulations assistance cannot exceed 30 days during set a maximum period for which a or operating assistance,through other the period the program participant is program participant may receive any of public sources.Rental assistance may seeking permanent housing and cannot the types of assistance or services under not be provided to a program participant exceed 24 months during the period the this section.However,except for who has been provided with program participant is living in housing stability case management,the replacement housing payments under permanent housing.Component total period for which any program the URA during the period of time • services and activities consist of: participant may receive the services covered by the URA payments. (A)Using the centralized or under paragraph(b)of this section must (d)Rent restrictions.(1)Rental coordinated assessment system as not exceed 24 months during any 3-year assistance cannot be provided unless required under§576.400(d),to evaluate period.The limits on the assistance the rent does not exceed the Fair Market individuals and families applying for or under this section apply to the total Rent established by HUD,as provided receiving homelessness prevention or assistance an individual receives,either under 24 CFR part 888,and complies rapid re-housing assistance; as an individual or as part of a family. with HUD's standard of rent (B)Conducting the initial evaluation (d) Use with other subsidies.Financial reasonableness,as established under 24 required under§576.401(a),including assistance under paragraph(a)of this CFR 982.507. verifying and documenting eligibility, section cannot be provided to a program (2)For purposes of calculating rent for individuals and families applying for participant who is receiving the same under this section,the rent shall equal homelessness prevention or rapid re- type of assistance through other public the sum of the total monthly rent for the housing assistance; sources or to a program participant who unit,any fees required for occupancy (C)Counseling; has been provided with replacement under the lease(other than late fees and (D)Developing,securing,and housing payments under the URA, pet fees)and,if the tenant pays coordinating services and obtaining during the period of time covered by the separately for utilities,the monthly Federal,State,and local benefits; URA payments. allowance for utilities(excluding (E)Monitoring and evaluating telephone)established by the public program participant progress; §576.106 Short-term and medium-term housing authority for the area in which (F)Providing information and rental assistance. the housing is located. referrals to other providers; (a)General provisions.Subject to the (e)Rental assistance agreement.The (G)Developing an individualized general conditions under§576.103 and recipient or subrecipient may make housing and service plan,including §576.104,the recipient or subrecipient rental assistance payments only to an planning a path to permanent housing may provide a program participant with owner with whom the recipient or stability;and up to 24 months of rental assistance subrecipient has entered into a rental (H)Conducting re-evaluations during any 3-year period.This assistance agreement.The rental required under§576.401(b). assistance may be short-term rental assistance agreement must set forth the (3)Mediation.ESG funds may pay for assistance,medium-term rental terms under which rental assistance will mediation between the program assistance,payment of rental arrears,or be provided,including the requirements participant and the owner or person(s) any combination of this assistance. that apply under this section.The rental with whom the program participant is (1)Short-term rental assistance is assistance agreement must provide that, living,provided that the mediation is assistance for up to 3 months of rent. during the term of the agreement,the necessary to prevent the program (2)Medium-term rental assistance is owner must give the recipient or participant from losing permanent assistance for more than 3 months but subrecipient a copy of any notice to the housing in which the program not more than 24 months of rent. program participant to vacate the participant currently resides. - (3)Payment of rental arrears consists housing unit,or any complaint used (4)Legal services.ESG funds may pay of a one-time payment for up to 6 under state or local law to commence an for legal services,as set forth in months of rent in arrears,including any eviction action against the program §576.102(a)(1)(vi),except that the late fees on those arrears. participant. eligible subject matters also include (4)Rental assistance may be tenant- (f)Late payments.The recipient or landlord/tenant matters,and the based or project-based,as set forth in subrecipient must make timely services must be necessary to resolve a paragraphs(h)and(i)of this section. payments to each owner in accordance legal problem that prohibits the program (b)Discretion to set caps and with the rental assistance agreement. participant from obtaining permanent conditions.Subject to the requirements The rental assistance agreement must housing or will likely result in the of this section,the recipient may set a contain the same payment due date, program participant losing the maximum amount or percentage of grace period,and late payment penalty permanent housing in which the rental assistance that a program requirements as the program program participant currently resides. participant may receive,a maximum participant's lease.The recipient or (5)Credit repair.ESG funds may pay number of months that a program subrecipient is solely responsible for for credit counseling and other services participant may receive rental paying late payment penalties that it necessary to assist program participants assistance,or a maximum number of incurs with non-ESG funds. with critical skills related to household times that a program participant may (g)Lease.Each program participant budgeting,managing money,accessing a receive rental assistance.The recipient receiving rental assistance must have a free personal credit report,and may also require program participants to legally binding,written lease for the resolving personal credit problems.This share in the costs of rent. rental unit,unless the assistance is assistance does not include the payment (c) Use with other subsidies.Except solely for rental arrears.The lease must or modification of a debt. for a one-time payment of rental arrears be between the owner and the program (c)Maximum amounts and periods of on the tenant's portion of the rental participant.Where the assistance is assistance.The recipient may set a payment,rental assistance cannot be solely for rental arrears,an oral maximum dollar amount that a program provided to a program participant who agreement may be accepted in place of participant may receive for each type of is receiving tenant-based rental a written lease,if the agreement gives financial assistance under paragraph(a) assistance,or living in a housing unit the program participant an enforceable of this section.The recipient may also receiving project-based rental assistance leasehold interest under state law and Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and\Regulations 75981 the agreement and rent owed are participant moves out of an assisted (vi)Paying charges for electricity,gas, sufficiently documented by the owner's unit,the recipient or subrecipient may water,phone service,and high-speed financial records,rent ledgers,or pay the next month's rent,i.e.,the first data transmission necessary to operate canceled checks.For program month's rent for a new program or contribute data to the HMIS; participants living in housing with participant,as provided in paragraph (vii)Paying salaries for operating project-based rental assistance under (i)(2)of this section. HMIS,including: paragraph(i)of this section,the lease (4)The program participant's lease (A)Completing data entry; must have an initial term of one year. must not condition the term of (B)Monitoring and reviewing data (h)Tenant-based rental assistance. occupancy to the provision of rental quality; (1)A program participant who receives assistance payments.If the program (C)Completing data analysis; tenant-based rental assistance may participant is determined ineligible or (D)Reporting to the HMIS Lead; select a housing unit in which to live reaches the maximum number of (F)Training staff on using the HMIS and may move to another unit or months over which rental assistance can or comparable database;and building and continue to receive rental be provided,the recipient or (G)Implementing and complying with assistance,as long as the program subrecipient must suspend or terminate HMIS requirements; participant continues to meet the the rental assistance payments for the (viii)Paying costs of staff to travel to program requirements. unit.If the payments are suspended,the and attend HUD-sponsored and HUD- (2)The recipient may require that all individual or family may remain in the approved training on HMIS and program participants live within a assisted unit as permitted under the programs authorized by Title IV of the particular area for the period in which lease,and the recipient or subrecipient McKinney-Vento Homeless Assistance the rental assistance is provided. may resume payments if the individual Act; (3)The rental assistance agreement or family again becomes eligible and (ix)Paying staff travel costs to with the owner must terminate and no needs further rental assistance.If the conduct intake;and further rental assistance payments payments are terminated,the rental (x)Paying participation fees charged under that agreement may be made if: assistance may be transferred to another by the HMIS Lead,if the recipient or (i)The program participant moves out available unit in the same building, subrecipient is not the HMIS Lead.The of the housing unit for which the provided that the other unit meets all HMIS Lead is the entity designated by program participant has a lease; ESG requirements. the Continuum of Care to operate the (ii)The lease terminates and is not (5)The rental assistance agreement area's HMIS. renewed;or must have an initial term of one year. (2)If the recipient is the HMIS lead (iii)The program participant becomes When a new program participant moves agency,as designated by the Continuum ineligible to receive ESG rental into an assisted unit,the term of the of Care in the most recent fiscal year assistance. rental assistance agreement may be Continuum of Care Homeless Assistance (i)Project-based rental assistance.If extended to cover the initial term of the Grants Competition,it may also use ESG the recipient or subrecipient identifies a participant's lease.If the permanent housingunit that meets ESG program P P funds to pay the costs toa: program participant's lease is renewed, (i)Hosting and maintaining HMIS requirements and becomes available the rental assistance agreement may be software or data; before a program participant is renewed or extended,as needed,up to (ii)Backing up,recovering,or identified to lease the unit,the recipient the maximum number of months for repairing HMIS software or data; or subrecipient may enter into a rental which the program participant remains (iii)Upgrading,customizing,and assistance agreement with the owner to eligible.However,under no enhancing the HMIS; reserve the unit and subsidize its rent in circumstances may the recipient or (iv)Integrating and warehousing data, accordance with the following subrecipient commit ESG funds to be including development of a data requirements: expended beyond the expenditure warehouse for use in aggregating data (1)The rental assistance agreement deadline in§576.203 or commit funds may cover one or more permanent from subrecipientses; using multiple housing units in the same building. for a future ESG grant before the grant software systems; Each unit cov in red b he rentalbuilis awarded. (v)Administering the system; assistance agreement("assisted unit") The Changes is on the assistance under composition.this (vi)Reporting to providers,and the may only be by program Continuum of Care,and HUD;and ayeoccupied except provided under section apply to the total assistance an (vii)Conducting training on using the participants, P individual receives,either as an system or a comparable database, paragraph(i)(4)of this section. individual or as part of a family. includingtravelingto the training. The recipient or subrecipient may g• pay up to 100 percent of the first §576.107 HMIS component. (3)If the subrecipient is a victim month's rent,provided that a program (a)Eligible costs. services provider or a legal services participant signs a lease and moves into (1)The recipient or subrecipient may provider,it may use ESG funds to the unit before the end of the month for use ESG funds to pay the costs of establish and operate a comparable which the first month's rent is paid.The contributing data to the HMIS database that collects client-level data rent paid before a program participant designated by the Continuum of Care for over time(i.e.,longitudinal data)and moves into the unit must not exceed the the area,including the costs of: generates unduplicated aggregate rent to be charged under the program (i)Purchasing or leasing computer reports based on the data.Information lease and must be included entered into a comparable database participant's hardware; when determining that program (ii)Purchasing software or software must not be entered directly into or participant's total rental assistance. licenses; provided to an HMIS. (3)The recipient or subrecipient may (iii)Purchasing or leasing equipment, (b) General restrictions.Activities make monthly rental assistance including telephones,fax machines,and funded under this section must comply payments only for each whole or partial furniture; with HUD's standards on participation, month an assisted unit is leased to a (iv)Obtaining technical support; data collection,and reporting under a program participant.When a program (v)Leasing office space; local HMIS. • 75982 Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations §576.108 Administrative activities. services,accounting services,and audit consolidated plan in accordance with (a)Eligible costs.The recipient may services;and the requirements in 24 CFR part 91,and use up to 7.5 percent of its ESG grant (iv)Other costs for goods and services each territory must submit and obtain for the payment of administrative costs required for administration of the HUD approval of a consolidated plan in related to the planning and execution of program,including rental or purchase of accordance with the requirements that ESG activities.This does not include equipment,insurance,utilities,office apply to local governments under 24 staff and overhead costs directly related supplies,and rental and maintenance CFR part 91.As provided under 24 CFR to carrying out activities eligible under (but not purchase)of office space. 85.12,HUD may impose special §576.101 through§576.107,because (2) Training on ESG requirements. conditions or restrictions on a grant,if those costs are eligible as part of those Costs of providing training on ESG the recipient is determined to be high activities.Eligible administrative costs requirements and attending HUD- risk. include: sponsored ESG trainings. (b)Amendments.The recipient must (1)General management,oversight (3)Consolidated plan.Costs of amend its approved consolidated plan and coordination.Costs of overall preparing and amending the ESG and in order to make a change in its program management,coordination, homelessness-related sections of the allocation priorities;make a change in monitoring,and evaluation.These costs consolidated plan in accordance with its method of distributing funds;carry include,but are not limited to, ESG requirements and 24 CFR part 91. out an activity not previously described necessary expenditures for the (4)Environmental review.Costs of in the plan;or change the purpose, following: carrying out the environmental review scope,location,or beneficiaries of an (i)Salaries,wages,and related costs of responsibilities under§576.407. activity.The amendment must be the recipient's staff,the staff of (b)Sharing requirement. (1)States.If completed and submitted to HUD in subrecipients,or other staff engaged in the recipient is a State,the recipient accordance with the requirements under program administration.In charging must share its funds for administrative 24 CFR 91.505. costs to this category,the recipient may costs with its subrecipients that are either include the entire salary,wages, units of general purpose local §576.201 Matching requirement. and related costs allocable to the government.The amount shared must (a)Required amount of matching program of each person whose primary be reasonable under the circumstances. contributions. (1)Except as provided responsibilities with regard to the The recipient may share its funds for under paragraphs(a)(2)and(a)(3)of this program involve program administrative costs with its section,the recipient must make administration assignments,or the pro subrecipients that are private nonprofit matching contributions to supplement rata share of the salary,wages,and organizations. the recipient's ESG program in an related costs of each person whose job (2) Territories,metropolitan cities, amount that equals the amount of ESG includes any program administration and urban counties.If the recipient is a funds provided by HUD. assignments.The recipient may use territory,metropolitan city,or urban (2)If the recipient is a State,the first only one of these methods for each county,the recipient may share its $100,000 of the fiscal year grant is not fiscal year grant.Program funds for administrative costs with its required to be matched.However,the administration assignments include the subrecipients. recipient must transfer the benefit of following: this exception to its subrecipients that (A)Preparing program budgets and §576.109 Indirect costs. are least capable of providing the schedules,and amendments to those (a)In general.ESG grant funds may be recipient with matching contributions. budgets and schedules; used to pay indirect costs in accordance (3 This matching requirement does (B)Developing systems for assuring with OMB Circular A-87 (2 CFR part not apply if the recipient is a territory. compliance with program requirements; 225),or A-122 (2 CFR part 230),as (b)Eligible sources of matching (C)Developing interagency applicable. contributions. requirement for States)Subject to the agreements and agreements with (b)Allocation.Indirect costs may be qparagraph subrecipients and contractors to carry allocated to each eligible activity under (a)(2)of this section,the recipient may §576.101 through§576.108,so long as require its subrecipients to make out program activities; that allocation is consistent with an matching contributions consistent with (D)Monitoring program activities for this section to helpmeet the recipient's and compliance withprogram indirect cost rate proposal developed in P progress P matching requirement. requirements; accordance with OMB Circular A-87(2 g eq (E)Preparing reports and other CFR part 225),or A-122(2 CFR part (2)Matching contributions may be P P 230),as applicable. obtained from any source,including any documents directly related to the Federal source other than the ESG program for submission to HUD; (c)Expenditure limits.The indirect as well as state,local,and (F)Coordinatingthe resolution of costs charged to an activity subject to an program, expenditure limit under§576.100 must private sources.However,the following audit and monitoring findings; be added to the direct costs charged for requirements apply to matching (G)stated objectives;program results against that activity when determining the total contributions from a Federal source of (H)Managing or supervising persons costs subject to the expenditure limit. funds: g g P g (i)The recipient must ensure the laws whose primary responsibilities with Subpart C—Award and Use of Funds governing any funds to be used as regard to the program include such matching contributions do not prohibit assignments as those described in §576.200 Submission requirements and those funds from being used to match paragraph(a)(1)(i)(A)through(G)of this grant approval. Emergency Solutions Grant(ESG)funds. section. (a)Application submission and (ii)If ESG funds are used to satisfy the (ii)Travel costs incurred for approval.In addition to meeting the matching requirements of another monitoring of subrecipients; application submission requirements in Federal program,then funding from that (iii)Administrative services 24 CFR part 5,subpart K,each State, program may not be used to satisfy the performed under third-party contracts urban county,or metropolitan city must matching requirements under this or agreements,including general legal submit and obtain HUD approval of a section. Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulation?'` 75983 (c)Recognition of matching established,along with its regular general purpose local government,the contributions.(1)In order to meet the indirect cost rate,a special rate for subrecipient must obligate all of those matching requirement,the matching allocating to individual projects or funds by a subgrant agreement with,or contributions must meet all programs the value of those a letter of award requiring payment to, requirements that apply to the ESG contributions. a private nonprofit organization;a funds provided by HUD,except for the (f)Costs paid by program income. procurement contract;or the written expenditure limits in§576.100. Costs paid by program income shall designation of a department within the (2)The matching contributions must count toward meeting the recipient's government of the subrecipient to be provided after the date that HUD matching requirements,provided the directly carry out an eligible activity. signs the grant agreement. costs are eligible ESG costs that (2)Funds allocated to metropolitan (3)To count toward the required supplement the recipient's ESG cities, urban counties,and territories. match for the recipient's fiscal year program. Within 180 days after the date that HUD grant,cash contributions must be signs the grant agreement(or a grant §576.202 Means of carrying out grant expended within the expenditure amendment for reallocation of funds) activities. deadline in§576.203,and noncash with the metropolitan city,urban contributions must be made within the (a)States.If the recipient is a State, county,or territory,the recipient must expenditure deadline in§576.203. the recipient may use an amount obligate all the grant amount,except the (4)Contributions used to match a consistent with the restrictions in amount for its administrative costs.This previous ESG grant may not be used to §576.100 and§576.108 to carry out requirement is met by an agreement match a subsequent ESG grant. administrative activities through its with,or a letter of award requiring (5)Contributions that have been or employees or procurement contracts.If payment to,a subrecipient;a will be counted as satisfying a matching the recipient is a State,and has been procurement contract;or a written requirement of another Federal grant or identified as the HMIS lead by the designation of a department within the award may not count as satisfying the Continuum of Care,the State may use government of the recipient to directly matching requirement of this section. funds to carry out HMIS activities set carry out an eligible activity.If the (d)Eligible types of matching forth in§576.107(a)(2).The recipient recipient is an urban county,this contributions.The matching must subgrant the remaining funds in its requirement may also be met with an requirement may be met by one or both fiscal year grant to: agreement with,or letter of award of the following: (1)Units of general purpose local requiring payment to,a member (1)Cash contributions.Cash government in the State,which may government,which has designated a expended for allowable costs,as defined include metropolitan cities and urban department to directly carry out an in OMB Circulars A-87 (2 CFR part 225) counties that receive ESG funds directly eligible activity. and A-122(2 CFR part 230),of the from.HUD;or (b)Expenditures.The recipient must recipient or subrecipient. (2)Private nonprofit organizations, draw down and expend funds from each (2)Noncash contributions.The value provided that for emergency shelter year's grant not less than once during of any real property,equipment,goods, activities the recipient obtains a each quarter of the recipient's program or services contributed to the recipient's certification of approval from the unit of year.All of the recipient's grant must be or subrecipient's ESG program, general purpose local government for expended for eligible activity costs provided that if the recipient or the geographic area in which those within 24 months after the date HUD subrecipient had to pay for them with activities are to be carried out. signs the grant agreement with the grant funds,the costs would have been (b)Recipients other than States; recipient.For the purposes of this allowable.Noncash contributions may subrecipients.The recipient,if it is not paragraph,expenditure means either an also include the purchase value of any a State,and all subrecipients may carry actual cash disbursement for a direct donated building. out all eligible activities through their charge for a good or service or an (e)Calculating the amount of noncash employees,procurement contracts,or indirect cost or the accrual of a direct contributions.(1)To determine the subgrants to private nonprofit charge for a good or service or an value of any donated material or organizations.If the recipient is an indirect cost. building,or of any lease,the recipient urban county,it may carry out activities (c)Payments to subrecipients.The must use a method reasonably through any of its member governments, recipient must pay each subrecipient for calculated to establish the fair market so long as the county applies to its allowable costs within 30 days after value. members the same requirements that are receiving the subrecipient's complete (2)Services provided by individuals applicable to local government payment request.This requirement also must be valued at rates consistent with subrecipients under this part. applies to each subrecipient that is a those ordinarily paid for similar work in unit of general purpose local the recipient's or subrecipient's §576.203 Obligation,expenditure,and P P government. organization.If the recipient or payment requirements• subrecipient does not have employees (a)Obligation of funds.(1)Funds Subpart D—Reallocations performing similar work,the rates must allocated to States.(i)Within 60 days be consistent with those ordinarily paid from the date that HUD signs the grant §576.300 In general. by other employers for similar work in agreement with the State(or grant (1)Funds not awarded by HUD due to the same labor market. amendment for reallocated funds),the failure by the recipient to submit and (3)Some noncash contributions are recipient must obligate the entire grant, obtain HUD approval of a consolidated real property,equipment,goods,or except the amount for its administrative plan will be reallocated in accordance services that,if the recipient or costs.This requirement is met by a with§§576.301 through 576.303. subrecipient had to pay for them with subgrant agreement with,or a letter of (2)Recaptured funds will be awarded grant funds,the payments would have award requiring payment from the grant by formula.In October and April each been indirect costs.Matching credit for to,a subrecipient. year,HUD will determine if the amount these contributions must be given only (ii)Within 120 days after the date that of recaptured funds is at least 30 percent if the recipient or subrecipient has the State obligates its funds to a unit of of the most recent fiscal year ' 75984 Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations appropriation.If so,HUD will amend all (1)A substantial amendment to its the administration and operation of the existing grants and reallocate the funds. approved consolidated plan in HMIS. If the amount is less than 30 percent of accordance with 24 CFR part 91;or (b)Coordination with other targeted the most recent fiscal year (2)If the eligible recipient does not homeless services.The recipient and its appropriation,the funds will be have an approved consolidated plan,an subrecipients must coordinate and reallocated in conjunction with the next abbreviated consolidated plan that integrate,to the maximum extent fiscal year's allocation of funding. meets the requirements in the Federal practicable,ESG-funded activities with §576.301 Metropolitan cities and urban Register notice or notification letter other programs targeted to homeless §576 es. from HUD. people in the area covered by the countiGrant funds returned by (d)Restrictions that apply to Continuum of Care or area over which a reallocated amounts.The same the services are coordinated to provide metropolitan city or urban county will requirements that apply to grant funds a strategic,community-wide system to be reallocated as follows: allocated under§576.3 apply to grant prevent and end homelessness for that (a)Eligible recipient.HUD will make funds reallocated under this section. area.These programs include: the funds available to the State in which (1)Shelter Plus Care Program(24 CFR the city or county is located. §576.303 Territories. part 582); (b)Notification of availability.HUD (a)General.Grant funds returned by (2)Supportive Housing Program(24 will promptly notify the State of the a territory will be reallocated to other CFR part 583); availability of the amounts to be territories,then if funds remain,to (3)Section 8 Moderate Rehabilitation reallocated. States. Program for Single Room Occupancy (c)Application requirement.Within (b)Allocation method.The funds will Program for Homeless Individuals(24 45 days after the date of notification,the be allocated as follows: CFR part 882); State must submit to HUD a substantial (1)For territories,the funds will be (4)HUD—Veterans Affairs Supportive amendment to its consolidated plan in allocated among the territories in direct Housing(HUD—VASH)(division K,title accordance with 24 CFR part 91. proportion with each territory's share of II,Consolidated Appropriations Act, (d)Restrictions that apply to the total population of all of the eligible 2008,Pub.L.110-161 (2007), 73 FR reallocated amounts.The same territories.If HUD determines that a 25026(May 6,2008)); requirements that apply to grant funds territory failed to spend its funds in (5)Education for Homeless Children allocated under§576.3 apply to grant accordance with ESG requirements, and Youth Grants for State and Local funds reallocated under this section, then HUD may exclude the territory Activities(title VII—B of the McKinney- except that the State must distribute the from the allocation of reallocation Vento Homeless Assistance Act(42 reallocated funds: amounts under this section. U.S.C. 11431 et seq.)); (1)To private nonprofit organizations (2)For States,the funds will be (6)Grants for the Benefit of Homeless and units of general purpose local allocated to each State in direct Individuals(section 506 of the Public government in the geographic area in proportion with each State's share of the Health Services Act(42 U.S.C.290aa— which the metropolitan city or urban total amount of funds allocated to States 5)); county is located; under§576.3. (7)Healthcare for the Homeless(42 (2)If funds remain,to private (c)Notification of availability.HUD CFR part 51c); nonprofit organizations and units of will notify eligible recipients of the (8)Programs for Runaway and general purpose local government availability of the fund by a letter or Homeless Youth(Runaway and located throughout the State. Federal Register notice,which will Homeless Youth Act(42 U.S.C.5701 et §576.302 States. specify how the awards of funds will be seq.)); Grant funds returned byState will made. (9)Projects for Assistance in a (d)Application requirements.Within Transition from Homelessness(part C of be reallocated as follows: 45 days after the date of notification,the title V of the Public Health Service Act (a)Eligible recipients.HUD will make eligible recipient must submit to HUD a (42 U.S.C.290cc-21 et seq.)); the funds available: substantial amendment to its (10)Services in Supportive Housing (1)To metropolitan cities and urban consolidated plan in accordance with 24 Grants(section 520A of the Public counties in the State that were not CFR p 91 Health Service Act); artallocated funds under§576.3 because (a)Restrictions that apply to (11)Emergency Food and Shelter the amount they would have been reallocated amounts.The same Program(title III of the McKinney-Vento allocated did not meet the minimum requirements that apply to grant funds Homeless Assistance Act(42 U.S.C. requirement under§576.3(b)(2); allocated under§576.3 apply to grant 11331 et seq.)); (2)If funds remain,to county funds reallocated under this section. (12)Transitional Housing Assistance governments in the State other than Grants for Victims of Sexual Assault, urban counties; Subpart E—Program Requirements Domestic Violence,Dating Violence, (3)Then,if funds remain,to and Stalking Program(section 40299 of metropolitan cities and urban counties §576.400 Area-wide systems coordination the Violent Crime Control and Law in the State that were allocated funds requirements. Enforcement Act(42 U.S.C.13975)); under§576.3. (a)Consultation with Continuums of (13)Homeless Veterans Reintegration (b)Notification of availability.HUD Care.The recipient must consult with Program(section 5(a)(1))of the will notify eligible recipients of the each Continuum of Care that serves the Homeless Veterans Comprehensive availability of the funds by a recipient's jurisdiction in determining Assistance Act(38 U.S.C.2021); notification letter or Federal Register how to allocate ESG funds each program (14)Domiciliary Care for Homeless notice,which will specify how the year;developing the performance Veterans Program(38 U.S.C.2043); awards of funds will be made. standards for,and evaluating the (15)VA HomelessProviders Grant (c)Application requirements.Within outcomes of,projects and activities and Per Diem Program(38 CFR part 61); 45 days after the date of notification,the assisted by ESG funds;and developing (16)Health Care for Homeless eligible recipient must submit to HUD: funding,policies,and procedures for Veterans Program(38 U.S.C.2031); °t.,-3:' Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations 751985 (17)Homeless Veterans Dental territory,the recipient must have activities must be coordinated and Program(38 U.S.C.2062); written standards for providing integrated to the maximum extent (18)Supportive Services for Veteran Emergency Solutions Grant(ESG) practicable); Families Program(38 CFR part 62);and assistance and must consistently apply (vi)Policies and procedures for (19)Veteran Justice Outreach those standards for all program determining and prioritizing which Initiative(38 U.S.C.2031). participants.The recipient must eligible families and individuals will (c)System and program coordination describe these standards in its receive homelessness prevention with mainstream resources.The consolidated plan. assistance and which eligible families recipient and its subrecipients must (2)If the recipient is a state: and individuals will receive rapid re- coordinate and integrate,to the (i)The recipient must establish and housing assistance; maximum extent practicable,ESG- consistently apply,or require that its (vii)Standards for determining what funded activities with mainstream subrecipients establish and consistently percentage or amount of rent and housing,health,social services, apply,written standards for providing utilities costs each program participant employment,education,and youth ESG assistance.If the written standards must pay while receiving homelessness programs for which families and are established by the subrecipients,the prevention or rapid re-housing individuals at risk of homelessness and recipient may require these written assistance; homeless individuals and families may standards to be: (viii)Standards for determining how be eligible.Examples of these programs (A)Established for each area covered long a particular program participant include: by a Continuum of Care or area over will be provided with rental assistance (1)Public housing programs assisted which the services are coordinated and and whether and how the amount of under section 9 of the U.S.Housing Act followed by each subrecipient providing that assistance will be adjusted over of 1937(42 U.S.C. 1437g)(24 CFR parts assistance in that area;or time;and 905,968,and 990); (B)Established by each subrecipient (ix)Standards for determining the (2)Housing programs receiving and applied consistently within the type,amount,and duration of housing tenant-based or project-based assistance subrecipient's program. stabilization and/or relocation services under section 8 of the U.S.Housing Act (ii)Written standards developed by to provide to a program participant, of 1937(42 U.S.C. 1437f)(respectively the state must be included in the state's including the limits,if any,on the 24 CFR parts 982 and 983); Consolidated Plan.If the written homelessness prevention or rapid re- (3)Supportive Housing for Persons standards are developed by its housing assistance that each program with Disabilities(Section 811)(24 CFR subrecipients,the recipient must participant may receive,such as the part 891); describe its requirements for the maximum amount of assistance, (4)HOME Investment Partnerships establishment and implementation of maximum number of months the Program(24 CFR part 92); these standards in the state's program participant receive assistance; (5)Temporary Assistance for Needy Consolidated Plan. or the maximum number of times the Families(TANF)(45 CFR parts 260— (3)At a minimum these written program participant may receive 265); standards must include: assistance. (6)Health Center Program(42 CFR (i)Standard policies and procedures (f)Participation in HMIS.The part 51c); for evaluating individuals'and families' recipient must ensure that data on all (7)State Children's Health Insurance eligibility for assistance under persons served and all activities assisted Program(42 CFR part 457): Emergency Solutions Grant(ESG); under ESG are entered into the (8)Head Start(45 CFR chapter XIII, (ii)Standards for targeting and applicable community-wide HMIS in subchapter B); providing essential services related to the area in which those persons and (9)Mental Health and Substance street outreach; activities are located,or a comparable Abuse Block Grants(45 CFR part 96); (iii)Policies and procedures for database,in accordance with HUD's and admission,diversion,referral,and standards on participation, data (10)Services funded under the discharge by emergency shelters collection,and reporting under a local Workforce Investment Act(29 U.S.C. assisted under ESG,including standards HMIS.If the subrecipient is a victim 2801 et seq.). regarding length of stay,if any,and service provider or a legal services (d)Centralized or coordinated safeguards to meet the safety and shelter provider,it may use a comparable assessment.Once the Continuum of needs of special populations,e.g., database that collects client-level data Care has developed a centralized victims of domestic violence,dating over time(i.e.,longitudinal data)and assessment system or a coordinated violence,sexual assault,and stalking; generates unduplicated aggregate assessment system in accordance with and individuals and families who have reports based on the data.Information requirements to be established by HUD, the highest barriers to housing and are entered into a comparable database each ESG-funded program or project likely to be homeless the longest; must not be entered directly into or within the Continuum of Care's area (iv)Policies and procedures for provided to an HMIS. must use that assessment system.The assessing,prioritizing,and reassessing recipient and subrecipient must work individuals'and families'needs for §576.401 Evaluation of program with the Continuum of Care to ensure essential services related to emergency participant eligibility and needs. the screening,assessment and referral of shelter; (a)Evaluations.The recipient or its program participants are consistent with (v)Policies and procedures for subrecipient must conduct an initial the written standards required by coordination among emergency shelter evaluation to determine the eligibility of paragraph(e)of this section.A victim providers,essential services providers, each individual or family's eligibility for service provider may choose not to use homelessness prevention,and rapid re- ESG assistance and the amount and the Continuum of Care's centralized or housing assistance providers;other types of assistance the individual or coordinated assessment system. homeless assistance providers;and family needs to regain stability in (e) Written standards for providing mainstream service and housing permanent housing.These evaluations ESG assistance.(1)If the recipient is a providers(see§576.400(b)and(c)for a must be conducted in accordance with metropolitan city,urban county,or list of programs with which ESG-funded the centralized or coordinated 75986 Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations assessment requirements set forth under (iv)Federal-State Unemployment (1)Written notice to the program §576.400(d)and the written standards Insurance Program(20 CFR parts 601— participant containing a clear statement established under§576.400(e). 603,606,609,614-617,625,640,650); of the reasons for termination; (b)Re-evaluations for homelessness (v)Social Security Disability (2)A review of the decision,in which prevention and rapid re-housing Insurance(SSDI)(20 CFR part 404); the program participant is given the assistance.(1)The recipient or (vi)Supplemental Security Income opportunity to present written or oral subrecipient must re-evaluate the (SSI)(20 CFR part 416); objections before a person other than the program participant's eligibility and the (vii)Child and Adult Care Food person(or a subordinate of that person) types and amounts of assistance the who made or approved the termination program participant needs not less than ,,Program(42 U.S.C. 1766(t)(7 CFR part decision;and once every 3 months for program 226))' (3)Prompt written notice of the final participants receiving homelessness (viii)Other assistance available under decision to the program articipant. prevention assistance,and not less than the programs listed in§576.400(c). (c)Ability to provide further once annually for program participants (e)Housing stability case assistance.Termination under this receiving rapid re-housing assistance.At management.(1)While providing section does not bar the recipient or a minimum,each re-evaluation of homelessness prevention or rapid re- subrecipient from providing further eligibility must establish that: housing assistance to a program assistance at a later date to the same (i)The program participant does not participant,the recipient or subrecipient family or individual. have an annual income that exceeds 30 must: §576.409 Shelter and housing standards. percent of median family income for the (i)Require the program participant to area,as determined by HUD;and meet with a case manager not less than (a)Lead-based paint remediation and (ii)The program participant lacks once per month to assist the program disclosure.The Lead-Based Paint sufficient resources and support participant in ensuring long-term Poisoning Prevention Act(42 U.S.C. networks necessary to retain housing housing stability;and 4821-4846),the Residential Lead-Based without ESG assistance. (ii)Develop a plan to assist the Paint Hazard Reduction Act of 1992 (42 (2)The recipient or subrecipient may program participant to retain permanent U.S.C.4851-4856),and implementing require each program participant housing after the ESG assistance ends, regulations in 24 CFR part 35,subparts receiving homelessness prevention or taking into account all relevant A,B,H,J,K,M,and R apply to all rapid re-housing assistance to notify the considerations,such as the program shelters assisted under ESG program recipient or subrecipient regarding participant's current or expected income and all housing occupied by program changes in the program participant's and expenses;other public or private participants. income or other circumstances (e.g., assistance for which the program (b)Minimum standards for emergency changes in household composition)that participant will be eligible and likely to shelters.Any building for which affassistance a ct the under Eram SG.When participant's notified of receive;and the relative affordability of areEm used for conversion,n,majtions Grant or funds available housing in the area. rehabilitation,or other renovation,must a relevant change,the recipient or (2)The recipient or subrecipient is meet state or local government safety subrecipient must re-evaluate the P requirementand sanitation standards,as applicable, exempt from the under program participant's eligibility and the paragraph(e)(1)(i)of this section if the and the followingPP cable, afety, amount and types of assistance the Violence Against Women Act of 1994 sanitation,andprivacy1 sta standards.pro participant needs. Any (c Annual income.When (42 U.S.C. 13701 et seq.)or the Family emergency shelter that receives determining the annual income of an Violence Prevention and Services Act assistance for shelter operations must individual or family,the recipient or (42 U.S.C. 10401 et seq.)prohibits that also meet the following minimum subrecipient must use the standard for recipient or subrecipient from making safety,sanitation,and privacy its shelter or housing conditional on the calculating annual income under 24standards.The recipient may also CPI(5.609. participant's acceptance of services. establish standards that exceed or add to (d)Connecting program participants §576.402 Terminating assistance. these minimum standards. to mainstream and other resources.The (1)Structure and materials.The recipient and its subrecipients must (a)In general.If a program participant shelter building must be structurally assist each program participant,as violates program requirements,the sound to protect residents from the needed,to obtain: recipient or subrecipient may terminate elements and not pose any threat to (1)Appropriate supportive services, the assistnce in accordance with a health and safety of the residents.Any including assistance in obtaining formal process established by the renovation(including major permanent housing,medical health recipient or subrecipient that recognizes rehabilitation and conversion)carried treatment,mental health treatment, the rights of individuals affected.The out with ESG assistance must use counseling,supervision,and other recipient or subrecipient must exercise Energy Star and WaterSense products services essential for achieving judgment and examine all extenuating and appliances. independent living;and circumstances in determining when (2)Access.The shelter must be (2)POther Federal,State,local,and violations warrant termination so that a accessible in accordance with Section private assistance available to assist the program participant's assistance is 504 of the Rehabilitation Act(29 U.S.C. program participant in obtaining terminated only in the most severe 794)and implementing regulations at 24 housing stability,including: cases. CFR part 8;the Fair Housing Act(42 (i)Medicaid(42 CFR chapter IV, (b)Program participants receiving U.S.C.3601 et seq.)and implementing subchapter C): rental assistance or housing relocation regulations at 24 CFR part 100;and Title (ii)Supplemental Nutrition and stabilization services.To terminate II of the Americans with Disabilities Act Assistance Program(7 CFR parts 271— rental assistance or housing relocation (42 U.S.C.12131 et seq.)and 28 CFR 283);. and stabilization services to a program part 35;where applicable. (iii)Women,Infants and Children participant,the required formal process, (3)Space and security.Except where (WIC)(7 CFR part 246); at a minimum,must consist of: the shelter is intended for day use only, Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations 75989 that will make available to interested materials practicable,consistent with 49 CFR part 24,replacement dwellings persons information concerning the maintaining a satisfactory level of must also contain the accessibility location of assistance,services,and competition,where the purchase price features needed by displaced persons facilities that are accessible to persons of the item exceeds$10,000 or the value with disabilities. with disabilities.Consistent with Title of the quantity acquired by the (2)Displaced Person.(i) For purposes VI and Executive Order 13166, preceding fiscal year exceeded$10,000; of paragraph(c)of this section,the term recipients and subrecipients are also procuring solid waste management "displaced person"means any person required to take reasonable steps to services in a manner that maximizes (family,individual,business,nonprofit ensure meaningful access to programs energy and resource recovery;and organization,or farm,including any and activities for limited English establishing an affirmative procurement corporation,partnership,or association) proficiency(LEP)persons. program for procurement of recovered that moves from real property,or moves (c) Uniform Administrative materials identified in the EPA personal property from real property, Requirements.The requirements of 24 guidelines. permanently,as a direct result of CFR part 85 apply to the recipient and §576.408 Displacement,relocation,and acquisition,rehabilitation,or subrecipients that are units of general §576A0ion. demolition for a project assisted under purpose local government,except that (a)Minimizingdisplacement. the ESG program.This includes any 24 CFR 85.24 and 85.42 do not apply, Pacement. permanent,involuntary move for an and program income is to be used as Consistent with the other goals and assisted project,including any match under 24 CFR 85.25(g).The objectives of Emergency Solutions Grant permanent move from the real property requirements of 24 CFR part 84 apply to (ESG),the recipient and its that is made: subrecipients that are private nonprofit subrecipients must assure that they have (A)After the owner(or person in organizations,except that 24 CFR 84.23 taken all reasonable steps to minimize control of the site)issues a notice to and 84.53 do not apply,and program the displacement of persons(families, move permanently from the property or income is to be used as the nonfederal individuals,businesses,nonprofit refuses to renew an expiring lease,if the share under 24 CFR 84.24(b).These organizations,and farms)as a result of move occurs on or after: regulations include allowable costs and a project assisted under Emergency (I)The date of the submission by the non-Federal audit requirements. Solutions Grant(ESG). recipient(or subrecipient,as applicable) (d)Environmental review (b)Temporary relocation not of an application for assistance to HUD responsibilities.(1)Activities under this permitted.No tenant-occupant of (or the recipient,as applicable)that is part are subject to environmental review housing(a dwelling unit)that is later approved and funded if the by HUD under 24 CFR part 50.The converted into an emergency shelter recipient(or subrecipient,as applicable) recipient shall supply all available, may be required to relocate temporarily has site control as evidenced by a deed, relevant information necessary for HUD for a project assisted with ESG funds,or sales contract,or option contract to to perform for each property any be required to move to another unit in acquire the property;or environmental review required by 24 the same building/complex.When a (II)The date on which the recipient CFR part 50.The recipient also shall tenant moves for a project assisted with (or subrecipient,as applicable)selects carry out mitigating measures required ESG funds under conditions that trigger the applicable site,if the recipient(or by HUD or select alternate eligible the Uniform Relocation Assistance and subrecipient,as applicable)does not property.HUD may eliminate from Real Property Acquisition Policies Act have site control at the time of the consideration any application that of 1970(URA),42 U.S.C.4601-4655,as application,provided that the recipient would require an Environmental Impact described in paragraph(c)of this (or subrecipient,as applicable) Statement(EIS). section,the tenant should be treated as eventually obtains control over the site; (2)The recipient or subrecipient,or permanently displaced and offered (B)Before the date described in any contractor of the recipient or relocation assistance and payments paragraph(c)(2)(i)(A)of this section,if subrecipient,may not acquire, consistent with that paragraph. the recipient or HUD determines that rehabilitate,convert,lease,repair, (c)Relocation assistance for displaced the displacement resulted directly from dispose of,demolish,or construct persons.(1)In general.A displaced acquisition,rehabilitation,or property for a project under this part,or person(defined in paragraph(c)(2)of demolition for the project;or commit or expend HUD or local funds this section)must be provided (C)By a tenant-occupant of a dwelling for eligible activities under this part, relocation assistance at the levels unit and the tenant moves after until HUD has performed an described in,and in accordance with, execution of the agreement covering the environmental review under 24 CFR the URA and 49 CFR part 24.A acquisition,rehabilitation,or part 50 and the recipient has received displaced person must be advised of his demolition of the property for the HUD approval of the property. or her rights under the Fair Housing Act project. (e)Davis-Bacon Act.The provisions of (42 U.S.C. 3601 et seq.).Whenever (ii)Notwithstanding paragraph the Davis-Bacon Act(40 U.S.C.276a to possible,minority persons shall be (c)(2)(i)of this section,a person does 276a-5)do not apply to the ESG given reasonable opportunities to not qualify as a displaced person if: program. relocate to comparable and suitable (A)The person has been evicted for (0 Procurement of Recovered decent,safe,and sanitary replacement cause based upon a serious or repeated Materials.The recipient and its dwellings,not located in an area of violation of the terms and conditions of contractors must comply with Section minority concentration,that are within the lease or occupancy agreement; 6002 of the Solid Waste Disposal Act,as their financial means.This policy, violation of applicable Federal,State or amended by the Resource Conservation however,does not require providing a local law,or other good cause;and the and-Recovery Act.The requirements of person a larger-payment than is recipient determines that the eviction Section 6002 include procuring only necessary to enable a person to relocate was not undertaken for the purpose of items designated in guidelines of the to a comparable replacement dwelling. evading the obligation to provide Environmental Protection Agency(EPA) (See 49 CFR 24.205(c)(2)(ii)(D).)As relocation assistance. at 40 CFR part 247 that contain the required by Section 504 of the (B)The person moved into the highest percentage of recovered Rehabilitation Act(29 U.S.C. 794)and property after the submission of the 75990 Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations application but,before signing a lease Subpart F—Grant Administration (i)Discharge paperwork or a written and commencing occupancy,was or oral referral from a social worker, provided written notice of the project, §57ti•500 Recordkeeping and reporting case manager,or other appropriate its possible impact on the person(e.g., requirements. official of the institution, stating the the person may be displaced),and the (a)In general.The recipient must beginning and end dates of the time fact that the person would not qualify as have policies and procedures to ensure residing in the institution. All oral a"displaced person"(or for any the requirements of this part are met, statements must be recorded by the assistance under this section)as a result The policies and procedures must be intake worker;or of the project; established in writing and implemented (ii)Where the evidence in paragraph (C)The person is ineligible under 49 by the recipient and its subrecipients to (b)(2)(i)of this section is not obtainable, CFR 24.2(a)(rson;or ensure that ESG funds are used in a written record of the intake worker's accordance with the requirements.In due diligence in attempting to obtain (D)HUD determines that the person addition,sufficient records must be the evidence described in paragraph was not displaced as a direct result of established and maintained to enable (b)(2)(i)and a certification by the acquisition,rehabilitation,or the recipient and HUD to determine individual seeking assistance that states demolition for the project. whether ESG requirements are being he or she is exiting or has just exited an (iii)The recipient or subrecipient met. institution where he or she resided for may,at any time,request that HUD to (b)Homeless status.The recipient 90 days or less. determine whether a displacement is or must maintain and follow written intake (3)If the individual or family qualifies would be covered by this rule. procedures to ensure compliance with as homeless under paragraph(2)of the (3)Initiation of negotiations.For the homeless definition in§576.2.The homeless definition in§576.2,because purposes of determining the type of procedures must require documentation the individual or family will replacement housing payment at intake of the evidence relied upon to imminently lose their housing,the establish and verify homeless status. evidence must include: assistance to be provided to a displaced person pursuant to this section: The procedures must establish the order (i)(A)A court order resulting from an of priority for obtaining evidence as eviction action that requires the (i)If the displacement is the direct third-party documentation first,intake individual or family to leave their result of privately undertaken worker observations second,and residence within 14 days after the date rehabilitation,demolition,or certification from the person seeking of their application for homeless acquisition of the real property, assistance third.However,lack of third- assistance;or the equivalent notice "initiation of negotiations"means the party documentation must not prevent under applicable state law,a Notice to execution of the agreement between the an individual or family from being Quit,or a Notice to Terminate issued recipient and the subrecipient or the immediately admitted to emergency under state law; agreement between the recipient(or shelter,receiving street outreach (B)For individuals and families subrecipient,as applicable)and the services,or being immediately admitted whose primary nighttime residence is a person owning or controlling the to shelter or receiving services provided hotel or motel room not paid for by property; by a victim service provider.Records charitable organizations or federal,state, (ii)If site control is only evidenced by contained in an HMIS or comparable or local government programs for low- an option contract to acquire the database used by victim service or legal income individuals,evidence that the property,the"initiation of negotiations" service providers are acceptable individual or family lacks the resources does not become effective until the evidence of third-party documentation necessary to reside there for more than execution of a written agreement that and intake worker observations if the 14 days after the date of application for creates a legally enforceable HMIS retains an auditable history of all homeless assistance;or commitment to proceed with the entries,including the person who such a a sales contract. entered the data,the date of entry,and (C)An oral statement by the purchase, individual or head of household that the (d)Real acquisition the change made;and if the HMIS owner or renter of the housing in which requirements.Real property.The acquisition of real prevents overrides or changes of the they currently reside will not allow dates on which entries are made. them to stayfor more than 14 days property,whether funded privately or after publicly,for a assisted with (1)If the individual or family qualifies the date of application for homeless Emergency y Solutionsproject Grantis (ESG)funds as homeless under paragraph(1)(i)or assistance.The intake worker must (ii)of the homeless definition in§576.2, record the statement and certi that it is subject to the URA and Federal fy governmentwide regulations at 49 CFR acceptable evidence includes a written was found credible.To be found part 24,subpart B. observation by an outreach worker of credible,the oral statement must either: the conditions where the individual or (I)be verified by the owner or renter of (e)Appeals.A person who disagrees family was living,a written referral by the housing in which the individual or with the recipient's(or subrecipient's,if another housing or service provider,or family resides at the time of application applicable)determination concerning a certification by the individual or head for homeless assistance and whether the person qualifies as a of household seeking assistance. documented by a written certification displaced person,or the amount of (2)If the individual qualifies as by the owner or renter or by the intake relocation assistance for which the homeless under paragraph(1)(iii)of the worker's recording of the owner or person may be eligible,may file a homeless definition in§576.2,because renter's oral statement;or(II)if the written appeal of that determination he or she resided in an emergency intake worker is unable to contact the with the recipient under 49 CFR 24.10. shelter or place not meant for human owner or renter,be documented by a A low-income person who disagrees habitation and is exiting an institution written certification by the intake with the recipient's determination may where he or she resided for 90 days or worker of his or her due diligence in submit a written request for review of less,acceptable evidence includes the attempting to obtain the owner or that determination by the appropriate evidence described in paragraph(b)(1) renter's verification and the written HUD field office. of this section and one of the following: certification by the individual or head of Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations 75991 household seeking assistance that his or move was due to the individual or other organization from whom the her statement was true and complete; family fleeing domestic violence,dating individual or head of household has (ii)Certification by the individual or violence,sexual assault,or stalking, sought assistance for domestic violence, head of household that no subsequent then the intake worker may alternatively dating violence,sexual assault,or residence has been identified;and obtain a written certification from the stalking.The written referral or (iii)Certification or other written individual or head of household seeking observation need only include the documentation that the individual or assistance that they were fleeing that minimum amount of information family lacks the resources and support situation and that they resided at that necessary to document that the networks needed to obtain other address;and individual or family is fleeing,or permanent housing. (iv)For paragraph(3)(iv)of the attempting to flee domestic violence, (4)If the individual or family qualifies homeless definition in§576.2,written dating violence,sexual assault,and as homeless under paragraph(3)of the diagnosis from a professional who is stalking. homeless definition in§576.2,because licensed by the state to diagnose and (c)At risk of homelessness status.For the individual or family does not treat that condition(or intake staff- each individual or family who receives otherwise qualify as homeless under the recorded observation of disability that Emergency Solutions Grant(ESG) homeless definition but is an within 45 days of date of the application homelessness prevention assistance,the unaccompanied youth under 25 years of for assistance is confirmed by a records must include the evidence age,or homeless family with one or professional who is licensed by the state relied upon to establish and verify the more children or youth,and is defined to diagnose and treat that condition); individual or family's"at risk of as homeless under another Federal employment records;department of homelessness"status.This evidence statute or section 725(2)of the corrections records;literacy,English must include an intake and certification McKinney-Vento Homeless Assistance proficiency tests;or other reasonable form that meets HUD specifications and Act(42 U.S.C. 11434a(2)),the evidence documentation of the conditions is completed by the recipient or must include: required under paragraph(3)(iv)of the subrecipient.The evidence must also (i)For paragraph(3)(i)of the homeless homeless definition, include: definition in§576.2,certification of (5)If the individual or family qualifies (1)If the program participant meets homeless status by the local private under paragraph(4)of the homeless the criteria under paragraph(1)of the nonprofit organization or state or local definition in§576.2,because the "at risk of homelessness" definition in governmental entity responsible for individual or family is fleeing domestic §576.2: administering assistance under the violence,dating violence,sexual (i)The documentation specified Runaway and Homeless Youth Act(42 assault,stalking,or other dangerous or under this section for determining U.S.C.5701 et seq.),the Head Start Act life-threatening conditions related to annual income; (42 U.S.C.9831 et seq.),subtitle N of the violence,then acceptable evidence (ii)The program participant's Violence Against Women Act of 1994 includes an oral statement by the certification on a form specified by HUD (42 U.S.C. 14043e et seq.),section 330 individual or head of household seeking that the program participant has of the Public Health Service Act(42 assistance that they are fleeing that insufficient financial resources and U.S.C.254b),the Food and Nutrition situation,that no subsequent residence support networks;e.g.,family,friends, Act of 2008(7 U.S.C.2011 et seq.), has been identified and that they lack faith-based or other social networks, section 17 of the Child Nutrition Act of the resources or support networks,e.g., immediately available to attain housing 1966(42 U.S.C. 1786),or subtitle B of family,friends,faith-based or other stability and meets one or more of the title VII of the McKinney-Vento social networks,needed to obtain other conditions under•paragraph(1)(iii)of Homeless Assistance Act(42 U.S.C. housing.If the individual or family is the definition of"at risk of 11431 et seq.),as applicable; receiving shelter or services provided by homelessness"in§576.2; (ii)For paragraph(3)(ii)of the a victim service provider,the oral (iii)The most reliable evidence homeless definition in§576.2,referral statement must be documented by either available to show that the program by a housing or service provider,written a certification by the individual or head participant does not have sufficient observation by an outreach worker,or of household;or a certification by the resources or support networks;e.g., certification by the homeless individual intake worker.Otherwise,the oral family,friends,faith-based or other or head of household seeking assistance; statement that the individual or head of social networks,immediately available (iii)For paragraph(3)(iii)of the household seeking assistance has not to prevent them from moving to an homeless definition in§576.2, identified a subsequent residence and emergency shelter or another place certification by the individual or head of lacks the resources or support networks, described in paragraph(1)of the household and any available supporting e.g.,family,friends,faith-based or other "homeless"definition.Acceptable documentation that the individual or social networks,needed to obtain evidence includes: family moved two or more times during housing must be documented by a (A)Source documents (e.g.,notice of the 60-day period immediately certification by the individual or head of termination from employment, preceding the date of application for household that the oral statement is true unemployment compensation homeless assistance,including: and complete,and,where the safety of statement,bank statement,health-care recorded statements or records obtained the individual or family would not be bill showing arrears,utility bill showing from each owner or renter of housing, jeopardized,the domestic violence, arrears); provider of shelter or housing,or social dating violence,sexual assault,stalking, (B)To the extent that source worker,case worker,or other or other dangerous or life-threatening documents are unobtainable,a written appropriate official of a hospital or condition must be verified by a written statement by the relevant third party institution in which the individual or observation by the intake worker or a (e.g.,former employer,public family resided;or,where these written referral by a housing or service administrator,relative)or the written statements or records are unobtainable, provider,social worker,legal assistance certification by the recipient's or a written record of the intake worker's provider,health-care provider,law subrecipient's intake staff of the oral due diligence in attempting to obtain enforcement agency,legal assistance verification by the relevant third party these statements or records.Where a provider,pastoral counselor,or any that the applicant meets one or both of 75992 Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations the criteria under paragraph(1)(ii)of the (d)Determinations of ineligibility.For appropriate assistance and services at definition of"at risk of homelessness" each individual and family determined §576.401(d)and(e);and in§576.2;or ineligible to receive Emergency (3)Where applicable,compliance (C)To the extent that source Solutions Grant(ESG)assistance,the with the termination of assistance documents and third-party verification record must include documentation of requirement in§576.402. are unobtainable,a written statement by the reason for that determination. (g)Centralized or coordinated the recipient's or subrecipient's intake (e)Annual income.For each program assessment systems and procedures. staff describing the efforts taken to participant who receives homelessness The recipient and its subrecipients must obtain the required evidence;and prevention assistance,or who receives keep documentation evidencing the use (iv)The most reliable evidence rapid re-housing assistance longer than of,and written intake procedures for, available to show that the program one year,the following documentation the centralized or coordinated participant meets one or more of the of annual income must be maintained: assessment system(s)developed by the conditions under paragraph(1)(iii)of (1)Income evaluation form containing Continuum of Care(s)in accordance the definition of"at risk of the minimum requirements specified by with the requirements established by homelessness"in§576.2.Acceptable HUD and completed by the recipient or HUD. evidence includes: subrecipient;and (h)Rental assistance agreements and (A)Source documents that evidence (2)Source documents for the assets cpayme opies ts.The records must include one or more of the conditions under held by the.program participant and copies of all leases and rental assistance paragraph(1)(iii)of the definition(e.g., income received over the most recent agreements for the provision of rental eviction notice,notice of termination period for which representative data is assistance,documentation of payments from employment,bank statement); available before the date of the made to ownersncfor the provision of (B)To the extent that source evaluation(e.g.,wage statement, rental assistance,and supporting documents are unobtainable,a written unemployment compensation documentation for these payments, statement by the relevant third party statement,public benefits statement, including dates of occupancy by (e.g.,former employer,owner,primary bank statement); program participants.l leaseholder,public administrator,hotel (3)To the extent that source (i1 documentUtility allowance.Theallowance records must the monthly for or motel manager)or the written documents are unobtainable,a written utilities(excluding telephone)used to certification by the recipient's or statement by the relevant third party determine compliance with the rent subrecipient's intake staff of the oral (e.g.,employer,government benefits restriction. verification by the relevant third party administrator)or the written (j)Shelter and housing standards.The that the applicant meets one or more of certification by the recipient's or records must include documentation of the criteria under paragraph(1)(iii)of subrecipient's intake staff of the oral compliance with the shelter and the definition of"at risk of verification by the relevant third party housing standards in§576.403, homelessness";or of the income the program participant including inspection reports. (C)To the extent that source received over the most recent period for (k)Emergency shelter facilities.The documents and third-party verification which representative data is available; recipient must keep records of the are unobtainable,a written statement by or emergency shelters assisted under the the recipient's or subrecipient's intake (4)To the extent that source ESG program,including the amount and staff that the staff person has visited the documents and third party verification type of assistance provided to each applicant's residence and determined are unobtainable,the written emergency shelter.As applicable,the that the applicant meets one or more of certification by the program participant recipient's records must also include the criteria under paragraph(1)(iii)of of the amount of income the program documentation of the value of the the definition or,if a visit is not participant received for the most recent building before the rehabilitation of an practicable or relevant to the period representative of the income that existing emergency shelter or after the determination,a written statement by the program participant is reasonably. conversion of a building into an the recipient's or subrecipient's intake expected to receive over the 3-month emergency shelter and copies of the staff describing the efforts taken to period following the evaluation. recorded deed or use restrictions. obtain the required evidence;or (f)Program participant records.In (1)Services and assistance provided. (2)If the program participant meets addition to evidence of homeless status The recipient must keep records of the the criteria under paragraph(2)or(3)of or"at risk of homelessness"status,as types of essential services,rental the"at risk of homelessness"definition applicable,records must be kept for assistance,and housing stabilization in§576.2,certification of the child or each program participant that and relocation services provided under youth's homeless status by the agency or document: the recipient's program and the amounts organization responsible for (1)The services and assistance spent on these services and assistance. administering assistance under the provided to that program participant, The recipient and its subrecipients that Runaway and Homeless Youth Act(42 including,as applicable,the security are units of general purpose local U.S.C.5701 et seq.),the Head Start Act deposit,rental assistance,and utility government must keep records to (42 U.S.C. 9831 et seq.),subtitle N of the payments made on behalf of the demonstrate compliance with the Violence Against Women Act of 1994 program participant; maintenance of effort requirement, (42 U.S.C. 14043e et seq.),section 330 (2)Compliance with the applicable including records of the unit of the of the Public Health Service Act(42 requirements for providing services and general purpose local government's U.S.C.254b),the Food and Nutrition assistance to that program participant annual budgets and sources of funding Act of 2008(7 U.S.C.2011 et seq.), under the program components and for street outreach and emergency section 17 of the Child Nutrition Act of eligible activities provisions at§576.101 shelter services. 1966(42 U.S.C. 1786)or subtitle B of through§576.106,the provision on (m)Coordination with Continuum(s) title VII of the McKinney-Vento determining eligibility and amount and of Care and other programs.The Homeless Assistance Act(42 U.S.C. type of assistance at§576.401(a)and recipient and its subrecipients must 11431 et seq.),as applicable. (b),and the provision on using document their compliance with the Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations 75993 requirements of§576.400 for consulting requirements,including flood insurance (ii)The address or location of any with the Continuum(s)of Care and requirements. domestic violence,dating violence, coordinating and integrating ESG (4)Certifications and disclosure forms sexual assault,or stalking shelter project assistance with programs targeted required under the lobbying and assisted under the ESG will not be made toward homeless people and disclosure requirements in 24 CFR part public,except with written mainstream service and assistance 87. authorization of the person responsible programs. (t)Relocation.The records must for the operation of the shelter;and (n)HMIS.The recipient must keep include documentation of compliance (iii)The address or location of any records of the participation in HMIS or with the displacement,relocation,and housing of a program participant will a comparable database by all projects of acquisition requirements in§576.408. not be made public,except as provided the recipient and its subrecipients. (u)Financial records.(1)The under a preexisting privacy policy of the (o)Matching.The recipient must keep recipient must retain supporting recipient or subrecipient and consistent records of the source and use of documentation for all costs charged to with state and local laws regarding contributions made to satisfy the the ESG grant. privacy and obligations of matching requirement in§576.201.The (2)The recipient and its subrecipients confidentiality. fiscalrecords grant for which ach particular must kaep docufunds wetationre showing that the )recipient a pint and its subreprocedures of cipients must year!P' ESG grant funds were spent on matching contribution is counted.The allowable costs in accordance with the be in writing and must be maintained in records must show how the value requirements for eligible activities accordance with this section. placed on third-party,noncash under§576.101-§576.109 and the cost (y)Period of record retention.All contributions was derived.To the extent principles in OMB Circulars A-87(2 records pertaining to each fiscal year of feasible,volunteer services must be CFR part 225)and A-122 (2 CFR part ESG funds must be retained for the supported by the same methods that the 230). greater of 5 years or the period specified organization uses to support the below.Copies made by microfilming, (3)The recipient and its subrecipients hotoco in or similar methods may allocationConflicts f regular personnel Thel recis.pient ient must retain records of the receipt and be substituted for the original records. (p) fl ofP use of program income. and its subrecipients must keep records (1)Documentation of each program (4)The recipient must keep as a familyor to show compliance with the documentation of compliance with the participant's qualification organizational conflicts-of-interest individual at risk of homelessness or as exrequirements in§576.404(a),a copy of a ndividual and expenditure deadline in§576.203enditure limits in§576.100 . the other program familyparor ticipant records must the personal conflicts of interest policy (v)Subrecipients and contractors.(1) be retine for year after the or codes of conduct developed and The recipient must retain copies of all implemented to comply with the P P expenditure of all funds from the grant requirements in§576.404(b),and solicitations of and agreements with under which the program participant supporting exceptions to the subrecipients,records of all payment was served; records peronal conflicts of interest requests by and dates of payments made (2)Where ESG funds are used for the to subrecipients,and documentation of renovation of an emergency shelter prohibitions. (q)Homeless participation.The all monitoring and sanctions of involves costs charged to the ESG grant subrecipients,as applicable.If the that exceed 75 percent of the value of recipient must document its compliance with the homeless participation recipient is a State,the recipient must the building before renovation,records requirements under§576.405. keep records of each recapture and must be retained until 10 years after the �r)Faith-based activities.The distribution of recaptured funds under date that ESG funds are first obligated recipient and its subrecipients must §576.501. for the renovation;and document their compliance with the (2)The recipient and its subrecipients (3)Where ESG funds are used to faith-based activities requirements must retain copies of all procurement convert a building into an emergency under§576.406. contracts and documentation of shelter and the costs charged to the ESG (s) Other Federal requirements.The compliance with the procurement grant for the conversion exceed 75 recipient and its subrecipients must requirements in 24 CFR 85.36 and 24 percent of the value of the building after document their compliance with the CFR 84.40-84.48. conversion,records must be retained Federal requirements in§576.407,as (3)The recipient must ensure that its until 10 years after the date that ESG applicable,including: subrecipients comply with the funds are first obligated for the (1)Records demonstrating compliance recordkeeping requirements specified conversion. with the nondiscrimination and equal by the recipient and HUD notice or (z)Access to records. (1)Federal opportunity requirements under regulations. government rights.Notwithstanding the §576.407(a),including data concerning The r Other records must eC specified HUD undedenti lily procedures(w of ess established race,ethnicity,disability status,sex, pikeep paragraph on, and family characteristics of persons specified by HUD. HUD,the HUD Office of the Inspector and households who are applicants for, (x)Confidentiality. (I)The recipient General,and the Comptroller General of or program participants in,any program and its subrecipients must develop and the United States,or any of their or activity funded in whole or in part implement written procedures to authorized representatives,must have with ESG funds and the affirmative ensure: the right of access to all books, outreach requirements in§576.407(b). (i)All records containing personally documents,papers,or other records of (2)Records demonstrating compliance identifying information(as defined in the recipient and its subrecipients that with the uniform administrative HUD's standards for participation,data are pertinent to the ESG grant,in order requirements in 24 CFR part 85 (for collection,and reporting in a local to make audits,examinations,excerpts, governments)and 24 CFR part 84(for HMIS)of any individual or family who and transcripts.These rights of access nonprofit organizations). applies for and/or receives ESG are not limited to the required retention (3)Records demonstrating compliance assistance will be kept secure and period but last as long as the records are with the environmental review confidential; retained. 75994 Federal Register/Vol. 76, No. 233/Monday, December 5, 2011/Rules and Regulations (2)Public rights.The recipient must eligible activities in accordance with all reallocate those funds to other provide citizens,public agencies,and ESG program requirements. recipients in accordance with subpart D other interested parties with reasonable (3)If the recipient fails to demonstrate of this part. access(consistent with state and local to HUD's satisfaction that the activities (8)HUD may condition a future grant. laws regarding privacy and obligations were carried out in compliance with (9)HUD may take other remedies that of confidentiality and the ESG program requirements,HUD will are legally available. confidentiality requirements in this take one or more of the remedial actions (c)Recipient sanctions.If the part)to records regarding any uses of or sanctions specified in paragraph(b) recipient determines that a subrecipient ESG funds the recipient received during of this section. is not complying with an ESG program the preceding 5 years. (b)Remedial actions and sanctions. requirement or its subgrant agreement, (aa)Reports.The recipient must Remedial actions and sanctions for a the recipient must take appropriate collect and report data on its use of ESG failure to meet an ESG program actions,as prescribed for HUD in funds in the Integrated Disbursement requirement will be designed to prevent paragraphs(a)and(b)of this section.If and Information System(IDIS)and other a continuation of the deficiency; the recipient is a State and funds reporting systems,as specified by HUD. mitigate,to the extent possible,its become available as a result of an action The recipient must also comply with the adverse effects"or consequences;and under this section,the recipient must reporting requirements in 24 CFR parts prevent its recurrence. reallocate those funds to other 85 and 91 and the reporting (1)HUD may instruct the recipient to subrecipients as soon as practicable.If requirements under the Federal Funding submit and comply with proposals for the recipient is a unit of general purpose Accountability and Transparency Act of action to correct,mitigate,and prevent local government of territory,it must 2006,(31 U.S.C.6101 note),which are noncompliance with ESG requirements, either reallocate those funds to other set forth in Appendix A to 2 CFR part including: subrecipients or reprogram the funds for 170. (i)Preparing and following a schedule other activities to be carried out by the of actions for carrying out activities recipient as soon as practicable.The §576.501 Enforcement. affected by the noncompliance, recipient must amend its Consolidated (a)Performance reviews. including schedules,timetables,and Plan in accordance with its citizenship (1)HUD will review the performance milestones necessary to implement the participation plan if funds become of each recipient in carrying out its affected activities; available and are reallocated or responsibilities under this part (ii)Establishing and following a reprogrammed under this section.The whenever determined necessary by management plan that assigns reallocated or reprogrammed funds HUD,but at least annually.In responsibilities for carrying out the must be used by the expenditure conducting performance reviews,HUD remedial actions; deadline in§576.203. will rely primarily on information (iii)Canceling or revising activities obtained from the records and reports likely to be affected by the Dated:November 9,2011. from the recipient and,when noncompliance,before expending ESG Mercedes Marquez, appropriate,its subrecipients,as well as funds for the activities; Assistant Secretary for Community Planning information from onsite monitoring, (iv)Reprogramming ESG funds that and Development. audit reports,and information from IDIS have not yet been expended from [FR Doc.2011-30938 Filed 12-2-11;8:45 am] and HMIS.Where applicable,HUD may affected activities to other eligible BILLING CODE 4210-67-P also consider relevant information activities; pertaining to the recipient's (v)Suspending disbursement of ESG performance gained from other sources, funds for some or all activities; DEPARTMENT OF HOUSING AND including citizen comments,complaint (vi)Reducing or terminating the URBAN DEVELOPMENT determinations,and litigation.Reviews remaining grant of a subrecipient and to determine compliance with specific reallocating those funds to other 24 CFR Parts 91,582,and 583 requirements of thispart will be subrecipients;and q (vii)Making matching contributions [Docket No.FR-5833-F-02] conducted as necessary,with or without before or as draws are made from the prior notice to the recipient. RIN 2506-AC26 (2)If HUD determines preliminarily recipient's HUD grant. D may change the method of Homeless Emergency Assistance and that the recipient or one of its pa lent to a reimbursement basis. Rapid Transition to Housing: Defining subrecipients has not complied with an 3)HUD may suspend payments to "Homeless" ESG program requirement,HUD will the extent HUD deems it necessary to give the recipient notice of this preclude the further expenditure of AGENCY:Office of the Assistant determination and an opportunity to funds for affected activities. Secretary for Community Planning and demonstrate,within the time prescribed (4)HUD may remove the recipient Development,HUD. by HUD and on the basis of substantial from participation in reallocations of ACTION:Final rule. facts and data,that the recipient has funds under subpart D of this part. complied with Emergency Solutions (5)HUD may deny matching credit for SUMMARY:The Homeless Emergency Grant(ESG)requirements.HUD may all or part of the cost of the affected Assistance and Rapid Transition to change the method of payment to activities and require the recipient to Housing Act of 2009(HEARTH Act), require the recipient to obtain HUD's make further matching contributions to enacted into law on May 20,2009, prior approval each time the recipient make up for the contribution consolidates three of the separate draws down Emergency Solutions Grant determined to be ineligible. homeless assistance programs (ESG)funds.To obtain prior approval, (6)HUD may require the recipient to administered by HUD under the the recipient may be required to reimburse its line of credit in an amount McKinney-Vento Homeless Assistance manually submit its payment requests equal to the funds used for the affected Act into a single grant program,revises and supporting documentation to HUD activities. the Emergency Shelter Grants program in order to show that the funds to be (7)HUD may reduce or terminate the and renames the program the drawn down will be expended on remaining grant of a recipient and Emergency Solutions Grants program, EXHIBIT"C" SCOPE OF WORK 1. Provide emergency shelter for homeless domestic violence victims. 2. Maintain emergency shelter facility in compliance with all relevant State and local codes and ordinances. 3. Keep emergency shelter facility open on a 24-hour, 7 day per week basis. 4. Provide two meals daily. 5. Coordinate client placement with other shelters, service providers, housing providers, and referral agencies within the City, as need dictates. Each person seeking ESG assistance—to the extent practicable is offered an assessment by the ESG-funded program for eligibility screening and housing plan with appropriate referrals to providers for housing, mainstream resources, support, treatment, and other programs to prevent or end their homelessness. 6. Supplement the City ESGP Grant with matching funds, in an amount not less than $12,847, to be used for homeless assistance. a. Matching funds must be expended for homeless assistance during the effective period of this Agreement. b. The expenditure and use of matching funds is to be documented pursuant to Section 3 of this Agreement. c. Allowable sources for matching funds are agency cash, salary paid to staff to carry out shelter program, and volunteer hours. 7. Allowable activities which are reimbursable under the provisions of this grant agreement are: Utilities (OPPD and MUD), Insurance, Shelter Maintenance Staff Salaries, Shelter Security Staff Salaries, and other Shelter Staff Salaries up to $20,000.00. 8. Provide monthly and annual reports containing information on number served by race, ethnicity, household composition, along with subpopulation numbers, number served by housing type as well as other information deemed necessary by the City of Omaha, for the purpose of statistical evaluation, monitoring and coordination of client services NOTE: The following performance standards for evaluating ESG activities have been specified by the Metro Area Continuum of Care for the Homeless and included as Emergency Shelter Performance Standards in the Substantial Amendment to the 2013 City of Omaha Action Plan. As such, performance on these standards needs to be monitored to the extent feasible and included as a part of ongoing performance reporting: a. Standard #1 —Number in need for whom shelter is provided thereby reducing the number of people living on the streets or other unfit locations; b. Standard #2—Reduction in shelter length of stay; c. Standard #3 — Number successfully placed in "next step" housing (transitional, permanent, permanent supportive), success defined as absence of return to emergency shelter; - 15 - d. Standard #4 — Number whose housing barriers have been reduced due to services provided by (facilitated by) Shelter workers, i.e., increase in income, medication regimens maintained, mental/medical/dental services accessed, other mainstream benefits accessed. 9. Participate in Metro Area Continuum of Care for the Homeless(MACCH)activities, including: - The MACCH Client Feedback process; - Providing updated information to maintain the MACCH Directory; - Document client homelessness; - Install and implement a comparable database (appropriate to victim service providers as defined in Section 1.13); - Providing information for the shelter and service provider census counts administered by MACCH; - Paying on a timely basis annual MACCH dues; and - Ensuring that relevant staff are utilizing MACCH's Listserve. - 16- EXHIBIT"D" ALLOWABLE EXPENDITURES Catholic Charities of the Archdiocese of Omaha $11,839.00 Shelter Operating Expenses* *Shelter Operating Expenses include Utilities (OPPD and MUD), Insurance, Shelter Maintenance Staff Salaries, Shelter Security Staff Salaries, and other Shelter Staff Salaries up to $20,000.00. - 17- Circular No. A-133 Revised to show changes published in the Federal Register June 27, 2003 and June 26, 2007 Audits of States,Local Governments,and Non-Profit Organizations Accompanying Federal Register Materials: --Audits of States, Local Governments, and Non-Profit Organizations June 30, 1997 - - Revision published June 27, 2003 This revision: (1) increased the dollar threshold for the audit requirement; and (2) made changes regarding determination of cognizant and oversight agencies for audit. - - Revision published June 26, 2007 This revision: (1) replaced the term "reportable conditions"with "significant deficiencies" to conform with current auditing standards; and (2) updated report submission requirements. Definition of"significant deficiencies"and "material weaknesses" are as defined in generally accepted auditing standards issued by the American Institute of Certified Public Accountants (AICPA) and Government Auditing Standards issued by the Government Accountability Office. [Note:The June 27, 2003 revisions: (1) increased the dollar threshold for the audit requirement, and (2) made changes regarding determination of cognizant and oversight agencies for audit.The June 26, 2007 revisions make changes to (1)to replace the terms "reportable conditions"with "significant deficiencies"to conform with changes in auditing standards; and (2) reporting submission requirements. In several places, the Circular includes guidelines for the reporting of"significant deficiencies"and "material weaknesses."These terms are to be used as defined in generally accepted auditing standards issued by the American Institute of Certified Public Accountants (AICPA), and Government Auditing Standards issued by the Government Accountability Office.] Circular No. A-133 Revised to show changes published in the Federal Registers of June 27, 2003 and June 26, 2007 Audits of States, Local Governments, and Non-Profit Organizations TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SUBJECT: Audits of States, Local Governments, and Non-Profit Organizations 1. Purpose. This Circular is issued pursuant to the Single Audit Act of 1984, P.L. 98-502, and the Single Audit Act Amendments of 1996, P.L. 104-156. It sets forth standards for obtaining consistency and uniformity among Federal agencies for the audit of States, local governments, and non-profit organizations expending Federal awards. 2. Authority. Circular A-133 is issued under the authority of sections 503, 1111, and 7501 et seq. of title 31, United States Code, and Executive Orders 8248 and 11541. 3. Rescission and Supersession. This Circular rescinds Circular A-128, "Audits of State and Local Governments, " issued April 12, 1985, and supersedes the prior Circular A-133, "Audits of Institutions of Higher Education and Other Non-Profit Institutions, " issued April 22, 1996. For effective dates, see paragraph 10. 4. Policy. Except as provided herein, the standards set forth in this Circular shall be applied by all Federal agencies. If any statute specifically prescribes policies or specific requirements that differ from the standards provided herein, the provisions of the subsequent statute shall govern. Federal agencies shall apply the provisions of the sections of this Circular to non-Federal entities, whether they are recipients expending Federal awards received directly from Federal awarding agencies, or are subrecipients expending Federal awards received from a pass-through entity (a recipient or another subrecipient) . This Circular does not apply to non-U.S. based entities expending Federal awards received either directly as a recipient or indirectly as a subrecipient. 5. Definitions. The definitions of key terms used in this Circular are contained in § .105 in the Attachment to this Circular. 6. Required Action. The specific requirements and responsibilities of Federal agencies and non-Federal entities are set forth in the Attachment to this Circular. Federal agencies making awards to non-Federal entities, either directly or indirectly, shall adopt the language in the Circular in codified regulations as provided in Section 10 (below) , unless different provisions are required by Federal statute or are approved by the Office of Management and Budget (OMB) . 7. OMB Responsibilities. OMB will review Federal agency regulations and implementation of this Circular, and will provide interpretations of policy requirements and assistance to ensure uniform, effective and efficient implementation. 8. Information Contact. Further information concerning Circular A-133 may be obtained by contacting the Financial Standards and Reporting Branch, Office of Federal Financial Management, Office of Management and Budget, Washington, DC 20503, telephone (202) 395-3993. 1 9. Review Date. This Circular will have a policy review three years from the date of issuance. 10. Effective Dates. The standards set forth in § .400 of the Attachment to this Circular, which apply directly to Federal agencies, shall be effective July 1, 1996, and shall apply to audits of fiscal years beginning after June 30, 1996, except as otherwise specified in § .400 (a) . The standards set forth in this Circular that Federal agencies shall apply to non-Federal entities shall be adopted by Federal agencies in codified regulations not later than 60 days after publication of this final revision in the Federal Register, so that they will apply to audits of fiscal years beginning after June 30, 1996, with the exception that § .305(b) of the Attachment applies to audits of fiscal years beginning after June 30, 1998. The requirements of Circular A-128, although the Circular is rescinded, and the 1990 version of Circular A-133 remain in effect for audits of fiscal years beginning on or before June 30, 1996. The revisions published in the Federal Register June 27, 2003, are effective for fiscal years ending after December 31, 2003, and early implementation is not permitted with the exception of the definition of oversight agency for audit which is effective July 28, 2003. Augustine T. Smythe Acting Director The revisions published in the Federal Register June 26, 2007, are effective for fiscal years ending on or after December 15, 2006. Rob Portman Director Attachment 2 PART_ --AUDITS OF STATES, LOCAL GOVERNMENTS, AND NON-PROFIT ORGANIZATIONS Subpart A--General Sec. .100 Purpose. .105 Definitions. Subpart B--Audits .200 Audit requirements. .205 Basis for determining Federal awards expended. .210 Subrecipient and vendor determinations. .215 Relation to other audit requirements. .220 Frequency of audits. .225 Sanctions. .230 Audit costs. .235 Program-specific audits. Subpart C--Auditees .300 Auditee responsibilities. .305 Auditor selection. .310 Financial statements. .315 Audit findings follow-up. .320 Report submission. Subpart D--Federal Agencies and Pass-Through Entities .400 Responsibilities. .405 Management decision. Subpart E--Auditors .500 Scope of audit. .505 Audit reporting. .510 Audit findings. .515 Audit working papers. .520 Major program determination. .525 Criteria for Federal program risk. .530 Criteria for a low-risk auditee. Appendix A to Part _ - Data Collection Form (Form SF-SAC) . Appendix B to Part _ - Circular A-133 Compliance Supplement. 3 Subpart A--General S .100 Purpose. This part sets forth standards for obtaining consistency and uniformity among Federal agencies for the audit of non-Federal entities expending Federal awards. S .105 Definitions. Auditee means any non-Federal entity that expends Federal awards which must be audited under this part. Auditor means an auditor, that is a public accountant or a Federal, State or local government audit organization, which meets the general standards specified in generally accepted government auditing standards (GAGAS) . The term auditor does not include internal auditors of non-profit organizations. Audit finding means deficiencies which the auditor is required by S .510(a) to report in the schedule of findings and questioned costs. CFDA number means the number assigned to a Federal program in the Catalog of Federal Domestic Assistance (CFDA) . Cluster of programs means a grouping of closely related programs that share common compliance requirements. The types of clusters of programs are research and development (R&D) , student financial aid (SFA) , and other clusters. "Other clusters" are as defined by the Office of Management and Budget (OMB) in the compliance supplement or as designated by a State for Federal awards the State provides to its subrecipients that meet the definition of a cluster of programs. When designating an "other cluster, " a State shall identify the Federal awards included in the cluster and advise the subrecipients of compliance requirements applicable to the cluster, consistent with S .400(d) (1) and S .400(d) (2) , respectively. A cluster of programs shall be considered as one program for determining major programs, as described in S .520, and, with the exception of R&D as described in S .200(c) , whether a program-specific audit may be elected. Cognizant agency for audit means the Federal agency designated to carry out the responsibilities described in S .400(a) . Compliance supplement refers td the Circular A-133 Compliance Supplement, included as Appendix B to Circular A-133, or such documents as OMB or its designee may issue to replace it. This document is available from the Government Printing Office, Superintendent of Documents, Washington, DC 20402-9325. Corrective action means action taken by the auditee that: (1) Corrects identified deficiencies; (2) Produces recommended improvements; or (3) Demonstrates that audit findings are either invalid or do not warrant auditee action. Federal agency has the same meaning as the term agency in Section 551(1) of title 5, United States Code. Federal award means Federal financial assistance and Federal cost- reimbursement contracts that non-Federal entities receive directly from Federal awarding agencies or indirectly from pass-through entities. It does 4 not include procurement contracts, under grants or contracts, used to buy goods or services from vendors. Any audits of such vendors shall be covered by the terms and conditions of the contract. Contracts to operate Federal Government owned, contractor operated facilities (GOCOs) are excluded from the requirements of this part. Federal awarding agency means the Federal agency that provides an award directly to the recipient. Federal financial assistance means assistance that non-Federal entities receive or administer in the form of grants, loans, loan guarantees, property (including donated surplus property) , cooperative agreements, interest subsidies, insurance, food commodities, direct appropriations, and other assistance, but does not include amounts received as reimbursement for services rendered to individuals as described in § .205(h) and § .205(i) . Federal program means: (1) All Federal awards to a non-Federal entity assigned a single number in the CFDA. (2) When no CFDA number is assigned, all Federal awards from the same agency made for the same purpose should be combined and considered one program. (3) Notwithstanding paragraphs (1) and (2) of this definition, a cluster of programs. The types of clusters of programs are: (i) Research and development (R&D) ; (ii) Student financial aid (SFA) ; and (iii) "Other clusters, " as described in the definition of cluster of programs in this section. GAGAS means generally accepted government auditing standards issued by the Comptroller General of the United States, which are applicable to financial audits. Generally accepted accounting principles has the meaning specified in generally accepted auditing standards issued by the American Institute of Certified Public Accountants (AICPA) . Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaskan Native village or regional or village corporation (as defined in, or established under, the Alaskan Native Claims Settlement Act) that is recognized by the United States as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Internal control means a process, effected by an entity's management and other personnel, designed to provide reasonable assurance regarding the achievement of objectives in the following categories: (1) Effectiveness and efficiency of operations; (2) Reliability of financial reporting; and (3) Compliance with applicable laws and regulations. Internal control pertaining to the compliance requirements for Federal programs (Internal control over Federal programs) means a process--effected by 5 an entity's management and other personnel--designed to provide reasonable assurance regarding the achievement of the following objectives for Federal programs: (1) Transactions are properly recorded and accounted for to: (i) Permit the preparation of reliable financial statements and Federal reports; (ii) Maintain accountability over assets; and (iii) Demonstrate compliance with laws, regulations, and other compliance requirements; (2) Transactions are executed in compliance with: (i) Laws, regulations, and the provisions of contracts or grant agreements that could have a direct and material effect on a Federal program; and (ii) Any other laws and regulations that are identified in the compliance supplement; and (3) Funds, property, and other assets are safeguarded against loss from unauthorized use or disposition. Loan means a Federal loan or loan guarantee received or administered by a non-Federal entity. Local government means any unit of local government within a State, including a. county, borough, municipality, city, town, township, parish, local public authority, special district, school district, intrastate district, council of governments, and any other instrumentality of local government. Major program means a Federal program determined by the auditor to be a major program in accordance with § .520 or a program identified as a major program by a Federal agency or pass-through entity in accordance with § .215(c) . Management decision means the evaluation by the Federal awarding agency or pass-through entity of the audit findings and corrective action plan and the issuance of a written decision as to what corrective action is necessary. Non-Federal entity means a State, local government, or non-profit organization. Non-profit organization means: (1) any corporation, trust, association, cooperative, or other organization that: (i) Is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest; (ii) Is not organized primarily for profit; and (iii) Uses its net proceeds to maintain, improve, or expand its operations; and (2) The term non-profit organization includes non-profit institutions of higher education and hospitals. 6 OMB means the Executive Office of the President, Office of Management and Budget. Oversight agency for audit means the Federal awarding agency that provides the predominant amount of direct funding to a recipient not assigned a cognizant agency for audit. When there is no direct funding, the Federal agency with the predominant indirect funding shall assume the oversight responsibilities. The duties of the oversight agency for audit are described in § .400(b) . Effective July 28, 2003, the following is added to this definition: A Federal agency with oversight for an auditee may reassign oversight to another Federal agency which provides substantial funding and agrees to be the oversight agency for audit. Within 30 days after any reassignment, both the old and the new oversight agency for audit shall notify the auditee, and, if known, the auditor of the reassignment." Pass-through entity means a non-Federal entity that provides a Federal award to a subrecipient to carry out a Federal program. Program-specific audit means an audit of one Federal program as provided for in § .200(c) and § .235. Questioned cost means a cost that is questioned by the auditor because of an audit finding: (1) Which resulted from a violation or possible violation of a provision of a law, regulation, contract, grant, cooperative agreement, or other agreement or document governing the use of Federal funds, including funds used to match Federal funds; (2) Where the costs, at the time of the audit, are not supported by adequate documentation; or (3) Where the costs incurred appear unreasonable and do not reflect the actions a prudent person would take in the circumstances. Recipient means a non-Federal entity that expends Federal awards received directly from a Federal awarding agency to carry out a Federal program. Research and development (R&D) means all research activities, both basic and applied, and all development activities that are performed by a non- Federal entity. Research is defined as a systematic study directed toward fuller scientific knowledge or understanding of the subject studied. The term research also includes activities involving the training of individuals in research techniques where such activities utilize the same facilities as other research and development activities and where such activities are not included in the instruction function. Development is the systematic use of knowledge and understanding gained from research directed toward the production of useful materials, devices, systems, or methods, including design and development of prototypes and processes. Single audit means an audit which includes both the entity's financial statements and the Federal awards as described in § .500. State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the 7 Pacific Islands, any instrumentality thereof, any multi-State, regional, or interstate entity which has governmental functions, and any Indian tribe as defined in this section. Student Financial Aid (SFA) includes those programs of general student assistance, such as those authorized by Title IV of the Higher Education Act of 1965, as amended, (20 U.S.C. 1070 et seq. ) which is administered by the U.S. Department of Education, and similar programs provided by other Federal agencies. It does not include programs which provide fellowships or similar Federal awards to students on a competitive basis, or for specified studies or research. Subrecipient means a non-Federal entity that expends Federal awards received from a pass-through entity to carry out a Federal program, but does not include an individual that is a beneficiary of such a program. A subrecipient may also be a recipient of other Federal awards directly from a Federal awarding agency. Guidance on distinguishing between a subrecipient and a vendor is provided in § .210. Types of compliance requirements refers to the types of compliance requirements listed in the compliance supplement. Examples include: activities allowed or unallowed; allowable costs/cost principles; cash management; eligibility; matching, level of effort, earmarking; and, reporting. Vendor means a dealer, distributor, merchant, or other seller providing goods or services that are required for the conduct of a Federal program. These goods or services may be for an organization's own use or for the use of beneficiaries of the Federal program. Additional guidance on distinguishing between a subrecipient and a vendor is provided in § .210. Subpart S--Audits .200 Audit requirements. (a) Audit required. Non-Federal entities that expend $300,000 ($500,000 for fiscal years ending after December 31, 2003) or more in a year in Federal awards shall have a single or program-specific audit conducted for that year in accordance with the provisions of this part. Guidance on determining Federal awards expended is provided in § .205. (b) Single audit. Non-Federal entities that expend $300,000 ($500,000 for fiscal years ending after December 31, 2003) or more in a year in Federal awards shall have a single audit conducted in accordance with § .500 except when they elect to have a program-specific audit conducted in accordance with paragraph (c) of this section. (c) Program-specific audit election. When an auditee expends Federal awards under only one Federal program (excluding R&D) and the Federal program's laws, regulations, or grant agreements do not require a financial statement audit of the auditee, the auditee may elect to have a program- specific audit conducted in accordance with § .235. A program-specific audit may not be elected for R&D unless all of the Federal awards expended were received from the same Federal agency, or the same Federal agency and the same pass-through entity, and that Federal agency, or pass-through entity in the case of a subrecipient, approves in advance a program-specific audit. (d) Exemption when Federal awards expended are less than $300,000 ($500,000 for fiscal years ending after December 31, 2003) . Non-Federal 8 entities that expend less than $300,000 ($500,000 for fiscal years ending after December 31, 2003) a year in Federal awards are exempt from Federal audit requirements for that year, except as noted in § .215(a) , but records must be available for review or audit by appropriate officials of the Federal agency, pass-through entity, and General Accounting Office (GAO) . (e) Federally Funded Research and Development Centers (FFRDC) . Management of an auditee that owns or operates a FFRDC may elect to treat the FFRDC as a separate entity for purposes of this part. §_.205 Basis for determining Federal awards expended. (a) Determining Federal awards expended. The determination of when an award is expended should be based on when the activity related to the award occurs. Generally, the activity pertains to events that require the non- Federal entity to comply with laws, regulations, and the provisions of contracts or grant agreements, such as: expenditure/expense transactions associated with grants, cost-reimbursement contracts, cooperative agreements, and direct appropriations; the disbursement of funds passed through to subrecipients; the use of loan proceeds under loan and loan guarantee programs; the receipt of property; the receipt of surplus property; the receipt or use of program income; the distribution or consumption of food commodities; the disbursement of amounts entitling the non-Federal entity to an interest subsidy; and, the period when insurance is in force. (b) Loan and loan guarantees (loans) . Since the Federal Government is at risk for loans until the debt is repaid, the following guidelines shall be used to calculate the value of Federal awards expended under loan programs, except as noted in paragraphs (c) and (d) of this section: (1) Value of new loans made or received during the fiscal year; plus (2) Balance of loans from previous years for which the Federal Government imposes continuing compliance requirements; plus (3) Any interest subsidy, cash, or administrative cost allowance received. (c) Loan and loan guarantees (loans) at institutions of higher education. When loans are made to students of an institution of higher education but the institution does not make the loans, then only the value of loans made during the year shall be considered Federal awards expended in that year. The balance of loans for previous years is not included as Federal awards expended because the lender accounts for the prior balances. (d) Prior loan and loan guarantees (loans) . Loans, the proceeds of which were received and expended in prior-years, are not considered Federal awards expended under this part when the laws, regulations, and the provisions of contracts or grant agreements pertaining to such loans impose no continuing compliance requirements other than to repay the loans. (e) Endowment funds. The cumulative balance of Federal awards for endowment funds which are federally restricted are considered awards expended in each year in which the funds are still restricted. (f) Free rent. Free rent received by itself is not considered a Federal award expended under this part. However, free rent received as part 9 of an award to carry out a Federal program shall be included in determining Federal awards expended and subject to audit under this part. (g) Valuing non-cash assistance. Federal non-cash assistance, such as free rent, food stamps, food commodities, donated property, or donated surplus property, shall be valued at fair market value at the time of receipt or the assessed value provided by the Federal agency. (h) Medicare. Medicare payments to a non-Federal entity for providing patient care services to Medicare eligible individuals are not considered Federal awards expended under this part. (i) Medicaid. Medicaid payments to a subrecipient for providing patient care services to Medicaid eligible individuals are not considered Federal awards expended under this part unless a State requires the funds to be treated as Federal awards expended because reimbursement is on a cost- reimbursement basis. (j) Certain loans provided by the National Credit Union Administration. For purposes of this part, loans made from the National Credit Union Share Insurance Fund and the Central Liquidity Facility that are funded by contributions from insured institutions are not considered Federal awards expended. § .210 Subrecipient and vendor determinations. (a) General. An auditee may be a recipient, a subrecipient, and a vendor. Federal awards expended as a recipient or a subrecipient would be subject to audit under this part. The payments received for goods or services provided as a vendor would not be considered Federal awards. The guidance in paragraphs (b) and (c) of this section should be considered in determining whether payments constitute a Federal award or a payment for goods and services. (b) Federal award. Characteristics indicative of a Federal award received by a subrecipient are when the organization: (1) Determines who is eligible to receive what Federal financial assistance; (2) Has its performance measured against whether the objectives of the Federal program are met; (3) Has responsibility for programmatic decision making; (4) Has responsibility for adherence to applicable Federal program compliance requirements; and (5) Uses the Federal funds to carry out a program of the organization as compared to providing goods or services for a program of the pass-through entity. (c) Payment for goods and services. Characteristics indicative of a payment for goods and services received by a vendor are when the organization: (1) Provides the goods and services within normal business operations; 10 (2) Provides similar goods or services to many different . purchasers; (3) Operates in a competitive environment; (4) Provides goods or services that are ancillary to the operation of the Federal program; and (5) Is not subject to compliance requirements of the Federal program. (d) Use of judgment in making determination. There may be unusual circumstances or exceptions to the listed characteristics. In making the determination of whether a subrecipient or vendor relationship exists, the substance of the relationship is more important than the form of the agreement. It is not expected that all of the characteristics will be present and judgment should be used in determining whether an entity is a subrecipient or vendor. (e) For-profit subrecipient. Since this part does not apply to for- profit subrecipients, the pass-through entity is responsible for establishing requirements, as necessary, to ensure compliance by for-profit subrecipients. The contract with the for-profit subrecipient should describe applicable compliance requirements and the for-profit subrecipient's compliance responsibility. Methods to ensure compliance for Federal awards made to for- profit subrecipients may include pre-award audits, monitoring during the contract, and post-award audits. (f) Compliance responsibility for vendors. In most cases, the auditee's compliance responsibility for vendors is only to ensure that the procurement, receipt, and payment for goods and services comply with laws, regulations, and the provisions of contracts or grant agreements. Program compliance requirements normally do not pass through to vendors. However, the auditee is responsible for ensuring compliance for vendor transactions which are structured such that the vendor is responsible for program compliance or the vendor's records must be reviewed to determine program compliance. Also, when these vendor transactions relate to a major program, the scope of the audit shall include determining whether these transactions are in compliance with laws, regulations, and the provisions of contracts or grant agreements. §_.215 Relation to other audit requirements. (a) Audit under this part in lieu of other audits. An audit made in accordance with this part shall be in lieu of any financial audit required under individual Federal awards. To the extent this audit meets a Federal agency's needs, it shall rely upon and use such audits. The provisions of this part neither limit the authority of Federal agencies, including their Inspectors General, or GAO to conduct or arrange for additional audits (e.g., financial audits, performance audits, evaluations, inspections, or reviews) nor authorize any auditee to constrain Federal agencies from carrying out additional audits. Any additional audits shall be planned and performed in such a way as to build upon work performed by other auditors. (b) Federal agency to pay for additional audits. A Federal agency that conducts or contracts for additional audits shall, consistent with other applicable laws and regulations, arrange for funding the full cost of such additional audits. 11 (c) Request for a program to be audited as a major program. A Federal agency may request an auditee to have a particular Federal program audited as a major program in lieu of the Federal agency conducting or arranging for the additional audits. To allow for planning, such requests should be made at least 180 days prior to the end of the fiscal year to be audited. The auditee, after consultation with its auditor, should promptly respond to such request by informing the Federal agency whether the program would otherwise be audited as a major program using the risk-based audit approach described in § .520 and, if not, the estimated incremental cost. The Federal agency shall then promptly confirm to the auditee whether it wants the program audited as a major program. If the program is to be audited as a major program based upon this Federal agency request, and the Federal agency agrees to pay the full incremental costs, then the auditee shall have the program audited as a major program. A pass-through entity may use the provisions of this paragraph for a subrecipient. § .220 Frequency of audits. Except for the provisions for biennial audits provided in paragraphs (a) and (b) of this section, audits required by this part shall be performed annually. Any biennial audit shall cover both years within the biennial period. (a) A State or local government that is required by constitution or statute, in effect on January 1, 1987, to undergo its audits less frequently than annually, is permitted to undergo its audits pursuant to this part biennially. This requirement must still be in effect for the biennial period under audit. (b) Any non-profit organization that had biennial audits for all biennial periods ending between July 1, 1992, and January 1, 1995, is permitted to undergo its audits pursuant to this part biennially. § .225 Sanctions. No audit costs may be charged to Federal awards when audits required by this part have not been made or have been made but not in accordance with this part. In cases of continued inability or unwillingness to have an audit conducted in accordance with this part, Federal agencies and pass-through entities shall take appropriate action using sanctions such as: (a) Withholding a percentage of Federal awards until the audit is completed satisfactorily; (b) Withholding or disallowing overhead costs; (c) Suspending Federal awards until the audit is conducted; or (d) Terminating the Federal award. § .230 Audit costs. (a) Allowable costs. Unless prohibited by law, the cost of audits made in accordance with the provisions of this part are, allowable charges to Federal awards. The charges may be considered a direct cost or an allocated indirect cost, as determined in accordance with the provisions of -applicable OMB cost principles circulars, the Federal Acquisition Regulation (FAR) (48 CFR parts 30 and 31) , or other applicable cost principles or regulations. 12 (b) Unallowable costs. A non-Federal entity shall not charge the following to a Federal award: (1) The cost of any audit under the Single Audit Act Amendments of 1996 (31 U.S.C. 7501 et seq. ) not conducted in accordance with this part. (2) The cost of auditing a non-Federal entity which has Federal awards expended of less than $300,000 ($500,000 for fiscal years ending after December 31, 2003) per year and is thereby exempted under § .200(d) from having an audit conducted under this part. However, this does not prohibit a pass-through entity from charging Federal awards for the cost of limited scope audits to monitor its subrecipients in accordance with § .400(d) (3) , provided the subrecipient does not have a single audit. For purposes of this part, limited scope audits only include agreed-upon procedures engagements conducted in accordance with either the AICPA's generally accepted auditing standards or attestation standards, that are paid for and arranged by a pass- through entity and address only one or more of the following types of compliance requirements: activities allowed or unallowed; allowable costs/cost principles; eligibility; matching, level of effort, earmarking; and, reporting. § .235 Program-specific audits. (a) Program-specific audit guide available. In many cases, a program- specific audit guide will be available to provide specific guidance to the auditor with respect to internal control, compliance requirements, suggested audit procedures, and audit reporting requirements. The auditor should contact the Office of Inspector General of the Federal agency to determine whether such a guide is available. When a current program-specific audit guide is available, the auditor shall follow GAGAS and the guide when performing a program-specific audit. (b) Program-specific audit guide not available. (1) When a program- specific audit guide is not available, the auditee and auditor shall have basically the same responsibilities for the Federal program as they would have for an audit of a major program in a single audit. (2) The auditee shall prepare the financial statement(s) for the Federal program that includes, at a minimum, a schedule of expenditures of Federal awards for the program and notes that describe the significant accounting policies used in preparing the schedule, a summary schedule of prior audit findings consistent with the requirements of § .315(b) , and a corrective action plan consistent with the requirements of § .315(c) . (3) The auditor shall: (i) Perform an audit of the financial statement(s) for the Federal program in accordance with GAGAS; (ii) Obtain an understanding of internal control and perform tests of internal control over the Federal program consistent with the requirements of § .500(c) for a major program; (iii) Perform procedures to determine whether the auditee has complied with laws, regulations, and the provisions of contracts or grant agreements that could have a direct and material effect on the Federal program consistent with the requirements of § .500(d) for a major program; and 13 (iv) Follow up on prior audit findings, perform procedures to assess the reasonableness of the summary schedule of prior audit findings prepared by the auditee, and report, as a current year audit finding, when the auditor concludes that the summary schedule of prior audit findings materially misrepresents the status of any prior audit finding in accordance with the requirements of §_.500(e) . (4) The auditor's report(s) may be in the form of either combined or separate reports and may be organized differently from the manner presented in this section. The auditor's report(s) shall state that the audit was conducted in accordance with this part and include the following: (i) An opinion (or disclaimer of opinion) as to whether the financial statement(s) of the Federal program is presented fairly in all material respects in conformity with the stated accounting policies; (ii) A report on internal control related to the Federal program, which shall describe the scope of testing of internal control and the results of the tests; (iii) A report on compliance which includes an opinion (or disclaimer of opinion) as to whether the auditee complied with laws, regulations, and the provisions of contracts or grant agreements which could have a direct and material effect on the Federal program; and (iv) A schedule of findings and questioned costs for the Federal program that includes a summary of the auditor's results relative to the Federal program in a format consistent with § .505(d) (1) and findings and questioned costs consistent with the requirements of §_.505(d) (3) . (c) Report submission for program-specific audits. (1) The audit shall be completed and the reporting required by paragraph (c) (2) or (c) (3) of this section submitted within the earlier of 30 days after receipt of the auditor's report(s) , or nine months after the end of the audit period, unless a longer period is agreed to in advance by the Federal agency that provided the funding or a different period is specified in a program- specific audit guide. (However, for fiscal years beginning on or before June 30, 1998, the audit shall be completed and the required reporting shall be submitted within the earlier of 30 days after receipt of the auditor's report(s) , or 13 months after the end of the audit period, unless a different period is specified in a program-specific audit guide.) Unless restricted by law or regulation, the auditee shall make report copies available for public inspection. (2) When a program-specific audit guide is available, the auditee shall submit to the Federal clearinghouse designated by OMB the data collection form prepared in accordance with §_.320(b) , as applicable to a program-specific audit, and the reporting required by the program-specific audit guide to be retained as an archival copy. Also, the auditee shall submit to the Federal awarding agency or pass-through entity the reporting required by the program-specific audit guide. (3) When a program-specific audit guide is not available, the reporting package for a program-specific audit shall consist of the financial statement(s) of the Federal program, a summary schedule of prior audit findings, and a corrective action plan as described in paragraph (b) (2) of this section, and the auditor's report(s) described in paragraph (b) (4) of this section. The data collection form prepared in accordance with 14 § .320(b) , as applicable to a program-specific audit, and one copy of this reporting package shall be submitted to the Federal clearinghouse designated by OMB to be retained as an archival copy. Also, when the schedule of findings and questioned costs disclosed audit findings or the summary schedule of prior audit findings reported the status of any audit findings, the auditee shall submit one copy of the reporting package to the Federal clearinghouse on behalf of the Federal awarding agency, or directly to the pass-through entity in the case of a subrecipient. Instead of submitting the reporting package to the pass-through entity, when a subrecipient is not required to submit a reporting package to the pass-through entity, the subrecipient shall provide written notification to the pass-through entity, consistent with the requirements of § .320(e) (2) . A subrecipient may submit a copy of the reporting package to the pass-through entity to comply with this notification requirement. (d) Other sections of this part may apply. Program-specific audits are subject to § .100 through § .215(b) , §_.220 through §_.230, §_.300 through §_.305, §_.315, § .320(f) through §_.320(j) , §_.400 through § .405, § .510 through § .515, and other referenced provisions of this part unless contrary to the provisions of this section, a program- specific audit guide, or program laws and regulations. Subpart C--Auditees §_.300 Auditee responsibilities. The auditee shall: (a) Identify, in its accounts, all Federal awards received and expended and the Federal programs under which they were received. Federal program and award identification shall include, as applicable, the CFDA title and number, award number and year, name of the Federal agency, and name of the pass-through entity. (b) Maintain internal control over Federal programs that provides reasonable assurance that the auditee is managing Federal awards in compliance with laws, regulations, and the provisions of contracts or grant agreements that could have a material effect on each of its Federal programs. (c) Comply with laws, regulations, and the provisions of contracts or grant agreements related to each of its Federal programs. (d) Prepare appropriate financial statements, including the schedule of expenditures of Federal awards in accordance with § .310. (e) Ensure that the audits required by this part are properly performed and submitted when due. When extensions to the report submission due date required by § .320(a) are granted by the cognizant or oversight agency for audit, promptly notify the Federal clearinghouse designated by OMB and each pass-through entity providing Federal awards of the extension. (f) Follow up and take corrective action on audit findings, including preparation of a summary schedule of prior audit findings and a corrective action plan in accordance with § .315(b) and § .315(c) , respectively. § .305 Auditor selection. 15 (a) Auditor procurement. In procuring audit services, auditees shall follow the procurement standards prescribed by the Grants Management Common Rule (hereinafter referred to as the "A-102 Common Rule") published March 11, 1988 and amended April 19. 1995 [insert appropriate CFR citation] , Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations, " or the FAR (48 CFR part 42) , as applicable (OMB Circulars are available from the Office of Administration, Publications Office, room 2200, New Executive Office Building, Washington, DC 20503) . Whenever possible, auditees shall make positive efforts to utilize small businesses, minority- owned firms, and women's business enterprises, in procuring audit services as stated in the A-102 Common Rule, OMB Circular A-110, or the FAR (48 CFR part 42) , as applicable. In requesting proposals for audit services, the objectives and scope of the audit should be made clear. Factors to be considered in evaluating each proposal for audit services include the responsiveness to the request for proposal, relevant experience, availability of staff with professional qualifications and technical abilities, the results of external quality control reviews, and price. (b) Restriction on auditor preparing indirect cost proposals . An auditor who prepares the indirect cost proposal or cost allocation plan may not also be selected to perform the audit required by this part when the indirect costs recovered by the auditee during the prior year exceeded $1 million. This restriction applies to the base year used in the preparation of the indirect cost proposal or cost allocation plan and any subsequent years in which the resulting indirect cost agreement or cost allocation plan is used to recover costs. To minimize any disruption in existing contracts for audit services, this paragraph applies to audits of fiscal years beginning after June 30, 1998. (c) Use of Federal auditors. Federal auditors may perform all or part of the work required under this part if they comply fully with the requirements of this part. § .310 Financial statements. (a) Financial statements. The auditee shall prepare financial statements that reflect its financial position, results of operations or changes in net assets, and, where appropriate, cash flows for the fiscal year audited. The financial statements shall be for the same organizational unit and fiscal year that is chosen to meet the requirements of this part. However, organization-wide financial statements may also include departments, agencies, and other organizational units that have separate audits in accordance with S .500(a) and prepare separate financial statements. (b) Schedule of expenditures of Federal awards . The auditee shall also prepare a schedule of expenditures of Federal awards for the period covered by the auditee's financial statements. While not required, the auditee may choose to provide information requested by Federal awarding agencies and pass-through entities to make the schedule easier to use. For example, when a Federal program has multiple award years, the auditee may list the amount of Federal awards expended for each award year separately. At a minimum, the schedule shall: (1) List individual Federal programs by Federal agency. For Federal programs included in a cluster of programs, list individual Federal programs within a cluster of programs. For R&D, total Federal awards expended shall be shown either by individual award or by Federal agency and major subdivision within the Federal agency. For example, the National Institutes of Health is a major subdivision in the Department of Health and Human Services. 16 (2) For Federal awards received as a subrecipient, the name of the pass-through entity and identifying number assigned by the pass-through entity shall be included. (3) Provide total Federal awards expended for each individual Federal program and the CFDA number or other identifying number when the CFDA information is not available. (4) Include notes that describe the significant accounting policies used in preparing the schedule. (5) To the extent practical, pass-through entities should identify in the schedule the total amount provided to subrecipients from each Federal program. (6) Include, in either the schedule or a note to the schedule, the value of the Federal awards expended in the form of non-cash assistance, the amount of insurance in effect during the year, and loans or loan guarantees outstanding at year end. While not required, it is preferable to present this information in the schedule. § .315 Audit findings follow-up. (a) General. The auditee is responsible for follow-up and corrective action on all audit findings. As part of this responsibility, the auditee shall prepare a summary schedule of prior audit findings. The auditee shall also prepare a corrective action plan for current year audit findings. The summary schedule of prior audit findings and the corrective action plan shall include the reference numbers the auditor assigns to audit findings under § .510(c) . Since the summary schedule may include audit findings from multiple years, it shall include the fiscal year in which the finding initially occurred. (b) Summary schedule of prior audit findings . The summary schedule of prior audit findings shall report the status of all audit findings included in the prior audit's schedule of findings and questioned costs relative to Federal awards. The summary schedule shall also include audit findings reported in the prior audit's summary schedule of prior audit findings except audit findings listed as corrected in accordance with paragraph (b) (1) of this section, or no longer valid or not warranting further action in accordance with paragraph (b) (4) of this section. (1) When audit findings were fully corrected, the summary schedule need only list the audit findings and state that corrective action was taken. (2) When audit findings were not corrected or were only partially corrected, the summary schedule shall describe the planned corrective action as well as any partial corrective action taken. (3) When corrective action taken is significantly different from corrective action previously reported in a corrective action plan or in the Federal agency's or pass-through entity's management decision, the summary schedule shall provide an explanation. (4) When the auditee believes the audit findings are no longer valid or do not warrant further action, the reasons for this position shall be described in the summary schedule. A valid reason for considering an audit finding as not warranting further action is that all of the following have occurred: (i) Two years have passed since the audit report in which 17 the finding occurred was submitted to the Federal clearinghouse; (ii) The Federal agency or pass-through entity is not currently following up with the auditee on the audit finding; and (iii) A management decision was not issued. (c) Corrective action plan. At the completion of the audit, the auditee shall prepare a corrective action plan to address each audit finding included in the current year auditor's reports. The corrective action plan shall provide the name(s) of the contact person(s) responsible for corrective action, the corrective action planned, and the anticipated completion date. If the auditee does not agree with the audit findings or believes corrective action is not required, then the corrective action plan shall include an explanation and specific reasons. § .320 Report submission. (a) General. The audit shall be completed and the data collection form described in paragraph (b) of this section and reporting package described in paragraph (c) of this section shall be submitted within the earlier of 30 days after receipt of the auditor's report(s) , or nine months after the end of the audit period, unless a longer period is agreed to in advance by the cognizant or oversight agency for audit. (However, for fiscal years beginning on or before June 30, 1998, the audit shall be completed and the data collection form and reporting package shall be submitted within the earlier of 30 days after receipt of the auditor's report(s) , or 13 months after the end of the audit period.) Unless restricted by law or regulation, the auditee shall make copies available for public inspection. (b) Data Collection. (1) The auditee shall submit a data collection form which states whether the audit was completed in accordance with this part and provides information about the auditee, its Federal programs, and the results of the audit. The form shall be approved by OMB, available from the Federal clearinghouse designated by OMB, and include data elements similar to those presented in this paragraph. A senior level representative of the auditee (e.g. , State controller, director of finance, chief executive officer, or chief financial officer) shall sign a statement to be included as part of the form certifying that: the auditee complied with the requirements of this part, the form was prepared in accordance with this part (and the instructions accompanying the form) , and the information included in the form, in its entirety, are accurate and complete. (2) The data collection form shall include the following data elements: (i) The type of report the auditor issued on the financial statements of the auditee (i.e. , unqualified opinion, qualified opinion, adverse opinion, or disclaimer of opinion) . (ii) Where applicable, a statement that significant deficiencies in internal control were disclosed by the audit of the financial statements and whether any such conditions were material weaknesses. (iii) A statement as to whether the audit disclosed any noncompliance which is material to the financial statements of the auditee. (iv) Where applicable, a statement that significant deficiencies in internal control over major programs were disclosed by the audit and whether any such conditions were material weaknesses. (v) The type of report the auditor issued on compliance for major 18 programs (i.e. , unqualified opinion, qualified opinion, adverse opinion, or disclaimer of opinion) . (vi) A list of the Federal awarding agencies which will receive a copy of the reporting package pursuant to § .320(d) (2) of OMB Circular A-133. (vii) A yes or no statement as to whether the auditee qualified as a low- risk auditee under § .530 of OMB Circular A-133. (viii) The dollar threshold used to distinguish between Type A and Type B programs as defined in § .520(b) of OMB Circular A-133. (ix) The Catalog of Federal Domestic Assistance (CFDA) number for each Federal program, as applicable. (x) The name of each Federal program and identification of each major program. Individual programs within a cluster of programs should be listed in the same level of detail as they are listed in the schedule of expenditures of Federal awards. (xi) The amount of expenditures in the schedule of expenditures of Federal awards associated with each Federal program. (xii) For each Federal program, a yes or no statement as to whether there are audit findings in each of the following types of compliance requirements and the total amount of any questioned costs: (A) Activities allowed or unallowed. (B) Allowable costs/cost principles. (C) Cash management. (D) Davis-Bacon Act. (E) Eligibility. (F) Equipment and real property management. (G) Matching, level of effort, earmarking. (H) Period of availability of Federal funds. (I) Procurement and suspension and debarment. (J) Program income. (K) Real property acquisition and relocation assistance. (L) Reporting. (M) Subrecipient monitoring. (N) Special tests and provisions. (xiii) Auditee Name, Employer Identification Number(s) , Name and Title of Certifying Official, Telephone Number, Signature, and Date. (xiv) Auditor Name, Name and Title of Contact Person, Auditor Address, Auditor Telephone Number, Signature, and Date. (xv) Whether the auditee has either a cognizant or oversight agency for audit. (xvi) The name of the cognizant or oversight agency for audit determined in accordance with § .400(a) and § .400(b) , respectively. (3) Using the information included in the reporting package described in paragraph (c) of this section, the auditor shall complete the applicable sections of the form. The auditor shall sign a statement to be included as part of the data collection form that indicates, at a minimum, the source of the information included in the form, the auditor's responsibility for the information, that the form is not a substitute for the reporting package described in paragraph (c) of this section, and that the content of 19 the form is limited to the data elements prescribed by OMB. (c) Reporting package. The reporting package shall include the: (1) Financial statements and schedule of expenditures of Federal awards discussed in § .310(a) and § .310(b) , respectively; (2) Summary schedule of prior audit findings discussed in § .315(b) ; (3) Auditor's report(s) discussed in §_.505; and (4) Corrective action plan discussed in § .315(c) . (d) Submission to clearinghouse. All auditees shall submit to the Federal clearinghouse designated by OMB a single copy of the data collection form described in paragraph (b) of this section and the reporting package described in paragraph (c) of this section. (e) Additional submission by subrecipients . (1) In addition to the requirements, discussed in paragraph (d) of this section, auditees that are also subrecipients shall submit to each pass-through entity one copy of the reporting package described in paragraph (c) of this section for each pass- through entity when the schedule of findings and questioned costs disclosed audit findings relating to Federal awards that the pass-through entity provided or the summary schedule of prior audit findings reported the status of any audit findings relating to Federal awards that the pass-through entity provided. (2) Instead of submitting the reporting package to a pass- through entity, when a subrecipient is not required to submit a reporting package to a pass-through entity pursuant to paragraph (e) (1) of this section, the subrecipient shall provide written notification to the pass-through entity. that: an audit of the subrecipient was conducted in accordance with this part (including the period covered by the audit and the name, amount, and CFDA number of the Federal award(s) provided by the pass-through entity) ; the schedule of findings and questioned costs disclosed no audit findings relating to the Federal award(s) that the pass-through entity provided; and, the summary schedule of prior audit findings did not report on the status of any audit findings relating to the Federal award(s) that the pass-through entity provided. A subrecipient may submit a copy of the reporting package described in paragraph (c) of this section to a pass-through entity to comply with this notification requirement. (f) Requests for report copies . In response to requests by a Federal agency or pass-through entity, auditees shall submit the appropriate copies of the reporting package described in paragraph (c) of this section and, if requested, a copy of any management letters issued by the auditor. (g) Report retention requirements . Auditees shall keep one copy of the data collection form described in paragraph (b) of this section and one copy of the reporting package described in paragraph (c) of this section on file for three years from the date of submission to the Federal clearinghouse 20 designated by OMB. Pass-through entities shall keep subrecipients' submissions on file for three years from date of receipt. (h) Clearinghouse responsibilities . The Federal clearinghouse designated by OMB shall distribute the reporting packages received in accordance with paragraph (d) (2) of this section and .235(c) (3) to applicable Federal awarding agencies, maintain a data base of completed audits, provide appropriate information to Federal agencies, and follow up with known auditees which have not submitted the required data collection forms and reporting packages. (i) Clearinghouse address. The address of the Federal clearinghouse currently designated by OMB is Federal Audit Clearinghouse, Bureau of the Census, 1201 E. 10th Street, Jeffersonville, IN 47132. (1) Electronic filing. Nothing in this part shall preclude electronic submissions to the Federal clearinghouse in such manner as may be approved by OMB. With OMB approval, the Federal clearinghouse may pilot test methods of electronic submissions. Subpart D--Federal Agencies and Pass-Through Entities §_.400 Responsibilities. (a) Cognizant agency for audit responsibilities . Recipients expending more than $25 million ($50 million for fiscal years ending after December 31, 2003) a year in Federal awards shall have a cognizant agency for audit. The designated cognizant agency for audit shall be the Federal awarding agency that provides the predominant amount of direct funding to a recipient unless OMB makes a specific cognizant agency for audit assignment. Following is effective for fiscal years ending on or before December 31, 2003: To provide for continuity of cognizance, the determination of the predominant amount of direct funding shall be based upon direct Federal awards expended in the recipient's fiscal years ending in 1995, 2000, 2005, and every fifth year thereafter. For example, audit cognizance for periods ending in 1997 through 2000 will be determined based on Federal awards expended in 1995. (However, for States and local governments that expend more than $25 million a year in Federal awards and have previously assigned cognizant agencies for audit, the requirements of this paragraph are not effective until fiscal years beginning after June 30, 2000. ) Following is effective for fiscal years ending after December 31, 2003: The determination of the predominant amount of direct funding shall be based upon direct Federal awards expended in the recipient's fiscal years ending in 2004, 2009, 2014, and every fifth year thereafter. For example, audit cognizance for periods ending in 2006 through 2010 will be determined based on Federal awards expended in 2004. (However, for 2001 through 2005,the cognizant agency for audit is determined based on the predominant amount of direct Federal awards expended in the recipient's fiscal year ending in 2000) . Notwithstanding the manner in which audit cognizance is determined, a Federal awarding agency with cognizance for an auditee may reassign cognizance to another Federal awarding agency which provides substantial direct funding and agrees to be the cognizant agency for audit. Within 30 days after any reassignment, both the old and the new cognizant agency for audit shall notify the auditee, and, if known, the auditor of the reassignment. The cognizant agency for audit shall: (1) Provide technical audit advice and liaison to auditees and auditors. (2) Consider auditee requests for extensions to the report 21 submission due date required by § .320(a) . The cognizant agency for audit may grant extensions for good cause. (3) Obtain or conduct quality control reviews of selected audits made by non-Federal auditors, and provide the results, when appropriate, to other interested organizations. (4) Promptly inform other affected Federal agencies and appropriate Federal law enforcement officials of any direct reporting by the auditee or its auditor of irregularities or illegal acts, as required by GAGAS or laws and regulations. (5) Advise the auditor and, where appropriate, the auditee of any deficiencies found in the audits when the deficiencies require corrective action by the auditor. When advised of deficiencies, the auditee shall work with the auditor to take corrective action. If corrective action is not taken, the cognizant agency for audit shall notify the auditor, the auditee, and applicable Federal awarding agencies and pass-through entities of the facts and make recommendations for follow-up action. Major inadequacies or repetitive substandard performance by auditors shall be referred to appropriate State licensing agencies and professional bodies for disciplinary action. (6) Coordinate, to the extent practical, audits or reviews made by or for Federal agencies that are in addition to the audits made pursuant to this part, so that the additional audits or reviews build upon audits performed in accordance with this part. (7) Coordinate a management decision for audit findings that affect the Federal programs of more than one agency. (8) Coordinate the audit work and reporting responsibilities among auditors to achieve the most cost-effective audit. (9) For biennial audits permitted under § .220, consider auditee requests to qualify as a low-risk auditee under § .530(a) . (b) Oversight agency for audit responsibilities . An auditee which does not have a designated cognizant agency for audit will be under the general oversight of the Federal agency determined in accordance with § .105. The oversight agency for audit: (1) Shall provide technical advice to auditees and auditors as requested. (2) May assume all or some of the responsibilities normally performed by a cognizant agency for audit. (c) Federal awarding agency responsibilities . The Federal awarding agency shall perform the following for the Federal awards it makes: (1) Identify Federal awards made by informing each recipient of the CFDA title •and number, award name and number, award year, and if the award is for R&D. When some of this information is not available, the Federal agency shall provide information necessary to clearly describe the Federal award. (2) Advise recipients of requirements imposed on them by Federal laws, regulations, and the provisions of contracts or grant agreements. (3) Ensure that audits are completed and reports are received 22 in a timely manner and in accordance with the requirements of this part. (4) Provide technical advice and counsel to auditees and auditors as requested. (5) Issue a management decision on audit findings within six months after receipt of the audit report and ensure that the recipient takes appropriate and timely corrective action. (6) Assign a person responsible for providing annual updates of the compliance supplement to OMB. (d) Pass-through entity responsibilities . A pass-through entity shall perform the following for the Federal awards it makes: (1) Identify Federal awards made by informing each subrecipient of CFDA title and number, award name and number, award year, if the award is R&D, and name of Federal agency. When some of this information is not available, the pass-through entity shall provide the best information available to describe the Federal award. (2) Advise subrecipients of requirements imposed on them by Federal laws, regulations, and the provisions of contracts or grant agreements as well as any supplemental requirements imposed by the pass-through entity. (3) Monitor the activities of subrecipients as necessary to ensure that Federal awards are used for authorized purposes in compliance with laws, regulations, and the provisions of contracts or grant agreements and that performance goals are achieved. (4) Ensure that subrecipients expending $300,000 ($500,000 for fiscal years ending after December 31, 2003) or more in Federal awards during the subrecipient's fiscal year have met the audit requirements of this part for that fiscal year. (5) Issue a management decision on audit findings within six months after receipt of the subrecipient's audit report and ensure that the subrecipient takes appropriate and timely corrective action. (6) Consider whether subrecipient audits necessitate adjustment of the pass-through entity's own records. (7) Require each subrecipient to permit the pass-through entity and auditors to have access to the records and financial statements as necessary for the pass-through entity to comply with this part. § .405 Management decision. (a) General. The management decision shall clearly state whether or not the audit finding is sustained, the reasons for the decision, and the expected auditee action to repay disallowed costs, make financial adjustments, or take other action. If the auditee has not completed corrective action, a timetable for follow-up should be given. Prior to issuing the management decision, the Federal agency or pass-through entity may request additional information or documentation from the auditee, including a request for auditor assurance related to the documentation, as a way of mitigating disallowed costs. The management decision should describe any appeal process available to the auditee. (b) Federal agency. As provided in § .400(a) (7) , the cognizant agency for audit shall be responsible for coordinating a management decision for audit findings that affect the programs of more than one Federal agency. 23 As provided in § .400(c) (5) , a Federal awarding agency is responsible for issuing a management decision for findings that relate to Federal awards it makes to recipients. Alternate arrangements may be made on a case-by-case basis by agreement among the Federal agencies concerned. (c) Pass-through entity. As provided in § .400(d) (5) , the pass- through entity shall be responsible for making the management decision for audit findings that relate to Federal awards it makes to subrecipients. (d) Time requirements. The entity responsible for making the management decision shall do so within six months of receipt of the audit report. Corrective action should be initiated within six months after receipt of the audit report and proceed as rapidly as possible. (e) Reference numbers. Management decisions shall include the reference numbers the auditor assigned to each audit finding in accordance with § .510(c) . Subpart E--Auditors 5 .500 Scope of audit. (a) General. The audit shall be conducted in accordance with GAGAS. The audit shall cover the entire operations of the auditee; or, at the option of the auditee, such audit shall include a series of audits that cover departments, agencies, and other organizational units which expended or otherwise administered Federal awards during such fiscal year, provided that each such audit shall encompass the financial statements and schedule of expenditures of Federal awards for each such department, agency, and other organizational unit, which shall be considered to be a non-Federal entity. The financial statements and schedule of expenditures of Federal awards shall be for the same fiscal year. (b) Financial statements. The auditor shall determine whether the financial statements of the auditee are presented fairly in all material respects in conformity with generally accepted accounting principles. The auditor shall also determine whether the schedule of expenditures of Federal awards is presented fairly in all material respects in relation to the auditee's financial statements taken as a whole. (c) Internal control. (1) In addition to the requirements of GAGAS, the auditor shall perform procedures to obtain an understanding of internal control over Federal programs sufficient to plan the audit to support a low assessed level of control risk for major programs. (2) Except as provided in paragraph (c) (3) of this section, the auditor shall: (i) Plan the testing of internal control over major programs to support a low assessed level of control risk for the assertions. relevant to the compliance requirements for each major program; and (ii) Perform testing of internal control as planned in paragraph (c) (2) (i) of this section. (3) When internal control over some or all of the compliance requirements for a major program are likely to be ineffective in preventing or detecting noncompliance, the planning and performing of testing described in paragraph (c) (2) of this section are not required for those compliance requirements. However, the auditor shall report a significant deficiency (including whether any such condition is a material weakness) in accordance with § .510, assess the related control risk at the maximum, and consider whether additional compliance tests are required because of ineffective 24 internal control. (d) Compliance. (1) In addition to the requirements of GAGAS, the auditor shall determine whether the auditee has complied with laws, regulations, and the provisions of contracts or grant agreements that may have a direct and material effect on each of its major programs. (2) The principal compliance requirements applicable to most Federal programs and the compliance requirements of the largest Federal programs are included in the compliance supplement. (3) For the compliance requirements related to Federal programs contained in the compliance supplement, an audit of these compliance requirements will meet the requirements of this part. Where there have been changes to the compliance requirements and the changes are not reflected in the compliance supplement, the auditor shall determine the current compliance requirements and modify the audit procedures accordingly. For those Federal programs not covered in the compliance supplement, the auditor should use the types of compliance requirements contained in the compliance supplement as guidance for identifying the types of compliance requirements to test, and determine the requirements governing the Federal program by reviewing the provisions of contracts and grant agreements and the laws and regulations referred to in such contracts and grant agreements. (4) The compliance testing shall include tests of transactions and such other auditing procedures necessary to provide the auditor sufficient evidence to support an opinion on compliance. (e) Audit follow-up. The auditor shall follow-up on prior audit findings, perform procedures to assess the reasonableness of the summary schedule of prior audit findings prepared by the auditee in accordance with § .315(b) , and report, as a current year audit finding, when the auditor concludes that the summary schedule of prior audit findings materially misrepresents the status of any prior audit finding. The auditor shall perform audit follow-up procedures regardless of whether a prior audit finding relates to a major program in the current year. (f) Data Collection Form. As required in § .320(b) (3) , the auditor shall complete and sign specified sections of the data collection form. § .505 Audit reporting. The auditor's report(s) may be in the form of either combined or separate reports and may be organized differently from the manner presented in this section. The auditor's report(s) shall state that the audit was conducted in accordance with this part and include the following: (a) An opinion (or disclaimer of opinion) as to whether the financial statements are presented fairly in all material respects in conformity with generally accepted accounting principles and an opinion (or disclaimer of opinion) as to whether the schedule of expenditures of Federal awards is presented fairly in all material respects in relation to the financial statements taken as a whole. (b) A report on internal control related to the financial statements and major programs. This report shall describe the scope of testing of internal control and the results of the tests, and, where applicable, refer to the separate schedule of findings and questioned costs described in paragraph (d) of this section. (c) A report on compliance with laws, regulations, and the provisions of contracts or grant agreements, noncompliance with which could have a 25 material effect on the financial statements. This report shall also include an opinion (or disclaimer of opinion) as to whether the auditee complied with laws, regulations, and the provisions of contracts or grant agreements which could have a direct and material effect on each major program, and, where applicable, refer to the separate schedule of findings and questioned costs described in paragraph (d) of this section. (d) A schedule of findings and questioned costs which shall include the following three components: (1) A summary of the auditor's results which shall include: (i) The type of report the auditor issued on the financial statements of the auditee (i.e. , unqualified opinion, qualified opinion, adverse opinion, or disclaimer of opinion) ; (ii) Where applicable, a statement that significant deficiencies in internal control were disclosed by the audit of the financial statements and whether any such conditions were material weaknesses; (iii) A statement as to whether the audit disclosed any noncompliance which is material to the financial statements of the auditee; (iv) Where applicable, a statement that significant deficiencies in internal control over major programs were disclosed by the audit and whether any such conditions were material weaknesses; (v) The type of report the auditor issued on compliance for major programs (i.e. , unqualified opinion, qualified opinion, adverse opinion, or disclaimer of opinion) ; (vi) A statement as to whether the audit disclosed any audit findings which the auditor is required to report under § .510(a) ; (vii) An identification of major programs; (viii)The dollar threshold used to distinguish between Type A and Type B programs, as described in § .520(b) ; and (ix) A statement as to whether the auditee qualified as a low-risk auditee under § .530. (2) Findings relating to the financial statements which are required to be reported in accordance with GAGAS. (3) Findings and questioned costs for Federal awards which shall include audit findings as defined in §_.510(a) . (i) Audit findings (e.g. , internal control findings, compliance findings, questioned costs, or fraud) which relate to the same issue should be presented as a single audit finding. Where practical, audit findings should be organized by Federal agency or pass-through entity. (ii) Audit findings which relate to both the financial statements and Federal awards, as reported under paragraphs (d) (2) and (d) (3) of this section, respectively, should be reported in both sections of the schedule. However, the reporting in one section of the schedule may be in summary form with a reference to a detailed reporting in the other section of the schedule. § .510 Audit findings. 26 (a) Audit findings reported. The auditor shall report the following as audit findings in a schedule of findings and questioned costs: (1) Significant deficiencies in internal control over major programs. The auditor's determination of whether a deficiency in internal control is a significant deficieicny for the purpose of reporting an audit finding is in relation to a type of compliance requirement for a major program or an audit objective identified in the compliance supplement. The auditor shall identify significant deficiencies which are individually or cumulatively material weaknesses. (2) Material noncompliance with the provisions of laws, regulations, contracts, or grant agreements related to a major program. The auditor's determination of whether a noncompliance with the provisions of laws, regulations, contracts, or grant agreements is material for the purpose of reporting an audit finding is in relation to a type of compliance requirement for a major program or an audit objective identified in the compliance supplement. (3) Known questioned costs which are greater than $10,000 for a type of compliance requirement for a major program. Known questioned costs are those specifically identified by the auditor. In evaluating the effect of questioned costs on the opinion on compliance, the auditor considers the best estimate of total costs questioned (likely questioned costs) , not just the questioned costs specifically identified (known questioned costs) . The auditor shall also report known questioned costs when likely questioned costs are greater than $10,000 for a type of compliance requirement for a major program. In reporting questioned costs, the auditor shall include information to provide proper perspective for judging the prevalence and consequences of the questioned costs. (4) Known questioned costs which are greater than $10,000 for a Federal program which is not audited as a major program. Except for audit follow-up, the auditor is not required under this part to perform audit procedures for such a Federal program; therefore, the auditor will normally not find questioned costs for a program which is not audited as a major program. However, if the auditor does become aware of questioned costs for a Federal program which is not audited as a major program (e.g. , as part of audit follow-up or other audit procedures) and the known questioned costs are greater than $10,000, then the auditor shall report this as an audit finding. (5) The circumstances concerning why the auditor's report on compliance for major programs is other than an unqualified opinion, unless such circumstances are otherwise reported as audit findings in the schedule of findings and questioned costs for Federal awards. (6) Known fraud affecting a Federal award, unless such fraud is otherwise reported as an audit finding in the schedule of findings and questioned costs for Federal awards. This paragraph does not require the auditor to make an additional reporting when the auditor confirms that the fraud was reported outside of the auditor's reports under the direct reporting requirements of GAGAS. (7) Instances where the results of audit follow-up procedures disclosed that the summary schedule of prior audit findings prepared by the auditee in accordance with § .315(b) materially misrepresents the status of any prior audit finding. (b) Audit finding detail . Audit findings shall be presented in sufficient detail for the auditee to prepare a corrective action plan and take corrective action and for Federal agencies and pass-through entities to arrive at a management decision. The following specific information shall be 27 included, as applicable, in audit findings: (1) Federal program and specific Federal award identification including the CFDA title and number, Federal award number and year, name of Federal agency, and name of the applicable pass-through entity. When information, such as the CFDA title and number or Federal award number, is not available, the auditor shall provide the best information available to describe the Federal award. (2) The criteria or specific requirement upon which the audit finding is based, including statutory, regulatory, or other citation. (3) The condition found, including facts that support the deficiency identified in the audit finding. (4) Identification of questioned costs and how they were computed. (5) Information to provide proper perspective for judging the prevalence and consequences of the audit findings, such as whether the audit findings represent an isolated instance or a systemic problem. Where appropriate, instances identified shall be related to the universe and the number of cases examined and be quantified in terms of dollar value. (6) The possible asserted effect to provide sufficient information to the auditee and Federal agency, or pass-through entity in the case of a subrecipient, to permit them to determine the cause and effect to facilitate prompt and proper corrective action. (7) Recommendations to prevent future occurrences of the deficiency identified in the audit finding. (8) Views of responsible officials of the auditee when there is disagreement with the audit findings, to the extent practical. (c) Reference numbers. Each audit finding in the schedule of findings and questioned costs shall include a reference number to allow for easy referencing of the audit findings during follow-up. § .515 Audit working papers. (a) Retention of working papers . The auditor shall retain working papers and reports for a minimum of three years after the date of issuance of the auditor's report(s) to the auditee, unless the auditor is notified in writing by the cognizant agency for audit, oversight agency for audit, or pass-through entity to extend the retention period. When the auditor is aware that the Federal awarding agency, pass-through entity, or auditee is contesting an audit finding, the auditor shall contact the parties contesting the audit finding for guidance prior to destruction of the working papers and reports. (b) Access to working papers . Audit working papers shall be made available upon request to the cognizant or.oversight agency for audit or its designee, a Federal agency providing direct or indirect funding, or GAO at the completion of the audit, as part of a quality review, to resolve audit findings, or to carry out oversight responsibilities consistent with the purposes of this part. Access to working papers includes the right of Federal agencies to obtain copies of working papers, as is reasonable and necessary. 28 §_.520 Major program determination. (a) General. The auditor shall use a risk-based approach to determine which Federal programs are major programs. This risk-based approach shall include consideration of: Current and prior audit experience, oversight by Federal agencies and pass-through entities, and the inherent risk of the Federal program. The process in paragraphs (b) through (i) of this section shall be followed. (b) Step 1. (1) The auditor shall identify the larger Federal programs, which shall be labeled Type A programs. Type A programs are defined as Federal programs with Federal awards expended during the audit period exceeding the larger of: (i) $300,000 or three percent ( .03) of total Federal awards expended in the case of an auditee for which total Federal awards expended equal or exceed $300,000 but are less than or equal to $100 million. (ii) $3 million or three-tenths of one percent ( .003) of total Federal awards expended in the case of an auditee for which total Federal awards expended exceed $100 million but are less than or equal to $10 billion. (iii) $30 million or 15 hundredths of one percent ( .0015) of total Federal awards expended in the case of an auditee for which total Federal awards expended exceed $10 billion. (2) Federal programs not labeled Type A under paragraph (b) (1) of this section shall be labeled Type B programs. (3) The inclusion of large loan and loan guarantees (loans) should not result in the exclusion of other programs as Type A programs. When a Federal program providing loans significantly affects the number or size of Type A programs, the auditor shall consider this Federal program as a Type A program and exclude its values in determining other Type A programs. (4) For biennial audits permitted under § .220, the determination of Type A and Type B programs shall be based upon the Federal awards expended during the two-year period. (c) Step 2 . (1) The auditor shall identify Type A programs which are low-risk. For a Type A program to be considered low-risk, it shall have been audited as a major program in at least one of the two most recent audit periods (in the most recent audit period in the case of a biennial audit) , and, in the most recent audit period, it shall have had no audit findings under § .510(a) . However, the auditor may use judgment and consider that audit findings from questioned costs under § .510(a) (3) and § .510(a) (4) , fraud under § .510(a) (6) , and audit follow-up for the summary schedule of prior audit findings under § .510(a) (7) do not preclude the Type A program from being low-risk. The auditor shall consider: the criteria in § .525(c) , § .525(d) (1) , § .525(d) (2) , and § .525(d) (3) ; the results of audit follow-up; whether any changes in personnel or systems affecting a Type A program have significantly increased risk; and apply professional judgment in determining whether a Type A program is low-risk. (2) Notwithstanding paragraph (c) (1) of this section, OMB may approve a Federal awarding agency's request that a Type A program at certain recipients may not be considered low-risk. For example, it may be necessary for a large Type A program to be audited as major each year at particular recipients to allow the Federal agency to comply with the Government Management Reform Act of 1994 (31 U.S.C. 3515) . The Federal agency shall notify the recipient and, if known, the auditor at least 180 days prior to the 29 end of the fiscal year to be audited of OMB's approval. (d) Step 3. (1) The auditor shall identify Type B programs which are high-risk using professional judgment and the criteria in S .525. However, should the auditor select Option 2 under Step 4 (paragraph (e) (2) (i) (B) of this section) , the auditor is not required to identify more high-risk Type B programs than the number of low-risk Type A programs. Except for known significant deficiencies in internal control or compliance problems as discussed in S .525(b) (1) , § .525(b) (2) , and § .525(c) (1) , a single criteria in § .525 would seldom cause a Type B program to be considered high-risk. (2) The auditor is not expected to perform risk assessments on relatively small Federal programs. Therefore, the auditor is only required to perform risk assessments on Type B programs that exceed the larger of: (i) $100,000 or three-tenths of one percent (.003) of total Federal awards expended when the auditee has less than or equal to $100 million in total Federal awards expended. (ii) $300,000 or three-hundredths of one percent ( .0003) of total Federal awards expended when the auditee has more than $100 million in total Federal awards expended. (e) Step 4. At a minimum, the auditor shall audit all of the following as major programs: (1) All Type A programs, except the auditor may exclude any Type A programs identified as low-risk under Step 2 (paragraph (c) (1) of this section) . (2) (i) High-risk Type B programs as identified under either of the following two options: (A) Option 1. At least one half of the Type B programs identified as high-risk under Step 3 (paragraph (d) of this section) , except this paragraph (e) (2) (i) (A) does not require the auditor to audit more high-risk Type B programs than the number of low-risk Type A programs identified as low-risk under Step 2. (B) Option 2. One high-risk Type B program for each Type A program identified as low-risk under Step 2. (ii) When identifying which high-risk Type B programs to audit as major under either Option 1 or 2 in paragraph (e) (2) (i) (A) or (B) , the auditor is encouraged to use an approach which provides an opportunity for different high-risk Type B programs to be audited as major over a period of time. (3) Such additional programs as may be necessary to comply with the percentage of coverage rule discussed in paragraph (f) of this section. This paragraph (e) (3) may require the auditor to audit more programs as major than the number of Type A programs. (f) Percentage of coverage rule. The auditor shall audit as major programs Federal programs with Federal awards expended that, in the aggregate, encompass at least 50 percent of total Federal awards expended. If the auditee meets the criteria in § .530 for a low-risk auditee, the auditor need only audit as major programs Federal programs with Federal awards expended that, in the aggregate, encompass at least 25 percent of total Federal awards expended. (g) Documentation of risk. The auditor shall document in the working 30 papers the risk analysis process used in determining major programs. (h) Auditor's iudgment . When the major program determination was performed and.documented in accordance with this part, the auditor's judgment in applying the risk-based approach to determine major programs shall be presumed correct. Challenges by Federal agencies and pass-through entities shall only be for clearly improper use of the guidance in this part. However, Federal agencies and pass-through entities may provide auditors guidance about the risk of a particular Federal program and the auditor shall consider this guidance in determining major programs in audits not yet completed. (i) Deviation from use of risk criteria. For first-year audits, the auditor may elect to determine major programs as all Type A programs plus any Type B programs as necessary to meet the percentage of coverage rule discussed in paragraph (f) of this section. Under this option, the auditor would not be required to perform the procedures discussed in paragraphs (c) , (d) , and (e) of this section. (1) A first-year audit is the first year the entity is audited under this part or the first year of a change of auditors. (2) To ensure that a frequent change of auditors would not preclude audit of high-risk Type B programs, this election for first-year audits may not be used by an auditee more than once in every three years. §_.525 Criteria for Federal program risk. (a) General. The auditor's determination should be based on an overall evaluation of the risk of noncompliance occurring which could be material to the Federal program. The auditor shall use auditor judgment and consider criteria, such as described in paragraphs (b) , (c) , and (d) of this section, to identify risk in Federal programs. Also, as part of the risk analysis, the auditor may wish to discuss a particular Federal program with auditee management and the Federal agency or pass-through entity. (b) Current and prior audit experience. (1) Weaknesses in internal control over Federal programs would indicate higher risk. Consideration should be given to the control environment over Federal programs and such factors as the expectation of management's adherence to applicable laws and regulations and the provisions of contracts and grant agreements and the competence and experience of personnel who administer the Federal programs. (i) A Federal program administered under multiple internal control structures may have higher risk. When assessing risk in a large single audit, the auditor shall consider whether weaknesses are isolated in a single operating unit (e.g. , one college campus) or pervasive throughout the entity. (ii) When significant parts of a Federal program are passed through to subrecipients, a weak system for monitoring subrecipients would indicate higher risk. (iii) The extent to which computer processing is used to administer Federal programs, as well as the complexity of that processing, should be considered by the auditor in assessing risk. New and recently modified computer systems may also indicate risk. (2) Prior audit findings would indicate higher risk, particularly when the situations identified in the audit findings could have a significant impact on a Federal program or have not been corrected. (3) Federal programs not recently audited as major programs 31 may be of higher risk than Federal programs recently audited as major programs without audit findings. (c) Oversight exercised by Federal agencies and pass-through entities . (1) Oversight exercised by Federal agencies or pass-through entities could indicate risk. For example, recent monitoring or other reviews performed by an oversight entity which disclosed no significant problems would indicate lower risk. However, monitoring which disclosed significant problems would indicate higher risk. (2) Federal agencies, with the concurrence of OMB, may identify Federal programs which are higher risk. OMB plans to provide this identification in the compliance supplement. (d) Inherent risk of the Federal program. (1) The nature of a Federal program may indicate risk. Consideration should be given to the complexity of the program and the extent to which the Federal program contracts for goods and services. For example, Federal programs that disburse funds through third party contracts or have eligibility criteria may be of higher risk. Federal programs primarily involving staff payroll costs may have a high-risk for time and effort reporting, but otherwise be at low-risk. (2) The phase of a Federal program in its life cycle at the Federal agency may indicate risk. For example, a new Federal program with new or interim regulations may have higher risk than an established program with time-tested regulations. Also, significant changes in Federal programs, laws, regulations, or the provisions of contracts or grant agreements may increase risk. (3) The phase of a Federal program in its life cycle at the auditee may indicate risk. For example, during the first and last years that an auditee participates in a Federal program, the risk may be higher due to start-up or closeout of program activities and staff. (4) Type B programs with larger Federal awards expended would be of higher risk than programs with substantially smaller Federal awards expended. 5 .530 Criteria for a low-risk auditee. An auditee which meets all of the following conditions for each of the preceding two years (or, in the case of biennial audits, preceding two audit periods) shall qualify as a low-risk auditee and be eligible for reduced audit coverage in accordance with § . .520: (a) Single audits were performed on an annual basis in accordance with the provisions of this part. A non-Federal entity that has biennial audits does not qualify as a low-risk auditee, unless agreed to in advance by the cognizant or oversight agency for audit. (b) The auditor's opinions on the financial statements and the schedule of expenditures of Federal awards were unqualified. However, the cognizant or oversight agency for audit may judge that an opinion qualification does not affect the management of Federal awards and provide a waiver. (c) There were no deficiencies in internal control which were identified as material weaknesses under the requirements of GAGAS. However, the cognizant or oversight agency for audit may judge that any identified material weaknesses do not affect the management of Federal awards and provide a waiver. 32 (d) None of the Federal programs had audit findings from any of the following in either of the preceding two years (or, in the case of biennial audits, preceding two audit periods) in which they were classified as Type A programs: (1) Internal control deficiencies which were identified as material weaknesses; (2) Noncompliance with the provisions of laws, regulations, contracts, or grant agreements which have a material effect on the Type A program; or (3) Known or likely questioned costs that exceed five percent of the total Federal awards expended for a Type A program during the year. Appendix A to Part _ - Data Collection Form (Form SF-SAC) [insert SF-SAC after finalized] Appendix B to Part _ - Circular A-133 Compliance Supplement Note: Provisional OMB Circular A-133 Compliance Supplement is available from the Office of Administration, Publications Office, room 2200, New Executive Office Building, Washington, DC 20503. 33 EQUAL EMPLOYMENT OPPORTUNITY CLAUSE During the performance of this Contract, the Contractor agrees as follows: (1) The Contractor and its subcontractors shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, sexual orientation, gender identity, national origin, disability or familial status. As used herein, the work "treated" shall mean and include, without limitation, the following: Recruited, whether by advertising or by other means; compensated; selected for training, including apprenticeship; promoted; upgraded; demoted; downgraded; transferred; laid off; and terminated. The Contractor agrees to and shall post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officers setting forth the provisions of this nondiscrimination clause. (2) The Contractor and its subcontractors shall, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to race, religion, color, sexual orientation, gender identity, sex, national origin, age, disability or familial status. (3) The Contractor and its subcontractors shall send to each representative of workers with which he has a collective bargaining agreement or other contract or understanding a notice advising the labor union or worker's representative of the Contractor's commitments under the equal employment opportunity clause of the City and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The Contractor and its subcontractors shall furnish to the City's Human Rights and Relations Contract Compliance Officer all federal forms containing the information and reports required by the federal government for federal contracts under federal rules and regulations, including the information required by Omaha Municipal Code Sections 10-192 to 10-194, inclusive, and shall permit reasonable access to his records. Records accessible to the Human Rights and Relations Contract Compliance Officer shall be those which are related to Paragraphs (1) through (7) of this Exhibit and only after reasonable notice is given to the Contractor. The purpose for this provision is to provide for investigation to ascertain compliance with the program provided for herein. (5) The Contractor and its subcontractors shall take such actions with respect to any subcontractor as the City may direct as a means of enforcing the provisions of Paragraphs (1) through (7) herein, including penalties and sanctions for noncompliance; however, in the event the Contractor becomes involved in or is threatened with litigation as the result of such directions by the City, the City will enter into such litigation as is necessary to protect the interests of the City and to Revised and approved 5/23/2012 effectuate the provisions of this division; and in the case of contracts receiving federal assistance, the Contractor or the City may request the United States to enter into such litigation to protect the interests of the United States. (6) The Contractor shall file and shall cause his subcontractors, if any, to file compliance reports with the Contractor in the same form and to the same extent as required by the federal government for federal contracts under federal rules and regulations. Such compliance reports shall be filed with the Human Rights and Relations Contract Compliance Officer. Compliance reports filed at such times as directed shall contain information as to the employment practices, policies, programs and statistics of the Contractor and his subcontractors. (7) The Contractor shall include the provisions of Paragraphs (1) through (7) of this Section, "Equal Employment Opportunity Clause", and Omaha Municipal Code Section 10-193 in every contract, subcontract or purchase order so that such provisions will be binding upon each subcontractor or vendor. (Code 1980, Section 10-192; Ordinance No. 35344, Sections 1, 9-26-00) • Revised and approved 5/23/2012 SECTION 3 CLAUSE All Section 3 covered contracts shall include the following clause (referred to as the Section 3 clause): A. The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3 shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will no6t subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. E. The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed were not filled to circumvent the contractor's obligations under 24 CFR part 135. F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD- assisted contracts. G. With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 8 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 87 (b). Providing Other Economic Opportunities. (a) General. In accordance with the findings of the Congress, as stated in Section 3, that other economic opportunities offer an effective means of empowering low- income persons, a recipient is encouraged to undertake efforts to provide to low- income persons economic opportunities other than training, employment and contract awards, in connection with Section 3 covered assistance. (b) Other training and employment-related opportunities. Other economic opportunities to train and employ Section 3 residents include, but need not be limited to, use of "upward mobility", "bridge" and trainee positions to fill vacancies; and hiring Section 3 residents in part-time positions. (c) Other business-related economic opportunities: (1) A recipient or contractor may provide economic opportunities to establish, stabilize or expand Section 3 business concerns, including micro-enterprises. Such opportunities include, but are not limited to formation of Section 3 joint ventures, financial support for affiliating with franchise development, use of labor only contracts for building trades, purchase of supplies and materials from housing authority resident-owned businesses, purchase of materials and supplies from PHA resident-owned businesses and use of procedures under 24 CFR part 963 regarding HA contracts to HA resident-owned businesses. A recipient or contractor may employ these methods directly or may provide incentives to non-Section 3 businesses to utilize such methods to provide other economic opportunities to low-income persons. (2) A Section 3 joint venture means an association of business concerns, one of which qualifies as a Section 3 business concern, formed by written joint venture agreement to engage in and carry out a specific business venture for which purpose the business concerns combine their efforts, resources and skills for joint profit, but not necessarily on a continuing or permanent basis for conducting business generally, and for which the Section 3 business concern: (i) Is responsible for a clearly defined portion of the work to be performed and holds management responsibilities in the joint venture; and (ii) Performs at least 25 percent of the work and is contractually entitled to compensation proportionate to its work. 24 CFR 85.43 ENFORCEMENT (a) Remedies for non-compliance. If a grantee or sub-grantee materially fails to comply with any term of an award,whether stated in a federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere,the awarding agency may take one or more of the following actions, as appropriate in the circumstances: (1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or sub-grantee or more severe enforcement action by the awarding agency, (2) Disallow(that is, deny both use of funds and matching credit for)all or part of the cost of the activity or action not in compliance, (3) Wholly or partly suspend or terminate the current award for the grantee's or sub-grantee's program, (4) Withhold further awards for the program, or, (5) Take other remedies that may be legally available. (b) Hearings, appeals. In taking an enforcement action, the awarding agency will provide the grantee or sub-grantee an opportunity for such hearing, appeal or other administrative proceeding to which the grantee or sub-grantee is entitles under any statute or regulation applicable to the action involved. (c) Effects of suspension and termination. Costs of grantee or sub-grantee resulting from obligations incurred by the grantee or sub-grantee during a suspension or after termination of an award are not allowable unless the awarding agency expressly authorizes them in the notice of suspension or termination or subsequently. Other grantee or sub-grantee costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if: (1) The costs result from obligations which were properly incurred by the grantee or sub- grantee before the effective date of suspension or termination, are not in anticipation of it, and, in the case of a termination,are non-cancelable,and, (2) The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect. (d) Relationship to Debarment and Suspension. The enforcement remedies identified in this section, including suspension and termination, do not preclude grantee or sub-grantee from being subject to "Debarment and Suspension"under EO 12549(see § 85.35). 24 CFR 85.44 TERMINATION FOR CONVENIENCE Except as provided in § 85.43 awards may be terminated in whole or in part only as follows: (a) By the awarding agency with the consent of the grantee or sub-grantee in which case the two parties shall agree upon the termination conditions, including the effective date and in the case of partial termination,the portion to be terminated,or (b) By the grantee or sub-grantee upon written notification to the awarding agency, 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 awarding agency determines that the remaining portion of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either § 85.43 or Paragraph (a) of this section. O swam Rev. 5/7/08 CIRCULAR NO. A-122 Revised May 10, 2004 TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SUBJECT: Cost Principles for Non-Profit Organizations 1. Purpose. This Circular establishes principles for determining costs of grants, contracts and other agreements with non-profit organizations. It does not apply to colleges and universities which are covered by Office of Management and Budget (OMB) Circular A-21, "Cost Principles for Educational Institutions"; State, local, and federally-recognized Indian tribal governments which are covered by OMB Circular A-87, "Cost Principles for State, Local, and Indian Tribal Governments"; or hospitals. The principles are designed to provide that the Federal Government bear its fair share of costs except where restricted or prohibited by law. The principles do not attempt to prescribe the extent of cost sharing or matching on grants, contracts, or other agreements. However, such cost sharing or matching shall not be accomplished through arbitrary limitations on individual cost elements by Federal agencies. Provision for profit or other increment above cost is outside the scope of this Circular. 2. Supersession. This Circular supersedes cost principles issued by individual agencies for non-profit organizations. 3. Applicability. a. These principles shall be used by all Federal agencies in determining the costs of work performed by non-profit organizations under grants, cooperative agreements, cost reimbursement contracts, and other contracts in which costs are used in pricing, administration, or settlement. All of these instruments are hereafter referred to as awards. The principles do not apply to awards under which an organization is not required to account to the Federal Government for actual costs incurred. b. All cost reimbursement subawards (subgrants, subcontracts, etc. ) are subject to those Federal cost principles applicable to the particular organization concerned. Thus, if a subaward is to a non-profit organization, this Circular shall apply; if a subaward is to a commercial organization, the cost principles applicable to commercial concerns shall apply; if a subaward is to a college or university, Circular A-21 shall apply; if a subaward is to a State, local, or federally-recognized Indian tribal government, Circular A-87 shall apply. 1 4. Definitions. a. Non-profit organization means any corporation, trust, association, cooperative, or other organization which: (1) is operated primarily for scientific, educational, service, charitable, or similar purposes in the public interest; (2) is not organized primarily for profit; and (3) uses its net proceeds to maintain, improve, and/or expand its operations. For this purpose, the term "non-profit organization" excludes (i) colleges and universities; (ii) hospitals; (iii) State, local, and federally- recognized Indian tribal governments; and (iv) those non-profit organizations which are excluded from coverage of this Circular in accordance with paragraph 5. b. Prior approval means securing the awarding agency's permission in advance to incur cost for those items that are designated as requiring prior approval by the Circular. Generally this permission will be in writing. Where an item of cost requiring prior approval is specified in the budget of an award, approval of the budget constitutes approval of that cost. 5. Exclusion of some non-profit organizations. Some non-profit organizations, because of their size and nature of operations, can be considered to be similar to commercial concerns for purpose of applicability of cost principles. Such non-profit organizations shall operate under Federal cost principles applicable to commercial concerns. A listing of these organizations is contained in Attachment C. Other organizations may be added from time to time. 6. Responsibilities. Agencies responsible for administering programs that involve awards to non-profit organizations shall implement the provisions of this Circular. Upon request, implementing instruction shall be furnished to OMB. Agencies shall designate a liaison official to serve as the agency representative on matters relating to the implementation of this Circular. The name and title of such representative shall be furnished to OMB within 30 days of the date of this Circular. 7. Attachments. The principles and related policy guides are set forth in the following Attachments: Attachment A - General Principles Attachment B - Selected Items of Cost Attachment C - Non-Profit Organizations Not Subject To This Circular 8. Requests for exceptions. OMB may grant exceptions to the requirements of this Circular when permissible under existing law. However, in the interest of achieving maximum uniformity, exceptions will be permitted only in highly unusual circumstances. 9. Effective Date. The provisions of this Circular are effective immediately. Implementation shall be phased in by incorporating the provisions into new awards made after the start of the organization's next fiscal year. For existing awards, the new principles may be applied if an organization and the cognizant Federal agency agree. Earlier implementation, or a delay in 2 implementation of individual provisions, is also permitted by mutual agreement between an organization and the cognizant Federal agency. 10. Inquiries. Further information concerning this Circular may be obtained by contacting the Office of Federal Financial Management, OMB, Washington, DC 20503, telephone (202) 395-3993. Attachments 3 ATTACHMENT A Circular No. A-122 GENERAL PRINCIPLES Table of Contents A. Basic Considerations 1. Composition of total costs 2. Factors affecting allowability of costs 3. Reasonable costs 4. Allocable costs 5. Applicable credits 6. Advance understandings 7. Conditional exemptions B. Direct Costs C. Indirect Costs D. Allocation of Indirect Costs and Determination of Indirect Cost Rates 1. General 2. Simplified allocation method 3. Multiple allocation base method 4 . Direct allocation method 5. Special indirect cost rates 4 ATTACHMENT A Circular No. A-122 GENERAL PRINCIPLES A. Basic Considerations 1. Composition of total costs. The total cost of an award is the sum of the allowable direct and allocable indirect costs less any applicable credits. 2. Factors affecting allowability of costs. To be allowable under an award, costs must meet the following general criteria: a. Be reasonable for the performance of the award and be allocable thereto under these principles. b. Conform to any limitations or exclusions set forth in these principles or in the award as to types or amount of cost items. c. Be consistent with policies and procedures that apply uniformly to both federally-financed and other activities of the organization. d. Be accorded consistent treatment. e. Be determined in accordance with generally accepted accounting principles (GAAP) . f. Not be included as a cost or used to meet cost sharing or matching requirements of any other federally-financed program in either the current or a prior period. g. Be adequately documented. 3. Reasonable costs. A cost is reasonable if, in its nature or amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the costs. The question of the reasonableness of specific costs must be scrutinized with particular care in connection with organizations or separate divisions thereof which receive the preponderance of their support from awards made by Federal agencies. In determining the reasonableness of a given cost, consideration shall be given to: a. Whether the cost is of a type generally recognized as ordinary and necessary for the operation of the organization or the performance of the award. 6 b. The restraints or requirements imposed by such factors as generally accepted sound business practices, arms length bargaining, Federal and State laws and regulations, and terms and conditions of the award. c. Whether the individuals concerned acted with prudence in the circumstances, considering their responsibilities to the organization, its members, employees, and clients, the public at large, and the Federal Government. d. Significant deviations from the established practices of the organization which may unjustifiably increase the award costs. 4. Allocable costs. a. A cost is allocable to a particular cost objective, such as a grant, contract, project, service, or other activity, in accordance with the relative benefits received. A cost is allocable to a Federal award if it is treated consistently with other costs incurred for the same purpose in like circumstances and if it: (1) Is incurred specifically for the award. (2) Benefits both the award and other work and can be distributed in reasonable proportion to the benefits received, or (3) Is necessary to the overall operation of the organization, although a direct relationship to any particular cost objective cannot be shown. b. Any cost allocable to a particular award or other cost objective under these principles may not be shifted to other Federal awards to overcome funding deficiencies, or to avoid restrictions imposed by law or by the terms of the award. 5. Applicable credits. a. The term applicable credits refers to those receipts, or reduction of expenditures which operate to offset or reduce expense items that are allocable to awards as direct or indirect costs. Typical examples of such transactions are: purchase discounts, rebates or allowances, recoveries or indemnities on losses, insurance refunds, and adjustments of overpayments or erroneous charges. To the extent that such credits accruing or received by the organization relate to allowable cost, they shall be credited to the Federal Government either as a cost reduction or cash refund, as appropriate. b. In some instances, the amounts received from the Federal Government to finance organizational activities or service operations should be treated as applicable credits. Specifically, the concept of netting such credit items against related expenditures should be applied by the organization in determining the rates or amounts to be charged to Federal awards for services rendered whenever the facilities or other resources used in providing such services have been financed directly, in whole or in part, by Federal funds. c. For rules covering program income (i.e., gross income earned from federally-supported activities) see Sec. .24 of Office of Management and Budget (OMB) Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non- Profit Organizations." 7 6. Advance understandings. Under any given award, the reasonableness and allocability of certain items of costs may be difficult to determine. This is particularly true in connection with organizations that receive a preponderance of their support from Federal agencies. In order to avoid subsequent disallowance or dispute based on unreasonableness or nonallocability, it is often desirable to seek a written agreement with the cognizant or awarding agency in advance of the incurrence of special or unusual costs. The absence of an advance agreement on any element of cost will not, in itself, affect the reasonableness or allocability of that element. 7. Conditional exemptions. a. OMB authorizes conditional exemption from OMB administrative requirements and cost principles circulars for certain Federal programs with statutorily-authorized consolidated planning and consolidated administrative funding, that are identified by a Federal agency and approved by the head of the Executive department or establishment. A Federal agency shall consult with OMB during its consideration of whether to grant such an exemption. b. To promote efficiency in State and local program administration, when Federal non-entitlement programs with common purposes have specific statutorily-authorized consolidated planning and consolidated administrative funding and where most of the State agency's resources come from non-Federal sources, Federal agencies may exempt these covered State-administered, non- entitlement grant programs from certain OMB grants management requirements. The exemptions would be from all but the allocability of costs provisions of OMB Circulars A-87 (Attachment A, subsection C.3) , "Cost Principles for State, Local, and Indian Tribal Governments, " A-21 (Section C, subpart 4) , "Cost Principles for Educational Institutions, " and A-122 (Attachment A, subsection A.4) , "Cost Principles for Non-Profit Organizations," and from all of the administrative requirements provisions of OMB Circular A-110, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations, " and the agencies' grants management common rule. c. When a Federal agency provides this flexibility, as a prerequisite to a State's exercising this option, a State must adopt its own written fiscal and administrative requirements for expending and accounting for all funds, which are consistent with the provisions of OMB Circular A-87, and extend such policies to all subrecipients. These fiscal and administrative requirements must be sufficiently specific to ensure that: funds are used in compliance with all applicable Federal statutory and regulatory provisions, costs are reasonable and necessary for operating these programs, and funds are not be used for general expenses required to carry out other responsibilities of a State or its subrecipients. B. Direct Costs 1. Direct costs are those that can be identified specifically with a particular final cost objective, i.e., a particular award, project, service, or other direct activity of an organization. However, a cost may not be assigned to an award as a direct cost if any other cost incurred for the same purpose, in like circumstance, has been allocated to an award as an indirect cost. Costs identified specifically with awards are direct costs of the awards and are to be assigned directly thereto. Costs identified specifically with other final cost 8 objectives of the organization are direct costs of those cost objectives and are not to be assigned to other awards directly or indirectly. 2. Any direct cost of a minor amount may be treated as an indirect cost for reasons of practicality where the accounting treatment for such cost is consistently applied to all final cost objectives. 3. The cost of certain activities are not allowable as charges to Federal awards (see, for example, fundraising costs in paragraph 17 of Attachment B) . However, even though these costs are unallowable for purposes of computing charges to Federal awards, they nonetheless must be treated as direct costs for purposes of determining indirect cost rates and be allocated their share of the organization's indirect costs if they represent activities which (1) include the salaries of personnel, (2) occupy space, and (3) benefit from the organization's indirect costs. 4. The costs of activities performed primarily as a service to members, clients, or the general public when significant and necessary to the organization's mission must be treated as direct costs whether or not allowable and be allocated an equitable share of indirect costs. Some examples of these types of activities include: a. Maintenance of membership rolls, subscriptions, publications, and related functions. b. Providing services and information to members, legislative or administrative bodies, or the public. c. Promotion, lobbying, and other forms of public relations. d. Meetings and conferences except those held to conduct the general administration of the organization. e. Maintenance, protection, and investment of special funds not used in operation of the organization. f. Administration of group benefits on behalf of members or clients, including life and hospital insurance, annuity or retirement plans, financial aid, etc. C. Indirect Costs 1. Indirect costs are those that have been incurred for common or joint objectives and cannot be readily identified with a particular final cost objective. Direct cost of minor amounts may be treated as indirect costs under the conditions described in subparagraph B.2. After direct costs have been determined and assigned directly to awards or other work as appropriate, indirect costs are those remaining to be allocated to benefiting cost objectives. A cost may not be allocated to an award as an indirect cost if any other cost incurred for the same purpose, in like circumstances, has been assigned to an award as a direct cost. 2. Because of the diverse characteristics and accounting practices of non-profit organizations, it is not possible to specify the types of cost which may be classified as indirect cost in all situations. However, typical examples of indirect cost for many non-profit organizations may include depreciation or 9 use allowances on buildings and equipment, the costs of operating and maintaining facilities, and general administration and general expenses, such as the salaries and expenses of executive officers, personnel administration, and accounting. 3. Indirect costs shall be classified within two broad categories: "Facilities" and "Administration." "Facilities" is defined as depreciation and use allowances on buildings, equipment and capital improvement, interest on debt associated with certain buildings, equipment and capital improvements, and operations and maintenance expenses. "Administration" is defined as general administration and general expenses such as the director's office, accounting, personnel, library expenses and all other types of expenditures not listed specifically under one of the subcategories of "Facilities" (including cross allocations from other pools, where applicable) . See indirect cost rate reporting requirements in subparagraphs D.2.e and D.3.g. D. Allocation of Indirect Costs and Determination of Indirect Cost Rates 1. General. a. Where a non-profit organization has only one major function, or where all its major functions benefit from its indirect costs to approximately the same degree, the allocation of indirect costs and the computation of an indirect cost rate may be accomplished through simplified allocation procedures, as described in subparagraph 2. b. Where an organization has several major functions which benefit from its indirect costs in varying degrees, allocation of indirect costs may require the accumulation of such costs into separate cost groupings which then are allocated individually to benefiting functions by means of a base which best measures the relative degree of benefit. The indirect costs allocated to each function are then distributed to individual awards and other activities included in that function by means of an indirect cost rate (s) . c. The determination of what constitutes an organization's major functions will depend on its purpose in being; the types of services it renders to the public, its clients, and its members; and the amount of effort it devotes to such activities as fundraising, public information and membership activities. d. Specific methods for allocating indirect costs and computing indirect cost rates along with the conditions under which each method should be used are described in subparagraphs 2 through 5. e. The base period for the allocation of indirect costs is the period in which such costs are incurred and accumulated for allocation to work performed in that period. The base period normally should coincide with the organization's fiscal year but, in any event, shall be so selected as to avoid inequities in the allocation of the costs. 2. Simplified allocation method. a. Where an organization's major functions benefit from its indirect costs to approximately the same degree, the allocation of indirect costs may be accomplished by (i) separating the organization's total costs for the base period as either direct or indirect, and (ii) dividing the total allowable indirect costs (net of applicable credits) by an equitable 10 distribution base. The result of this process is an indirect cost rate which is used to distribute indirect costs to individual awards. The rate should be expressed as the percentage which the total amount of allowable indirect costs bears to the base selected. This method should also be used where an organization has only one major function encompassing a number of individual projects or activities, and may be used where the level of Federal awards to an organization is relatively small. b. Both the direct costs and the indirect costs shall exclude capital expenditures and unallowable costs. However, unallowable costs which represent activities must be included in the direct costs under the conditions described in subparagraph B.3. c. The distribution base may be total direct costs (excluding capital expenditures and other distorting items, such as major subcontracts or subgrants) , direct salaries and wages, or other base which results in an equitable distribution. The distribution base shall generally exclude participant support costs as defined in paragraph 32 of Attachment B. d. Except where a special rate(s) is required in accordance with subparagraph 5, the indirect cost rate developed under the above principles is applicable to all awards at the organization. If a special rate(s) is required, appropriate modifications shall be made in order to develop the special rate (s) . e. For an organization that receives more than $10 million in Federal funding of direct costs in a fiscal year, a breakout of the indirect cost component into two broad categories, Facilities and Administration as defined in subparagraph C.3, is required. The rate in each case shall be stated as the percentage which the amount of the particular indirect cost category (i.e., Facilities or Administration) is of the distribution base identified with that category. 3. Multiple allocation base method a. General. Where an organization's indirect costs benefit its major functions in varying degrees, indirect costs shall be accumulated into separate cost groupings, as described in subparagraph b. Each grouping shall then be allocated individually to benefitting functions by means of a base which best measures the relative benefits. The default allocation bases by cost pool are described in subparagraph c. b. Identification of indirect costs. Cost groupings shall be established so as to permit the allocation of each grouping on the basis of benefits provided to the major functions. Each grouping shall constitute a pool of expenses that are of like character in terms of functions they benefit and in terms of the allocation base which best measures the relative benefits provided to each function. The groupings are classified within the two broad categories: "Facilities" and "Administration," as described in subparagraph C.3. The indirect cost pools are defined as follows: (1) Depreciation and use allowances. The expenses under this heading are the portion of the costs of the organization's buildings, capital improvements to land and buildings, and equipment which are computed in accordance with paragraph 11 of Attachment B ("Depreciation and use allowances") . 11 (2) Interest. Interest on debt associated with certain buildings, equipment and capital improvements are computed in accordance with paragraph 23 of Attachment B ("Interest") . (3) Operation and maintenance expenses. The expenses under this heading are those that have been incurred for the administration, operation, maintenance, preservation, and protection of the organization's physical plant. They include expenses normally incurred for such items as: janitorial and utility services; repairs and ordinary or normal alterations of buildings, furniture and equipment; care of grounds; maintenance and operation of buildings and other plant facilities; security; earthquake and disaster preparedness; environmental safety; hazardous waste disposal; property, liability and other insurance relating to property; space and capital leasing; facility planning and management; and, central receiving. The operation and maintenance expenses category shall also include its allocable share of fringe benefit costs, depreciation and use allowances, and interest costs. (4) General administration and general expenses. The expenses under this heading are those that have been incurred for the overall general executive and administrative offices of the organization and other expenses of a general nature which do not relate solely to any major function of the organization. This category shall also include its allocable share of fringe benefit costs, operation and maintenance expense, depreciation and use allowances, and interest costs. Examples of this category include central offices, such as the director's office, the office of finance, business services, budget and planning, personnel, safety and risk management, general counsel, management information systems, and library costs. In developing this cost pool, special care should be exercised to ensure that costs incurred for the same purpose in like circumstances are treated consistently as either direct or indirect costs. For example, salaries of technical staff, project supplies, project publication, telephone toll charges, computer costs, travel costs, and specialized services costs shall be treated as direct costs wherever identifiable to a particular program. The salaries and wages of administrative and pooled clerical staff should normally be treated as indirect costs. Direct charging of these costs may be appropriate where a major project or activity explicitly requires and budgets for administrative or clerical services and other individuals involved can be identified with the program or activity. Items such as office supplies, postage, local telephone costs, periodicals and memberships should normally be treated as indirect costs. c. Allocation bases. Actual conditions shall be taken into account in selecting the base to be used in allocating the expenses in each grouping to benefitting functions. The essential consideration in selecting a method or a base is that it is the one best suited for assigning the pool of costs to cost objectives in accordance with benefits derived; a traceable cause and effect relationship; or logic and reason, where neither the cause nor the effect of the relationship is determinable. When an allocation can be made by assignment of a cost grouping directly to the function benefited, the allocation shall be made in that manner. When the expenses in a cost grouping are more general in nature, the allocation shall be made through the use of a selected base which produces results that are equitable to both the Federal Government and the organization. The distribution shall be made in accordance with the bases described herein unless it can be demonstrated that the use of a different base would result in a more equitable allocation of the costs, or that a more readily available base would not increase the costs charged to sponsored awards. The results of 12 special cost studies (such as an engineering utility study) shall not be used to determine and allocate the indirect costs to sponsored awards. (1) Depreciation and use allowances. Depreciation and use allowances expenses shall be allocated in the following manner: (a) Depreciation or use allowances on buildings used exclusively in the conduct of a single function, and on capital improvements and equipment used in such buildings, shall be assigned to that function. (b) Depreciation or use allowances on buildings used for more than one function, and on capital improvements and equipment used in such buildings, shall be allocated to the individual functions performed in each building on the basis of usable square feet of space, excluding common areas, such as hallways, stairwells, and restrooms. (c) Depreciation or use allowances on buildings, capital improvements and equipment related space (e.g. , individual rooms, and laboratories) used jointly by more than one function (as determined by the users of the space) shall be treated as follows. The cost of each jointly used unit of space shall be allocated to the benefitting functions on the basis of: (i) the employees and other users on a full-time equivalent (FTE) basis or salaries and wages of those individual functions benefitting from the use of that space; or (ii) organization-wide employee FTEs or salaries and wages applicable to the benefitting functions of the organization. (d) Depreciation or use allowances on certain capital improvements to land, such as paved parking areas, fences, sidewalks, and the like, not included in the cost of buildings, shall be allocated to user categories on a FTE basis and distributed to major functions in proportion to the salaries and wages of all employees applicable to the functions. (2) Interest. Interest costs shall be allocated in the same manner as the depreciation or use allowances on the buildings, equipment and capital equipments to which the interest relates. (3) Operation and maintenance expenses. Operation and maintenance expenses shall be allocated in the same manner as the depreciation and use allowances. (4) General administration and general expenses. General administration and general expenses shall be allocated to benefitting functions based on modified total direct costs (MTDC) , as described in subparagraph D.3.f. The expenses included in this category could be grouped first according to major functions of the organization to which they render services or provide benefits. The aggregate expenses of each group shall then be allocated to benefitting functions based on MTDC. d. Order of distribution. (1) Indirect cost categories consisting of depreciation and use allowances, interest, operation and maintenance, and general administration 13 and general expenses shall be allocated in that order to the remaining indirect cost categories as well as to the major functions of the organization. Other cost categories could be allocated in the order determined to be most appropriate by the organization. When cross allocation of costs is made as provided in subparagraph (2) , this order of allocation does not apply. (2) Normally, an indirect cost category will be considered closed once it has been allocated to other cost objectives, and costs shall not be subsequently allocated to it. However, a cross allocation of costs between two or more indirect costs categories could be used if such allocation will result in a more equitable allocation of costs. If a cross allocation is used, an appropriate modification to the composition of the indirect cost categories is required. e. Application of indirect cost rate or rates. Except where a special indirect cost rate(s) is required in accordance with subparagraph D.5, the separate groupings of indirect costs allocated to each major function shall be aggregated and treated as a common pool for that function. The costs in the common pool shall then be distributed to individual awards included in that function by use of a single indirect cost rate. f. Distribution basis. Indirect costs shall be distributed to applicable sponsored awards and other benefitting activities within each major function on the basis of MTDC. MTDC consists of all salaries and wages, fringe benefits, materials and supplies, services, travel, and subgrants and subcontracts up to the first $25,000 of each subgrant or subcontract (regardless of the period covered by the subgrant or subcontract) . Equipment, capital expenditures, charges for patient care, rental costs and the portion in excess of $25, 000 shall be excluded from MTDC. Participant support costs shall generally be excluded from MTDC. Other items may only be excluded when the Federal cost cognizant agency determines that an exclusion is necessary to avoid a serious inequity in the distribution of indirect costs. g. Individual Rate Components. An indirect cost rate shall be determined for each separate indirect cost pool developed. The rate in each case shall be stated as the percentage which the amount of the particular indirect cost pool is of the distribution base identified with that pool. Each indirect cost rate negotiation or determination agreement shall include development of the rate for each indirect cost pool as well as the overall indirect cost rate. The indirect cost pools shall be classified within two broad categories: "Facilities" and "Administration, " as described in subparagraph C.3. 4. Direct allocation method. a. Some non-profit organizations treat all costs as direct costs except general administration and general expenses. These organizations generally separate their costs into three basic categories: (i) General administration and general expenses, (ii) fundraising, and (iii) other direct functions (including projects performed under Federal awards) . Joint costs, such as depreciation, rental costs, operation and maintenance of facilities, telephone expenses, and the like are prorated individually as direct costs to each category and to each award or other activity using a base most appropriate to the particular cost being prorated. b. This method is acceptable, provided each joint cost is prorated using a base which accurately measures the benefits provided to each award or 14 other activity. The bases must be established in accordance with reasonable criteria, and be supported by current data. This method is compatible with the Standards of Accounting and Financial Reporting for Voluntary Health and Welfare Organizations issued jointly by the National Health Council, Inc., the National Assembly of Voluntary Health and Social Welfare Organizations, and the United Way of America. c. Under this method, indirect costs consist exclusively of general administration and general expenses. In all other respects, the organization's indirect cost rates shall be computed in the same manner as that described in subparagraph 2. 5. Special indirect cost rates. In some instances, a single indirect cost rate for all activities of an organization or for each major function of the organization may not be appropriate, since it would not take into account those different factors which may substantially affect the indirect costs applicable to a particular segment of work. For this purpose, a particular segment of work may be that performed under a single award or it may consist of work under a group of awards performed in a common environment. These factors may include the physical location of the work, the level of administrative support required, the nature of the facilities or other resources employed, the scientific disciplines or technical skills involved, the organizational arrangements used, or any combination thereof. When a particular segment of work is performed in an environment which appears to generate a significantly different level of indirect costs, provisions should be made for a separate indirect cost pool applicable to such work. The separate indirect cost pool should be developed during the course of the regular allocation process, and the separate indirect cost rate resulting therefrom should be used, provided it is determined that (i) the rate differs significantly from that which would have been obtained under subparagraphs 2, 3, and 4, and (ii) the volume of work to which the rate would apply is material. E. Negotiation and Approval of Indirect Cost Rates 1. Definitions. As used in this section, the following terms have the meanings set forth below: a. Cognizant agency means the Federal agency responsible for negotiating and approving indirect cost rates for a non-profit organization on behalf of all Federal agencies. b. Predetermined rate means an indirect cost rate, applicable to a specified current or future period, usually the organization's fiscal year. The rate is based on an estimate of the costs to be incurred during the period. A predetermined rate is not subject to adjustment. c. Fixed rate means an indirect cost rate which has the same characteristics as a predetermined rate, except that the difference between the estimated costs and the actual costs of the period covered by the rate is carried forward as an adjustment to the rate computation of a subsequent period. d. Final rate means an indirect cost rate applicable to a specified past period which is based on the actual costs of the period. A final rate is not subject to adjustment. 15 e. Provisional rate or billing rate means a temporary indirect cost rate applicable to a specified period which is used for funding, interim reimbursement, and reporting indirect costs on awards pending the establishment of a final rate for the period. f. Indirect cost proposal means the documentation prepared by an organization to substantiate its claim for the reimbursement of indirect costs. This proposal provides the basis for the review and negotiation leading to the establishment of an organization's indirect cost rate. g. Cost objective means a function, organizational subdivision, contract, grant, or other work unit for which cost data are desired and for which provision is made to accumulate and measure the cost of processes, projects, jobs and capitalized projects. 2. Negotiation and approval of rates. a. Unless different arrangements are agreed to by the agencies concerned, the Federal agency with the largest dollar value of awards with an organization will be designated as the cognizant agency for the negotiation and approval of the indirect cost rates and, where necessary, other rates such as fringe benefit and computer charge-out rates. Once an agency is assigned cognizance for a particular non-profit organization, the assignment will not be changed unless there is a major long-term shift in the dollar volume of the Federal awards to the organization. All concerned Federal agencies shall be given the opportunity to participate in the negotiation process but, after a rate has been agreed upon, it will be accepted by all Federal agencies. When a Federal agency has reason to believe that special operating factors affecting its awards necessitate special indirect cost rates in accordance with subparagraph D.5, it will, prior to the time the rates are negotiated, notify the cognizant agency. b. A non-profit organization which has not previously established an indirect cost rate with a Federal agency shall submit its initial indirect cost proposal immediately after the organization is advised that an award will be made and, in no event, later than three months after the effective date of the award. c. Organizations that have previously established indirect cost rates must submit a new indirect cost proposal to the cognizant agency within six months after the close of each fiscal year. d. A predetermined rate may be negotiated for use on awards where there is reasonable assurance, based on past experience and reliable projection of the organization's costs, that the rate is not likely to exceed a rate based on the organization's actual costs. e. Fixed rates may be negotiated where predetermined rates are not considered appropriate. A fixed rate, however, shall not be negotiated if (i) all or a substantial portion of the organization's awards are expected to expire before the carry-forward adjustment can be made; (ii) the mix of Federal and non-Federal work at the organization is too erratic to permit an equitable carry-forward adjustment; or (iii) the organization's operations fluctuate significantly from year to year. f. Provisional and final rates shall be negotiated where neither predetermined nor fixed rates are appropriate. 16 g. The results of each negotiation shall be formalized in a written agreement between the cognizant agency and the non-profit organization. The cognizant agency shall distribute copies of the agreement to all concerned Federal agencies. h. If a dispute arises in a negotiation of an indirect cost rate between the cognizant agency and the non-profit organization, the dispute shall be resolved in accordance with the appeals procedures of the cognizant agency. i. To the extent that problems are encountered among the Federal agencies in connection with the negotiation and approval process, OMB will lend assistance as required to resolve such problems in a timely manner. 17 ATTACHMENT B Circular No. A-122 SELECTED ITEMS OF COST Table of Contents 1. Advertising and public relations costs 2. Advisory councils 3. Alcoholic beverages 4. Audit costs and related services 5. Bad debts 6. Bonding costs 7. Communication costs 8 Compensation for personal services 9. Contingency provisions 10. Defense and prosecution of criminal and civil proceedings, claims, appeals and patent infringement 11. Depreciation and use allowances 12. Donations and contributions 13. Employee morale, health, and welfare costs 14. Entertainment costs 15. Equipment and other capital expenditures 16. Fines and penalties 17. Fund raising and investment management costs 18. Gains and losses on depreciable assets 19. Goods or services for personal use 20. Housing and personal living expenses 21. Idle facilities and idle capacity 22. Insurance and indemnification 23. Interest 24. Labor relations costs 25. Lobbying 26. Losses on other sponsored agreements or contracts 27. Maintenance and repair costs 28. Materials and supplies costs 29. Meetings and conferences 30. Memberships, subscriptions, and professional activity costs 31. Organization costs 32. Page charges in professional journals 33. Participant support costs 34. Patent costs 35. Plant and homeland security costs 36. Pre-agreement costs 37. Professional services costs 38. Publication and printing costs 39. Rearrangement and alteration costs 40. Reconversion costs 41. Recruiting costs 42. Relocation costs 43. Rental costs of buildings and equipment 44. Royalties and other costs for use of patents and copyrights 45. Selling and marketing 46. Specialized service facilities 47. Taxes 48. Termination costs applicable to sponsored agreements 18 ATTACHMENT B Circular No. A-122 SELECTED ITEMS OF COST Paragraphs 1 through 53 provide principles to be applied in establishing the allowability of certain items of cost. These principles apply whether a cost is treated as direct or indirect. Failure to mention a particular item of cost is not intended to imply that it is unallowable; rather, determination as to allowability in each case should be based on the treatment or principles provided for similar or related items of cost. 1. Advertising and public relations costs. a. The term advertising costs means the costs of advertising media and corollary administrative costs. Advertising media include magazines, newspapers, radio and television, direct mail, exhibits, electronic or computer transmittals, and the like. b. The term public relations includes community relations and means those activities dedicated to maintaining the image of the non-profit organization or maintaining or promoting understanding and favorable relations with the community or public at large or any segment of the public. c. The only allowable advertising costs are those which are solely for: (1) The recruitment of personnel required for the performance by the non-profit organization of obligations arising under a Federal award (See also Attachment B, paragraph 41, Recruiting costs, and paragraph 42, Relocation costs) ; (2) The procurement of goods and services for the performance of a Federal award; (3) The disposal of scrap or surplus materials acquired in the performance of a Federal award except when non-profit organizations are reimbursed for disposal costs at a predetermined amount; or (4) Other specific purposes necessary to meet the requirements of the Federal award. d. The only allowable public relations costs are: (1) Costs specifically required by the Federal award; (2) Costs of communicating with the public and press pertaining to specific activities or accomplishments which result from performance of Federal awards (these costs are considered necessary as part of the outreach effort for the Federal award) ; or (3) Costs of conducting general liaison with news media and government public relations officers, to the extent that such activities are limited to communication and liaison necessary keep the public informed on matters of public concern, such as notices of Federal contract/grant awards, financial matters, etc. 20 e. Costs identified in subparagraphs c and d if incurred for more than one Federal award or for both sponsored work and other work of the non-profit organization, are allowable to the extent that the principles in Attachment A, paragraphs B. ("Direct Costs") and C. ("Indirect Costs") are observed. f. Unallowable advertising and public relations costs include the following: (1) All advertising and public relations costs other than as specified in subparagraphs c, d, and e; (2) Costs of meetings, conventions, convocations, or other events related to other activities of the non-profit organization, including: (a) Costs of displays, demonstrations, and exhibits; (b) Costs of meeting rooms, hospitality suites, and other special facilities used in conjunction with shows and other special events; and (c) Salaries and wages of employees engaged in setting up and displaying exhibits, making demonstrations, and providing briefings; (3) Costs of promotional items and memorabilia, including models, gifts, and souvenirs; (4) Costs of advertising and public relations designed solely to promote the non-profit organization. 2. Advisory Councils Costs incurred by advisory councils or committees are allowable as a direct cost where authorized by the Federal awarding agency or as an indirect cost where allocable to Federal awards. 3. Alcoholic beverages. Costs of alcoholic beverages are unallowable. 4. Audit costs and related services a The costs of audits required by , and performed in accordance with, the Single Audit Act, as implemented by Circular A-133, "Audits of States, Local Governments, and Non-Profit Organizations" are allowable. Also see 31 USC 7505 (b) and section 230 ("Audit Costs") of Circular A-133. b. Other audit costs are allowable if included in an indirect cost rate proposal, or if specifically approved by the awarding agency as a direct cost to an award. c. The cost of agreed-upon procedures engagements to monitor subrecipients who are exempted from A-133 under section 200 (d) are allowable, subject to the conditions listed in A-133, section 230 (b) (2) . 21 5. Bad debts. Bad debts, including losses (whether actual or estimated) arising from uncollectable accounts and other claims, related collection costs, and related legal costs, are unallowable. 6. Bonding costs. a. Bonding costs arise when the Federal Government requires assurance against financial loss to itself or others by reason of the act or default of the non-profit organization. They arise also in instances where the non-profit organization requires similar assurance. Included are such bonds as bid, performance, payment, advance payment, infringement, and fidelity bonds. b. Costs of bonding required pursuant to the terms of the award are allowable. c. Costs of bonding required by the non-profit organization in the general conduct of its operations are allowable to the extent that such bonding is in accordance with sound business practice and the rates and premiums are reasonable under the circumstances. 7. Communication costs. Costs incurred for telephone services, local and long distance telephone calls, telegrams, postage, messenger, electronic or computer transmittal services and the like are allowable. 8. Compensation for personal services. a. Definition. Compensation for personal services includes all compensation paid currently or accrued by the organization for services of employees rendered during the period of the award (except as otherwise provided in subparagraph h) . It includes, but is not limited to, salaries, wages, director's and executive committee member's fees, incentive awards, fringe benefits, pension plan costs, allowances for off-site pay, incentive pay, location allowances, hardship pay, and cost of living differentials. b. Allowability. Except as otherwise specifically provided in this paragraph, the costs of such compensation are allowable to the extent that: (1) Total compensation to individual employees is reasonable for the services rendered and conforms to the established policy of the organization consistently applied to both Federal and non-Federal activities; and (2) Charges to awards whether treated as direct or indirect costs are determined and supported as required in this paragraph. c. Reasonableness. (1) When the organization is predominantly engaged in activities other than those sponsored by the Federal Government, compensation for employees on federally-sponsored work will be considered reasonable to the extent that it is consistent with that paid for similar work in the organization's other activities. (2) When the organization is predominantly engaged in federally- sponsored activities and in cases where the kind of employees required for the Federal activities are not found in the organization's other activities, 22 compensation for employees on federally-sponsored work will be considered reasonable to the extent that it is comparable to that paid for similar work in the labor markets in which the organization competes for the kind of employees involved. d. Special considerations in determining allowability. Certain conditions require special consideration and possible limitations in determining costs under Federal awards where amounts or types of compensation appear unreasonable. Among such conditions are the following: (1) Compensation to members of non-profit organizations, trustees, directors, associates, officers, or the immediate families thereof. Determination should be made that such compensation is reasonable for the actual personal services rendered rather than a distribution of earnings in excess of costs. (2) Any change in an organization's compensation policy resulting in a substantial increase in the organization's level of compensation, particularly when it was concurrent with an increase in the ratio of Federal awards to other activities of the organization or any change in the treatment of allowability of specific types of compensation due to changes in Federal policy. e. Unallowable costs. Costs which are unallowable under other paragraphs of this Attachment shall not be allowable under this paragraph solely on the basis that they constitute personal compensation. f. Overtime, extra-pay shift, and multi-shift premiums. Premiums for overtime, extra-pay shifts, and multi-shift work are allowable only with the prior approval of the awarding agency except: (1) When necessary to cope with emergencies, such as those resulting from accidents, natural disasters, breakdowns of equipment, or occasional operational bottlenecks of a sporadic nature. (2) When employees are performing indirect functions, such as administration, maintenance, or accounting. (3) In the performance of tests, laboratory procedures, or other similar operations which are continuous in nature and cannot reasonably be interrupted or otherwise completed. (4) When lower overall cost to the Federal Government will result. g. Fringe benefits. (1) Fringe benefits in the form of regular compensation paid to employees during periods of authorized absences from the job, such as vacation leave, sick leave, military leave, and the like, are allowable, provided such costs are absorbed by all organization activities in proportion to the relative amount of time or effort actually devoted to each. (2) Fringe benefits in the form of employer contributions or expenses for social security, employee insurance, workmen's compensation insurance, pension plan costs (see subparagraph h) , and the like, are allowable, provided such benefits are granted in accordance with established written organization policies. Such benefits whether treated as indirect costs or as direct costs, shall be distributed to particular awards and other activities in 23 a manner consistent with the pattern of benefits accruing to the individuals or group of employees whose salaries and wages are chargeable to such awards and other activities. (3) (a) Provisions for a reserve under a self-insurance program for unemployment compensation or workers' compensation are allowable to the extent that the provisions represent reasonable estimates of the liabilities for such compensation, and the types of coverage, extent of coverage, and rates and premiums would have been allowable had insurance been purchased to cover the risks. However, provisions for self-insured liabilities which do not become payable for more than one year after the provision is made shall not exceed the present value of the liability. (b) Where an organization follows a consistent policy of expensing actual payments to, or on behalf of, employees or former employees for unemployment compensation or workers' compensation, such payments are allowable in the year of payment with the prior approval of the awarding agency, provided they are allocated to all activities of the organization. (4) Costs of insurance on the lives of trustees, officers, or other employees holding positions of similar responsibility are allowable only to the extent that the insurance represents additional compensation. The costs of such insurance when the organization is named as beneficiary are unallowable. h. Organization-furnished automobiles. That portion of the cost of organization-furnished automobiles that relates to personal use by employees (including transportation to and from work) is unallowable as fringe benefit or indirect costs regardless of whether the cost is reported as taxable income to the employees. These costs are allowable as direct costs to sponsored award when necessary for the performance of the sponsored award and approved by awarding agencies. i. Pension plan costs. (1) Costs of the organization's pension plan which are incurred in accordance with the established policies of the organization are allowable, provided: (a) Such policies meet the test of reasonableness; (b) The methods of cost allocation are not discriminatory; (c) The cost assigned to each fiscal year is determined in accordance with generally accepted accounting principles (GAAP) , as prescribed in Accounting Principles Board Opinion No. 8 issued by the American Institute of Certified Public Accountants; and (d) The costs assigned to a given fiscal year are funded for all plan participants within six months after the end of that year. However, increases to normal and past service pension costs caused by a delay in funding the actuarial liability beyond 30 days after each quarter of the year to which such costs are assignable are unallowable. (2) Pension plan termination insurance premiums paid pursuant to the Employee Retirement Income Security Act (ERISA) of 1974 (Pub. L. 93-406) are allowable. Late payment charges on such premiums are unallowable. 24 (3) Excise taxes on accumulated funding deficiencies and other penalties imposed under ERISA are unallowable. j . Incentive compensation. Incentive compensation to employees based on cost reduction, or efficient performance, suggestion awards, safety awards, etc., are allowable to the extent that the overall compensation is determined to be reasonable and such costs are paid or accrued pursuant to an agreement entered into in good faith between the organization and the employees before the services were rendered, or pursuant to an established plan followed by the organization so consistently as to imply, in effect, an agreement to make such payment. k. Severance pay. (1) Severance pay, also commonly referred to as dismissal wages, is a payment in addition to regular salaries and wages, by organizations to workers whose employment is being terminated. Costs of severance pay are allowable only to the extent that in each case, it is required by (a) law, (b) employer-employee agreement, (c) established policy that constitutes, in effect, an implied agreement on the organization's part, or (d) circumstances of the particular employment. (2) Costs of severance payments are divided into two categories as follows: (a) Actual normal turnover severance payments shall be allocated to all activities; or, where the organization provides for a reserve for normal severances, such method will be acceptable if the charge to current operations is reasonable in light of payments actually made for normal severances over a representative past period, and if amounts charged are allocated to all activities of the organization. (b) Abnormal or mass severance pay is of such a conjectural nature that measurement of costs by means of an accrual will not achieve equity to both parties. Thus, accruals for this purpose are not allowable. However, the Federal Government recognizes its obligation to participate, to the extent of its fair share, in any specific payment. Thus, allowability will be considered on a case-by-case basis in the event or occurrence. . (c) Costs incurred in certain severance pay packages (commonly known as "a golden parachute" payment) which are in an amount in excess of the normal severance pay paid by the organization to an employee upon termination of employment and are paid to the employee contingent upon a change in management control over, or ownership of, the organization's assets are unallowable. (d) Severance payments to foreign nationals employed by the organization outside the United States, to the extent that the amount exceeds the customary or prevailing practices for the organization in the United States are unallowable, unless they are necessary for the performance of Federal programs and approved by awarding agencies. (e) Severance payments to foreign nationals employed by the organization outside the United States due to the termination of the foreign national as a result of the closing of, or curtailment of activities by, the organization in that country, are unallowable, unless they are necessary for the performance of Federal programs and approved by awarding agencies. 25 1. Training costs. See paragraph 49. m. Support of salaries and wages. (1) Charges to awards for salaries and wages, whether treated as direct costs or indirect costs, will be based on documented payrolls approved by a responsible official (s) of the organization. The distribution of salaries and wages to awards must be supported by personnel activity reports, as prescribed in subparagraph (2) , except when a substitute system has been approved in writing by the cognizant agency. (See subparagraph E.2 of Attachment A. ) (2) Reports reflecting the distribution of activity of each employee must be maintained for all staff members (professionals and nonprofessionals) whose compensation is charged, in whole or in part, directly to awards. In addition, in order to support the allocation of indirect costs, such reports must also be maintained for other employees whose work involves two or more functions or activities if a distribution of their compensation between such functions or activities is needed in the determination of the organization's indirect cost rate (s) (e.g. , an employee engaged part-time in indirect cost activities and part-time in a direct function) . Reports maintained by non- profit organizations to satisfy these requirements must meet the following standards: (a) The reports must reflect an after-the-fact determination of the actual activity of each employee. Budget estimates (i.e., estimates determined before the services are performed) do not qualify as support for charges to awards. (b) Each report must account for the total activity for which employees are compensated and which is required in fulfillment of their obligations to the organization. (c) The reports must be signed by the individual employee, or by a responsible supervisory official having first hand knowledge of the activities performed by the employee, that the distribution of activity represents a reasonable estimate of the actual work performed by the employee during the periods covered by the reports. (d) The reports must be prepared at least monthly and must coincide with one or more pay periods. (3) Charges for the salaries and wages of nonprofessional employees, in addition to the supporting documentation described in subparagraphs (1) and (2) , must also be supported by records indicating the total number of hours worked each day maintained in conformance with Department of Labor regulations implementing the Fair Labor Standards Act (FLSA) (29 CFR Part 516) . For this purpose, the term "nonprofessional employee" shall have the same meaning as "nonexempt employee, " under FLSA. (4) Salaries and wages of employees used in meeting cost sharing or matching requirements on awards must be supported in the same manner as salaries and wages claimed for reimbursement from awarding agencies. 9. Contingency provisions. Contributions to a contingency reserve or any similar provision made for events the occurrence of which cannot be foretold 26 with certainty as to time, intensity, or with an assurance of their happening, are unallowable. The term "contingency reserve" excludes self-insurance reserves (see Attachment B, paragraphs 8.g. (3) and 22.a(2) (d) ) ; pension funds (see paragraph 8.i) : and reserves for normal severance pay (see paragraph 8.k.) 10. Defense and prosecution of criminal and civil proceedings, claims, appeals and patent infringement. a. Definitions. (1) Conviction, as used herein, means a judgment or a conviction of a criminal offense by any court of competent jurisdiction, whether entered upon as a verdict or a plea, including a conviction due to a plea of nolo contendere. (2) Costs include, but are not limited to, administrative and clerical expenses; the cost of legal services, whether performed by in-house or private counsel; and the costs of the services of accountants, consultants, or others retained by the organization to assist it; costs of employees, officers and trustees, and any similar costs incurred before, during, and after commencement of a judicial or administrative proceeding that bears a direct relationship to the proceedings. (3) Fraud, as used herein, means (i) acts of fraud corruption or attempts to defraud the Federal Government or to corrupt its agents, (ii) acts that constitute a cause for debarment or suspension (as specified in agency regulations) , and (iii) acts which violate the False Claims Act, 31 U.S.C., sections 3729-3731, or the Anti-Kickback Act, 41 U.S.C., sections 51 and 54. (4) Penalty does not include restitution, reimbursement, or compensatory damages. (5) Proceeding includes an investigation. b. (1) Except as otherwise described herein, costs incurred in connection with any criminal, civil or administrative proceeding (including filing of a false certification) commenced by the Federal Government, or a State, local or foreign government, are not allowable if the proceeding: (1) relates to a violation of, or failure to comply with, a Federal, State, local or foreign statute or regulation by the organization (including its agents and employees) , and (2) results in any of the following dispositions: (a) In a criminal proceeding, a conviction. (b) In a civil or administrative proceeding involving an allegation of fraud or similar misconduct, a determination of organizational liability. (c) In the case of any civil or administrative proceeding, the imposition of a monetary penalty. (d) A final decision by an appropriate Federal official to debar or suspend the organization, to rescind or void an award, or to terminate 27 an award for default by reason of a violation or failure to comply with a law or regulation. (e) A disposition by consent or compromise, if the action could have resulted in any of the dispositions described in (a) , (b) , (c) or (d) . (2) If more than one proceeding involves the same alleged misconduct, the costs of all such proceedings shall be unallowable if any one of them results in one of the dispositions shown in subparagraph b. (1) . c. If a proceeding referred to in subparagraph b is commenced by the Federal Government and is resolved by consent or compromise pursuant to an agreement entered into by the organization and the Federal Government, then the costs incurred by the organization in connection with such proceedings that are otherwise not allowable under subparagraph b may be allowed to the extent specifically provided in such agreement. d. If a proceeding referred to in subparagraph b is commenced by a State, local or foreign government, the authorized Federal official may allow the costs incurred by the organization for such proceedings, if such authorized official determines that the costs were incurred as a result of (1) a specific term or condition of a federally-sponsored award, or (2) specific written direction of an authorized official of the sponsoring agency. e. Costs incurred in connection with proceedings described in subparagraph b, but which are not made unallowable by that subparagraph, may be allowed by the Federal Government, but only to the extent that: (1) The costs are reasonable in relation to the activities required to deal with the proceeding and the underlying cause of action; (2) Payment of the costs incurred, as allowable and allocable costs, is not prohibited by any other provision(s) of the sponsored award; (3) The costs are not otherwise recovered from the Federal Government or a third party, either directly as a result of the proceeding or otherwise; and, (4) The percentage of costs allowed does not exceed the percentage determined by an authorized Federal official to be appropriate, considering the complexity of the litigation, generally accepted principles governing the award of legal fees in civil actions involving the United States as a party, and such other factors as may be appropriate. Such percentage shall not exceed 80 percent. However, if an agreement reached under subparagraph c has explicitly considered this 80 percent limitation and permitted a higher percentage, then the full amount of costs resulting from that agreement shall be allowable. f. Costs incurred by the organization in connection with the defense of suits brought by its employees or ex-employees under section 2 of the Major Fraud Act of 1988 (Pub. L. 100-700) , including the cost of all relief necessary to make such employee whole, where the organization was found liable or settled, are unallowable. g. Costs of legal, accounting, and consultant services, and related costs, incurred in connection with defense against Federal Government claims or 28 appeals, antitrust suits, or the prosecution of claims or appeals against the Federal Government, are unallowable. h. Costs of legal, accounting, and consultant services, and related costs, incurred in connection with patent infringement litigation, are unallowable unless otherwise provided for in the sponsored awards. i. Costs which may be unallowable under this paragraph, including directly associated costs, shall be segregated and accounted for by the organization separately. During the pendency of any proceeding covered by subparagraphs b and f, the Federal Government shall generally withhold payment of such costs. However, if in the best interests of the Federal Government, the Federal Government may provide for conditional payment upon provision of adequate security, or other adequate assurance, and agreements by the organization to repay all unallowable costs, plus interest, if the costs are subsequently determined to be unallowable. 11. Depreciation and use allowances. a. Compensation for the use of buildings, other capital improvements, and equipment on hand may be made through use allowance or depreciation. However, except as provided in Attachment B, paragraph f, a combination of the two methods may not be used in connection with a single class of fixed assets (e.g., buildings, office equipment, computer equipment, etc.) . b. The computation of use allowances or depreciation shall be based on the acquisition cost of the assets involved. The acquisition cost of an asset donated to the non-profit organization by a third party shall be its fair market value at the time of the donation. c. The computation of use allowances or depreciation will exclude: (1) The cost of land; (2) Any portion of the cost of buildings and equipment borne by or donated by the Federal Government irrespective of where title was originally vested or where it presently resides; and (3) Any portion of the cost of buildings and equipment contributed by or for the non-profit organization in satisfaction of a statutory matching requirement. d. Where depreciation method is followed, the period of useful service (useful life) established in each case for usable capital assets must take into consideration such factors as type of construction, nature of the equipment used, technological developments in the particular program area, and the renewal and replacement policies followed for the individual items or classes of assets involved. The method of depreciation used to assign the cost of an asset (or group of assets) to accounting periods shall reflect the pattern of consumption of the asset during its useful life. In the absence of clear evidence indicating that the expected consumption of the asset will be significantly greater or lesser in the early portions of its useful life than in the later portions, the straight-line method shall be presumed to be the appropriate method. Depreciation methods once used shall not be changed unless approved in advance by the cognizant Federal agency. When the depreciation method is introduced for 29 application to assets previously subject to a use allowance, the combination of use allowances and depreciation applicable to such assets must not exceed the total acquisition cost of the assets. e. When the depreciation method is used for buildings, a building's shell may be segregated from each building component (e.g., plumbing system, heating., and air conditioning system, etc.) and each item depreciated over its estimated useful life; or the entire building (i.e. , the shell and all components) may be treated as a single asset and depreciated over a single useful life. f. When the depreciation method is used for a particular class of assets, no depreciation may be allowed on any such assets that, under subparagraph d, would be viewed as fully depreciated. However, a reasonable use allowance may be negotiated for such assets if warranted after taking into consideration the amount of depreciation previously charged to the Federal Government, the estimated useful life remaining at time of negotiation, the effect of any increased maintenance charges or decreased efficiency due to age, and any other factors pertinent to the utilization of the asset for the purpose contemplated. g. Where the use allowance method is followed, the use allowance for buildings and improvement (including land improvements, such as paved parking areas, fences, and sidewalks) will be computed at an annual rate not exceeding two percent of acquisition cost. The use allowance for equipment will be computed at an annual rate not exceeding six and two-thirds percent of acquisition cost. When the use allowance method is used for buildings, the entire building must be treated as a single asset; the building's components (e.g. , plumbing system, heating and air conditioning, etc. ) cannot be segregated from the building's shell. The two percent limitation, however, need not be applied to equipment which is merely attached or fastened to the building but not permanently fixed to it and which is used as furnishings or decorations or for specialized purposes (e.g., dentist chairs and dental treatment units, counters, laboratory benches bolted to the floor, dishwashers, modular furniture, carpeting, etc.) . Such equipment will be considered as not being permanently fixed to the building if it can be removed without the need for costly or extensive alterations or repairs to the building or the equipment. Equipment that meets these criteria will be subject to the 6 2/3 percent equipment use allowance limitation. h. Charges for use allowances or depreciation must be supported by adequate property records and physical inventories must be taken at least once every two years (a statistical sampling basis is acceptable) to ensure that assets exist and are usable and needed. When the depreciation method is followed, adequate depreciation records indicating the amount of depreciation taken each period must also be maintained. 12. Donations and contributions. a. Contributions or donations rendered. Contributions or donations, including cash, property, and services, made by the organization, regardless of the recipient, are unallowable. b. Donated services received: 30 (1) Donated or volunteer services may be furnished to an organization by professional and technical personnel, consultants, and other skilled and unskilled labor. The value of these services is not reimbursable either as a direct or indirect cost. However, the value of donated services may be used to meet cost sharing or matching requirements in accordance with the Common Rule. (2)The value of donated services utilized in the performance of a direct cost activity shall, when material in amount, be considered in the determination of the non-profit organization's indirect costs or rate(s) and, accordingly, shall be allocated a proportionate share of applicable indirect costs when the following exist: (a) The aggregate value of the services is material; (b) The services are supported by a significant amount of the indirect costs incurred by the non-profit organization; and (c) The direct cost activity is not pursued primarily for the benefit of the Federal Government. (3) In those instances where there is no basis for determining the fair market value of the services rendered, the recipient and the cognizant agency shall negotiate an appropriate allocation of indirect cost to the services. (4) Where donated services directly benefit a project supported by an award, the indirect costs allocated to the services will be considered as a part of the total costs of the project. Such indirect costs may be reimbursed under the award or used to meet cost sharing or matching requirements. (5) The value of the donated services may be used to meet cost sharing or matching requirements under conditions described in Sec._.23 of Circular A-110. Where donated services are treated as indirect costs, indirect cost rates will separate the value of the donations so that reimbursement will not be made. c. Donated goods or space. (1) Donated goods; i.e., expendable personal property/supplies, and donated use of space may be furnished to a non-profit organization. The value of the goods and space is not reimbursable either as a direct or indirect cost. (2) The value of the donations may be used to meet cost sharing or matching share requirements under the conditions described in Circular A-110. Where donations are treated as indirect costs, indirect cost rates will separate the value of the donations so that reimbursement will not be made. 13. Employee morale, health, and welfare costs. 31 a. The costs of employee information publications, health or first-aid clinics and/or infirmaries, recreational activities, employee counseling services, and any other expenses incurred in accordance with the non-profit organization's established practice or custom for the improvement of working conditions, employer-employee relations, employee morale, and employee performance are allowable. b. Such costs will be equitably apportioned to all activities of the non- profit organization. Income generated from any of these activities will be credited to the cost thereof unless such income has been irrevocably set over to employee welfare organizations. 14 . Entertainment costs. Costs of entertainment, including amusement, diversion, and social activities and any costs directly associated with such costs (such as tickets to shows or sports events, meals, lodging, rentals, transportation, and gratuities) are unallowable. 15. Equipment and other capital expenditures. a. For purposes of this subparagraph, the following definitions apply: (1) "Capital Expenditures" means expenditures for the acquisition cost of capital assets (equipment, buildings, land) , or expenditures to make improvements to capital assets that materially increase their value or useful life. Acquisition cost means the cost of the asset including the cost to put it in place. Acquisition cost for equipment, for example, means the net invoice price of the equipment, including the cost of any modifications, attachments, accessories, or auxiliary apparatus necessary to make it usable for the purpose for which it is acquired. Ancillary charges, such as taxes, duty, protective in transit insurance, freight, and installation may be included in, or excluded from the acquisition cost in accordance with the non-profit organization's regular accounting practices. (2) "Equipment" means an article of nonexpendable, tangible personal property having a useful life of more than one year and an acquisition cost which equals or exceeds the lesser of the capitalization level established by the non-profit organization for financial statement purposes, or $5000. (3) "Special purpose equipment" means equipment which is used only for research, medical, scientific, or other technical activities. Examples of special purpose equipment include microscopes, x-ray machines, surgical instruments, and spectrometers. (4) "General purpose equipment" means equipment, which is not limited to research, medical, scientific or other technical activities. Examples include office equipment and furnishings, modular offices, telephone networks, information technology equipment and systems, air conditioning equipment, reproduction and printing equipment, and motor vehicles. b. The following rules of allowability shall apply to equipment and other capital expenditures: 32 (1) Capital expenditures for general purpose equipment, buildings, and land are unallowable as direct charges, except where approved in advance by the awarding agency. (2) Capital expenditures for special purpose equipment are allowable as direct costs, provided that items with a unit cost of $5000 or more have the prior approval of the awarding agency. (3) Capital expenditures for improvements to land, buildings, or equipment which materially increase their value or useful life are unallowable as a direct cost except with the prior approval of the awarding agency. (4) When approved as a direct charge pursuant to paragraph 15.b. (1) , (2) , and (3) above, capital expenditures will be charged in the period in which the expenditure is incurred, or as otherwise determined appropriate by and negotiated with the awarding agency. (5) Equipment and other capital expenditures are unallowable as indirect costs. However, see Attachment B, paragraph 11., Depreciation and use allowance, for rules on the allowability of use allowances or depreciation on buildings, capital improvements, and equipment. Also, see Attachment B, paragraph 43., Rental costs of buildings and equipment, for rules on the allowability of rental costs for land, buildings, and equipment. (6) The unamortized portion of any equipment written off as a result of a change in capitalization levels may be recovered by continuing to claim the otherwise allowable use allowances or depreciation on the equipment, or by amortizing the amount to be written off over a period of years negotiated with the cognizant agency. 16. Fines and penalties. Costs of fines and penalties resulting from violations of, or failure of the organization to comply with Federal, State, and local laws and regulations are unallowable except when incurred as a result of compliance with specific provisions of an award or instructions in writing from the awarding agency. 17. Fund raising and investment management costs. a. Costs of organized fund raising, including financial campaigns, endowment drives, solicitation of gifts and bequests, and similar expenses incurred solely to raise capital or obtain contributions are unallowable. b. Costs of investment counsel and staff and similar expenses incurred solely to enhance income from investments are unallowable. c. Fund raising and investment activities shall be allocated an appropriate share of indirect costs under the conditions described in subparagraph B.3 of Attachment A. 18. Gains and losses on depreciable assets. a. (1) Gains and losses on sale, retirement, or other disposition of depreciable property shall be included in the year in which they occur as credits or charges to cost grouping(s) in which the depreciation applicable to 33 such property was included. The amount of the gain or loss to be included as a credit or charge to the appropriate cost grouping(s) shall be the difference between the amount realized on the property and the undepreciated basis of the property. (2) Gains and losses on the disposition of depreciable property shall not be recognized as a separate credit or charge under the following conditions: (a) The gain or loss is processed through a depreciation account and is reflected in the depreciation allowable under paragraph 11. (b) The property is given in exchange as part of the purchase price of a similar item and the gain or loss is taken into account in determining the depreciation cost basis of the new item. (c) A loss results from the failure to maintain permissible insurance, except as otherwise provided in Attachment B, paragraph 22. (d) Compensation for the use of the property was provided through use allowances in lieu of depreciation in accordance with paragraph 9. (e) Gains and losses arising from mass or extraordinary sales, retirements, or other dispositions shall be considered on a case-by-case basis. b. Gains or losses of any nature arising from the sale or exchange of property other than the property covered in subparagraph a shall be excluded in computing award costs. 19. Goods or services for personal use. Costs of goods or services for personal use of the organization's employees are unallowable regardless of whether the cost is reported as taxable income to the employees. 20. Housing and personal living expenses. a. Costs of housing (e.g. , depreciation, maintenance, utilities, furnishings, rent, etc.) , housing allowances and personal living expenses for/of the organization's officers are unallowable as fringe benefit or indirect costs regardless of whether the cost is reported as taxable income to the employees. These costs are allowable as direct costs to sponsored award when necessary for the performance of the sponsored award and approved by awarding agencies. b. The term "officers" includes current and past officers and employees. 21. Idle facilities and idle capacity. a. As used in this section the following terms have the meanings set forth below: (1) "Facilities" means land and buildings or any portion thereof, equipment individually or collectively, or any other tangible capital asset, wherever located, and whether owned or leased by the non-profit organization. 34 (2) "Idle facilities" means completely unused facilities that are excess to the non-profit organization's current needs. (3) "Idle capacity" means the unused capacity of partially used facilities. It is the difference between: (a) that which a facility could achieve under 100 percent operating time on a one-shift basis less operating interruptions resulting from time lost for repairs, setups, unsatisfactory materials, and other normal delays; and (b) the extent to which the facility was actually used to meet demands during the accounting period. A multi-shift basis should be used if it can be shown that this amount of usage would normally be expected for the type of facility involved. (4) "Cost of idle facilities or idle capacity" means costs such as maintenance, repair, housing, rent, and other related costs, e.g., insurance, interest, property taxes and depreciation or use allowances. b. The costs of idle facilities are unallowable except to the extent that: (1) They are necessary to meet fluctuations in workload; or (2) Although not necessary to meet fluctuations in workload, they were necessary when acquired and are now idle because of changes in program requirements, efforts to achieve more economical operations, reorganization, termination, or other causes which could not have been reasonably foreseen. Under the exception stated in this subparagraph, costs of idle facilities are allowable for a reasonable period of time, ordinarily not to exceed one year, depending on the initiative taken to use, lease, or dispose of such facilities. c. The costs of idle capacity are normal costs of doing business and are a factor in the normal fluctuations of usage or indirect cost rates from period to period. Such costs are allowable, provided that the capacity is reasonably anticipated to be necessary or was originally reasonable and is not subject to reduction or elimination by use on other Federal awards, subletting, renting, or sale, in accordance with sound business, economic, or security practices. Widespread idle capacity throughout an entire facility or among a group of assets having substantially the same function may be considered idle facilities. 22. Insurance and indemnification. a. Insurance includes insurance which the organization is required to carry, or which is approved, under the terms of the award and any other insurance which the organization maintains in connection with the general conduct of its operations. This paragraph does not apply to insurance which represents fringe benefits for employees (see subparagraphs 8.g and 8.i (2) ) . (1) Costs of insurance required or approved, and maintained, pursuant to the award are allowable. (2) Costs of other insurance maintained by the organization in connection with the general conduct of its operations are allowable subject to the following limitations: (a) Types and extent of coverage shall be in accordance with sound business practice and the rates and premiums shall be reasonable under the circumstances. 35 (b) Costs allowed for business interruption or other similar insurance shall be limited to exclude coverage of management fees. (c) Costs of insurance or of any provisions for a reserve covering the risk of loss or damage to Federal property are allowable only to the extent that the organization is liable for such loss or damage. (d) Provisions for a reserve under a self-insurance program are allowable to the extent that types of coverage, extent of coverage, rates, and premiums would have been allowed had insurance been purchased to cover the risks. However, provision for known or reasonably estimated self-insured liabilities, which do not become payable for more than one year after the provision is made, shall not exceed the present value of the liability. (e) Costs of insurance on the lives of trustees, officers, or other employees holding positions of similar responsibilities are allowable only to the extent that the insurance represents additional compensation (see subparagraph 8.g(4) ) . The cost of such insurance when the organization is identified as the beneficiary is unallowable. (f) Insurance against defects. Costs of insurance with respect to any costs incurred to correct defects in the organization's materials or workmanship are unallowable. (g) Medical liability (malpractice) insurance. Medical liability insurance is an allowable cost of Federal research programs only to the extent that the Federal research programs involve human subjects or training of participants in research techniques. Medical liability insurance costs shall be treated as a direct cost and shall be assigned to individual projects based on the manner in which the insurer allocates the risk to the population covered by the insurance. (3) Actual losses which could have been covered by permissible insurance (through the purchase of insurance or a self- insurance program) are unallowable unless expressly provided for in the award, except: (a) Costs incurred because of losses not covered under nominal deductible insurance coverage provided in keeping with sound business practice are allowable. (b) Minor losses not covered by insurance, such as spoilage, breakage, and disappearance of supplies, which occur in the ordinary course of operations, are allowable. b. Indemnification includes securing the organization against liabilities to third persons and any other loss or damage, not compensated by insurance or otherwise. The Federal Government is obligated to indemnify the organization only to the extent expressly provided in the award. 23. Interest. a. Costs incurred for interest on borrowed capital, temporary use of endowment funds, or the use of the non-profit organization's own funds, however represented, are unallowable. However, interest on debt incurred after September 29, 1995 to acquire or replace capital assets (including 36 renovations, alterations, equipment, land, and capital assets acquired through capital leases) , acquired after September 29, 1995 and used in support of Federal awards is allowable, provided that: (1) For facilities acquisitions (excluding renovations and alterations) costing over $10 million where the Federal Government's reimbursement is expected to equal or exceed 40 percent of an asset's cost, the non-profit organization prepares, prior to the acquisition or replacement of the capital asset(s) , a justification that demonstrates the need for the facility in the conduct of federally-sponsored activities. Upon request, the needs justification must be provided to the Federal agency with cost cognizance authority as a prerequisite to the continued allowability of interest on debt and depreciation related to the facility. The needs justification for the acquisition of a facility should include, at a minimum, the following: (a) A statement of purpose and justification for facility acquisition or replacement (b) A statement as to why current facilities are not adequate (c) A statement of planned future use of the facility (d) A description of the financing agreement to be arranged for the facility (e) A summary of the building contract with estimated cost information and statement of source and use of funds (f) A schedule of planned occupancy dates (2) For facilities costing over $500,000, the non-profit organization prepares, prior to the acquisition or replacement of the facility, a lease/purchase analysis in accordance with the provisions of Sec. .30 through .37 of Circular A-110, which shows that a financed purchase or capital lease is less costly to the organization than other leasing alternatives, on a net present value basis. Discount rates used should be equal to the non-profit organization's anticipated interest rates and should be no higher than the fair market rate available to the non-profit organization from an unrelated ("arm's length") third-party. The lease/purchase analysis shall include a comparison of the net present value of the projected total cost comparisons of both alternatives over the period the asset is expected to be used by the non-profit organization. The cost comparisons associated with purchasing the facility shall include the estimated purchase price, anticipated operating and maintenance costs (including property taxes, if applicable) not included in the debt financing, less any estimated asset salvage value at the end of the period defined above. The cost comparison for a capital lease shall include the estimated total lease payments, any estimated bargain purchase option, operating and maintenance costs, and taxes not included in the capital leasing arrangement, less any estimated credits due under the lease at the end of the period defined above. Projected operating lease costs shall be based on the anticipated cost of leasing comparable facilities at fair market rates under rental agreements that would be renewed or reestablished over the period defined above, and any expected maintenance costs and allowable property taxes to be borne by the non-profit organization directly or as part of the lease arrangement. 37 (3) The actual interest cost claimed is predicated upon interest rates that are no higher than the fair market rate available to the non-profit organization from an unrelated ("arm's length") third party. (4) Investment earnings, including interest income, on bond or loan principal, pending payment of the construction or acquisition costs, are used to offset allowable interest cost. Arbitrage earnings reportable to the Internal Revenue Service are not required to be offset against allowable interest costs. (5) Reimbursements are limited to the least costly alternative based on the total cost analysis required under subparagraph (b) . For example, if an operating lease is determined to be less costly than purchasing through debt financing, then reimbursement is limited to the amount determined if leasing had been used. In all cases where a lease/purchase analysis is performed, Federal reimbursement shall be based upon the least expensive alternative. (6) Non-profit organizations are also subject to the following conditions: (a) Interest on debt incurred to finance or refinance assets acquired before or reacquired after September 29, 1995, is not allowable. (b) Interest attributable to fully depreciated assets is unallowable. (c) For debt arrangements over $1 million, unless the non- profit organization makes an initial equity contribution to the asset purchase of 25 percent or more, non-profit organizations shall reduce claims for interest expense by an amount equal to imputed interest earnings on excess cash flow, which is to be calculated as follows. Annually, non-profit organizations shall prepare a cumulative (from the inception of the project) report of monthly cash flows that includes inflows and outflows, regardless of the funding source. Inflows consist of depreciation expense, amortization of capitalized construction interest, and annual interest expense. For cash flow calculations, the annual inflow figures shall be divided by the number of months in the year (usually 12) that the building is in service for monthly amounts. Outflows consist of initial equity contributions, debt principal payments (less the pro rata share attributable to the unallowable costs of land) and interest payments. Where cumulative inflows exceed cumulative outflows, interest shall be calculated on the excess inflows for that period and be treated as a reduction to allowable interest expense. The rate of interest to be used to compute earnings on excess cash flows shall be the three month Treasury Bill closing rate as of the last business day of that month. (d) Substantial relocation of federally-sponsored activities from a facility financed by indebtedness, the cost of which was funded in whole or part through Federal reimbursements, to another facility prior to the expiration of a period of 20 years requires notice to the Federal cognizant agency. The extent of the relocation, the amount of the Federal participation in the financing, and the depreciation and interest charged to date may require negotiation and/or downward adjustments of replacement space charged to Federal programs in the future. (e) The allowable costs to acquire facilities and equipment are limited to a fair market value available to the non-profit organization from an unrelated ("arm's length") third party. 38 b. For non-profit organizations subject to "full coverage"' under the Cost Accounting Standards (CAS) as defined at 48 CFR 9903.201, the interest allowability provisions of subparagraph a do not apply. Instead, these organizations' sponsored agreements are subject to CAS 414 (48 CFR 9903.414) , cost of money as an element of the cost of facilities capital, and CAS 417 (48 CFR 9903.417) , cost of money as an element of the cost of capital assets under construction. c. The following definitions are to be used for purposes of this paragraph: (1) Re-acquired assets means assets held by the non-profit organization prior to September 29, 1995 that have again come to be held by the organization, whether through repurchase or refinancing. It does not include assets acquired to replace older assets. (2) Initial equity contribution means the amount or value of contributions made by non-profit organizations for the acquisition of the asset or prior to occupancy of facilities. (3) Asset costs means the capitalizable costs of an asset, including construction costs, acquisition costs, and other such costs capitalized in accordance with GAAP. 24. Labor relations costs. Costs incurred in maintaining satisfactory relations between the organization and its employees, including costs of labor management committees, employee publications, and other related activities are allowable. 25. Lobbying. a. Notwithstanding other provisions of this Circular, costs associated with the following activities are unallowable: (1) Attempts to influence the outcomes of any Federal, State, or local election, referendum, initiative, or similar procedure, through in kind or cash contributions, endorsements, publicity, or similar activity; (2) Establishing, administering, contributing to, or paying the expenses of a political party, campaign, political action committee, or other organization established for the purpose of influencing the outcomes of elections; (3) Any attempt to influence: (i) The introduction of Federal or State legislation; or (ii) the enactment or modification of any pending Federal or State legislation through communication with any member or employee of the Congress or State legislature (including efforts to influence State or local officials to engage in similar lobbying activity) , or with any Government official or employee in connection with a decision to sign or veto enrolled legislation; (4) Any attempt to influence: (i) The introduction of Federal or State legislation; or (ii) the enactment or modification of any pending Federal or State legislation by preparing, distributing or using publicity or 39 propaganda, or by urging members of the general public or any segment thereof to contribute to or participate in any mass demonstration, march, rally, fundraising drive, lobbying campaign or letter writing or telephone campaign; or (5) Legislative liaison activities, including attendance at legislative sessions or committee hearings, gathering information regarding legislation, and analyzing the effect of legislation, when such activities are carried on in support of or in knowing preparation for an effort to engage in unallowable lobbying. b. The following activities are excepted from the coverage of subparagraph a: (1) Providing a technical and factual presentation of information on a topic directly related to the performance of a grant, contract or other agreement through hearing testimony, statements or letters to the Congress or a State legislature, or subdivision, member, or cognizant staff member thereof, in response to a documented request (including a Congressional Record notice requesting testimony or statements for the record at a regularly scheduled hearing) made by the recipient member, legislative body or subdivision, or a cognizant staff member thereof; provided such information is readily obtainable and can be readily put in deliverable form; and further provided that costs under this section for travel, lodging or meals are unallowable unless incurred to offer testimony at a regularly scheduled Congressional hearing pursuant to a written request for such presentation made by the Chairman or Ranking Minority Member of the Committee or Subcommittee conducting such hearing. (2) Any lobbying made unallowable by subparagraph a(3) to influence State legislation in order to directly reduce the cost, or to avoid material impairment of the organization's authority to perform the grant, contract, or other agreement. (3) Any activity specifically authorized by statute to be undertaken with funds from the grant, contract, or other agreement. c. (1) When an organization seeks reimbursement for indirect costs, total lobbying costs shall be separately identified in the indirect cost rate proposal, and thereafter treated as other unallowable activity costs in accordance with the procedures of subparagraph B.3 of Attachment A. (2) Organizations shall submit, as part of the annual indirect cost rate proposal, a certification that the requirements and standards of this paragraph have been complied with. (3) Organizations shall maintain adequate records to demonstrate that the determination of costs as being allowable or unallowable pursuant to paragraph 25 complies with the requirements of this Circular. (4) Time logs, calendars, or similar records shall not be required to be created for purposes of complying with this paragraph during any particular calendar month when: (1) the employee engages in lobbying (as defined in subparagraphs (a) and (b) ) 25 percent or less of the employee's compensated hours of employment during that calendar month, and (2) within the preceding five-year period, the organization has not materially misstated allowable or unallowable costs of any nature, including legislative lobbying costs. When conditions (1) and (2) are met, organizations are not required to establish records to support the allowabliliy of claimed costs in addition to records 40 already required or maintained. Also, when conditions (1) and (2) are met, the absence of time logs, calendars, or similar records will not serve as a basis for disallowing costs by contesting estimates of lobbying time spent by employees during a calendar month. (5) Agencies shall establish procedures for resolving in advance, in consultation with OMB, any significant questions or disagreements concerning the interpretation or application of paragraph 25. Any such advance resolution shall be binding in any subsequent settlements, audits or investigations with respect to that grant or contract for purposes of interpretation of this Circular; provided, however, that this shall not be construed to prevent a contractor or grantee from contesting the lawfulness of such a determination. d. Executive lobbying costs. Costs incurred in attempting to improperly influence either directly or indirectly, an employee or officer of the Executive Branch of the Federal Government to give consideration or to act regarding a sponsored agreement or a regulatory matter are unallowable. Improper influence means any influence that induces or tends to induce a Federal employee or officer to give consideration or to act regarding a federally-sponsored agreement or regulatory matter on any basis other than the merits of the matter. 26. Losses on other sponsored agreements or contracts. Any excess of costs over income on any award is unallowable as a cost of any other award. This includes, but is not limited to, the organization's contributed portion by reason of cost sharing agreements or any under-recoveries through negotiation of lump sums for, or ceilings on, indirect costs. 27. Maintenance and repair costs. Costs incurred for necessary maintenance, repair, or upkeep of buildings and equipment (including Federal property unless otherwise provided for) which neither add to the permanent value of the property nor appreciably prolong its intended life, but keep it in an efficient operating condition, are allowable. Costs incurred for improvements which add to the permanent value of the buildings and equipment or appreciably prolong their intended life shall be treated as capital expenditures (see paragraph 15) . 28. Materials and supplies costs. a. Costs incurred for materials, supplies, and fabricated parts necessary to carry out a Federal award are allowable. b. Purchased materials and supplies shall be charged at their actual prices, net of applicable credits. Withdrawals from general stores or stockrooms should be charged at their actual net cost under any recognized method of pricing inventory withdrawals, consistently applied. Incoming transportation charges are a proper part of materials and supplies costs. c. Only materials and supplies actually used for the performance of a Federal award may be charged as direct costs. d. Where federally-donated or furnished materials are used in performing the Federal award, such materials will be used without charge. 41 29. Meetings and conferences. Costs of meetings and conferences, the primary purpose of which is the dissemination of technical information, are allowable. This includes costs of meals, transportation, rental of facilities, speakers' fees, and other items incidental to such meetings or conferences. But see Attachment B, paragraphs 14. , Entertainment costs, and 33., Participant support costs. 30. Memberships, subscriptions, and professional activity costs. a. Costs of the non-profit organization's membership in business, technical, and professional organizations are allowable. b. Costs of the non-profit organization's subscriptions to business, professional, and technical periodicals are allowable. c. Costs of membership in any civic or community organization are allowable with prior approval by Federal cognizant agency. d. Costs of membership in any country club or social or dining club or organization are unallowable. 31. Organization costs. Expenditures, such as incorporation fees, brokers' fees, fees to promoters, organizers or management consultants, attorneys, accountants, or investment counselors, whether or not employees of the organization, in connection with establishment or reorganization of an organization, are unallowable except with prior approval of the awarding agency. 32. Page charges in professional journals. Page charges for professional journal publications are allowable as a necessary part of research costs, where: a. The research papers report work supported by the Federal Government; and b. The charges are levied impartially on all research papers published by the journal, whether or not by federally-sponsored authors. 33. Participant support costs. Participant support costs are direct costs for items such as stipends or subsistence allowances, travel allowances, and registration fees paid to or on behalf of participants or trainees (but not employees) in connection with meetings, conferences, symposia, or training projects. These costs are allowable with the prior approval of the awarding agency. 34. Patent costs. a. The following costs relating to patent and copyright matters are allowable: (i) cost of preparing disclosures, reports, and other documents required by the Federal award and of searching the art to the extent necessary to make such disclosures; (ii) cost of preparing documents and any other patent costs in connection with the filing and prosecution of a United States patent application where title or royalty-free license is required by the Federal Government to be conveyed to the Federal Government; and (iii) general counseling services relating to patent and copyright matters, such as advice on patent and copyright laws, regulations, clauses, and employee agreements (but 42 see paragraphs 37., Professional services costs, and 44., Royalties and other costs for use of patents and copyrights) . b. The following costs related to patent and copyright matter are unallowable: (1) Cost of preparing disclosures, reports, and other documents and of searching the art to the extent necessary to make disclosures not required by the award (2) Costs in connection with filing and prosecuting any foreign patent application, or any United States patent application, where the Federal award does not require conveying title or a royalty-free license to the Federal Government (but see paragraph 45., Royalties and other costs for use of patents and copyrights) . 35. Plant and homeland security costs. Necessary and reasonable expenses incurred for routine and homeland security to protect facilities, personnel, and work products are allowable. Such costs include, but are not limited to, wages and uniforms of personnel engaged in security activities; equipment; barriers; contractual security services; consultants; etc. Capital expenditures for homeland and plant security purposes are subject to paragraph 15., Equipment and other capital expenditures, of this Circular. 36. Pre-agreement costs. Pre-award costs are those incurred prior to the effective date of the award directly pursuant to the negotiation and in anticipation of the award where such costs are necessary to comply with the proposed delivery schedule or period of performance. Such costs are allowable only to the extent that they would have been allowable if incurred after the date of the award and only with the written approval of the awarding agency. 37. Professional services costs. a. Costs of professional and consultant services rendered by persons who are members of a particular profession or possess a special skill, and who are not officers or employees of the non-profit organization, are allowable, subject to subparagraphs b and c when reasonable in relation to the services rendered and when not contingent upon recovery of the costs from the Federal Government. In addition, legal and related services are limited under Attachment B, paragraph 10. b. In determining the allowability of costs in a particular case, no single factor or any special combination of factors is necessarily determinative. However, the following factors are relevant: (1) The nature and scope of the service rendered in relation to the service required. (2) The necessity of contracting for the service, considering the non-profit organization's capability in the particular area. (3) The past pattern of such costs, particularly in the years prior to Federal awards. 43 (4) The impact of Federal awards on the non-profit organization's business (i.e. , what new problems have arisen) . (5) Whether the proportion of Federal work to the non-profit organization's total business is such as to influence the non-profit organization in favor of incurring the cost, particularly where the services rendered are not of a continuing nature and have little relationship to work under Federal grants and contracts. (6) Whether the service can be performed more economically by direct employment rather than contracting. (7) The qualifications of the individual or concern rendering the service and the customary fees charged, especially on non-Federal awards. (8) Adequacy of the contractual agreement for the service (e.g. , description of the service, estimate of time required, rate of compensation, and termination provisions) . c. In addition to the factors in subparagraph b, retainer fees to be allowable must be supported by evidence of bona fide services available or rendered 38. Publication and printing costs. a. Publication costs include the costs of printing (including the processes of composition, plate-making, press work, binding, and the end products produced by such processes) , distribution, promotion, mailing, and general handling. Publication costs also include page charges in professional publications. b. If these costs are not identifiable with a particular cost objective, they should be allocated as indirect costs to all benefiting activities of the non-profit organization. c. Page charges for professional journal publications are allowable as a necessary part of research costs where: (1) The research papers report work supported by the Federal Government: and (2) The charges are levied impartially on all research papers published by the journal, whether or not by federally-sponsored authors. 39. Rearrangement and alteration costs. Costs incurred for ordinary or normal rearrangement and alteration of facilities are allowable. Special arrangement and alteration costs incurred specifically for the project are allowable with the prior approval of the awarding agency. 40. Reconversion costs. Costs incurred in the restoration or rehabilitation of the non-profit organization's facilities to approximately the same condition existing immediately prior to commencement of Federal awards, less costs related to normal wear and tear, are allowable. 44 41. Recruiting costs. a. Subject to subparagraphs b, c, and d, and provided that the size of the staff recruited and maintained is in keeping with workload requirements, costs of "help wanted" advertising, operating costs of an employment office necessary to secure and maintain an adequate staff, costs of operating an aptitude and educational testing program, travel costs of employees while engaged in recruiting personnel, travel costs of applicants for interviews for prospective employment, and relocation costs incurred incident to recruitment of new employees, are allowable to the extent that such costs are incurred pursuant to a well-managed recruitment program. Where the organization uses employment agencies, costs that are not in excess of standard commercial rates for such services are allowable. b. In publications, costs of help wanted advertising that includes color, includes advertising material for other than recruitment purposes, or is excessive in size (taking into consideration recruitment purposes for which intended and normal organizational practices in this respect) , are unallowable. c. Costs of help wanted advertising, special emoluments, fringe benefits, and salary allowances incurred to attract professional personnel from other organizations that do not meet the test of reasonableness or do not conform with the established practices of the organization, are unallowable. d. Where relocation costs incurred incident to recruitment of a new employee have been allowed either as an allocable direct or indirect cost, and the newly hired employee resigns for reasons within his control within twelve months after being hired, the organization will be required to refund or credit such relocation costs to the Federal Government. 42. Relocation costs. a. Relocation costs are costs incident to the permanent change of duty assignment (for an indefinite period or for a stated period of not less than 12 months) of an existing employee or upon recruitment of a new employee. Relocation costs are allowable, subject to the limitation described in subparagraphs b, c, and d, provided that: (1) The move is for the benefit of the employer. (2) Reimbursement to the employee is in accordance with an established written policy consistently followed by the employer. (3) The reimbursement does not exceed the employee's actual (or reasonably estimated) expenses. b. Allowable relocation costs for current employees are limited to the following: (1) The costs of transportation of the employee, members of his immediate family and his household, and personal effects to the new location. 45 (2) The costs of finding a new home, such as advance trips by employees and spouses to locate living quarters and temporary lodging during the transition period, up to maximum period of 30 days, including advance trip time. (3) Closing costs, such as brokerage, legal, and appraisal fees, incident to the disposition of the employee's former home. These costs, together with those described in (4) , are limited to 8 percent of the sales price of the employee's former home. (4) The continuing costs of ownership of the vacant former home after the settlement or lease date of the employee's new permanent home, such as maintenance of buildings and grounds (exclusive of fixing up expenses) , utilities, taxes, and property insurance. (5) Other necessary and reasonable expenses normally incident to relocation, such as the costs of canceling an unexpired lease, disconnecting and reinstalling household appliances, and purchasing insurance against loss of or damages to personal property. The cost of canceling an unexpired lease is limited to three times the monthly rental. c. Allowable relocation costs for new employees are limited to those described in (1) and (2) of subparagraph b. When relocation costs incurred incident to the recruitment of new employees have been allowed either as a direct or indirect cost and the employee resigns for reasons within his control within 12 months after hire, the organization shall refund or credit the Federal Government for its share of the cost. However, the costs of travel to an overseas location shall be considered travel costs in accordance with paragraph 50 and not relocation costs for the purpose of this paragraph if dependents are not permitted at the location for any reason and the costs do not include costs of transporting household goods. d. The following costs related to relocation are unallowable: (1) Fees and other costs associated with acquiring a new home. (2) A loss on the sale of a former home. (3) Continuing mortgage principal and interest payments on a home being sold. (4) Income taxes paid by an employee related to reimbursed relocation costs. 43. Rental costs of buildings and equipment. a. Subject to the limitations described in subparagraphs b. through d. of this paragraph 43, rental costs are allowable to the extent that the rates are reasonable in light of such factors as: rental costs of comparable property, if any; market conditions in the area; alternatives available; and, the type, life expectancy, condition, and value of the property leased. Rental arrangements should be reviewed periodically to determine if circumstances have changed and other options are available. b. Rental costs under "sale and lease back" arrangements are allowable only up to the amount that would be allowed had the non-profit organization 46 continued to own the property. This amount would include expenses such as depreciation or use allowance, maintenance, taxes, and insurance. c. Rental costs under "less-than-arms-length" leases are allowable only up to the amount (as explained in subparagraph b. of this paragraph 43.) that would be allowed had title to the property vested in the non-profit organization. For this purpose, a less-than-arms-length lease is one under which one party to the lease agreement is able to control or substantially influence the actions of the other. Such leases include, but are not limited to those between (i) divisions of a non-profit organization; (ii) non-profit organizations under common control through common officers, directors, or members; and (iii) a non-profit organization and a director, trustee, officer, or key employee of the non-profit organization or his immediate family, either directly or through corporations, trusts, or similar arrangements in which they hold a controlling interest. For example, a non-profit organization may establish a separate corporation for the sole purpose of owning property and leasing it back to the non-profit organization. d. Rental costs under leases which are required to be treated as capital leases under GAAP are allowable only up to the amount (as explained in subparagraph b) that would be allowed had the non-profit organization purchased the property on the date the lease agreement was executed. The provisions of Financial Accounting Standards Board Statement 13, Accounting for Leases, shall be used to determine whether a lease is a capital lease. Interest costs related to capital leases are allowable to the extent they meet the criteria in subparagraph 23. Unallowable costs include amounts paid for profit, management fees, and taxes that would not have been incurred had the non-profit organization purchased the facility. 44. Royalties and other costs for use of patents and copyrights. a. Royalties on a patent or copyright or amortization of the cost of acquiring by purchase a copyright, patent, or rights thereto, necessary for the proper performance of the award are allowable unless: (1) The Federal Government has_ a license or the right to free use of the patent or copyright. (2) The patent or copyright has been adjudicated to be invalid, or has been administratively determined to be invalid. (3) The patent or copyright is considered to be unenforceable. (4) The patent or copyright is expired. b. Special care should be exercised in determining reasonableness where the royalties may have arrived at as a result of less-than-arm's-length bargaining, e.g. : (1) Royalties paid to persons, including corporations, affiliated with the non-profit organization. (2) Royalties paid to unaffiliated parties, including corporations, under an agreement entered into in contemplation that a Federal award would be made. 47 (3) Royalties paid under an agreement entered into after an award is made to a non-profit organization. c. In any case involving a patent or copyright formerly owned by the non- profit organization, the amount of royalty allowed should not exceed the cost which would have been allowed had the non-profit organization retained title thereto. 45. Selling and marketing. Costs of selling and marketing any products or services of the non-profit organization are unallowable (unless allowed under Attachment B, paragraph 1. as allowable public relations cost. However, these costs are allowable as direct costs, with prior approval by awarding agencies, when they are necessary for the performance of Federal programs. 46. Specialized service facilities. a. The costs of services provided by highly complex or specialized facilities operated by the non-profit organization, such as computers, wind tunnels, and reactors are allowable, provided the charges for the services meet the conditions of either 46 b. or c. and, in addition, take into account any items of income or Federal financing that qualify as applicable credits under Attachment A, subparagraph A.5. of this Circular. b. The costs of such services, when material, must be charged directly to applicable awards based on actual usage of the services on the basis of a schedule of rates or established methodology that (i) does not discriminate against federally-supported activities of the non-profit organization, including usage by the non-profit organization for internal purposes, and (ii) is designed to recover only the aggregate costs of the services. The costs of each service shall consist normally of both its direct costs and its allocable share of all indirect costs. Rates shall be adjusted at least biennially, and shall take into consideration over/under applied costs of the previous period(s) . c. Where the costs incurred for a service are not material, they may be allocated as indirect costs. d. Under some extraordinary circumstances, where it is in the best interest of the Federal Government and the institution to establish alternative costing arrangements, such arrangements may be worked out with the cognizant Federal agency. 47. Taxes. a. In general, taxes which the organization is required to pay and which are paid or accrued in accordance with GAAP, and payments made to local governments in lieu of taxes which are commensurate with the local government services received are allowable, except for (i) taxes from which exemptions are available to the organization directly or which are available to the organization based on an exemption afforded the Federal Government and in the latter case when the awarding agency makes available the necessary exemption certificates, (ii) special assessments on land which represent capital improvements, and (iii) Federal income taxes. b. Any refund of taxes, and any payment to the organization of interest thereon, which were allowed as award costs, will be credited either as a cost reduction or cash refund, as appropriate, to the Federal Government. 48 48. Termination costs applicable to sponsored agreements. Termination of awards generally gives rise to the incurrence of costs, or the need for special treatment of costs, which would not have arisen had the Federal award not been terminated. Cost principles covering these items are set forth below. They are to be used in conjunction with the other provisions of this Circular in termination situations. a. The cost of items reasonably usable on the non-profit organization's other work shall not be allowable unless the non-profit organization submits evidence that it would not retain such items at cost without sustaining a loss. In deciding whether such items are reasonably usable on other work of the non- profit organization, the awarding agency should consider the non-profit organization's plans and orders for current and scheduled activity. Contemporaneous purchases of common items by the non-profit organization shall be regarded as evidence that such items are reasonably usable on the non-profit organization's other work. Any acceptance of common items as allocable to the terminated portion of the Federal award shall be limited to the extent that the quantities of such items on hand, in transit, and on order are in excess of the reasonable quantitative requirements of other work. b. If in a particular case, despite all reasonable efforts by the non- profit organization, certain costs cannot be discontinued immediately after the effective date of termination, such costs are generally allowable within the limitations set forth in this Circular, except that any such costs continuing after termination due to the negligent or willful failure of the non-profit organization to discontinue such costs shall be unallowable. c. Loss of useful value of special tooling, machinery, and is generally allowable if: (1) Such special tooling, special machinery, or equipment is not �. reasonably capable of use in the other work of the non-profit organization, (2) The interest of the Federal Government is protected by transfer of title or by other means deemed appropriate by the awarding agency, and (3) The loss of useful value for any one terminated Federal award is limited to that portion of the acquisition cost which bears the same ratio to the total acquisition cost as the terminated portion of the Federal award bears to the entire terminated Federal award and other Federal awards for which the special tooling, special machinery, or equipment was acquired. d. Rental costs under unexpired leases are generally allowable where clearly shown to have been reasonably necessary for the performance of the terminated Federal award less the residual value of such leases, if: (1) the amount of such rental claimed does not exceed the reasonable use value of the property leased for the period of the Federal award and such further period as may be reasonable, and (2) the non-profit organization makes all reasonable efforts to terminate, assign, settle, or otherwise reduce the cost of such lease. There also may be included the cost of alterations of such leased property, provided 49 such alterations were necessary for the performance of the Federal award, and of reasonable restoration required by the provisions of the lease. e. Settlement expenses including the following are generally allowable: (1) Accounting, legal, clerical, and similar costs reasonably necessary for: (a) The preparation and presentation to the awarding agency of settlement claims and supporting data with respect to the terminated portion of the Federal award, unless the termination is for default (see Subpart .61 of Circular A-110) ; and (b) The termination and settlement of subawards. (2) Reasonable costs for the storage, transportation, protection, and disposition of property provided by the Federal Government or acquired or produced for the Federal award, except when grantees or contractors are reimbursed for disposals at a predetermined amount in accordance with Subparts .32 through .37 of Circular A-110. (3) Indirect costs related to salaries and wages incurred as settlement expenses in subparagraphs (1) and (2) . Normally, such indirect costs shall be limited to fringe benefits, occupancy cost, and immediate supervision. f. Claims under sub awards, including the allocable portion of claims which are common to the Federal award, and to other work of the non-profit organization are generally allowable. An appropriate share of the non-profit organization's indirect expense may be allocated to the amount of settlements with subcontractors and/or subgrantees, provided that the amount allocated is otherwise consistent with the basic guidelines contained in Attachment A. The indirect expense so allocated shall exclude the same and similar costs claimed directly or indirectly as settlement expenses. 49. Training costs. a. Costs of preparation and maintenance of a program of instruction including but not limited to on-the-job, classroom, and apprenticeship training, designed to increase the vocational effectiveness of employees, including training materials, textbooks, salaries or wages of trainees (excluding overtime compensation which might arise therefrom) , and (i) salaries of the director of training and staff when the training program is conducted by the organization; or (ii) tuition and fees when the training is in an institution not operated by the organization, are allowable. b. Costs of part-time education, at an undergraduate or post-graduate college level, including that provided at the organization's own facilities, are allowable only when the course or degree pursued is relative to the field in which the employee is now working or may reasonably be expected to work, and are limited to: (1) Training materials. (2) Textbooks. 50 (3) Fees charges by the educational institution. (4) Tuition charged by the educational institution or, in lieu of tuition, instructors' salaries and the related share of indirect costs of the educational institution to the extent that the sum thereof is not in excess of the tuition which would have been paid to the participating educational institution. (5) Salaries and related costs of instructors who are employees of the organization. (6) Straight-time compensation of each employee for time spent attending classes during working hours not in excess of 156 hours per year and only to the extent that circumstances do not permit the operation of classes or attendance at classes after regular working hours; otherwise, such compensation is unallowable. c. Costs of tuition, fees, training materials, and textbooks (but not subsistence, salary, or any other emoluments) in connection with full-time education, including that provided at the organization's own facilities, at a post-graduate (but not undergraduate) college level, are allowable only when the course or degree pursued is related to the field in which the employee is now working or may reasonably be expected to work, and only where the costs receive the prior approval of the awarding agency. Such costs are limited to the costs attributable to a total period not to exceed one school year for each employee so trained. In unusual cases the period may be extended. d. Costs of attendance of up to 16 weeks per employee per year at specialized programs specifically designed to enhance the effectiveness of executives or managers or to prepare employees for such positions are allowable. Such costs include enrollment fees, training materials, textbooks and related charges, employees' salaries, subsistence, and travel. Costs allowable under this paragraph do not include those for courses that are part of a degree- oriented curriculum, which are allowable only to the extent set forth in subparagraphs b and c. e. Maintenance expense, and normal depreciation or fair rental, on facilities owned or leased by the organization for training purposes are allowable to the extent set forth in paragraphs 11, 27, and 50. f. Contributions or donations to educational or training institutions, including the donation of facilities or other properties, and scholarships or fellowships, are unallowable. g. Training and education costs in excess of those otherwise allowable under subparagraphs b and c may be allowed with prior approval of the awarding agency. To be considered for approval, the organization must demonstrate that such costs are consistently incurred pursuant to an established training and education program, and that the course or degree pursued is relative to the field in which the employee is now working or may reasonably be expected to work. 50. Transportation costs. Transportation costs include freight, express, cartage, and postage charges relating either to goods purchased, in process, or delivered. These costs are allowable. When such costs can readily be identified with the items involved, they may be directly charged as transportation costs or 51 added to the cost of such items (see paragraph 28) . Where identification with the materials received cannot readily be made, transportation costs may be charged to the appropriate indirect cost accounts if the organization follows a consistent, equitable procedure in this respect. 51. Travel costs. a. General. Travel costs are the expenses for transportation, lodging, subsistence, and related items incurred by employees who are in travel status on official business of the non-profit organization. Such costs may be charged on an actual cost basis, on a per diem or mileage basis in lieu of actual costs incurred, or on a combination of the two, provided the method used is applied to an entire trip and not to selected days of the trip, and results in charges consistent with those normally allowed in like circumstances in the non-profit organization's non-federally-sponsored activities. b. Lodging and subsistence. Costs incurred by employees and officers for travel, including costs of lodging, other subsistence, and incidental expenses, shall be considered reasonable and allowable only to the extent such costs do not exceed charges normally allowed by the non-profit organization in its regular operations as the result of the non-profit organization's written travel policy. In the absence of an acceptable, written non-profit organization policy regarding travel costs, the rates and amounts established under subchapter I of Chapter 57, Title 5, United States Code ("Travel and Subsistence Expenses; Mileage Allowances") , or by the Administrator of General Services, or by the President (or his or her designee) pursuant to any provisions of such subchapter shall apply to travel under Federal awards (48 CFR 31.205-46(a) ) . c. Commercial air travel. (1) Airfare costs in excess of the customary standard commercial airfare (coach or equivalent) , Federal Government contract airfare (where authorized and available) , or the lowest commercial discount airfare are unallowable except when such accommodations would: (a) require circuitous routing; (b) require travel during unreasonable hours; (c) excessively prolong travel; (d) result in additional costs that would offset the transportation savings; or (e) offer accommodations not reasonably adequate for the traveler's medical needs. The non-profit organization must justify and document these conditions on a case-by-case basis in order for the use of first-class airfare to be allowable in such cases. (2) Unless a pattern of avoidance is detected, the Federal Government will generally not question a non-profit organization's determinations that customary standard airfare or other discount airfare is unavailable for specific trips if the non-profit organization can demonstrate either of the following: (a) that such airfare was not available in the specific case; or (b) that it is the non-profit organization's overall practice to make routine use of such airfare. d. Air travel by other than commercial carrier. Costs of travel by non- profit organization-owned, -leased, or -chartered aircraft include the cost of lease, charter, operation (including personnel costs) , maintenance, depreciation, insurance, and other related costs. The portion of such costs that exceeds the cost of allowable commercial air travel, as provided for in subparagraph] c., is unallowable. 52 e. Foreign travel. Direct charges for foreign travel costs are allowable only when the travel has received prior approval of the awarding agency. Each separate foreign trip must receive such approval. For purposes of this provision, "foreign travel" includes any travel outside Canada, Mexico, the United States, and any United States territories and possessions. However, the term "foreign travel" for a non-profit organization located in a foreign country means travel outside that country. 52. Trustees. Travel and subsistence costs of trustees (or directors) are allowable. The costs are subject to restrictions regarding lodging, subsistence and air travel costs provided in paragraph 51. 53 ATTACHMENT C Circular No. A-122 NON-PROFIT ORGANIZATIONS NOT SUBJECT TO THIS CIRCULAR Advance Technology Institute (ATI) , Charleston, South Carolina Aerospace Corporation, El Segundo, California American Institutes of Research (AIR) , Washington D.C. Argonne National Laboratory, Chicago, Illinois Atomic Casualty Commission, Washington, D.C. Battelle Memorial Institute, Headquartered in Columbus, Ohio Brookhaven National Laboratory, Upton, New York Charles Stark Draper Laboratory, Incorporated, Cambridge, Massachusetts CNA Corporation (CNAC) , Alexandria, Virginia Environmental Institute of Michigan, Ann Arbor, Michigan Georgia Institute of Technology/Georgia Tech Applied Research Corporation/ Georgia Tech Research Institute, Atlanta, Georgia Hanford Environmental Health Foundation, Richland, Washington IIT Research Institute, Chicago, Illinois Institute of Gas Technology, Chicago, Illinois Institute for Defense Analysis, Alexandria, Virginia LMI, McLean, Virginia Mitre Corporation, Bedford, Massachusetts Mitretek Systems, Inc. , Falls Church, Virginia National Radiological Astronomy Observatory, Green Bank, West Virginia National Renewable Energy Laboratory, Golden, Colorado Oak Ridge Associated Universities, Oak Ridge, Tennessee Rand Corporation, Santa Monica, California Research Triangle Institute, Research Triangle Park, North Carolina Riverside Research Institute, New York, New York South Carolina Research Authority (SCRA) , Charleston, South Carolina 54 Southern Research Institute, Birmingham, Alabama Southwest Research Institute, San Antonio, Texas SRI International, Menlo Park, California Syracuse Research Corporation, Syracuse, New York Universities Research Association, Incorporated (National Acceleration Lab) , Argonne, Illinois Urban Institute, Washington D.C. Non-profit insurance companies, such as Blue Cross and Blue Shield Organizations Other non-profit organizations as negotiated with awarding agencies 55 C-25A CITY OF OMAHA LEGISLATIVE CHAMBER Omaha,Nebraska RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: WHEREAS, the City of Omaha applied for Emergency Solutions Grant Program funds from the U.S. Department of Housing and Urban Development, as stated in the Omaha- Council Bluffs Consortium Consolidated Submission for Community Development Programs:2013 Action Plan approved by the City Council on January 15,2013,Resolution No. 26, and as amended by City Council on March 19, 2013, Resolution 359 and on July 5, 2013, Resolution 899, and received a$336,089.00 grant; and, WHEREAS, the Metro Area Continuum of Care for the Homeless identified emergency shelter as a funding priority for the Emergency Solutions Grant Program; and, WHEREAS,Catholic Charities of the Archdiocese of Omaha,through its emergency shelter facility(The Shelter),will provide shelter for victims of domestic violence,as provided in the grant application submitted to the City of Omaha in response to the FY 2013 Emergency Solutions Grant Program Request for Proposals; and, WHEREAS, the City of Omaha has previously provided shelter providers with operational funding; and, WHEREAS,the City of Omaha has allocated$11,839.00 to Catholic Charities of the Archdiocese of Omaha to continue to provide shelter for victims of domestic violence through its facility, The Shelter; and, WHEREAS, the Planning Department and the Mayor recommend approval of this grant; and, WHEREAS, it is beneficial and desirable to provide shelter to victims of domestic violence through Catholic Charities: The Shelter for a twelve-month period. By Councilmember Adopted City Clerk Approved Mayor NO. Resolution by Presented to City Council City Clerk C 25A CITY OF OMAHA LEGISLATIVE CHAMBER Omaha,Nebraska PAGE 2 NOW,THEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: THAT,the attached Agreement,as recommended by the Mayor,between the City of Omaha and Catholic Charities of the Archdiocese of Omaha, a Nebraska Non-profit Corporation, 3300 North 60th Street, Omaha, Nebraska 68104, in the amount of$11,839.00 for the purpose of providing shelter to approximately 600 homeless victims of domestic violence at its emergency shelter(The Shelter) over the course of the one year period of said Agreement, is hereby approved. Funds shall be paid from the City of Omaha FY 2013 Emergency Solutions Grant,Fund No. 12139, Organization No. 129028. APPROVED AS TO FORM: /6 J• 3"°/e CITY A ORNEY DATE 1959 dlh By Councilmember Adopted JA ..2..8.. 14 J W4trai Cit Clerk Approved... ...X. 4= /_ ../ Mayor NO. RR Resolution by Res. THAT, the attached Agreement, as recommended by the Mayor,between the City of Omaha and Catholic Charities of the Archdiocese of Omaha,a Nebraska Non-profit Corporation, 3300 North 60th Street, Omaha, Nebraska 68104, in the amount of$11,839.00 for the purpose of providing shelter to approximately 300 homeless victims of domestic violence at its emergency shelter (The Shelter) over the course of the one year period of said Agreement, is hereby approved. Funds shall be paid from the City of Omaha FY 2013 Emergency Solutions Grant, Fund No. 12139, Organization No. 129028. 1959 dlh Presented to City Council JAN282014 Adopted -� &toter grown City Clerk