APPENDIX. SUBRECIPIENT AGREEMENT
AR ADC 006.09.4 App.Arkansas Administrative CodeEffective: May 5, 2022
Effective: May 5, 2022
Ark. Admin. Code 006.09.4 App.
APPENDIX. SUBRECIPIENT AGREEMENT
Arkansas Department of Finance and Administration
AMERICAN RESCUE PLAN ACT
CORONAVIRUS STATE FISCAL RECOVERY FUNDS
SUBRECIPIENT AGREEMENT
Subrecipient name and address: | DUNS Number/SAM Unique identification number: [Subrecipient to provide] |
[Subrecipient to provide] | Taxpayer Identification Number: [Subrecipient to provide] |
Assistance Listing Number: 21.027 |
Sections 602(b) and 603(b) of the Social Security Act (the “Act”) as added by section 9901 of the American Rescue Plan Act, Pub. L. No. 117-2 (March 11, 2021) authorize the U.S. Department of the Treasury (the “Treasury”) to make payments to certain recipients from the Coronavirus State Fiscal Recovery Fund (“SFRF”). The Arkansas Department of Finance and Administration, (the “Department”) is a Recipient of SFRF funds (Federal Award Date of June 7, 2021) and has the authority to transfer such Funds to the Subrecipient as a subaward under the terms and conditions outlined herein. Funding under this Agreement is to be used to cover the cost of COVID-19 testing for an employee who is subject to an employer-required or employer-mandated COVID-19 vaccination or immunization, whose health benefit plan does not cover the cost of COVID-19 testing, and who wishes to continue employment by claiming an exemption under one of the options of the specific exemption process provided for by Ark. Code Ann. § 11-5-118 (Act 1115 of the 2021 Regular Session, 93rd General Assembly).
The amount of federal funds obligated to the Subrecipient by this subaward of the Department, as the pass-through entity, is $ ____________________. The total amount of federal funds committed to the Subrecipient by the Department, as the pass-through entity, including the current financial obligation is $ ____________________. The total amount of the federal award committed to the Subrecipient by the Department, as pass-through entity, is $ ____________________.
The Subrecipient certifies that it has the legal authority to receive the Funds under this Agreement and it certifies that the undersigned person has the authority to legally execute and bind the Subrecipient to the terms of this Agreement.
Subrecipient:
________________________________________
Authorized Representative:
Title:
Date signed:
Arkansas Department of Finance and Administration:
________________________________________
Authorized Representative:
Title:
Date signed:
Definitions
J. “Employee” shall mean a person who is subject to an employer-required or employer-mandated COVID-19 vaccination or immunization, whose health benefit plan does not cover the cost of COVID-19 testing, and who wishes to continue employment by claiming an exemption under one of the options of the specific exemption process provided for by Ark. Code Ann. § 11-5-118 (Act 1115 of the 2021 Regular Session, 93rd General Assembly).
O. “Final Expenditure Report” shall mean a report which lists all expenditures made by a Subrecipient using State Fiscal Recovery Funds (“SFRF”) and which contains a statement executed by the Authorized Representative that there are no other outstanding commitments or obligations for which disbursement will be sought under this Agreement.
Arkansas Department of Finance and Administration
AMERICAN RESCUE PLAN ACT
CORONAVIRUS STATE FISCAL RECOVERY FUNDS
SUBRECIPIENT AGREEMENT
b. The Subrecipient certifies that it has the legal authority to receive the Funds under this Agreement and it certifies that the Authorized Representative has the authority to legally execute and bind the Subrecipient to the terms of this Agreement. The Subrecipient also certifies that its Chief Executive Officer or equivalent officer is authorized to complete and execute the Coronavirus State Fiscal Recovery Fund Acceptance Certification (Exhibit A).
c. The Subrecipient, by its decision to receive the Funds, bears the ultimate responsibility for ensuring compliance with all applicable State and Federal laws, regulations, rules, and policies, and bears the ultimate consequences of any adverse decisions rendered by the STATE, the Federal Awarding Agency, or any other State or Federal agencies with audit, regulatory, or enforcement authority.
k. Both the Department and the Subrecipient must comply with the Rule promulgated by the Secretary of the Department to implement and administer the COVID-19 Testing Program (Exhibit B), American Rescue Plan Act, the Treasury Interim Final Rule, the Treasury SFRF Guidance, and the Treasury SFRF FAQs, as may be amended, or updated, by the Treasury from time to time.
l. The Department's offer of SFRF funds is based on the information available at the time of the subaward issuance. If further clarification from the Treasury later determines that a Subrecipient's expenditure(s) are ineligible, the Subrecipient shall return any Funds received for such expenditure to the Department in accordance with the provisions this Agreement.
n. The Department shall have the right to monitor the performance of the Subrecipient under this Agreement, as well as that of the Subrecipient's contractors or subcontractors who are paid from Funds provided under this Agreement. In addition to reviews of audits, monitoring procedures may include, but not be limited to, on-site visits by Department staff, desk reviews and/or other procedures. The Subrecipient agrees to cooperate with any monitoring procedures/processes deemed appropriate by the Department.
a. Subrecipient understands and agrees that funding under this Agreement may only be used to cover the cost of COVID-19 testing for an employee who is subject to an employer-required or employer-mandated COVID-19 vaccination or immunization, whose health benefit plan does not cover the cost of COVID-19 testing, and who wishes to continue employment by claiming an exemption under one of the options of the specific exemption process provided for by Ark. Code Ann. § 11-5-118 (Act 1115 of the 2021 Regular Session, 93rd General Assembly).
b. Subrecipient understands and agrees that the Funds disbursed under this subaward may only be used in compliance with section 602 of the Social Security Act (the “Act”), the Treasury's regulations implementing that section, and guidance issued by Treasury and the Department regarding the foregoing.
c. The Subrecipient shall ensure that any Funds used to provide COVID-19 test results pursuant to Act 1115 of 2021 shall meet the guidelines contained within the Policy for Coronavirus Disease-2019 Tests During the Public Health Emergency (Revised) issued by the United States Department of Health and Human Services Food and Drug Administration Center for Devices and Radiological Health.
The period of performance for this award begins on January 14, 2022 and ends on July 31, 2023.
1) An employer and employee shall submit a claim for reimbursement to cover the cost of COVID-19 testing not covered by the employee's health benefit plan on the form(s) provided by the Department for that purpose. The employer or employee shall denote on the form(s) whether the employer or the employee is the Claimant to be reimbursed.
2) In addition to the properly completed form(s), the Claimant shall provide the original, or a digitally scanned copy, of the invoice, receipt, or other document(s) evidencing that the test was conducted, the name of each employee tested, the cost of COVID-19 testing, the name of the manufacturer of each COVID-19 test, the United States Food and Drug Administration (“FDA”) emergency use authorization number for each test, and a paycheck stub for the most recent pay period for each employee tested, and with all documents submitted in legible format.
4) An employer that receives funds to distribute to employees for COVID-19 testing shall report on a monthly basis to the Department on the form(s) provided by the Department for that purpose. In addition to providing the properly completed form(s), an employer shall provide the original, or a digitally scanned copy, of invoices, receipts, or other documents evidencing that each test was conducted, name of each employee tested, the cost of COVID-19 testing, the name of the manufacturer of each COVID-19 test, the FDA emergency use authorization number for each test, and a paycheck stub for the most recent pay period for each employee tested with all documents submitted in in legible format.
The Disbursing Officer will review all Requests for Funds and determine the amount of Funds, if made available, to be provided based upon the information provided by the Subrecipient.
a. All returns or repayments of Funds due to the STATE under this Agreement are due no later than ten (10) days from the date of written notification by the STATE that such Funds are due, and shall be made payable to the order of “Arkansas Department of Finance and Administration” and be mailed directly to the Department per the Contact Information in Section 29.
b. If payment is not received within ten (10) days, the Subrecipient understands and agrees that the Department may withhold or offset Funds from the Subrecipient with any funds payable to the Subrecipient, or from funds in any account of the Subrecipient at the STATE until the return or repayment of all Funds to the Department under this Agreement are satisfied.
c. If Subrecipient received Funds for a use that is subsequently determined by the Department not to be an eligible expenditure under this Agreement, the Subrecipient shall return any Funds received to the Department within ten (10) days of written notification by the Department that such funds are due.
a. A Subrecipient that receives funding for distribution to employees to cover the cost of COVID-19 testing must submit monthly the properly completed reporting form(s) on the form(s) provided by the Department for that purpose. In addition to providing the properly completed reporting form(s), an employer shall provide the original, or a digitally scanned copy, of invoices, receipts, or other documents evidencing that each test was conducted, name of each employee tested, the cost of COVID-19 testing, the name of the manufacturer of each COVID-19 test, the FDA emergency use authorization number for each test, and a paycheck stub for the most recent pay period for each employee tested with all documents submitted in in legible format.
a. The Federal Awarding Agency, Inspectors General, the Comptroller General of the United States, and the STATE, or any of the STATE's authorized representatives, (e.g. the Department of the Inspector General and Arkansas Legislative Audit), shall enjoy the right of access as necessary to any documents, financial statements, papers, or other records of the Subrecipient or any Contractors or subcontractors which are pertinent to this Agreement, in order to make audits, examinations, excerpts, and transcripts. The right of access also includes timely and reasonable access as necessary to the Subrecipient's primary business location, any physical locations where Funds were deployed for on-site visits and inspections, and Subrecipient's personnel for the purpose of interview and discussion related to such documents, financial statements, papers, other records and on-site visits and inspections.
b. As required by the STATE record retention requirements as set out at Ark. Code Ann § 25-18-604, the Subrecipient shall retain sufficient records to show its compliance with the terms of this Agreement, as well as the compliance of all contractors or subcontractors paid from Funds under this Agreement, for a period of five (5) years from the date of submission of the final expenditure report.
c. The Subrecipient shall retain financial records, supporting documents, statistical records, and all other records including electronic storage media pertinent to its use of Funds for a period of five (5) years after the last disbursement of Funds by the STATE. If any litigation or audit is initiated, or claim made, before the expiration of the five (5)-year period, the records shall be retained until the litigation and all appeals, audits, or claims have been resolved.
d. As required by 2 C.F.R. § 200.303, the Subrecipient shall take reasonable measures to safeguard protected personal identifiable information and other information the Federal Awarding Agency or the STATE designates as sensitive or the Subrecipient considers sensitive consistent with applicable Federal, State, Local, and Tribal laws regarding privacy and obligations of confidentiality.
e. The Subrecipient shall maintain all records for the Subrecipient and for all contractors or subcontractors paid from Funds provided under this Agreement, including documentation of all program costs, in a form sufficient to determine compliance with the requirements and objectives of this Agreement.
h. The Subrecipient shall have all federal compliance audits completed by an independent auditor, which is defined in Ark. Code Ann. § 17-12-301. The independent auditor shall state that the audit complied with the applicable provisions noted above. The audit must be received by the STATE no later than nine (9) months from the end of the Subrecipient's fiscal year.
i. If 2 C.F.R. Part 200, Subpart F does not apply to the Subrecipient, then the Subrecipient shall comply with all other federal audit requirements and any audit requirements imposed by the Department of Finance and Administration, State of Arkansas, Arkansas Legislative Audit, Arkansas Department of Inspector General, or their designee(s).
Pre-award costs, as defined in 2 C.F.R. § 200.458, may not be paid with funding from this subaward.
Subrecipient may not use funds provided under this award for administrative cost.
Subrecipient understands and agrees it must maintain a conflict-of-interest policy consistent with 2 C.F.R. § 200.318(c) and that such conflict-of-interest policy is applicable to each activity funded under this subaward. Subrecipients must disclose in writing to the Department, as appropriate, any potential conflict of interest affecting the awarded Funds in accordance with 2 C.F.R. § 200.112.
a. Performance under this Agreement is subject to Section 602 of the Social Security Act, as added by section 9901 of the American Rescue Plan Act. Fund payments are subject to the requirements in the Uniform Guidance (2 C.F.R. Part 200) including but not limited to: 2 CFR § 200.303 regarding Internal Controls, 2 CFR §§ 200.330 through 200.332 regarding Subrecipient Monitoring and Management, and Subpart F regarding Audit Requirements.
b. Subrecipient agrees to comply with the requirements of section 602 of the Act, regulations adopted by the Treasury pursuant to section 602(f) of the Act, and guidance issued by the Treasury regarding the foregoing. Subrecipient also agrees to comply with all other applicable federal statutes, regulations, and executive orders, and Subrecipient shall provide for such compliance by other parties in any agreements it enters into with other parties relating to this award.
1) Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, 2 C.F.R. Part 200, other than such provisions as Treasury may determine are inapplicable to this Award and subject to such exceptions as may be otherwise provided by Treasury. Subpart F -- Audit Requirements of the Uniform Guidance, implementing the Single Audit Act, shall apply to this award.
4) OMB Guidelines to Agencies on Governmentwide Debarment and Suspension (Non-procurement), 2 C.F.R. Part 180, including the requirement to include a term or condition in all lower tier covered transactions (contracts and subcontracts described in 2 C.F.R. Part 180, subpart B) that the award is subject to 2 C.F.R. Part 180 and Treasury's implementing regulation at 31 C.F.R. Part 19.
1) Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) and U.S. Department of the Treasury's implemented regulations at 31 C.F.R. Part 22, which prohibit discrimination on the basis of race, color, or national origin under programs or activities receiving federal financial assistance.
6) Subrecipient agrees to comply, as applicable, with requirements of the Hatch Act (5 U.S.C. §§ 1501-1508 and 7324-7328), which limit certain political activities of state or local government employees whose principal employment is in connection with an activity financed in whole or in part by this federal assistance.
Subrecipient understands that making false statements or claims in connection with this award is a violation of federal law and may result in criminal, civil, or administrative sanctions, including fines, imprisonment, civil damages and penalties, debarment from participating in federal awards or contracts, and/or any other remedy available by law.
a. The Subrecipient is solely responsible to the parties it deals with in carrying out the terms of this Agreement. To the extent and within the limitations of Ark. Code Ann. § 21-9-301, as applicable, the Subrecipient shall be responsible for and agrees to indemnify and hold harmless and defend the STATE and its boards, commissions, agencies, officers and employees from and against all third party claims, demands and causes of actions, of any nature whatsoever, directly resulting from the misconduct or negligent acts or omissions of the Subrecipient, its officers, agents, employees, or subcontractors in its performance under this Agreement.
b. To the extent and within the limitations of Ark. Code Ann. § 21-9-301, as applicable, and applicable state Statutes, as amended, the Subrecipient shall pay all claims and losses caused by the Subrecipient's breach of this Agreement, and shall investigate and defend, or pay for the defense of, all claims, suits or actions of any kind or nature, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's fees which may issue thereon.
c. The Subrecipient expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by the Subrecipient shall in no way limit the responsibility to indemnify, keep and save harmless and defend the STATE or its officers, employees, agents, and instrumentalities as herein provided.
a. In accordance with 41 U.S.C. § 4712, Subrecipient may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.
• A member of Congress or a representative of a committee of Congress;
• An Inspector General;
• The Government Accountability Office;
• A Treasury employee responsible for contract or grant oversight or management;
• An authorized official of the Department of Justice or other law enforcement agency;
• A court or grand jury;
• A management official or other employee of Subrecipient, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
• A member of the Arkansas Senate or Arkansas House of Representatives;
• Arkansas Department of Inspector General;
• Arkansas Department of Finance and Administration;
• Arkansas Legislative Audit; or
• A state agency employee.
Pursuant to Executive Order 13043, 62 FR 19217 (Apr. 18, 1997), Subrecipient should encourage its contractors to adopt and enforce on-the-job seat belt policies and programs for their employees when operating company-owned, rented or personally owned vehicles.
Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 6, 2009), Subrecipient should encourage its employees, Sub-subrecipients, and contractors to adopt and enforce policies that ban text messaging while driving, and Subrecipient should establish workplace safety policies to decrease accidents caused by distracted drivers.
2) Have not, within a five (5)-year period preceding this proposal, been convicted of or had a civil judgment rendered against them for fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State or Local) transaction or contract under public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property;
1) No Funds received by Subrecipient under this Agreement have been paid or will be paid, by or on behalf of the Subrecipient, 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 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.
2) If any monies, other than Funds received by Subrecipient under this Agreement, 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 Subrecipient shall complete and submit Standard Form-LLL, “Disclosure of Lobbying Activities,” in accordance with its instructions.
4) This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
c. No delay or omission to exercise any right, power, or remedy accruing to the STATE upon breach or violation by the Subrecipient under this Agreement, shall impair any such right, power or remedy of the STATE; nor shall such delay or omission be construed as a waiver of any such breach or default, or any similar breach or default.
a. This Agreement shall be construed, performed, and enforced in all respects in accordance with the laws and rules of the State of Arkansas, without regard to any conflicts of law principles, decisional law or statutory provision that would require or permit the application of another jurisdiction's substantive law.
1) Failure to make any disclosure as required by Governor's Executive Order 98-04, or the violation of any rule, regulation, or policy adopted pursuant to that Order, shall be a material breach of the terms of the contract, lease, purchase agreement, or grant and shall subject the party failing to disclose or in violation to all legal remedies available to the Agency under the provisions of existing law.
e. The failure of any person or entity to disclose as required under any term of Executive Order 98-04, or the violation of any rule, regulation or policy promulgated by the Department of Finance and Administration pursuant to this Order, shall be considered a material breach of the terms of the contract, lease, purchase agreement, or grant and shall subject the party failing to disclose, or in violation, to all legal remedies available to the Agency under the provisions of existing law.
Any notice or other communication required under this Agreement shall be in writing and sent to the address below. Notices shall be given by and to Paul Louthian on behalf of the State, and by and to the Subrecipient's Authorized Representative, on behalf of the Subrecipient, or such designee as either party may from time to time designate in writing. Notices or communications to or between the parties shall be deemed to have been delivered when mailed by first class mail, provided that notice of default or termination shall be sent by registered or certified mail, or, if personally delivered, when received by such party. The Subrecipient may designate multiple Authorized Agents, on Exhibit C, that the Subrecipient will assign to perform data entry, documentation upload, or other clerical functions. Changes to Authorized Agent(s) must be made in writing via letter or electronic mail. Exhibit C must be completed and submitted via letter or electronic mail to the Department for each change of Authorized Agent.
Arkansas Department of Finance and Administration
Office of Accounting -- Attn: ARPA Staff
P.O. Box 3278
Little Rock, AR 72203-3278
Phone: 501-682-1675
Fax: 501-683-0823
Email: [email protected]
Neither the Department nor the Subrecipient may assign, sublicense or otherwise transfer its rights, duties or obligations under this Agreement without the prior written consent of the other party, which consent shall not unreasonably be withheld.
The terms of this Agreement shall be binding upon, inure to the benefit of and be enforceable solely by the parties and their permitted successors and assigns, and nothing in this Agreement or by virtue of the transactions contemplated hereby, whether express or implied, shall be construed to constitute, create or confer rights, remedies or claims in or upon any person (as third-party beneficiary or otherwise) not a party hereto, or to create obligations or responsibilities of the parties to such persons, or to permit any person other than the parties and their respective successors and assigns to rely upon or enforce the covenants, conditions and agreements contained herein.
This Agreement shall bind the successors, assigns and legal representatives of the parties hereto, and of any legal entity that succeeds to the obligations of the parties hereto.
If any term or provision of the Agreement is found to be illegal and unenforceable, the remainder will remain in full force and effect, and such term or provision shall be deemed stricken.
Credits
Adopted emergency effective Jan. 14, 2022. Amended May 5, 2022.
Current with amendments received through January 15, 2024. Some sections may be more current, see credit for details.
Ark. Admin. Code 006.09.4 App., AR ADC 006.09.4 App.
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