The Governor of the Commonwealth of Virginia has awarded a grant to __________ supporting activities related to Base Realignment and Closure (BRAC) efforts in Virginia in the amount of ___________ (the "Grant") based on the information provided in the application received on __________ (the "Application") and as amended.
WHEREAS the Virginia General Assembly during its 2005 Session created the Virginia National Defense Industrial Authority (“Authority”), Va. Code Ann. §§ 2.2-2328 through -2335, to provide technical assistance and coordination between the Commonwealth, its political subdivisions, and the United States military and national defense activities located in the Commonwealth, and
WHEREAS pursuant to Va. Code Ann. §§ 2.2-2330 the Authority is empowered to enter into agreements and to make grants and this Project has been determined to benefit Virginia by responding to the BRAC 2005 actions which were adopted by both the President and the U.S. Congress, and
WHEREAS the Authority sets forth its understanding and agreement as to the use of the Grant awarded and the obligations of the Grantee regarding the use of this Grant,
NOW, THEREFORE, in consideration of the foregoing, the parties hereby covenant and agree as follows.
1. Project and Budget. The Grant is awarded to fund a portion of the project entitled _________ (the "Project").
1.1 No portion of the Grant shall be used for any other purpose except as described in the Application and its accompanying materials. No modifications shall be made in the scope of the Project or to the budget set forth in the Application without the prior written approval of the Executive Director of the Authority. Any document signed by the Executive Director of the Authority accepting a change in purpose or budget shall describe the accepted change.
1.2 If the Grant exceeds the amount necessary to complete the Project, the excess shall not be provided to the Grantee but shall remain with the Commonwealth or be returned to the Commonwealth (if previously disbursed) within thirty (30) days of completion or termination of the Project.
2. Payment of Grant Funds. The Grant funds will be made available on a quarterly reimbursement basis. The quarterly schedule will be set at the time of the award. The reimbursement requests must be accompanied by copies of paid invoices and must be submitted by either the Project Leader or the Chief Executive identified in the Application. The Authority may in its sole discretion refuse to make disbursement if the documentation is not adequate or if it appears not to be within the scope of the budget as set forth in the Application. Grant funds will be disbursed only to Grantee and not to any third party.
2.1 The approved term of the grant is from __________ (“Term”).
3. Quality of Work. The Commonwealth or the Authority, its employees and agents shall have the right to inspect and have timely access to the Project as well as any written materials produced including, but not limited to assessments, studies, point papers, presentations, public relations products, and memoranda to Grantee on BRAC related topics paid for in whole or in part from this, or any subsequent, Grant. The Project will be monitored by on-site visits by representatives of the Authority or in any other manner the Authority deems appropriate.
4. Parties’ Relationship. In connection with the award or the administration of this Grant, the Commonwealth or the Authority does not and shall not assume any liability for any financial or other obligations of the Grantee made to third parties, whether or not related to the Project.
4.1 The Grantee shall provide written notice to all vendors, contractors and any other party retained to work on the Project that neither the Authority nor the Commonwealth of Virginia shall be liable for the Project or any payment failure or other obligation related thereto. Written notice shall provide that by accepting work on the Project, all such vendors, contractors and other parties release and relinquish the Authority and the Commonwealth from any claim which might otherwise be asserted, and that each party accepting such work thereby indemnifies and holds the Authority, its members, employees and agents, harmless against any and all such obligations; and further, that if any action is brought against the Commonwealth or the Authority, its members, employees or agents, the party accepting such work shall be liable for all legal expenses and other costs related to such action.
4.2 The Grantee is and will be acting as an independent contractor in the performance of this work, and it agrees to be responsible, where found liable by a court of competent jurisdiction and to the extent covered by insurance or specified by statute, for the payment of any claims for loss, personal injury, death, property damage, or otherwise arising out of any act or omission of its employees or agents in connection with the performance of the Project.
4.3 Nothing contained herein shall be deemed an express or implied waiver of the sovereign immunity of the Commonwealth of Virginia.
5. Recordkeeping; Audit. The Grantee shall maintain proper books of records and accounts in which accurate and timely entries shall be made in accordance with generally accepted accounting principles, consistently applied, of all their business and affairs for any period in which the Grantee expects to be a recipient of Grant funds.
5.1 Grant funds received by the Grantee shall be held in a segregated fund (“Fund”) and the Fund shall reflect all activity of the monies received for the Project, itemized by category of expenses in the same manner as in the budget as presented in the Application. The Grantee shall retain all invoices, bills, receipts, cancelled checks, proof of payment and similar documentation to substantiate expenditures of Grant funds.
5.2 Under no circumstances shall any Grant funds be co-mingled with the personal funds of, or be used for personal purposes by, any officer, director, trustee, employee or agent of the Grantee, nor will any Grant funds be deposited in personal bank accounts.
5.3 All records of receipts and expenditures of Grant monies as well as copies of the reports submitted to the Authority and supporting documentation shall be retained for a period of three years from the submission of the Final Project Report (defined below).
5.4 The Commonwealth and the Authority, its employees and its agents shall have the right to make inspections and copies of the books and records of the Grantee and the Fund at any time. A copy of the audited financial statements of the Grantee must be provided for each year during which the Project was conducted.
6. Reports to Authority. Grantee shall provide the Authority with all information and reports reasonably requested by Authority.
6.1 Grantee shall provide the Authority with a quarterly report (“Quarterly Report”) concurrent with reimbursement requests by Grantee. Quarterly Reports will include a summary of total Project costs expended to date; source of funds expended; details on how Grant funds were used; description of actual work and results accomplished during period covered by the Quarterly Report; status of the Project and estimates of time and funds necessary for completion; and cite any potential problems that could prevent timely completion of the Project. Other information may be reported at the discretion of the Grantee.
6.2 Grantee shall provide the Authority with a copy of its auditor’s opinion and internal control letters from the Grantee’s annual report (“Opinion and Control Letters”) promptly upon receipt from its independent auditor.
7. Final Report. The Grantee shall provide a final financial and narrative report to the Authority within thirty (30) days of completion of the Project (“Final Project Report”). The Final Project Report shall convey the type of information contained in the Quarterly Reports, a narrative as to the success of the Project, and a description of the long-term expectations for the Project.
7.1 The Commonwealth/Authority will withhold final quarterly disbursement of the Grant awarded until receipt of the Final Project Report that is in all respects satisfactory to the Commonwealth/Authority. The Commonwealth/Authority may, at its sole discretion, require additional information on the actual work and results of the Project.
7.2 All reports submitted to the Authority including but not limited to the Quarterly Reports, Opinion and Control Letters and Final Project Report shall be collectively referred to herein as the (“Reports”).
8. Events of Default. The following events shall constitute events of default (“Events of Default”) under the Grant and the Project:
(a) the Authority determines, in its sole discretion, that quality of the work performed and the progress toward completion of the Project is unsatisfactory;
(b) the Commonwealth or the Authority determines that any part of a Grant has not been used for the Project or for a purpose approved in writing by the Executive Director of the Authority;
(c) Grantee has failed to submit any of the Reports within the time specified;
(d) Failure to report in writing to the Authority any change in the Grantee’s executive officers or the Project Leader; and
(e) Grantee has failed to comply with any material term or condition of this Agreement, the Application or the Instructions to Applicant;
8.1 Upon the occurrence of an Event of Default after providing Grantee with written notice and a reasonable time to cure such default, the Commonwealth or Authority may take all remedies available to it at law or in equity including but not limited to the following:
(a) withhold any further payments to the Grantee for the Project;
(b) rescind the Grant, in which event the Grantee shall be obligated to return to the Authority, within ten business days following receipt of such notice, an amount equal to all Grant payments received by the Grantee pursuant to this Agreement, plus interest from the date of receipt of the Grant funds at a rate of interest equal to the prime rate printed in the Wall Street Journal on the date of the notice;
(c) require the Grantee to take action as the Commonwealth or Authority may direct in order to recover any improperly used Grant funds, and to comply with any procedures that the Commonwealth/Authority may direct in order to prevent further improper use;
(d) take any other action available to it in law or equity which it deems necessary or desirable to preserve the integrity of the Grant funds and to preserve them for appropriate uses.
8.2 Should the Authority take action available to it under this paragraph 8, the Grantee covenants and agrees that it shall be responsible for paying the Commonwealth/Authority attorneys’ fees and actual costs incurred in the collection of funds or for the enforcement of any obligation of the Grantee set forth in this Agreement.
9. No Guarantee of Funding. The Grant provided pursuant to this Agreement shall not be deemed to be an actual or implied promise to fund the Project. No representation by the Commonwealth, the Authority, its employees, its agents or other representatives shall be binding unless set forth in writing and signed by the Governor or his representative.
It is understood and agreed between the parties herein that the General Assembly may modify the amount of funds available for the Virginia Military Strategic Response Fund and that any such modification may affect the amount of funds available to fund the Grant to Grantee.
10. Applicable Laws and Courts. This Agreement shall be governed in all respects by the laws of the Commonwealth of Virginia and any litigation with respect thereto shall be brought in the Courts of the Commonwealth. The Grantee shall comply with all applicable federal, state, and local laws, rules, and regulations, including the Public Procurement Act and Freedom of Information Act requirements.
11. Limitation of Liability. Nothing herein shall be deemed to be a covenant, agreement or obligation of a present or future member of the Commonwealth/Authority or of an employee or agent of the Commonwealth or Authority. No member, employee or agent of the Commonwealth or Authority shall incur any personal liability with respect to any action taken by him or her pursuant to this Agreement.
12. Severability. If any provision of this Agreement shall be held invalid by any court of competent jurisdiction, such holding shall not invalidate any other provision hereof.
13. Public Documents. All Reports, documents, financial data and other information provided to the Authority shall be public record unless otherwise exempted by the Freedom of Information Act.
14. Control of Grant Documents. The Authority and the Grantee shall jointly share control of any and all information contained in Reports and all documents, correspondence (including electronic), studies and other similar written instruments purchased in whole or in part with this Grant (“Grant Documents”). For the avoidance of doubt, the Authority shall have unfettered access to all Grant Documents and the Grantee covenants and agrees to provide the Authority with any and all Grant Documents promptly upon request from the Authority and further covenants and agrees to use its best efforts to procure for the Authority any and all Grant Documents in the possession of third parties.
15. Anti-Discrimination. By signing this agreement, the Grantee certifies to the Commonwealth that they will conform to the provisions of the Federal Civil Rights Act of 1964, as amended, as well as the Virginia Fair Employment Contracting Act of 1975, as amended, where applicable, the Virginians with Disabilities Act, and the Americans with Disabilities Act.
16. Ethics in Public Financing Agreements. The Grantee certifies that this agreement was made without collusion or fraud and they have not offered or received any kickbacks or inducements from any service provider or firm receiving funding under this grant agreement.
17. Scope of Work/Special Terms and Conditions. The major points and deliverables of the Project may be set forth in Addendum 1 of this Agreement. This Addendum will clarify for all parties involved exactly what is being funding by the Grant as well as any special conditions or requirements that are placed on the Grant.
18.1 Incorporation of Application and Instructions to Applicant. The terms and conditions set forth in the Application and the Instructions to Applicant as well as any Addendum are hereby incorporated by reference and shall become a part of the terms and conditions of this Agreement.
18.2 Capitalized Terms. Capitalized terms not defined in this Agreement shall have the meaning given to them in the Application.
18.3 Notices. Any notice, request, demand or other communication required or permitted under this Agreement will be given in writing, with all communication charges prepaid, to the party being notified. The addresses of the parties for the purposes of all communications are:
If to Grantee:
Federal ID Number __________________
If to Authority:
Virginia National Defense Industrial Authority
P. O. Box 798
Richmond, Virginia 23218
Attention: David G. Dickson, Executive Director
Phone #: 804-545-5715
18.4 Assignment and Transfer. Grantee may not sell, transfer, assign in whole or in part or encumber its rights under this Agreement, or delegate its obligations hereunder without the prior consent of the Governor or his Chief-of-Staff. The Authority may transfer or assign its rights and obligations under this Agreement to any other instrumentality of the Commonwealth of Virginia, whether now existing or hereafter created.
18.5 Entire Agreement/Amendments. This Agreement, together with the Application and Instructions to Applicant, constitutes the entire agreement of the parties concerning the Project and the Grant and supersedes all prior written and oral understandings with respect to the Project and/or the Grant. No amendment or modification to this Agreement shall be binding unless in writing and signed by all parties to this Agreement. This Agreement is for the benefit of the named signatories only, there are no third party beneficiaries to the Agreement, it is not a contract, and it does not create any rights or duties of any third party. This Agreement does not purport to modify the statutory duty of any signatory agency.
IN WITNESS WHEREOF, the undersigned have executed this Military Strategic Response Fund Agreement as of the date written below.
(NAME OF GRANTEE)
Virginia National Defense Industrial Authority
David G. Dickson
Title: Executive Director
Commonwealth of Virginia
Jody M. Wagner
Title: Secretary of Finance
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