SAMPLE SUBAWARDAGREEMENT

This sample subaward agreement was developed by Community Action Program Legal Services, Inc. (“CAPLAW”) and has not been approved by any outside authority, such as the U.S. Department of Health and Human Services. You should review this sample subaward agreement thoughtfully and modify it as necessary to meet the individual needs of your organization and to comply with any laws and regulations that apply to your organization’s particular situation, as well as the terms and conditions of the funding agreements covered by this subaward agreement. CAPLAW strongly recommends that when working with this sample subaward agreement, you consult with an attorney in your state who is well-versed in the laws affecting Community Action Agencies (CAAs) and state contract law.

This subaward agreement contains bracketed text and footnotes corresponding to specific provisions, both of whichare intended to help you better understand the subaward agreement and how to adapt it to the needs of your organization. You should update this text and delete any brackets when finalizing the subaward agreement.

This publication is part of the Community Services Block Grant (CSBG) Legal Training and Technical Assistance (T/TA) Center. It was created by Community Action Program Legal Services, Inc. (CAPLAW) in the performance of the U.S. Department of Health and Human Services, Administration for Children and Families, Office of Community Services Cooperative Agreement – Grant Award Number 90ET0441-01. Any opinion, findings,conclusions, or recommendations expressed in this material are those of the author(s) and do not necessarily reflect the views of the U.S. Department of Health and Human Services, Administration for Children and Families.

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SAMPLE SUBAWARD AGREEMENT

THIS SUBAWARD AGREEMENT (this“Agreement”) is entered into as of [DATE], by and between [CAA], a [STATE]nonprofitcorporation with principal offices at [ADDRESS] (“[CAA]”), and[SUBRECIPIENT](“Subrecipient”), a [STATE]nonprofitcorporation with principal offices at [ADDRESS]. This Agreement shall govern certain activities and responsibilities to be carried out by Subrecipient on behalf of [CAA], a grantee of the [U.S. Department of Health and Human Services (“[HHS]”)].[1]

WHEREAS, [CAA] provides comprehensive family planning services through its [family planning program] and has been awarded a grant to [assist in the establishment and operation of a comprehensive family planning services delivery system]with a project period of [START DATE] through [END DATE] by [HHS, Office of the Assistant Secretary for Health, Office of Population Affairs][2], Grant No. [_], CFDA # [_], (the “Prime Award”), pursuant to the provisions of the [Public Health Service Act (42 U.S.C. § 300, et seq.) and the regulations promulgated thereunder (42 C.F.R. Parts 50 and 59) (referred to collectively herein as “[Title X]”)][3], in a notice of award attached hereto as Exhibit A (the “Notice of Prime Award”);[4]

WHEREAS, [CAA]desires to [provide comprehensive family planning services in neighborhood-oriented health settings that are providing primary care];

WHEREAS, Subrecipient[has been and is operating a community health center, school-based health center or hospital outpatient department which provides primary care in such a neighborhood-oriented setting];

WHEREAS, [CAA]desires to grant a “subaward” (as defined in the [Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards, 45 C.F.R. Part 75] (the “Uniform Guidance”))[5]of the Prime Award (the “Subaward”) to Subrecipient to[offer the family planning services described herein] in accordance with the requirements of [Title X] and the regulations and guidelines promulgated thereunder and by [HHS],as well as other applicable law; and

WHEREAS, certain information required by the Uniform Guidance,[45 C.F.R. § 75.352], to be included in this Agreement with respect to the Subawardisset forth in the Subaward Data attached hereto as Exhibit Bandis incorporated herein by reference.[6]

NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, [CAA] and Subrecipient hereby agree as follows:

  1. TERM. This Agreement shall govern the performance of the parties for the period [START DATE] (the “Effective Date”) through [END DATE], unless earlier terminated by either party in accordance with the terms of this Agreement(such period of performance, the “Agreement Term”).
  1. SCOPE OF SERVICES AND BUDGET; PRIOR APPROVAL FOR CHANGES.
  1. Scope of Services and Budget. Subrecipient shall, in a satisfactory manner as determined by [CAA], perform all activities described in the scope of services as approved by [CAA] and attached hereto as Exhibit C, as may be amended from time to time (the “Approved Services”) in accordance with the programbudget as approved by [CAA] andattached hereto as Exhibit D, as may be amended from time to time (the “Approved Budget”).
  1. Prior Approval for Changes. Subrecipient may not transfer allocated funds among cost categories within a budgeted program account without the prior written approval of [CAA]; nor shall Subrecipient make any changes, directly or indirectly, in program design or in the Approved Services or in the Approved Budget without the prior written approval of [CAA].
  1. COMPENSATION.
  1. Payment of Funds. [CAA] agrees to reimburse[7]Subrecipientfor costs actually incurred and paid by Subrecipient in accordance with the Approved Budget attached hereto as Exhibit Dand for the performance of the Approved Services under this Agreement in an amount not to exceed $[_] (the “Total Agreement Funds”). The amount of Total Agreement Funds, however, is subject to adjustment by [CAA] if a substantial change is made in the Approved Services that affects this Agreement or if this Agreement is terminated prior to the expiration of the Agreement as provided in Section 1 above. Program funds shall not be expended prior to the Effective Date, or following the earlier of theexpiration or termination of this Agreement. Costs incurred shall only be as necessary and allowable to carry out the purposes and activities of the Approved Services and may not exceed the maximum limits set in the Approved Budget. Expenses charged against the Total Agreement Funds shall be incurred in accordance with [Title X], the Uniform Guidance, the Prime Awardand the authorizations, restrictions and requirements contained in the Notice of Prime Award and any amendments thereto and other applicable laws, regulations, grant terms and conditions or policies.
  1. Invoices. On or before the twentieth (20th) day of each month and in any event no later than thirty (30) days after the earlier of the expiration or termination of this Agreement, Subrecipient shall submit invoices, [in a form supplied by [CAA]][8], for the most recent month ended, to [CAA], setting forth actual expenditures of Subrecipient in accordance with this Agreement. Within ten (10) working days from the date it receives such invoice, [CAA] may disapprove the requested compensation. If the compensation is so disapproved, [CAA] shall notify Subrecipient as to the disapproval. If payment is approved, no notice will be given.
  1. Contingency. The payment of funds to Subrecipient under the terms of this Agreement shall be contingent on the receipt of such funds by [CAA] from applicable state and federal funding sources and shall be subject to Subrecipient’s continued eligibility to receive funds under the applicable provisions of state and federal laws and the Notice of Prime Award. If the amount of funds that [CAA] receives from state and federal funding sources is reduced, [CAA] reserves the right to reduce the amount of funds awarded under, or to terminate, this Agreement. [CAA] also reserves the right to deny payment for Subrecipient’s expenditures for Approved Services where invoices and/or other reports are not submitted by the deadlines specified Sections 3(b) above and 4(d) below.
  1. FINANCIAL ACCOUNTABILITY AND GRANT ADMINISTRATION.
  1. Financial Management. Subrecipient shall maintain a financial management system and financial records and shall administer funds received pursuant to this Agreement in accordance with all applicable federal and state requirements, including without limitation: [(i) the Uniform Guidance, 45 C.F.R. Part 75; (ii) the [HHS Grants Policy Statement][9]; (iii) the [Title X] statute, regulations and guidelines; and (iv) the Notice of Prime Award].[10] Subrecipient shall adopt such additional financial management procedures as may from time to time be prescribed by [CAA] if required by applicable laws, regulations or guidelines from its federal and state government funding sources. Subrecipient shall maintain detailed, itemized documentation and records of all income received and expenses incurred pursuant to this Agreement.
  1. Limitations on Expenditures. Subrecipient shall not be reimbursed or otherwise compensated for any expenditures incurred or services provided prior to the Effective Date, or followingthe earlier of the expiration or termination of this Agreement. [CAA] shall only reimburse Subrecipient for documented expenditures incurred during the Agreement Term that are: (i) reasonable and necessary to carry out the [CAA] Family Planning Services; (ii) documented by contracts or other evidence of liability consistent with established [CAA] and Subrecipient procedures; and (iii) incurred in accordance with all applicable requirements for the expenditure of funds payable under this Agreement.
  1. Indirect Cost Rate. The Subaward Data attached hereto as Exhibit B contains information on [CAA]’s indirect cost rate under the Notice of Prime Award. The indirect cost rate information, if any, indicated in the Approved Budgetattached hereto as Exhibit Dshall applyto the Subaward.
  1. Financial and Other Reports. Subrecipient shall submit to [CAA] such reports and back-up data as may be required by [HHS]or [CAA], including without limitationsuch reports which enable [CAA] to submit its own [quarterly financial and annual programmatic reports][11] to [HHS] and the reports required in accordance with the following schedule:

REPORT / DEADLINE
[INSERT APPLICABLE REPORT] / [INSERT APPLICABLE DEADLINE]

This provision shall survive the expiration or termination of this Agreement with respect to any reports which Subrecipient is required to submit to [CAA] following the expiration or termination of this Agreement.

  1. Improper Payments. Any item of expenditure by Subrecipient under the terms of this Agreement which is found by auditors, investigators, and other authorized representatives of [CAA], [HHS], the U.S. Government Accountability Office or the Comptroller General of the United States to be improper, unallowable, in violation of federal or state law or the terms of the Notice of Prime Award or this Agreement, or involving any fraudulent, deceptive, or misleading representations or activities of Subrecipient, shall become Subrecipient’s liability, to be paid by Subrecipient from funds other than those provided by [CAA] under this Agreement or any other agreements between [CAA] and Subrecipient. This provision shall survive the expiration or termination of this Agreement.
  1. Audited Financial Statements. Inany fiscal year in which Subrecipient expends $750,000 or more in federal awards during such fiscal year, including awards received as a subrecipient, Subrecipient must comply with the federal audit requirements contained in the Uniform Guidance, [45 CFR Part 75], including the preparation of an audit by an independent Certified Public Accountant in accordance with the Single Audit Act Amendments of 1996, 31 U.S.C. 7501-7507, and with Generally Accepted Accounting Principles.[12] If Subrecipient expends less than $750,000 in federal awards in any fiscal year, it is exempt from federal audit requirements, but its records must be available for review by [CAA] and appropriate officials of [HHS], the U.S. Government Accountability Office and the Comptroller General of the United States, and it must still have a financial audit performed for that year by an independent Certified Public Accountant. Subrecipient shall provide [CAA] with a copy of Subrecipient’s most recent audited financial statements, federal Single Audit report, if applicable (including financial statements, schedule of expenditures of federal awards, schedule of findings and questioned costs, summary of prior audit findings, and corrective action plan, if applicable), and management letter within thirty(30) days after execution of this Agreement and thereafter within nine (9) months following the end of Subrecipient’s most recently ended fiscal year.
  1. Closeout. Final payment request(s) under this Agreement must be received by [CAA] no later than thirty (30) days from the earlier of the expiration date or termination date of this Agreement. No payment request will be accepted by [CAA] after this date without authorization from [CAA]. In consideration of the execution of this Agreement by [CAA], Subrecipient agrees that acceptance of final payment from [CAA] will constitute an agreement by Subrecipient to release and forever discharge [CAA], its agents, employees, representatives, affiliates, successors and assigns from any and all claims, demands, damages, liabilities, actions, causes of action or suitsof any nature whatsoever, which Subrecipient has at the time of acceptance of final payment or may thereafter have, arising out of or in any way relating to any and all injuries and damages of any kind as a result of or in any way relating to this Agreement. Subrecipient’s obligations to [CAA] under this Agreement shall not terminate until all closeout requirements are completed to the satisfaction of [CAA]. Such requirements shall include,without limitation, submitting final reports to [CAA]and providing any closeout-related information requested by [CAA] by the deadlines specified by [CAA]. This provision shall survive the expiration or termination of this Agreement.
  1. COOPERATION IN MONITORING AND EVALUATION.
  1. [CAA] Responsibilities. [CAA] shall monitor, evaluate and provide guidance and direction to Subrecipient in the conduct of Approved Services performed under this Agreement. [CAA] has the responsibility to determine whether Subrecipient has spent funds in accordance with applicable laws, regulations, including the federal audit requirements and agreements andshall monitor the activities of Subrecipient to ensure that Subrecipient has met such requirements. [CAA] may require Subrecipient to take corrective action if deficiencies are found.
  1. Subrecipient Responsibilities.
  1. Subrecipient shall permit [CAA] to carry out monitoring and evaluation activities, including any performance measurement system required by applicable law, regulation, funding sources guidelines or by the terms and conditions of the applicable Notice of Prime Award, and Subrecipient agrees to ensure, to the greatest extent possible, the cooperation of its agents, employees and board members in such monitoring and evaluation efforts. This provision shall survive the expiration or termination of this Agreement.
  1. Subrecipient shall cooperate fully with any reviews or audits of the activities under this Agreement by authorized representatives of [CAA], [HHS], the U.S. Government Accountability Officeorthe Comptroller General of the United States and Subrecipient agrees to ensure to the extent possible the cooperation of its agents, employees and board members in any such reviews and audits. This provision shall survive the expiration or termination of this Agreement.
  1. RECORD RETENTION AND ACCESS. Subrecipient shall maintain all records, books, papers and other documents related to its performance of Approved Services under this Agreement (including without limitationpersonnel, property, financial and medical records) for a period of [_][13] years followingthe date that[CAA] makes the last payment to Subrecipient under this Agreement, or such longer period as is necessary for the resolution of any litigation, claim, negotiation, audit or other inquiry involving this Agreement. Subrecipient shall make allrecords, books, papers and other documents that relate to this Agreement available at all reasonable times for inspection, review and audit by the authorized representatives of [CAA], [HHS], the U.S. Government Accountability Office and the Comptroller General of the United States.
  1. INDEPENDENT CONTRACTOR RELATIONSHIP. The relationship of Subrecipient to [CAA] is that of an independent contractor and not of an employee/employer. It is expressly understood that any individual performing services under this Agreement on behalf of Subrecipient shall not be deemed to be an employee or independent contractor of [CAA], and such individual shall not be entitled to tax withholding, workers’ compensation, unemployment compensation or any employee benefits, statutory or otherwise, from [CAA]. Subrecipient agrees that it is solely responsible for the reporting and payment of income, social security and other employment taxes due to the proper taxing authorities with respect to such personnel. Subrecipient agrees to indemnify, defend and hold harmless [CAA] and its directors, officers, employees and agents from and against any and all costs, losses, damages, liabilities, expenses, demands and judgments, including court costs and attorney’s fees, relating to the reporting and payment of income, social security and other employment taxes and the provision of employee benefits (including but not limited to workers’ compensation, unemployment insurance and health insurance coverage or assessable payments required under the Patient Protection and Affordable Care Act, P.L.111-148) with respect to such individual performing services under this Agreement on behalf of Subrecipient. This provision shall survive the expiration or termination of this Agreement.
  1. COMPLIANCE WITH GRANT AGREEMENT AND APPLICABLE LAWS.
  1. Compliance with Prime Award and Subaward. Subrecipient shall perform all activities funded by this Agreement in accordance with: (i) the Notice of Prime Award attached hereto as Exhibit A,including any amendments thereto; (ii) the Subaward Data attached hereto as Exhibit B, including any amendments thereto; (iii) the Approved Services attached hereto as Exhibit C,including any amendments thereto; (iv) the Approved Budget attached hereto as Exhibit D, including any amendments theretoand (v) theapplicable contract provisions for non-federal entity contracts under federal awards required under Appendix II to the Uniform Guidance and attached hereto as Exhibit E (the “Required Contract Provisions”) (each of (i) – (v) above is hereby incorporated by reference into this Agreement). In addition, Subrecipient shall cooperate fully with [CAA] in its efforts to comply with the requirements of the Notice of Prime Award, including any amendments thereto.
  1. Compliance with Applicable Laws. Subrecipient shall perform all activities funded by this Agreementin accordance with all applicable federal, state and local laws, including without limitation laws which regulate the use of funds allocated under [Title X].