MEMORANDUM OF AGREEMENT AMONG COALITION PARTNERS FOR THE UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY CLIMATE POLLUTION REDUCTION GRANT FOR
COMMUNITY-SCALE REUSABLE FOODWARE SYSTEM DESIGN AND IMPLEMENTATION SEC
TION 1. OVERVIEW
This Memorandum of Agreement (“MOA”) is between the cities of Sunnyvale, Cupertino, Mountain View, and San José, and the County of San Benito (collectively the “Agency Partners”).
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ECTION 2. RECITALS
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HEREAS, the 2022 Inflation Reduction Act (IRA) established the Climate Pollution Reduction Grants (CPRG) program which provides funds for implementation grants administered by the United States Environmental Protection Agency (EPA);
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HEREAS, the Agency Partners submitted a coalition implementation application on April 1, 2024 for a grant (“Implementation Grant”), seeking $48,346,219 to fund the design and implementation of a community-scale reusable foodware system serving the jurisdictions of the cities of Sunnyvale, Cupertino, Mountain View, and San José, and the County of San Benito to reduce waste sent to the landfill and lower associated greenhouse gas emissions. The City of Sunnyvale applied as the coalition lead agency with the remainder of the Agency Partners as coalition partners; W
HEREAS, the grant term for this funding is expected to begin in October 2024 and the period of performance will be up to five years thereafter until December 2029. This end date is subject to change based on EPA extension or funds availability;
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HEREAS, the City of Sunnyvale, is lead agency to execute a grant agreement with EPA (the “Grant Agreement”) and administer grant funding received from EPA for the period of October 2024 to December 2029;
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HEREAS, Perpetual (“Perpetual”) is a Florida nonprofit corporation exempt from taxation under Section 501(c)(3) of the Internal Revenue Code that partners with public agencies and reuse service providers to design and implement reuse systems that reduce or eliminate single-use disposable foodware;
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HEREAS, Perpetual is a proposed subrecipient of Implementation Grant funds; WH
EREAS, as discussed in the Project Workplan, attached hereto and incorporated herein as Exhibit A, the Agency Partners shall design and implement a Community-Scale Reusable Foodware System (the “Project”); and
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HEREAS, the Agency Partners desire to execute this MOA to govern the use of Implementation Grant funds to implement the Project and to set out the obligations of the Agency Partners for life of the grant term under the Grant Agreement.
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NOW, THEREFORE, the Agency Partners agree as follows:
SECTION 3. PURPOSE OF THE MOA
The purpose of this MOA is to establish:
• The obligations and responsibilities of each Agency Partner for the management and operation of the Project.
• Agreed upon roles, responsibilities , and commitments made by each Agency Partner to ensure Project success aligned with overall Project goals, objectives, and target outputs. • An operating model for the Agency Partners.
• H ow the collaboration and partnerships associated with the Agency Partners will benefit the Project (as described in Exhibit A).
• T he resources each Agency Partner will contribute to the Project.
SECTION 4. EFFECTIVE DATE AND TERM
This MOA shall be effective upon its execution by the Agency Partners and shall remain effective until all obligations associated with the awarded Implementation Grant have been fulfilled. Without limiting the foregoing, the anticipated performance period for the Implementation Grant is to begin October 1, 2024, and end December 31, 2029.
SECTION 5. STATEMENTS OF RESPONSIBILITIES
For purposes of the Implementation Grant, the City of Sunnyvale is the lead applicant (the “Lead Agency”), will be accountable to the EPA, and accepts full responsibility for effectively carrying out the full scope of work and the proper financial management of the Implementation Grant. All Agency Partners commit to participate in the coalition as described in the Project Workplan, attached as Exhibit A of this MOA. All Agency Partners other than the City of Sunnyvale are grant subrecipients and shall be accountable to and support the Lead Agency, for proper use of EPA funding and successful Project implementation. Each of the Agency Partners agrees to participate in the coalition for the duration of the Project, as defined in the Grant Agreement, and may not withdraw or otherwise relieve themselves of any responsibilities created through this MOA, subject to Sections 4 and 15 of this MOA.
SECTION 6. RECORDS AND ACCOUNTS AND THEIR RETENTION
The Agency Partners, and each grant subrecipient, will keep complete and accurate financial, payroll, and procurement records related to the Project. Upon reasonable notice to the City of Sunnyvale, any Agency Partner may inspect the financial records related to the Project. Financial records, supporting documents, statistical records, and all other records pertinent to the Project must be retained by all Agency Partners and subrecipients for a period of three years from the date of submission of final expenditure report.
SECTION 7. FURTHER ASSURANCES
Each Agency Partner will adopt, execute, and make any and all further assurances, instruments and resolutions as may be reasonably necessary or proper to carry out the intention or to facilitate the Agency Partners’ performance of their obligations under this MOA.
SECTION 8. REPRESENTATIONS AND WARRANTIES
Each Agency Partner represents and warrants to all other Agency Partners as follows:
Authority: Each Agency Partner has the full legal right, power, and authority under the laws of the State Attachment 1
of California to enter into this MOA and to carry out all of its obligations herein.
Due Execution: Each Agency Partner’s representatives who sign this MOA are duly authorized to sign and bind their respective Agency Partner.
SECTION 9. RESPONSIBILITIES OF THE CITY OF SUNNYVALE, LEAD AGENCY The City of Sunnyvale is designated as the Lead Agency and Fiscal and Contracting Agent for Project funds. As the Lead Agency, the City of Sunnyvale is ultimately responsible for administering the Implementation Grant and performing all required reporting and the following responsibilities:
• R ecommend and seek City Council approval to create a new position for grant-funded project administration and management services (the “Project Manager”) that will meet the responsibilities and needs described in the Project workplan. If the City Council, in its discretion, fails to approve a position, the Agency Partners understand that Sunnyvale may not be able to fulfill its responsibilities as the Lead Agency and agree to meet and confer regarding alternatives for Project administration.
• R ecruit and hire a Project Manager into a position approved by the City Council, to execute the Project’s workplan. Duties of the Project Manager shall include, but will not be limited to:
o scheduling and facilitating planning meetings with Agency Partners and partner organizations;
o preparing agendas and meeting minutes;
o maintaining all project records and files;
o providing reports at planning meetings on the status of the Project Workplan; o reporting back and communicating with the EPA throughout the project term; o trac k and report grant expenditures monthly to the City of Sunnyvale Finance Department; o c omply with all program compliance requirements, such as gathering data to submit grant reports and all necessary documentation to EPA;
o monitor budget, actual expenditures and project timeline; o seek grant reimbursement from the EPA (grant agency); and o monitor subrecipient funding.
• Perform additional administrative duties and administer grant funds and pass-through funds to Agency Partners and/or grant subrecipients.
• Establish procedures to conduct subrecipient monitoring, following the 2 CFR 200. Subpart D – Subrecipient Monitoring and Management and the EPA Subaward Policy and EPA’s General Term and Conditions for Subawards.
• Administer grant funds, pass through funds to Agency Partners and/or grant subrecipients. • Facilitate close coordination with Agency Partners and Project partners; closely track participant support costs; provide funds to service provider(s) during system design phase. • Execute contracts with selected service providers.
The City of Sunnyvale shall serve as the Fiscal and Contracting Agent. • The Fiscal and Contracting Agent shall be the treasurer of Project funds. The Fiscal and Contracting Agent, in accordance with generally accepted accounting principles (GAAP), shall keep the Project funds segregated from any other funds administered by the Fiscal and Contracting Agent; shall credit the Project with appropriate interest income earned on Implementation Grant funds in each fiscal year; and shall not expend any funds except in accordance with the Project budget approved by the Agency Partners. • The Fiscal and Contracting Agent shall act in a reasonable amount of time to execute contracts with outside contractors which have been requested and approved by the Agency Attachment 1
Partners.
The Fiscal and Contracting Agent may request, as part of the Project budget, reimbursement for reasonable and customary costs incurred in providing the services described, including but not limited to costs for labor, benefits, administrative overhead, goods, services, and the costs associated with any internal or external audit requirements. Costs incurred by the Fiscal and Contracting Agent in furtherance of the Project shall be consistent with the agreed upon Project budget and Workplan, as they may be amended by the Agency Partners. Such costs that are not eligible to be reimbursed by Implementation Grant funds will be reimbursed by the Agency Partners, upon request of the Fiscal and Contracting Agent and documentation showing either that that the costs were deemed ineligible for reimbursement or that a request for reimbursement of the costs was denied. Such costs will be split equally among the Agency Partners.
Notwithstanding the foregoing, no Agency Partner shall be required to pay in excess of $5,000 in any calendar year to cover unreimbursed costs incurred by the Fiscal and Contracting Agent.
Notwithstanding Sections 13 and 15, below, in the event that Sunnyvale is unable to perform any or all of its duties as Lead Agency and/or Fiscal and Contracting Agent, either permanently or for a temporary period of time, the Agency Partners shall meet and confer to identify and discuss available options to continue the administration of the Project.
SECTION 10. RESPONSIBILITIES OF PERPETUAL AS A SUBRECIPIENT The success of the Project is dependent upon Perpetual’s experience and expertise in designing and implementing reusable foodware systems. Upon award of Implementation Grant funds, Perpetual shall execute a professional services contract with the Lead Agency, which shall comply with 2 CFR 200.331(a)(1), to perform the scope of work identified in the Project Workplan. Compensation paid to Perpetual for its work on the Project shall be paid with Implementation Grant funds as a subaward and shall not exceed the subaward amount indicated in the Budget Description included in the Project Workplan. As a subrecipient, Perpetual shall only receive reimbursement for its actual direct or approved indirect costs in executing its scope of work related to the Project and shall not profit from the Project.
Perpetual shall design the reuse system to be implemented within the budget identified in the Budget Description included in the Project Workplan.
If Perpetual does not execute a professional services contract with the Lead Agency and/or fails to perform the scope of work identified in the Project Workplan, the Agency Partners shall meet and confer to identify and discuss available options to continue the Project. Under no circumstances shall a failure of the Lead Agency or any Agency Partner to execute an agreement with Perpetual affect the status of this MOA.
SECTION 11. RESPONSIBILITIES OF ALL AGENCY PARTNERS
Upon receipt of Implementation Grant funds, the Agency Partners shall perform the Project, as described in the Project Workplan. The Agency Partners acknowledge that their individual responsibilities or obligations may increase or be altered during or as a result of the System Design phase of the Project and agree that they shall take all reasonable actions necessary to fulfill those responsibilities. The Agency Partners anticipate that their responsibilities shall include:
• Provide oversight and support to contracted or sub-awarded organizations to lead the system design and implementation.
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• Attend regular planning meetings, anticipated to be at least monthly in year one. • R eview budget and expenditures.
• Provide input and review of key decisions .
• Leverage existing multilingual communications channels and connections to improve stakeholder engagement, community outreach and system adoption.
• Help operator solicit food establishments and schools to enroll in the program. • Help operator find real property in Santa Clara and San Benito counties to serve as the two infrastructure hubs following the requirements for procurement of property under 2 CFR 200 (OMB Uniform Grant Guidance).
• Provide information and data to include in grant reports within the deadlines set by the Lead Agency.
• Monitor budget and project timeline.
• Maintain all records if a grant subrecipient; keep complete and accurate financial records related to accomplishing the purposes of the Project and this MOA, and in compliance with the requirements of 2 CFR 200 (OMB Uniform Grant Guidance) and 2 CFR Part 1500 (EPA Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards). • To meet Timekeeping requirements, keep activity reports required to account for total activity for which each employee is compensated. The activity reports must include a description of activities, hours worked on the Project, and support for salary, wages, and fringe benefits expenditures to be paid or reimbursed with Implementation Grant funds. • To get indirect costs reimbursements, indirect cost rate proposals must be prepared in accordance with the requirements of 2 CFR 200, Cost Principles for State, Local, and Indian Tribal Governments (Title 2 CFR 200).
• Must have the Single Audit conducted during the fiscal year Implementation Grant funds or subawarded funds were expended unless the Agency Partner is exempt from the audit requirements for that year.
Additionally, the Agency Partners acknowledge that Project work specific to their respective jurisdictions, such as public outreach work, may be best performed by contracts awarded by the Agency Partners, rather than through the Lead Agency. Depending on the system design and the availability of service providers, the reusable foodware system may be operated through contract with one or multiple service providers. As such, any, several, or all of the Agency Partners may be required to solicit bids and award contracts for the work involved in operating the reusable foodware system in their respective jurisdictions. Each Agency Partner agrees to award any such contracts, as needed, through competitive bidding procedures that conform to applicable federal law and reflect applicable state and local laws and regulations. Agency Partners should refer to 2 CFR200.318 for additional information on general procurement standards and ensure all procurements follow these requirements of 2 CFR 200 (OMB Uniform Grant Guidance). The Agency Partners shall meet and confer prior to any single Agency Partner solicitating or awarding a contract for service specific to its jurisdiction to be paid or reimbursed through Implementation Grant funds to discuss and approve the procurement process and effect of the procurement on the Project budget. Project costs associated with approved contracts awarded by the Agency Partners that are eligible for reimbursement with Implementation Grant funds will be reimbursed through subawards. The Agency Partners must provide all contracts or assignment documents and associated records to the Lead Agency for reporting, budgeting, and audit purposes.
SECTION 12. COSTS
The Agency Partners anticipate that the awarded Implementation Grant funds shall be sufficient to Attachment 1
successfully complete the Project and agree to take all reasonable and necessary steps to complete the Project within the budget established for the Implementation Grant funds. Perpetual shall design and potentially redesign or modify the design of the reuse system to adhere to the budget, as it may be amended from time to time upon agreement by the Agency Partners, so that the Project is successfully completed expending only the Implementation Grant funds. However, in the event that the designed reuse system, or the Project generally, can no longer be sustained by Implementation Grant funds alone, the Agency Partners will immediately meet and confer to discuss how to address budget shortfalls. The Agency Partners agree that any resolution to such budget shortfalls, which shall require a written agreement signed by all of the Agency Partners, shall not be contrary to, nor cause a breach or violation of the obligations and responsibilities contained in the Grant Agreement, nor be contrary to any EPA requirements associated with the Implementation Grant.
SECTION 13. DISPUTE RESOLUTION AND BREACH
Any failure by any Agency Partner to perform the responsibilities outlined herein shall be deemed a breach of this MOA. In the event of any dispute regarding the proper interpretation of this MOA, the Agency Partners shall first immediately meet and confer to attempt to resolve the dispute. If the dispute remains unresolved, prior to filing suit, the Agency Partners may agree to mediation or other non-binding resolution processes within 60 days of the dispute. The Lead Agency shall continue to administer the Project and expend grant funds in good faith while the dispute is pending resolution.
SECTION 14. INDEMNIFICATION
In lieu of and notwithstanding the pro rata risk allocation, which might otherwise be imposed between the Agency Partners pursuant to Government Code Section 895.6, the Agency Partners agree that all losses or liabilities incurred by an Agency Partner shall not be shared pro rata but, instead, the Agency Partners agree that, pursuant to Government Code Section 895.4, each of the Agency Partners hereto shall fully indemnify and hold each of the other Agency Partners, their officers, board members, employees, and agents, harmless from any claim, expense or cost, damage, penalty, or liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of the intentional or negligent acts or omissions or willful misconduct of the indemnifying Agency Partner, its officers, employees, or agents, under or in connection with or arising out of any work, authority, or jurisdiction delegated to such Agency Partner under this MOU. No Agency Partner, nor any officer, board member, or agent thereof shall be responsible for any damage or liability occurring by reason of the intentional or negligent acts or omissions or willful misconduct of any other Agency Partner hereto, its officers, board members, employees, or agents, under or in connection with or arising out of any work authority or jurisdiction delegated to such other Agency Partner under this MOA. The obligations set forth in this paragraph will survive termination and expiration of this MOA.
SECTION 15 TERMINATION
This MOA shall terminate in the event that Implementation Grant funds are not awarded or in the event that grant funds are rescinded and all of the Agency Partners’ obligations associated with the rescinded grant funds have been fulfilled. In the event that the Implementation Grant is funded in an amount less than the requested $48,346,219, the Agency Partners shall immediately meet and confer regarding the feasibility of the Project. If the Agency Partners do not agree to accept the funds and execute the Project due to a reduced award, the Lead Agency shall not execute the Grant Agreement associated with the award and this MOA shall terminate upon the expiration of the period during which the Grant Agreement must be signed to accept awarded funds.
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In the event that Sunnyvale is unable to perform any or all of its duties as Lead Agency and/or Fiscal and Contracting Agent such that the Project cannot proceed, and the Agency Partners have met and conferred pursuant to Section 9 and determined that no feasible options for continuing the administration of the Project exist, the Agency Partners may agree to terminate this MOA upon the fulfillment of all obligations and responsibilities associated with discontinuing the Project under the Grant Agreement.
In the event that Perpetual does not execute a professional services contract with the Lead Agency and/or fails to perform the scope of work identified in the Project Workplan, and the Agency Partners have met and conferred pursuant to Section 10 and determined that no feasible options for continuing the Project exist, the Agency Partners may agree to terminate this MOA upon the fulfillment of all obligations and responsibilities associated with discontinuing the Project under the Grant Agreement.
SECTION 16. SEVERABILITY
The provisions of this MOA shall be severable, and if any clause, sentence, paragraph, provision or other part shall be adjudged by any court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this MOA will be valid and binding on the Agency Partners.
SECTION 17. AMENDMENTS
This MOA may only be amended by a written instrument signed by the Agency Partners.
SECTION 18. COUNTERPARTS
This MOA may be executed in counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
SECTION 19. USE OF ELECTRONIC SIGNATURES
Unless otherwise prohibited by law, the Agency Partners agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronic copy of a signed contract” refers to a transmission by facsimile, electronic mail, or other electronic means of a copy of an original signed contract in a portable document format. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by the City of Sunnyvale. For the purposes of this agreement, the approved methods of signing shall be via DocuSign or original ink signature signed in counterpart and scanned over to the CITY via electronic mail.
SECTION 20. INTERPRETATION, PRIOR AGREEMENTS AND AMENDMENTS.
This MOA, including all Exhibits attached hereto, represents the entire understanding of the Agency Partners as to those matters contained herein. In the event that the terms specified in any of the Exhibits attached hereto conflict with any of the terms specified in the body of this MOA, the terms specified in the body of this MOA shall control. No prior oral or written understanding shall be of any force or effect with respect to those matters covered hereunder. This MOU may be modified only by a written amendment duly executed by the Agency Partners to this MOA.
SECTION 21. NO LEGAL RELATIONSHIP
By entering into this MOA, the Agency Partners are neither forming, nor do they intend to form a partnership, agency, or any other legal entity relationship. No Agency Partner is authorized to bind or to act as the agent or legal representative of the other Agency Partner for any purpose, and neither Agency Partner is granted any express or implied right or authority to assume or create any obligation or Attachment 1
responsibility on behalf of or in the name of any other Agency Partner.
SECTION 22. GOVERNING LAW, VENUE
The formation, interpretation, and performance of this MOA shall be governed by the laws of the State of California. The venue for all litigation relative to the formation, interpretation, and performance of this MOA shall be in Santa Clara County, California.
IN WITNESS OF, the Agency Partners have executed the MOA as of the last date set forth below:
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City of Cupertino
Date:
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Approved as to form, Cupertino City Attorney
Date:
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County of San Benito, Public Works Administrator
Date:
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Approved as to form, County of San Benito Deputy County Counsel Date:
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City of Mountain View, City Manager
Date:
Attest: ______________________
Asst. City Clerk
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City of Mountain View, Acting Public Works Director
Date:
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City of Mountain View – Finance and Administrative Services Director Date:
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Approved as to form, Mountain View Sr. Assistant City Attorney Date:
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City of San José
Date:
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Approved as to form, San José Senior Deputy City Attorney Date:
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City of Sunnyvale
Date:
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Approved as to form, Sunnyvale City Attorney
Date:
Acknowledged and agreed by Perpetual, as a proposed subrecipient of grant funds:
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Perpetual
Date:
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Approved as to form, Attorney for Perpetual
Date:
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EXHIBIT A - Project Workplan
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