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COVID-19 and Other Natural Disasters that may impact PTE and/or subrecipient performanceIn light of the COVID-19 pandemic, the FDP subaward subcommittee has pulled together some OPTIONAL text that may be incorporated into subawards to cover the COVID-19 pandemic or more generally, other natural disasters that may impact performance (often called force majeure). Please note that these sample clauses have not undergone the same vetting and discussion process that the subaward subcommittee normally undertakes during the update process. Therefore, please be advised that should the FDP subaward subcommittee decide to incorporate a force majeure clause in the future, it may differ from the text below.This is not a recommendation to update all active subawards to incorporate force majeure language. An institution may choose to incorporate appropriate language to new subawards or modify certain, existing subawards to incorporate either COVID-19 or force majeure language, but doing so does not obligate the PTE to modify every subaward. Please see the section on status quo for the rationale.?Status Quo:?(do nothing) continue to use the?subaward?templates and mods without additional modification.? This would be based on the fact that updates to the applicable government guidance are incorporated via the General Term and Condition 1 of Attachment 2.? This term incorporates updates to NIH or other specific funding agency implementations or guidance (such as that based on OMB memos) as updated or revised, throughout the period of performance.??Those not choosing to formally modify their?subawards may still wish to send a generic notification to subrecipients notifying them that there will be additional flexibility around timelines, performance, etc.,?consistent with applicable federal funding agency guidance.It may be worth considering additional communication to those subrecipients that send out paper invoices. You may want to formally notify them that your institution is not able to process paper invoices because there is no one in the office to process them. A sample rationale to include might be: since our physical offices are closed, paper invoices will not be considered received until the office reopens. However, emailed invoices will be considered received (and therefore processed) if sent to [appropriate email address].On a go forward basis, incorporate a force majeure like clause: the intent here is not to cause anyone to go into overdrive to issue mods for all active?subawards, but if institutions want to provide some context/clarity in their?subawards that would clarify expectations in this extraordinary situation, that is reasonable.? Columbia and the University of Chicago have both provided some language that shared below as potential models for those institutions that wish to incorporate some language. We have also included the language that FDP already utilizes in the FDP Foreign Subaward Sample (Face page, term 10):COVID-19 specific:??The Parties acknowledge that each party has been required to modify its operations due to the Covid-19 pandemic (the "Covid-19 Pandemic"), and that such modifications may limit or restrict both the PTE and / or the subrecipient's ability to perform its obligations under this?subaward.? Each party shall use reasonable efforts to fulfill their respective obligations under the?subaward within the timelines set forth herein; provided, however, that, notwithstanding anything to the contrary in this?subaward: (i) neither party shall have an obligation to take any action, or refrain from taking any action, which would be contrary to any law, regulation, or guidance issued by any governmental authority or any guidance, process, or procedure of either party relating to the Covid-19 Pandemic; (ii) neither party shall have any liability for any delay or failure to perform under this?subaward?to the extent attributable to the Covid-19 Pandemic; and (iii) in the event the performance of any obligation set forth in this?subaward?is delayed as a result of the Covid-19 Pandemic, to the extent practicable, the party responsible for such obligation shall resume performance of such obligation as soon as reasonably practicable and the parties will work together in good faith to adjust any timelines set forth in this?subaward?in a manner reasonably necessary to accommodate such delay.General Delay/Force Majeure type clause:?No Party will be liable to the other for any failure or delay in the performance of its obligations to the extent such failure or delay is caused by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, quarantines, delays in visas, changes in laws and governmental policies, or other conditions beyond its reasonable control following execution of this?subaward.?? If the performance by either party of any of its obligations under this?subaward (including making a payment) shall be prevented by any such circumstances, then such party shall communicate the situation to the other as soon as possible, and the parties shall endeavor to limit the impact to the project.??The parties agree to mitigate risks to the project and personnel, and to amend project period of performance and milestones if possible.??Nothing herein shall limit the rights of either party to terminate this?subaward?as indicated in Article 9 of the first page of this?subaward.???General Delay/Force Majeure type clause from FDP Foreign Subaward Sample: No Party shall be in default by reason of any failure in performance of this Subaward if such failure arises, directly or indirectly, out of causes reasonably beyond the direct control or foreseeability of such Party, including but not limited to, acts of God or of the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, labor, fire, flood, epidemic and strikes. ................
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