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FIRST AMENDMENT TO FY2002-2003 SUBRECIPIENT AGREEMENT AND LETTER OF TERM EAXTENSION FffiSTAMENDMENT TO THE FY2002-2003 SUBRECIPIENT AGREEMENT BETWEEN THE CITY OF CLEARWATER, FLORIDA AND ABILITIES, INC. TIllS FIRST AMENDMENT to the SUBRECIPIENT AGREEMENT as entered into on this 1 st day of November 2003, amending the ORIGINAL SUBRECIPIENT AGREEMENT as entered into this 1st day of October 2002 by and between the City of Clemwater, a Florida municipal corporation, having its principal office at 112 South Osceola Avenue, Clemwater, Florida, hereinafter referred to as the "City", and the Abilities, Inc., 2735 Whitney Road, Clearwater, Florida 33760, hereinafter referred to as the "Provider". WITNESSETH: WHEREAS, the City has entered into an agreement with the US. Department of Housing and Urban Development (HOD) for the purpose of conducting a Housing and Community Development Program with federal financial assistance under Title I of the Housing and Community Development Act of 1974, as amended, hereinafter called "Act"; and the Cranston-Gonzalez National Affordable Housing Act of 1990; and WHEREAS, the City has entered into an agreement with the U S. Department of Housing and Urban Development for the purpose of conducting the HOME Inves1ment Partnership Program (HOME) with federal assistance under Title IT (42 US.c. 12701-12839) of the Cranston-Gonzalez National Affordable Housing Act of 1990, as amended; and WHEREAS, the City has entered into an agreement with the State of Florida for the purpose of conducting the State Housing Initiatives Partnership (SHIP) Program with State of Florida assistance under the William E. Sadowski Housing Act (Section 420.907 - .9079 Florida Statutes, Ru1e 67-37, Florida Administrative Code) which was signed into law on Ju1y 7, 1992; and WHEREAS, the City has determined through its Consolidated Plan of Objectives and Projected Use of Funds, which was adopted by the City of Clemwater on June 18, 2002 the necessity for providing fWl(is for the acquisition, rehabilitation and construction of rental housing to very -low to moderate income residents of Clearwater; and WHEREAS, the City desires to engage the Provider to render certain services in connection therewith: NOW, THEREFORE, the parties hereto agree as follows: SECTION I: SCOPE OF SERVICES The Provider agrees to provide affordable housing opportunities to physically challenged individuals or families by retrofitting existing housing units all in accordance with the projected accomplishments attached and made a fully binding part of this Agreement, as Appendix 1, as follows: Abilities, Inc. of Florida will make accessibility modifications to six housing units for persons who are physically challenged. The modifications will include but not be limited to roll in showers, lowering cabinets, adding ramps, installing accessible door hardware, an other needed modifications for individuals with visual or hearing impairments. SECTION II: CONDmON OF SERVICE The Provider hereby agrees to the following: A. The . Program shall serve eligible very -low to moderate-income persons living primarily in Clearwater. The Provider shall certify that the activities canied out with funds provided under this Agreement will meet one or more of the CDBG program's National Objectives - 1) benefit low to moderate income persons, 2) aid in the prevention or elimination of slum and blight, 3) meet community development needs having a particu1ar urgency - as defined in 24 CPR 570.208. B. The Provider shall maintain in its file the documentation on which basis it determines that the project benefits low and moderate-income persons, minorities and residents of Clearwater. Such records shall include, but not be limited to profiles identifying financial classification, head of household, ethnicity, race and gender, or area benefit data, as required. C. The Provider shall maintain a citizen participation mechanism, which will include, but not be limited to the following: 1 Logging citizen comments or complaints when received. 2. Copies of comments and/or complaints received in writing. 3. Copies of responses to complaints and/or explanations of resolutions to complaints. D. The Provider shall comply with Subpart c - Post Award Requirements of the Office of Management and Budget (OMB) Cireu1ar No. A-IlO, "Uniform Administrative Requirements for Grants and Agreements with Institutions of Higher Education, Hospitals and Other Non-Profit Organizations", incorporated by reference into this Agreement. E. Costs incurred under this program shall be in compliance with Federal Management Circu1ar No. A- 122, "Cost Principles for Non-Profit Organizations", incorporated by reference into this Agreement. 2 F. The Provider shall abide by those provisions of 24 CFR Part 570 subpart J, when applicable, incorporated by reference into this Agreement G. No expenditures or obligations shall be incurred for the program prior to approval and release of funds from the US. Department of Housing and Urban Development and/or the State of Florida. Further, it is expressly understood that in the event no funds are released from the U.S. Depart ment of Housing and Urban Development and/or the State of Florida in connection with this Program, then the City is not liable for any claims under this contract. H. The Operating Agency hereby certifies that, in the implementation of projects funded by this Agreement and in all of its other operations, it will comply with all requirements of Section 504 of the Rehabilitation Act of 1973 (29 USC 794) (and the implementing regulations at 24 CFR 8), the Americans with Disabilities Act of 1990 (PL 101-336), and all state and local laws requiring physical and program accessibility to people with disabilities, and agrees to defend, hold harmless and indemnify the City from and against any and allliability for any noncompliance on the part of the Operating Agency. (1) Notification by HUn to the City that said project is ineligible because of project location, services provided, or any other reason cited by HUn; (2) Notification by HUn to the City that said project is deficient and that continued support of the project is not providing an adequate level of services to low income and minority people; or (3) Written notification from HUn to the City that the program funds made available to the City are being curtailed, withdrawn, or otherwise restricted. (4) Fails to file required reports or meet project progress or completion deadlines; (5) Materially fails to comply with any provision of this Agreement (which may result in suspension or termination in accordance with 24 CRF 85.43 or OMB Circular A-lID, Attachment L); (6) Expends funds under this Agreement for ineligible activities, services or items; (7) Implements the project prior to notification from the City that the federal environmental review process has been completed; (8) Violates Labor Standards requirements; or (9) Fails to comply with written notice from the City of substandard performance under the terms of this Agreement. 3 I. The Provider shall certify, pursuant to Section 109 of the Act, that no person shall be denied the benefits of the program on the ground of race, color, nat ional origin or sex. 1. The Provider agrees that to the extent that it staffs the Program with personnel not presently employed by said party, it will take affinnative action in attempting to employ low income persons residing in the City of Clearwater, particularly minority group members. K. The Provider shall comply with the provisions of 24 CFR 570.504 (c), "Program Income" and meet the definition of program income defined in 24 CFR 570.500 which generally states that program income is gross income received by the recipient or a subrecipient directly generated from the use of CDBG funds. All program income generated through the use of Community Development Block Grant, HOME Investment Partnership Program, and State Housing Initiatives Partnership programs shall be returned to the City within 45 days after receipt by the subrecipient. In those instances where the City allows the sub-recipient to retain program income, these funds shall be expended for CDBG eligible activities, previously approved by the City in accordance with the projected accomplishments and budget descriptions attached to this Agreement. L. The Provider shall transfer to the City any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds. All real property acquired or improved in whole or in part with CDBG funds in excess of $25,000 shall be: (1) Used to meet one of the national objectives in Section 570.208 until five years after expiration of the agreement, or fro such longer period of time as detennined to be appropriate by the City; or (2) If not used as stated above, the provider shall pay to City an amount equal to the current market value of the property less any portion of the value attributable to expenditures on non - CDBG funds for the acquisition of or improvement to, the property. The payment shall be considered program income. M. The Provider shall adhere to the applicable requirements contained in the "Acknowledgement of Economic Development Activities", attached hereto and made a part hereof as Appendix 2, if applicable. N. The Provider shall comply with First Amendment Church/State principles, as follows: 1. It will not discriminate against any employee or applicant for employment on the basis of religion and will not limit employment or give preference in employment to persons on the basis of religion. 2. It will not discriminate against any person applying for public services on the basis of religion and will not limit such services or give preference to persons on the basis of religion. 4 3. It will provide no religious instruction or counseling, conduct no religious worship or services, engage in no religious proselytizing, and exert no other religious influence in the provision of such public services. 4. The portion of a facility used to provide public services assisted in whole or in part under this Agreement shall contain no sectarian or religious symbols or decorations. 5. The funds received under this Agreement shall not be used to construct, rehabilitate, or restore any religious facility which is owned by the Provider and in which the public services are to be provided. However, minor repairs may made if such repairs are directly related to the public services; are located in a structure used exclusively for non-religious purposes; and constitute, in dollar terms, only a minor portion of the CDBG expenditure for the public servtces. O. The Provider shall transfer to the City upon expiration of this Agreement, any CDBG, HOME and/or SlDP funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG, HOME and/or SIDP funds. The following restrictions and limitations apply to any real property under the Provider's control, which was acquired or improved in whole or in part w ith CDBG funds in excess of $25,000: 1. Any real property under the Provider's control must be used to meet one of the National Objectives in the CDBG Regulations, Part 570.208 until five years or such longer period of time as determined appropriate by the City after expiration of the Agreement. 2. If the real property is sold within the period of time specified above, the property must be disposed of in a manner which results in the City being reimbursed in the amount of the current fair market value of the property, less any portion thereof attributable to expenditures on non-CDBG funds for acquisition of, or improvement to, the property. Such reimbursement is required P. The Provider agrees that when sponsoring a project financed in whole or in part under this Agreement, all notices, informational pampWets, press releases, advertisements, descriptions of the sponsorship of the project, research reports, and similar public notices prepared and released by the Provider shall include the statement: FUNDED BY THE CITY OF CLEARWATER COMMUNITY DEVELOPMENT BLOCK GRANT, HOME INVESTMENT PARTNERSHIP, AND STATE HOUSING INITIATIVES PARTNERSHIP PROGRAMS In written materials, the words "CITY OF CLEARWATER COMMUNI'IY DEVELOPMENT BLOCK GRANT FUNDS, HOME INVESTMENT PARTNERSHIP PROGRAM FUNDS, AND STATE HOUSING INITITATIVES PARTNERSHIP PROGRAM FUNDS ADMINISTERED BY THE HOUSING DMSION OF THE CITY OF CLEARWATER- 5 ECONOMIC DEVELOPMENT AND HOUSING DEPARTMENT" shall appear in the same size letters or type as the name of the Provider. Q. The Provider shall ensure the following when entering into a sub -contract agreement: 1. The full correct legal name of the party shall be identified. 2. The "Scope of Services" shall describe the activities to be performed. R. The Provider shall maintain sufficient records in accordance with 24 CFR 570.502 and 570.506 to detennine compliance with the requirements of this Agreement, the Community Development Block Grant Program and all applicable laws and regulations. This documentation shall include, but not be limited to, the following: 1. Books, records and docwnents in accordance with generally accepted accounting principles, procedures and practices which sufficiently and properly reflect all revenues and expenditures of funds provided directly or indirectly by this Agreement, including matching funds and program income. 2. Time sheets for split-funded employees who work on more than one activity, in order to record the CDBG, HOME, and/or SlllP activity delivery cost by project and the non-CDBG related charges. 3. How the Statutory National Objective(s) and the eligibility requirement(s) under which funding have been. received, have been met. These also include special requirements such as necessary and appropriate determinations, income certifications, and written agreements with beneficiaries, where applicable. S. The Provider is responsible for maintaining and storing all records pertinent to this Agreement in an orderly fashion in a readily accessible, permanent and secured location for a period of three (3) years after expiration of this Agreement, with the following exception: if any litigation, claim or audit is started before the expiration date of the three year period, the records will be maintained until all litigation, claims or audit findings involving these records are resolved. The City shall be informed in writing after closeout of this Agreement, of the address where the records are to be kept. SECTION m: OTHER CONTRACTUAL PROVISIONS A. Labor Standards Except with respect to the rehabilitation of residential property designed for residential use for less than eight households, the provider and all subcontractors engaged in contracts in excess of $2,000 for the construction, completion, rehabilitation, or repair of any building or work financed in whole or in part with assistance provided under this Agreement are subject to the federal labor standards provisions which govern the payment of wages and the ratio of apprentices and trainees to journey workers. Under the terms of the Davis-Bacon Act, as 6 amended, the provider is required to pay all laborers and mechanics employed on construction work wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor, and shall pay overtime compensation in accordance with and subject to the provisions of the contract Work Hours and Safety Standards Act (40 USC 327-332), and the provider shall comply with all regu1ations issued pursuant to these Acts and with other applicable Federal laws and regulations pertaining to labor standards, including the Copeland "Anti-Kickback" Act. Provided, that if wage rates are higher than those required under the regu1ations are imposed by State or local laws, nothing hereunder is intended to relieve the provider of its obligation, if any, to require payment of the higher rates. B. Flood Disaster Protection This Agreement is subject to the requirements of the Flood Disaster Protection Act of 1973 (PL 93-234). Use of any assistance provided under this Agreement for acquisition or construction in an area identified as having special flood hazards shall be subject to the mandatory purchase of flood insurance in accordance with the requirements of Section 1 02( a) of said Act. C. Clean Air and Federal Water Pollution Control Act (AppUcable to Contracts and Subcontracts Which Exceed $100,000 The provider shall comply with and require each subcontractor to comply with all applicable standards of the Clean Air Act of 1970 (42 USC 1857 et seq.) as amended, the Clean Air Act of 1990, the Federal Water Pollution Control Act (33 USC 1251 et seq.), as amended, and the regulations of the Environmental Protection Agency with respect thereto, at 40 CFR Part 15, as amended from time to time. D. Provision of the Hatch Act Neither the provider program nor the funds provided therefore, nor the personnel employed in the administration of the program shall be in any way or to any extent engaged in the conduct of political activities in contravention of Chapter 15 of Title 5, United States Code. E. Lead-Based Paint Any grants or loans made by the provider for the rehabilitation of residential structures with assistance provided under this Agreement shall be made subject to the provisions for the elimination oflead-based paint hazards under 24 CFR Part 35. Operating Agency will comply with the requirements of24 CFR 570.608 for notification, inspection, testing, and abatement procedures concerning lead-based paint. Such regu1ations require that all owners, prospective owners, and tenants of properties constructed prior to 1978 be properly notified that such properties may contain lead-based paint Such notification shall point out the hazards of lead- based paint and explain the symptoms, treatment, and precautions that should be taken when dealing with lead-based paint poisoning. F. Special Assessments 7 Provider shall not attempt to recover any capital costs of public improvements assisted in whole or in part with funds provided under Section 106 of the Act or with amounts resu1ting from a guarantee under Section 108 of the Act by assessing any amount against properties owned and occupied by persons of low and moderate income, including any fee charged or assessment made as condition of obtaining access to such public improvements, unless (1) funds received under Section 106 of the Act are used to pay the proportion of such fee or assessment that relates to the capital costs of such public improvements that are financed from revenue sources other than under Title 1 of the Act, or (2) for purposes of assessing any amount against properties owned and occupied by persons of moderate income, the grantee certifies to the Secretary of IllJD that lacks sufficient funds received under Section 106 of the Act to comply with the requirements of subparagraph (1). G. Acquisition, Rehabilitation, and Demolition of Real Property and Displacement of Persons and Businesses Provider shall comply with the "City of Clearnrater, Housing Division, Community Development Block Grant Program Plan for Minimizing the Displacement of Persons As a Result of Community Development Block Grant Funded Activities" and "City of Clearnrater, Housing Division, Community Development Block Grant Program Residential Anti- displacement and Relocation Assistance Plan." Provider shall conduct any acquisition, rehabilitation, or demolition of real property, and any negotiations for acquisition, rehabilitation or demolition of real property in compliance with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, Section 104(d) of the Act, and the implementing regulations at 49CFR 24 and 24 CFR 570.606. Unless specifically permitted, the provider shall not cause either temporary or permanent involuntary displacement of persons or businesses. If the provider causes the involuntary temporary or permanent displacement of any person or business as a resu1t of Community Development Block Grant activities, it shall comply with the City's "Plan to Assist Persons Actually Displaced by Community Development Block Grant Activities," and Operating Agency shall provide all notices, advisory assistance, relocation benefits, and replacement dwelling units as required by the Uniform Relocation Assistance and Real Property Acquisition PoliCIes Act of 1970, as amended, Section 1 04t d) of the Act, and the implementing regulations at 49 CFR 24 and 24 CFR 570.606. The Provider hereby agrees to defend, topay, and to indemnify the City from and against, any and all claims and liabilities for relocation benefits or the provision of replacement dwelling units required by federal statutes and regulations in connection with activities undertaken pursuant to this Agreement. H. Lobbing Restrictions Provider certifies that, to the best of its knowledge and belief: No Federal Appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing 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 8 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; If any funds other than Federal appropriated funds 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, it will complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions; and It will require that the language of this paragraph L be included in the award documents for all sub-awards at all tiers (including subcontracts, sub-grants, and contracts under grants, loans and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 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, United States 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. SECTION IV: TERM OF AGREEMENT This.Agreement shall be deemed effective upon approval and release of funds by the US. Department of Housing and Urban Development and/or the State of Florida and being duly executed by both parties, whichever is later. This project shall become operational as of October 1, 2002, and shall continue through December 31, 2003, with the option for the City to extend based on the Provider's performance. SECTION V: TERMJNATION The City and the Pm,ider agree: A. This Agreement may be terminated by either party hereto by written notice of the other party of such intent to terminate at least thirty (30) days prior to the effective date of such termination. B. This Agreement may be terminated in whole or in part, for convenience, when both parties agree upon the temrination conditions. A written notification shall be required and shall include the following: reason for the termination, the effective date, and in the case of a partial termination, the actual portion to be terminated However, if, in the case of a partial termination, the City determines that the remaining portion of the Agreement will not accomplish the purposes of such Agreement, the City may terminate such in its entirety. C. The City may place the Provider in default of this Agreement, and may suspend or terminate this Agreement in whole, or in part, for cause. 9 1. Cause shall include, but not be limited to, the following: a Failure to comply and/or perform in accordance with this Agreement, or any federa I statute or regulation. b. Submitting reports to the City, which are late, incorrect or incomplete in any material respect. c. Implementation of this Agreement, for any reason, 18 rendered impossible or infeasible. d. Failure to respond in wntmg to any concerns raised by the City, including substantiating documents when required/requested by the City. e. Any evidence of fraud, mismanagement, and/or waste, as determined by the City's monitoring of the subrecipient, and applicable HUD rules and regulations. 2. The City shall notify the Provider in writing when the Provider has been placed in defau1t. Such notification shall include actions taken by the City, such as withholding of payments, actions to be taken by the Provider as a condition precedent to clearing the deficiency and a reasonable date for compliance, which shall be no more than fifteen (15) days from notification date. 3. The City shall notify the Provider in writing when sufficient cause is found for termination of this Agreement. The Provider shall be given no more than fifteen (15) days in which to reply in writing, appealing the tennination prior to final action being taken by the City. D. Let it be further understood that upon curtailment of, or regulatory constraints pIa ced on, the funds of the U.S. Department of Housing and Urban Development and/or the State of Florida, this Agreement will tenninate effective as of the time that it is detennined such funds are no longer available. E. Costs of the Provider resulting from obligations incurred during a suspension or after termination, are not allowable unless the City expressly authorizes them in the notice of suspension or termination or subsequently. Other costs during suspension or after tennination which are necessary and not reasonably avoidable are allowable if 1. The costs result from obligations which were properly incurred before the effective date of suspension or termination, are not in anticipation of it, and in the case of tennination, are noncancelable, and 2. The costs would be allowable if the award were not suspended or expired normally at the end of the Agreement in which the termination takes effect. 10 F. Upon tennination of the Agreement, the Provider and the City shall meet to discuss the City's determination if any amounts are to be repaid to the City or if additional amounts are due the Provider. SECTION VI: AMENDMENTS Any alterations, variations, modifications or waivers of this Agreement shall only be valid when they have been reduced in writing and duly signed by both parties. Any changes, which do not substantially change the scope of the project and/or the Project Implementation Schedule or increase, the total amount payable under this . Agreement, shall be valid only when reduced to writing and signed by the City Administration and the Provider. The City shall not reimburse the Provider for outlays in excess of the funded amount of the Agreement unless and until the City officially, in writing, approves such expenditure by executing a written modification to the original Agreement. SECTION VD: METHOD OF PAYMENT It is expressly understood and agreed that the total compensation to be paid hereunder for actual expenditures incurred shall be reserved in the amount of SIXTY SIX THOUSAND DOlLARS ($66,000) for acquisition, rehabilitation and retrofitting of affordable housing units to physically challenged individuals or families residing in the City of Clearwater. The funds must be expended in accordance with the terms and conditions. of the Agreem ent. Funds set aside for this agency may increase or decrease, subject to production performance. Production will be reviewed quarterly and will be based upon the goals the Provider established in their program implementation schedule. Any remaining balance of funds shall revert to the City or other approved provider(s). Such compensation shall be paid in accordance with the projected accomplishments and budget descriptions attached hereto and made a part hereof as Appendix 1. A The Provider shall submit monthly requests for payment for actual expenditures, including applicable back-up documentation, no later than the tenth t 1 Oth) day of the succeeding month ana the Ciry will provide reimbursement, upon approval, within ten (10) working days after recei pt of the same, if submitted by the dearlline data for inclusion on the drawdown request. B. The City agrees to pay the Provider for expenditures incurred under this Agreement on an as needed basis in accordance with the Budget and Project Implementation Schedule attached hereto and made a part hereof as Appendix 1. Line item transfers are allowable only within each component and may not exceed in the aggregate fifteen percent (15%) of each line item without l?riQ! written approval of the City. All changes amounting to more than fifteen percent (15%) require l?riQ! written approval. SECTION VIII: EQUAL EMPLOYMENT OPPORTUNITY During the performance of this contract, the Operating Agency agrees as follows: 11 1. The Operating Agency shall not discriminate against any employee or applicant for employment because of race, color creed, religion, sex age, handicap, disability, sexual orientation, ancestry, national origin, marital status, familial status, or any other basis prohibited by applicable law. The Operating Agency shall take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, creed, religion, sex age, handicap, disability, sexual orientation, ancestry, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training including apprenticeship. The Operating Agency agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause. 2. The Operating Agency will, in all solicitations or advertisements for employees placed by or on behalf of the operating Agency, state that all qualified applicants will receive consideration for employment without regard to race, color creed religion, sex age, handicap, disability, sexual orientation, ancestry, national origin, marital status, or any other basis prohibited by applicable law. 3. The Operating Agency will send to each labor union or representative of workers with which is has a collective bargaining agreement or other contract of understanding, a notice to be provided advising the said labor union or workers; representatives of the Operating Agency's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 4. The Operating Agency will comply\ with all provisions of Executive Order 11246, Equal Employment opportunity, of September 24, 1965, as amended by Executive Orders 11373 and 12086, copies of which are on fIle and available at the City and of the ru1es regulations, and relevant orders of the Secretary of Labor. 5. The Operating Agency will furnish all information and reports required by Executive Order 11246 of September 24, 1965, as amended, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records, and accounts by HUD and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. 6. In the event of the Operating Agency's noncompliance with the nondiscrimination clauses of this contract or with any of the said ru1es, regulations, or orders, this contract may be cancelled, terminated, or suspended in whole or in part and the Operating Agency may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, as amended, and such other sanctions may be imposed and remedies invoked as provided in Executive order 11246 of September 24, 1965, as amended, or as otherwise provided by law. 12 7. The Operating Agency will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by ru1es, regulations, or orders of the Secretary of Labor, issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, as amended, so that such provisions will be binding upon each subcontractor or vendor. The Operating Agency will take such action with respect to any subcontract or purchase order as RUD may direct as a means of enforcing such provisions, including sanctions for noncompliance; provided, however, that in the event an Operating Agency becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by HUD, the Operating Agency may request the United States to enter into such litigation to protect the interests of the United States. A. Equal Opportunity in Participation Development Act of 1974, and in conformance with City policy and all requirements imposed by or pursuant to the Regulations ofHUD (24 CFR Part 570.601 and 570.602) issued pursuant to Section 109, no person in the United States shall on the ground of race, color creed, religion, sex, age, handicap, disability, sexual orientation, ancestry national origin, marital status, familial status, or any other basis prohibited by applicable law be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, and program or activity funded in whole or in part with Community Development Block Grant Program funds. B. Specific (not exclusive) Discriminatory Actions Prohibited: The Provider may not directly or through contractual or other arrangements, on the ground of race, color, creed, religion, sexual orientation, ancestry, national origin, marital status, familial status, age handicap, disability, sex or any other basis prohibited by applicable law: (1) Deny any facilities, services, financial aid, or other benefits provided under the program or activity. (2) Provide any facilities, services, fmancial aid, or other benefits, which are different or are provided in a different form from that provided to others under the program or activity. (3) Subject to segregated or separate treatment in any facility, or in any mater or process related to receipt of any service or benefit under the program or activity. (4) Restrict in any way access to, or the enjoyment of any advantage or privilege enjoyed by others in connection with facilities, services, financial aid or other benefits under the program or activity. (5) Treat an individual differently from others in determining whether the individual satisfies any admission, enrollment, eligibility, membership, or other requirements or condition which the individual must meet in order to be provided any facilities, services, or other benefit provided under the program or activity. 13 (6) Deny any person with the legal right to work an opportunity to participate in a program or activity as an employee. C. Business and Employment Opportunities lor Lower Income Residents, Women-Owned Business Enterprises, and Minority-Owned Business Enterprises The Provider shall conform with the rules and regulations set forth under Section 3 of the Housing and Urban Development Act of 1968, (12 use 1701u), as amended, and the HUD regulations issued pursuant thereto at 24 CFR Part 135. This Act requires that, to the greatest extent feasible, opportunities for training and employment be given to lower income residents of the project area, and contracts for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by, persons residing in the area of the project. In all solicitations for bids, the contractor must, before signing the contract, provide a preliminary statement of the workforce, needs and plans for possible training and employment of lower income persons. When an Operating Agency utilizes the bidding procedure to let a bid, the invitation or solicitation for bids shall advise prospective contractors of the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, and the clause shall be inserted as a component part of any contract or subcontract. Please see Appendix 4. If an Operating Agency solicits or requests an invitation for bids, every effort feasible will be made to contact minority-owned and women-owned business enterprises for a response to the solicitation or invitation for bidders. D. Nondiscrimination in FederallyAssisted Programs The Provider shall comply with Title VI of the Civil Rights Act of 1964 (PL 88-352, 42USC 2000d et seq.) and the Fair Housing Act (42 USC 3601-20). In accordance with City policy and Title VI of the Civil Rights Act of 1964(PL 88-352), in the sale, lease of other transfer of land acquired, leased or improved with assistance provided under this Agreement, the deed or lease for such transfer shall contain a covenant prohibiting discrimination upon the basis of race, color, creed, religion, sex handicap, disability, sexual orientation, ancestry, national origin, marital status, or familiar status, in the sale, lease or rental, or in the use or occupancy of such land or any improvements erected or to be erected thereon. The Provider will comply with Title vm of the Civil Rights Act of 1968 (PL 90-284) as. amended and will administer all programs and activities related to housing and community development in a manner to affirmatively further fair housing. SECTION IX: CONFLICT OF INTEREST The Provider covenants that no person, under its employ who presently exercises any functions or responsibilities in connection with Connnunity Development Block Grant Program, HOME Investment Partnership Program and State Housing Initiatives Program funded activities, has any personal financial interests, direct or indirect, in this Agreement. The Provider covenants that in the performance of this Agreement, no person having such conflicting interest shall be employed. The Provider covenants that it will comply with all provisions of 24 CFR 570.611 "Conflict of Interest", and the State Statutes governing conflicts of interest. The Provider shall disclose, in writing, to the City any possible conflicting interest or 14 apparent impropriety that is covered by the above provisions. This disclosure shall occur immediately upon knowledge of such possible conflict. The City will then render an opinion, which shall be binding on both parties. SECTION X: INDEMNIFICATION AND INSURANCE The Provider shall indenmify and hold hmmless the City from any and all claims, liability, losses and causes of action, which may arise out of the Agreement The Provider shall pay all claims and losses of a ny nature whatsoever in connection therewith and shall defend or pay to defend all suits brought against the City, when requested, and shall pay all costs and judgments which may be issued thereon. Automobile and vehicle coverage shall be required when th e use of automobiles and other vehicles are involved in any way in the performance of the Agreement The Provider shall submit to the City an ORIGINAL Certificate of Insurance. All liability insurance coverage shall be approved by the City's Risk Management Office prior to the release of any funds under this Agreement. Generally, the amount of coverage necessary wou1d be at a minimum of $300,000. Further, in the event evidence of the required insurance is not fOlWarded to the Risk Management Office within thirty (30) days after the execution of this Agreement, this Agreement may be terminated at the City's option and any payments then due may be permanently withheld by the City and the City will have no further obligation under this contract or any subrecipient contract. SECTION XI: REPORTING AND EVALUATION REQUIREMENTS Maintaining credibility for the community development effort rests heavily on the ability to produce an impact in low/moderate income areas, through progress in accomplishing schedu1ed activities. An effective method for maintaining project progress against a previously established schedule is through project evaluation and reporting, which will consist of both written reports and staff discussions on a regular basis. The Provider also assures prompt and efficient submission of the following: A. Monthlv Reports - are due no later than the tenth (10th) day of the succeeding month and shall include the request for payment when applicable. Contents of the MontWy Report, attached hereto and made a part hereof as Appendix 3, shall include but not necessarily be limited to the following: 1. The Narrative Report Form 2. The Financial Summary Form, which shall include the request for payment and documentation, as applicable. 3. The Client Profile Form 15 B. Final Evaluation - Within twenty (20) days of contract completion, a final report documenting how the Statutory National Objective and the eligibility requirements were met, must be submitted by the Provider to the City's Housing Division for review and approval. The contents of it shall include a cumu1ative total of the data submitted during the program's operation. Further, such report shall include statistical findings, which depict program efficiency; i.e., the number of dollars spent, including non-CDBG funding sources, to render actual service to program recipients, and an overall evaluation of the program's effectiveness, and quantitative results. The final report will be evaluated and the Provider will be notified if additional data is necessary or that the project/activity is considered "closed-out". C Other Reporting Requirements may be required by the City in the event of program changes, need for additional information or documentation and/or legislation amendments. The Provider sh all be informed, in writing, if any changes become necessary. Reports and/or requested documentation not received by the due date, shall be considered delinquent, and may be considered by the City as sufficient cause to suspendCDBG, HOME, and SHIP payments to the Provider. SECTION XU: AUDIT AND INSPECTIONS At any time during normal business hours and as often as City and/or Federal Government representatives may deem necessary, there shall be made available to representatives of the City and/or the Federal Government an opportunity to review, inspect or audit all records, documentation, and any other data relating to all matters covered by the Agreement. An annual organization audit shall be submitted to the City 120 days after the end of the Provider's fiscal year, The submitted audit shall include any management letters and agency responses to the management letters. The audit shall be performed in accordance with OMB Circular A-I10 Attachment F, OMB Circular A-133 or OMB Circu1ar A-128, as applicable. If this Agreement is closed-out prior to the receipt of an audit report, the City reserves the right to recover any disallowed costs identified in an audit after such closeout. SECTION xm: REVERSION OF ASSETS The Provider shall transfer to the City any CDBG, HOME or SHIP funds on hand (including program income) or any accounts receivable attributable to the use of CDBG, HOME or SHIP funds shou1d the agency close its doors. The Provider shall also transfer to the City any real property in the Provider's control that was acquired or improved in whole or in part of with CDBG, HOME or SHIP funds, unless it is used to (1) meet one of the national objectives in Section 570.208 until five years after the expiration of this agreement, or for such longer period of time as determined to be appropriate by the recipient; or (2) if not used for eligible activity, the Provider shall pay to the City an amount equal to the current to the current market value of the property less any portion of the value attributable to expenditures ofnon-CDBG, HOME or SlllP fimds for the acquisition of or improvement to, the property. 16 SECTION XIV: COMPLIANCE WITH LOCAL, STATE & FEDERAL REGULATIONS The Provider agrees to comply with all applicable federal regu1ations as they may apply to program administration. Additionally, the Provider will comply with all state and local laws and ordinances hereto applicable. SECTION XV: ADDmONAL CONDITIONS AND COMPENSATION It is expressly understood and agreed by the parties hereto that monies contemplated by this Agreement to be used for compensation originated from grants of federal Community Development Block Grant Funds, HOME Investment Partnership Program Funds and State Housing Initiatives Partnership Funds, and must be implemented in full compliance with all ofHUD's and the State of Florida rules and regu1ations. It is expressly understood and agreed that in the event of curtailment or non -production of said federal grant funds, that the financial sources necessary to continue to pay the Provider compensation will not be available and that this Agreement will thereby terminate effective as of the time that it is determined that said funds are no longer available. In the event of such determination, the Provider agrees that it will not look to, nor seek to hold liable, the City or any individual member of the City Commission thereof personally for the performance of this Agreement and all of the parties hereto shall be released from further liability each to the other under the terms of this Agreement. 17 IN WITNESS WHEREOF. the parties hereto have caused this Agreement to be executed by their duly authorized officials on the day and date first above indicated. By V IttPresident /L~/ 11- dt/ -03 Date ATTEST: /\ , . JJ\('MJvVrCJ1 I (~J 1/1 A-f/'- Secretary , .. .'.." J .1 /1- dt/--03 Date CITY OF CLEARWATER, FLORIDA By: ~....~;:;e..tL~7I William B. Horne, II City Manager Continued: Attest: . - [. 18 APPENDIX 1 Provider's Program Budget ........ ....... Amount , Other Funds Other Funding ) ......... Category '. Total........ .... Requested Sources , .. Proposed Committed .... ........ ...... ............ Total '>'... APPENDIX 1 Provider's Program Implementation Schedule ..... ..... ... Planned Oct Nbv Dee Jan Feb Mar Apr May Jun Jul Aug ~epi Impl~rnentation ......... Ii. ........ ................ I .. .. Steps .... . .. ....... ... . ... .. 2 APPENDIX 2 ACKNOWLEDGEMENT OF ECONOMIC DEVELOPMENT ACTIVITIES If the Provider will be using CDBG funds Cor an Economic Development Activity, the CoUowing Cederal requirements must be acknowledged: The provider will be responsible for the day-to-day administration of the Clearwater Economic Development Loan Program. The Provider will administer all tasks in connection with the aforesaid program in compliance with all applicable Federal, state, and local ru1es and regulations governing these funds, and in a manner satisfactory to the City. The Provider with limited input from the City shall be responsible for the economic development loan program procedures and forms, outreach, loan applications, underwriting assessment, loan collateral, establishing and conducting the loan review corrnnittee, loan closing, maintaining job creation files, monitoring for job creation/retention, and maintenance of records. The City will provide loan servicing and loan portfolio management. In addition, the City will sit on the loan review conunittee, monitor the Provider for compliance and provide technical assistance. LOWIMODERATE INCOME JOBS Criteria A low/moderate jobs activity is one, which creates or retains permanent jobs, at least 51% of which are taken by low/moderate income persons or considered to be available to low/moderate income persons. In counting lobs created or lobs ret~ the following policies apply: · Part-time jobs must be converted to full-time equivalents. · Only permanent jobs count. . Temporary jobs may not be included. · Regardless of the sources of funding, all permanent jobs created by the activity must be counted. · Trickle-downjobs (jobs indirectly created by the assisted activity may not be counted). For lObs retained, the following additional criteria apply: · There is clear and objective evidence that permanent jobs will be lost without CDBG assistance. Such evidence includes: a notice by the business to affected employees, a public announcement by the business, or relevant financial records. · Retained jobs are considered to involve the employment of low/moderate income persons if 51 % of such jobs are known to be held by low/moderate income persons when CDBG assistance is provided. Jobs are considered to be available to low/moderate income persons when both the following conditions are fulfilled: · Special skills that can only be acquired with one or more years of training or work experience, or education beyond high schoo~ are not a pre-requisite to fill such jobs, or else the business nevertheless agrees to hire unqualified persons and train them; and · The Provider ensures that the assisted business adheres to the principles of "first consideration" by: using a hiring practice that in all likelihood will result in over 51 % of those hired being low/moderate income persons; seriously considering a sufficient number of low/moderate income job applicants to meet this intent; determining that the distance from the job applicant's residence is close to the job site or that transportation is available to the job site. RECORDSTOBEMUUNT~D Where the low/moderate income benefit is based on job creation, the Provider's files must include the documentation descnbed in either (A) or (B) below: (A) For activities where at least 51% of the jobs will be available to low/moderate income persons, documentation for each assisted business must include: A copy of a written agreement containing: · A commitment by the business that it will make at least 51 % of the jobs available to low/moderate income persons and will provide training for any of those jobs requiring special skills or education; · A listing by job title of the permanent jobs to be created, indicating which jobs will be available to low/moderate income persons, which jobs require special skills or education, and which jobs are part-time; · A description of actions to be taken by the Provider and business to ensure that low/moderate income persons receive "first consideration" for these jobs; and · A listing, by job title, of permanent jobs filled, and which jobs were available to low/moderate income persons, as well as a description of how "first consideration" was given to such persons for those jobs. The description must include what type of hiring process was used; which low/moderate income persons were interviewed for a particu1ar job and which interviewees were hired. (B) For activities where at least 51% of the jobs will be taken by low/moderate income persons, documentation for each assisted business must include: A copy of a written agreement containing: . A commitment by the business that at least 51 % of the jobs, on a full-time equivalent. basis, will be taken by low/moderate income persons and a listing by job title of the pennanent jobs created; . A listing, by job title, of the permanent jobs filled and which jobs were initially held by low/moderate income persons; . Information on the size and annual income of the persons' immediate family prior to the low/moderate income person being hired for the job. Where low/moderate income benefit is based on iob retention, the files must include the following documentation: . Evidence that jobs wou1d be lost without CDBG assistance · A listing, by job title, of permanent jobs retained, indicating which of those jobs are part-time and (ifknown) which are held by low/moderate income persons at the time the assistance is provided. · Identification of any retained jobs not already held by low/moderate income persons who are projected to become available to low/moderate income persons through job turnover within two years of the time CDBG assistance is provided. (Job turnover projections shou1d also be included in the record.) . Information on the size and annual income of the low/moderate income persons' inmediate family for each retained job claimed to be held by a low/moderate income person Acceptable documentation onjob applicant! employee family income includes anyone ofthe following: o Notice that job applicant/employee is a referral from state, county, or local employment agency or other entity that agrees to refer individuals determined to be low/moderate income according to HOD criteria. (These entities must maintain documentation for city or federal inspection.) o Written certification, signed by the job applicant/employee, of fiunily income and size to establish low/moderate income status by showing: the actual income of the family, or a statement that the :fumily income is below CDBG low/moderate income requirements. (These certifications must include a statement that they are subject to verification by the local or federal government.) o Evidence that job applicant/employee qualifies for assistance under another program with income qualification criteria at least as restrictive as those used by the CDBG program, such as referrals from the Job Training Partnership Act (ITPA) Program, except for referrals under the ITP A Title ill Program for dislocated workers. ADDmONAL CONSIDERATIONS The Provider must prepare a "necessary or appropriate" determination whenever CDBG assistance is provided for. a private, for-profit entity carrying out economic development. APPENDIX 4 EQUAL EMPLOYMENT OPPORTUNITY CLAUSE FOR CONTRACTS SUBJECT TO EXECUTIVE ORDER 11235 The applicant hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification thereof: as defined in the regulations of the Secretary of Labor at 41 CFR Chapter 60, which is paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to the grant, contract, loan insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, insurance, or guarantee, the following Equal Opportunity clause: During the performance of this contract, the contractor agrees as follows: (1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection of training, including apprenticeship. The contractor agrees to post in a conspicuous place, available to employees and applicants for employment, notices to be provided setting forth the provision of this nondiscrimination clause. (2) The contractor will, in all solicitations or advertisements for employees placed by or behalf of the contractor, will state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. (3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representative of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (4) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the ru1es, regulations, and relevant orders of the Secretary of Labor. (5) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such ru1es, regu1ations, and orders. (6) In the event of the contractor's non-compliance with the non-discrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligIble for further government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, or by rule, regu1ation, or order of the Secretary of Labor, or as otherwise provided by law. (7) The contractor will include the portion of the sentence immediately preceding paragraph (1), and the provisions of paragraphs (1) through (7) in every subcontract or purchase order unless exempted by ru1es, regu1ations, or orders of the Secretary of Labor issued pmsuant to Section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for non-compliance provided, however, that in the event a contractor becomes involved in or is threatened with, litigation with a subcontractor or vendor as a resuh of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interest of the United States. The applicant further agrees that it will be bound by the above Equal Opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: provided that, if the applicant so participating is a State or local government, the above Equal Opportunity clause is not applicable to any agency, instrumentality or subdivision of such govennnent which does not participate in work on or under the contract. The applicant agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the Equal Opportunity clause and the ru1es, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. The applicant further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, government contracts and federally assisted construction contracts pursuant to the Executive Order and will carry out such sanctions and penahies for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency of the Secretary of Labor pursuant to Par IT, Subpart D of the Executive Order. In addition, the applicant agrees that if it firils or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: cance~ terminate, suspend in whole or in part this grant (contract, loan, insurance guarantee); refrain from extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfuctory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate legal proceedings. FEDERAL - SECTION 3 CLAUSE A. The work to be perfonned under this contract is on a project assisted under a program providing direct Federal financial assistance from the Department of Housing and Urban Development and is subject to the requirements of Section 3 of the Housing and Urban Development Act of1968, as amended, 12 US.c. 1701u. Section 3 requires that to the greatest extent feasible, opportunities for training and employment be given to lower income residents of the project area, and contracts for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in the area of the project. B. The parties to this contract will comply with the provision of said Section 3 and the regulations issued pursuant thereto by the Secretary of Housing and Urban Development set forth in 24 CFR 135.20, and all applicable rules and orders of the Department issued there under prior to the execution of this contract. The parties to this contract certifY and agree that they are under no contractual or other disability, which wou1d prevent them from complying with these requirements. C. The contractor will send to each labor organization or representative of workers with which he has a collective bargaining agreement or other contract or understanding, if any, a notice advising the said labor organization of workers' representative ofhis commitments under this Section 3 Clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment or training. D. The contractor will include this Section 3 Clause in every subcontract for work in connection with the project and will, at the direction of the applicant for or recipient of Federal financial assistance, take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development, 24 CFR 135.20. The contractor will not subcontract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regu1ations under 24 CFR 135.20, and will not let any subcontract unless the subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. E. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 135.20, and all applicable ru1es and orders of the Department issued hereunder prior to the execution of the contract, shall be a condition of the federal :financial assistance provided to the project, binding upon the applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors, and assigns to those sanctions specified by the grant or loan agreement or contract through which Federal assistance is provided, and to such sanctions as are specified by 24 CFR 135.20.