55600.00203\43139729.2
COMMUNITY DEVELOPMENT BLOCK GRANT
SUBRECIPIENT AGREEMENT
BY AND BETWEEN
CITY OF SAN BERNARDINO
AND
[SUBRECIPIENT]
55600.00203\43139729.2
COMMUNITY DEVELOPMENT BLOCK GRANT
SUBRECIPIENT AGREEMENT
This COMMUNITY DEVELOPMENT BLOCK GRANT SUBRECIPIENT AGREEMENT (this “Agreement”) is entered into as of [___________, 20__] (the “Effective Date”) by and between THE CITY OF SAN BERNARDINO, a California municipal corporation and charter city (the “City”), and [SUBRECIPIENT], a [_______________] (the “SUBRECIPIENT”). City and SUBRECIPIENT are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.
Recitals
City is the recipient of funds from the United States Department of Housing and Urban Development (“HUD”) through the Community Development Block Grant program (“CDBG”) for Fiscal Year [2025-2026], with which City desires to award a portion of its CDBG funds to a SUBRECIPIENT for the purpose of [SERVICES: building, expanding, and or increasing capacity to provide non-profit services in accordance with 24 CFR 570.201(e)][FACILITIES: acquisition, construction, reconstruction, rehabilitation, or installation of public facilities and improvements in accordance with 24 CFR 570.201(c)].
The primary purpose of CDBG is to meet the national objective of benefitting low- and moderate- income citizens. All activities funded with CDBG funds must meet one of the CDBG program’s National Objectives: benefit low- and moderate-income persons; aid in the prevention or elimination of slums or blight; or meet community development needs having a particular urgency, as defined in 24 CFR 570.208.
The SUBRECIPIENT certifies that the activity(ies) carried out under this Agreement will be for [Name National Objective i.e. LMI or LMC etc.: the benefit of low- and moderate-income persons] and will meet this National Objective by [criteria for LMI benefit] as stated in 24 CFR 570.208. The Subrecipient certifies that the activity(ies) carried out under this Agreement will meet the Eligible Activities requirement of [Enter Matrix Code] as stated in 24 CFR 570.201 [Enter specific reg].
SUBRECIPIENT represents it is eligible, and has submitted an application, to receive a portion of the award of CDBG funds from HUD to the City (the “CDBG Funds”), as a subrecipient (as defined in 24 CFR 570.500(c)) of the City.
SUBRECIPIENT’s application for a subgrant of CDBG Funds in an amount not to exceed $[___________] was approved by the City Council of the City, subject to and contingent upon the allocation and receipt by City of such funds and HUD’s issuance of Authority to Use Grant Funds.
NOW, THEREFORE, upon and in consideration of the mutual promises and covenants contained herein and for other valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged, the Parties agree as follows:
I. GENERAL SCOPE OF SERVICES
The Parties desire to enter into this Agreement so that SUBRECIPIENT may receive a subaward of a portion of the CDBG funds to perform all required services, work, and other activities required for [NAME OF PROJECT] (the “Project”).
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2 Type of Project: [Project Name and general description] Project Location(s): [location]
Service Area: [describe service area]
Project Budget:
Expense CDBG Award Agency Match Total
A) All required services, work, and other activities for [FACILITIES: the development, [construction,][rehabilitation,] operation, and maintenance of] the Project to be performed by SUBRECIPIENT and its awarded contractors, and/or subcontractors will hereinafter be referred to collectively as the “Services.” SUBRECIPIENT agrees to perform such Services in compliance with the terms of this Agreement, including, without limitation the terms of the Contract Documents (hereinafter defined) and the Federal Grant Regulations (hereinafter defined), and in compliance with all applicable federal, state, and local laws, statutes, ordinances, rules, and regulations.
B) “Contract Documents” will include this Agreement and the following, all as attached hereto and incorporated herein by reference for all purposes, which must be in the attached form or such other form satisfactory to the City in its sole discretion:
a. Exhibit A – Federal Award Identification Table and Scope of Services (including, if applicable, Plans and Specifications,
b. Exhibit B – Award Terms and Conditions,
c. Exhibit C – Federal Requirements for Subrecipients,
d. Exhibit D – Project Budget,
e. Exhibit E – City’s Conflict of Interest Policy,
f. [FACILITIES: Exhibit F – Form of Regulatory Agreement and Declaration of Covenants and Restrictions (“Declaration”),]
g. [FACILITIES: Exhibit G – City’s [Construction Standards],] h. Exhibit [H] – City’s Insurance Requirements and Certificate of Insurance, [and] i. [IF SUBAWARD IS LOAN OR CONDITIONAL GRANT: Exhibit I – [Intercreditor and Subordination Agreement], [and]
j. [FACILITIES: Exhibit J – City’s [Minimum Property Standards][.][, and] 55600.00203\43139729.2
3 k. [IF APPLICABLE TO PROJECT: Exhibit [K] – City’s Compliance Report Form.] The Contract Documents for the Project shall, unless defined otherwise in the Agreement, include any and all change orders and amendments to the Agreement (including related attachments, exhibits, and reference documents), which shall be for all intents and purposes, upon execution, attached and incorporated into this Agreement by reference.
C) In interpreting this Agreement and resolving any conflicts or ambiguities, the main body of this Agreement shall control over the exhibits, and any inconsistency between the exhibits will be resolved in the following order – Exhibit B, Exhibit C, Exhibit A, Exhibit D, Exhibit E, [Exhibit F,] [Exhibit G,] with the remaining Exhibits being interpreted so as to give the maximum weight to all terms in the Agreement. A higher order document will supersede a lower order document to the extent necessary to resolve any inconsistencies between the documents; however, silence on any matter in a higher order document will not negate the provision of a lower order document as to that matter. Any ambiguities or inconsistencies among documents of identical precedence will be resolved by giving precedence to the most recent document. Notwithstanding the order of precedence set forth above, in the event of a conflict within the Contract Documents of the same priority, the City shall have the right, at its sole discretion, to determine which provision applies.
D) Unless otherwise stated in this Agreement, words that have well-known technical or industry meanings are used in accordance with such recognized meaning.
II. REPRESENTATIONS AND WARRANTIES
SUBRECIPIENT represents and warrants as follows:
A) SUBRECIPIENT is duly organized, validly existing, and in good standing under the laws of the state of its formation and is authorized to do business in the State of California.
B) SUBRECIPIENT is current on state and local fees and taxes. Neither SUBRECIPIENT nor any of its principals or other affiliated entities owe any debts to the City of San Bernardino, including, but not limited to delinquent taxes, court judgments, tickets, tolls, fees, or fines. For the purposes of this Agreement, a court judgment is not required for delinquent taxes to be considered a debt.
C) SUBRECIPIENT is not in breach of any other contract, obligation, or covenant that would affect SUBRECIPIENT’s ability to perform hereunder and, as a result of entering into this Agreement, will not breach any contract to which SUBRECIPIENT is a party or any of SUBRECIPIENT’s obligations or covenants thereunder.
D) SUBRECIPIENT must verify that each entity or person it retains to perform Services pursuant to this Agreement is in compliance with Sections A, B, and C above. If SUBRECIPIENT engages any contractors or subcontractors, SUBRECIPIENT must apply the terms and conditions indicated in this Agreement to any contract or subcontract.
SUBRECIPIENT agrees it is at all times responsible for the performance of SUBRECIPIENT’s contractors and subcontractors. No term or agreement of 55600.00203\43139729.2
4 SUBRECIPIENT’s agreement with any contractors or subcontractor shall alter the terms and conditions of this Agreement.
E) SUBRECIPIENT must not take advantage of or benefit from any apparent error or omission in the Contract Documents. Should it appear that the Services to be done, or any matter relative thereto, is not sufficiently detailed or explained in the Contract Documents, SUBRECIPIENT must, prior to proceeding with any affected Services, request in writing such further explanations from the City as may be necessary and, subject to any required change orders or amendments, SUBRECIPIENT must comply with the explanation provided. Each Party will promptly notify the other in writing of all errors or omissions that it may discover in the Contract Documents.
F) SUBRECIPIENT is fully qualified and capable of performing the Services called for in this Agreement and is willing to perform these Services.
G) [If SUBRECIPIENT, as a charitable or nonprofit organization, has or claims an immunity or exemption (statutory or otherwise) from and against liability for damages or injury, including death, to persons or property, SUBRECIPIENT hereby expressly waives its rights to plead defensively such immunity or exemption as against City. This section shall not be construed to affect a governmental entity’s immunities under constitutional, statutory, or common law. This section shall survive termination or expiration of the Agreement.]
H) [SUBRECIPIENT does not meet the criteria to qualify as a Community-Based Development Organization (“CBDO”) under 24 C.F.R. §570.204(c) and is not a CBDO for purposes of this Agreement.][SUBRECIPIENT is certified as a Community-Based Development Organization (“CBDO”) under 24 C.F.R. §570.204(c) by the City.] III. INDEPENDENT PARTIES
A) This Agreement is not intended to create and shall not constitute an agency, employee- employer relationship, partnership, joint enterprise, joint employer, or joint venture relationship between the Parties. SUBRECIPIENT has no authority to enter into contracts or agreements on behalf of the City or to bind or otherwise obligate the City orally, in writing, or by any act or omission.
B) SUBRECIPIENT shall have and retain the exclusive right of control over employment, firing, discipline, compensation, insurance, and benefits in accordance with the applicable laws of the State of California. SUBRECIPIENT must comply with all applicable federal and state laws in the payment of its workers. SUBRECIPIENT is solely responsible for the payment of wages and any applicable benefits to workers for Services performed in connection with this Agreement. SUBRECIPIENT is responsible for withholding federal and state income taxes, paying Federal Social Security taxes, maintaining unemployment insurance, and maintaining workers’ compensation insurance in an amount and under such terms as required by the applicable laws of the State of California.
C) The City is not responsible to SUBRECIPIENT or its workers (or any other entity or entity’s workers performing work on behalf of SUBRECIPIENT) for payment of any 55600.00203\43139729.2
5 overtime compensation or any additional payments pursuant to any federal or state law.
The City is not responsible for overtime wages.
D) THE CITY HAS AND SHALL HAVE NO LIABILITY, DIRECTLY OR INDIRECTLY, FOR PAYMENT TO SUBRECIPIENT’S WORKERS, INCLUDING, WITHOUT
LIMITATION, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS,
SUBRECIPIENTS, OR ANY OTHER PARTY PERFORMING WORK, SERVICES, OR OTHER ACTIVITIES ON BEHALF OF SUBRECIPIENT. TO THE EXTENT NOT
OTHERWISE PROHIBITED UNDER THE LAWS OF THE STATE OF CALIFORNIA,
SUBRECIPIENT SHALL INDEMNIFY, DEFEND, RELEASE, AND HOLD THE CITY HARMLESS FROM AND AGAINST ANY AND ALL SUCH CLAIMS.
E) SUBRECIPIENT’s workers are not entitled to any contributions by or benefits from the City for any pension plan, bonus plan, or any other benefit plan nor any fringe benefits or similar benefits afforded to employees of the City. The City is not liable for payment of any federal or state taxes and charges including, but not limited to, income withholding taxes, social security, unemployment, workers’ compensation, and similar taxes and charges.
F) The terms of this Article III shall survive the expiration or termination of this Agreement.
IV. TERM
The Term (the “Term”) of this Agreement shall commence upon the Effective Date [insert date] and end on [insert end date], except for such provisions of this Agreement that expressly survive expiration or termination hereof, unless earlier extended or terminated by the City in writing in accordance with the terms of this Agreement.
V. SUBRECIPIENT’S RESPONSIBILITIES
A) In carrying out the Project, the SUBRECIPIENT must perform the Services and, in consideration for such performance, the City shall partially fund the performance as stated in Article VI.
B) SUBRECIPIENT must prepare the Project Budget, attached as Exhibit D, specifying the cost by item of (a) all labor, materials, and services necessary for the [FACILITIES:
development and [construction][rehabilitation] of the] Project in accordance with the Scope of Services and all applicable laws, statutes, ordinances, codes, rules, and regulations and (b) all other expenses anticipated by SUBRECIPIENT incident to the Project. The Project Budget must include sufficient detail to provide a sound basis for City to effectively monitor SUBRECIPIENT’s performance under this Agreement, and any modifications to the Project Budget must be approved by City and documented in an amendment to this Agreement. SUBRECIPIENT may request an increase or decrease to line-item amounts in the Project Budget with the City’s prior written approval, in its sole discretion. At no point shall the total Project Budget amount for the Subaward (hereinafter defined) exceed the total Subaward amount as approved by the City. 55600.00203\43139729.2
6 C) SUBRECIPIENT agrees it has reviewed all federal, state, and local laws, statutes, codes, orders, ordinances, rules, and regulations applicable to the Services under this Agreement.
In the performance of the Services, SUBRECIPIENT must comply with all applicable federal, state, and local laws, statutes, codes, orders, ordinances, rules, and regulations in effect and ensure the Project complies with same. If the SUBRECIPIENT performs any work, services, or any other activities that SUBRECIPIENT reasonably should have known to be contrary to laws, statutes, codes, orders, ordinances, rules, and regulations, the SUBRECIPIENT must assume appropriate responsibility for such performance and bear the costs attributable to correction, subject to the satisfaction of City, of same. All costs of compliance with any changed or new or additional applicable statutes, laws, regulations, and codes required for the Project that become effective subsequent to the date of closing and funding of this Subaward (hereinafter defined) shall be borne by SUBRECIPIENT.
D) SUBRECIPIENT must perform the Services in a competent, professional and satisfactory manner in accordance with the standards prevalent in the industry for such services.
E) [FACILITIES: SUBRECIPIENT warrants that the Project will conform to the Scope of Services and will be free of any defect in equipment, material, or design furnished, or workmanship. This warranty shall continue for a period of one (1) year from the date of completion of the Project. SUBRECIPIENT must repair or remedy, at SUBRECIPIENT’s sole expense, any failure to conform or any defect. SUBRECIPIENT further warrants such repairs or replacements under this section for one (1) year from the date of any such repair or replacement. Lender or any Eligible Household (hereinafter defined) may notify SUBRECIPIENT of the discovery of any failure, defect, or damage, and SUBRECIPIENT must promptly commence, and diligently pursue to completion, all repairs or remedies.
This section shall survive expiration or termination of this Agreement.] VI. CITY SUBAWARD
A) Subject at all times to Article VIII, the City agrees to [loan][grant] the principal amount of [___________________] and [__]/100 Dollars ($[________________]) (the “Subaward”) to SUBRECIPIENT for the Services and completion of the Project [IF LOAN: pursuant to a loan agreement to be entered into by and between City and SUBRECIPIENT (the “Loan Agreement”]).
B) [IF LOAN FOR FACILITIES: SUBRECIPIENT must ensure that City’s lien secured by the SUBRECIPIENT’s interest in the Project is only subordinate to senior indebtedness approved by City and described in the Intercreditor Agreement (which may include a construction lender and/or the permanent finance lender). Any financing secured by the Project or any other collateral securing the loan of the Subaward that is not referenced in an Intercreditor Agreement must be approved by City in writing, at its sole discretion.] C) SUBRECIPIENT acknowledges and agrees it will not be paid in advance for any of the Services. SUBRECIPIENT must not enter into any contract for performance of any Services, with the exception of those Services paid for at Closing (hereinafter defined) as approved by the City in its sole discretion. [FACILITIES: SUBRECIPIENT acknowledges and agrees the Subaward is subject to environmental review by HUD under the 55600.00203\43139729.2
7 environmental regulations in 24 C.F.R. Part 58. SUBRECIPIENT must not rehabilitate, convert, lease, repair, dispose of, demolish, or construct property, or commit or expend CDBG or local funds for the Services or other activities unless and until HUD has performed an environmental review and issued the Authority to Use Grant Funds.
SUBRECIPIENT further acknowledges and agrees it will not be paid in advance for any of the Services. SUBRECIPIENT must not enter into any contract for performance of any Services prior to the date of closing and any funding of this Subaward (“Closing”) except as approved by the City in its sole discretion.]
VII. TERMS OF SUBAWARD
A) [SERVICES: SUBRECIPIENT agrees to use the Subaward pursuant to this Agreement only to pay for the necessary and reasonable costs of eligible activities under 24 C.F.R.
Part 570 (including particularly 24 C.F.R. Part 570, Subpart C) in accordance with the Federal Grant Regulations. Allowable costs are detailed in the Project Budget attached in Exhibit D.]
B) [FACILITIES: Project Completion
SUBRECIPIENT must complete the Project on or before [____________, 20__] (the “Project Completion Date”), subject only to delays caused by Force Majeure Events (hereinafter defined). Time is of the essence in the performance of this Agreement.] C) Fund Disbursement Requirements
i) Prior to any and all fund disbursements provided for under this Agreement, SUBRECIPIENT must provide its Taxpayer Identification Number to the City.
Failure to provide this information may result in a delay in payment or withholding of payment as required by the Internal Revenue Service. ii) [FACILITIES ACQUISITION: Prior to disbursement any and all fund disbursements provided for under this Agreement, SUBRECIPIENT must deliver to the City the Declaration executed by SUBRECIPIENT.] iii) The City will disburse the applicable portion of the Subaward in response to each undisputed request for fund disbursement made by SUBRECIPIENT. Requests for fund disbursements are subject to City approval. The City may exercise any and all rights to set off or recoup fund disbursements in the event of overpayment by the City or funds owed to the City under this Agreement. Upon approval of a disbursement request from SUBRECIPIENT, the City will disburse funds to SUBRECIPIENT by check or other mutually acceptable means.
iv) Disbursements of the Subaward made by the City to SUBRECIPIENT are to be considered by the SUBRECIPIENT as full compensation for all costs and expenses (including, without limitation, delivery, shipping, travel, and incidental costs and expenses) for labor, equipment, materials, products, services, and work necessary to provide the Services.
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8 D) Payment Process
i) In addition to any other requirements or restrictions herein, the City shall not be obligated to make any disbursement unless and until: [INCLUDE THE APPLICABLE SECTIONS BELOW]
i. [FACILITIES: The City has received and approved true, legible, complete, and correct copies of the following:
1. The plans and specifications for the Project and the final draft of the general contract for the construction work to be done in connection with the Project;
2. All authorizations and permits that are then
procurable and required by any judicial decisions,
statutes, rulings, rules, regulations, permits,
certificates, or ordinances of any governmental
entity in any way applicable to the acquisition or
proposed use contemplated herein in connection
with the Project and the Property;
3. An original current survey of the Property
containing the certification of the surveyor in form
and substance satisfactory to the City and showing
the perimeter of the Property by courses and
distances, all easements and rights-of-way, the
boundary lines of the streets abutting the Property
and the width thereof, any encroachments and the
extent thereof in feet and inches, the relation of the
proposed improvements to the Property by distances
to the perimeter of the Property and the proposed
building lines, all acceptable to the City and the title company retained by SUBRECIPIENT and
acceptable to City (the “Title Company”) issuing the
commitment for title insurance and corresponding
owner’s title policy for the SUBRECIPIENT’s
interest in the Property [IF LOAN: and the loan
policy of title insurance insuring the loan provided
by City to SUBRECIPIENT pursuant to the Loan
Agreement (the “Loan Policy”),] sufficient to
modify the “areas, boundaries, and encroachments”
exception of the corresponding title insurance to the
maximum extent permitted by law, which must be,
at a minimum, to “shortages in area” only;
4. An environmental report on the Property prepared
by a reputable engineer or other party reasonably
satisfactory to the City, in such detail as the City may 55600.00203\43139729.2
9 reasonably require, indicating that no part of the
Property is contaminated with or subject to undue
risk of contamination by any Hazardous Materials.
For purposes of this requirement, “Hazardous
Materials” means any flammables, explosives,
radioactive materials, asbestos, petroleum products,
or other hazardous waste, including, without
limitation, substances defined as “hazardous
substances,” “hazardous materials” or “toxic
substances” in any federal, state, or local law,
statute, ordinance, or regulation pertaining to health, industrial hygiene or environmental conditions in,
on, under, or about the Property; and
5. Any other documents and information in the
SUBRECIPIENT’s possession or control as the City
may reasonably require;
ii. SUBRECIPIENT has provided to the City evidence of its compliance (or that it will be in compliance upon
acquisition) with the insurance requirements set forth in Exhibit H;
iii. All existing liens against the Property have been released, or will be released in their entirety prior to issuance of the owner’s policy of title insurance for SUBRECIPIENT’s
interest in the Property, or such liens have otherwise been approved by the City, in its sole discretion;
iv. This Agreement [and] [the Declaration] have been duly authorized, executed, and delivered to the Title Company in connection with the closing of [the loan of the Subaward to SUBRECIPIENT][SUBRECIPIENT’s acquisition of the
Property] (the “Closing”);
v. The Title Company has issued or has agreed, in writing, to issue, without further condition, both the owner’s policy of title insurance for the benefit of SUBRECIPIENT and the Loan Policy in connection with the Property in a form
acceptable to the City and with only any liens, easements, or other encumbrances that City has previously approved in writing, in City’s sole discretion; and
vi. SUBRECIPIENT has complied with each and every
provision of this Agreement that requires such compliance as a condition to any disbursement by the City of the
Subaward, unless the City has waived any such requirement in writing.]
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10 [FACILITIES ACQUISITION: Upon SUBRECIPIENT’s request for a disbursement of the Subaward at Closing and approval of such request by the City, the City may transfer such amount directly to the Title Company in connection with the Closing.
The transfer of all or any part of the Subaward to the Title Company does not qualify as a disbursement to the SUBRECIPIENT, provided that (a) the funds so transferred are held by the Title Company in escrow until such time as the City authorizes the Title Company to release funds to SUBRECIPIENT and (b) if Closing does not occur within thirty (30) days following the estimated closing date provided herein, the all transferred funds are promptly returned to City with the SUBRECIPIENT paying any applicable escrow or bank fees regarding such transfer.]
ii) [FACILITIES ACQUISITION: Except for with respect to any disbursement at Closing,] SUBRECIPIENT must submit an invoice for Project costs to the City on a [monthly] basis, unless an alternative process for approval of invoices is agreed to by City and such alternative process complies with the applicable provisions of the Intercreditor Agreement.
All invoices with the appropriate backup documentation must be submitted to:
[CITY ADDRESS FOR INVOICES].
iii) All invoices must be in a form acceptable to the City and, at a minimum, include a description of the Services, the day(s) and time(s) or time period, as applicable, that SUBRECIPIENT performed such Services, and the total amount billed for such Services in such detail as may be requested by the City for verification and compliance review purposes. After receipt of an invoice, the City shall review and approve it, with such modifications as may be deemed appropriate, for payment. Subject at all times to Article VII and the City’s right to set off or to withhold payment of any unauthorized charges, the City shall pay each approved invoice in accordance with the laws of the State of California. The City may exercise any and all rights to set off payment in the event of overpayment by the City and/or funds owed to the City under this Agreement.
iv) The City has the right to make periodic audits and inspections of the SUBRECIPIENT’s records related to any Services performed pursuant to this Agreement. SUBRECIPIENT agrees to make the records available to the City within five (5) business days of the City’s request in either physical or electronic form and in a manner as reasonably directed by City.
VIII. LIMITATION OF APPROPRIATION
A) SUBRECIPIENT understands and agrees that this Agreement is contingent upon the availability of third-party funds, including but not limited to federal funds awarded by HUD to the City (“Grant Funds”). SUBRECIPIENT expressly understands and agrees that (i) the City has no City funds available with which to pay its obligations hereunder except to the extent the Grant Funds awarded to the City are allocated and received by the City and (ii) the City’s obligation to make any payments under the Agreement using Grant Funds is limited to the amount of Grant Funds actually received and appropriated and is 55600.00203\43139729.2
11 subject to all applicable requirements of federal law. SUBRECIPIENT agrees City shall not be liable under any circumstances or any interpretations hereof for any amount under this Agreement until the Grant Funds are received from HUD and available and appropriated for funding this Agreement, and SUBRECIPIENT understands and agrees that the total maximum subaward that SUBRECIPIENT may become entitled to hereunder, and the total maximum sum that the City shall become liable to pay to SUBRECIPIENT hereunder, shall not under any conditions, circumstances, or interpretations exceed such sum. SUBRECIPIENT’s sole remedy for unavailability or non-appropriation of the funds will be to terminate this Agreement as permitted by and in accordance with Article X.
B) It shall be the obligation of SUBRECIPIENT to ensure that sufficient funds have been allocated to pay for the Services. Should SUBRECIPIENT receive any Grant Funds from the City that are determined not to be subject to or eligible for payment with Grant Funds, SUBRECIPIENT shall refund to the City any and all such amounts that have been paid by the City. SUBRECIPIENT also understands and agrees that this Agreement is contingent upon SUBRECIPIENT’s eligibility to receive funds under all applicable federal statutes and regulations, including, without limitation, all CDBG requirements, and SUBRECIPIENT hereby represents and warrants that it is eligible to receive funds under all applicable federal statutes and regulations.
C) In the event the Grant Funds are unavailable, discontinued, or reduced during the Term of this Agreement, the City shall not be liable for payment of any funds above the actual amount of Grant Funds allocated and received by the City and appropriated for the purpose of funding this Agreement. In the event the Grant Funds are unavailable, discontinued, or reduced, the SUBRECIPIENT’s sole and exclusive remedy shall be to terminate this Agreement, and City shall not be deemed in default or breach of this Agreement.
D) In the event of termination due to non-appropriation or recapture of funds by HUD, City shall not be considered in default or breach of this Agreement.
E) SUBRECIPIENT expressly agrees that it shall not be entitled to damages or remedies of any kind, including, without limitation, damages for work performed, any liquidated or incidental damages, late fees, penalties, or finance charges.
F) In order to be eligible for payments under the Subaward, SUBRECIPIENT agrees to comply with and, to the extent required under applicable law, cause compliance by all other subrecipients, contractors, and subcontractors, with all of the applicable terms and requirements mandated under federal law, including without limitation under CDBG regulations (24 C.F.R. Part 570) and the Uniform Administrative Requirements, Cost Principles, and Audit Requirements For Federal Awards (2 C.F.R. Part 200) (collectively with the requirements of Exhibits B and C attached hereto, the “Federal Grant Regulations”). SUBRECIPIENT further agrees to reimburse the City, within thirty (30) days after written notice, for any Grant Funds received from the City under this Agreement that are determined to be ineligible under the Federal Grant Regulations.
G) SUBRECIPIENT understands and agrees that it shall not proceed with any Services until it receives written authorization from the City to begin. If at any time during the term of 55600.00203\43139729.2
12 this Agreement, SUBRECIPIENT knows or reasonably should know that the funds available will not cover the cost of the Services, SUBRECIPIENT must promptly notify the City of same.
IX. PUBLIC RECORDS ACT
A) The Parties expressly acknowledge that this Agreement is subject to open government laws, including the California Public Records Act (Gov. Code §§ 7920.000, et. seq.).
SUBRECIPIENT expressly understands and agrees that the City shall release any and all information necessary to comply with California law without the prior written consent of SUBRECIPIENT. It is further understood that the City and its officers, officials, managers, directors, and employees shall have no liability or obligations to SUBRECIPIENT for the disclosure to the public, or to any person or persons, of any materials or information, or a part thereof, released in accordance with the requirements of applicable law.
X. TERMINATION
A) Termination for Convenience. In the event City receives notice at any time from HUD or any other applicable federal or state agency that HUD is terminating the award, in whole or in part, to the City or repayment of all or any portion of the Grant Funds is required, the City may terminate this Agreement for convenience, in whole or in part, by giving written notice to the SUBRECIPIENT of such termination, and specifying the effective date thereof (“Notice of Termination”). If the termination is for the convenience of the City, the City shall – subject at all times to Article VIII, and consistent with all applicable law – provide disbursements of the Subaward then due and payable, including any disbursements for Services performed, subject to the reasonable satisfaction of the City, prior to the Notice of Termination for which SUBRECIPIENT has submitted reimbursement requests (properly supported by documentation requested by the City) prior to the effective date of termination. This Agreement shall terminate on the date provided in such Notice of Termination, which shall be no less than ninety (90) days after the date of such Notice of Termination.
B) Termination for Cause. If SUBRECIPIENT fails to materially perform pursuant to the terms of this Agreement, the City may elect to provide written notice to SUBRECIPIENT specifying the default (“Notice of Default”). If City elects to provide such Notice of Default and SUBRECIPIENT does not cure such default within the time required by the City, which shall be no less than thirty (30) days after the date of such Notice of Default, the City may terminate this Agreement for cause by providing notice to SUBRECIPIENT specifying the effective date of such termination (“Notice of Termination for Cause”). If the termination is for cause, SUBRECIPIENT shall – subject at all times to Article VIII – receive disbursements for that portion of the work or materials provided (properly supported by documentation requested by the City) that have been fully and adequately completed and accepted by the City as of the termination date the City provides in the Notice of Termination for Cause. In such case, the City shall have the right to take whatever steps it deems necessary to complete the Project and correct SUBRECIPIENT’s deficiencies and charge the full costs of the City’s corrective action(s), including, without limitation, reasonable overhead, profit, and attorneys’ fees, to SUBRECIPIENT. 55600.00203\43139729.2
13 In addition, SUBRECIPIENT shall be deemed to be in default of this Agreement upon SUBRECIPIENT’s (i) application for, consent to, or suffering of, the appointment of a receiver, trustee or liquidator for all or a substantial portion of its assets, (ii) making a general assignment for the benefit of creditors, (iii) being adjudged bankrupt, (iv) filing a voluntary petition or suffering an involuntary petition under any bankruptcy, arrangement, reorganization or insolvency law (unless in the case of an involuntary petition, the same is dismissed within thirty (30) days of such filing), or (v) suffering or permitting to continue unstayed and in effect for fifteen (15) consecutive days any attachment, levy, execution, or seizure of all or a substantial portion of SUBRECIPIENT’s assets or interests hereunder.
C) CDBG Termination Requirements; Reversion of Assets. If at the time of the expiration or termination of this Agreement there is under the control of SUBRECIPIENT any Subaward funds or accounts receivable attributable to the Subaward funds, then SUBRECIPIENT must immediately transfer such funds or accounts to City. If at the time of the expiration or termination of this Agreement there is under the control of SUBRECIPIENT any property, real or otherwise, that was acquired or improved in whole or in part with Subaward funds in excess of Twenty-Five Thousand Dollars ($25,000), then, in accordance with 24 C.F.R. §§ 570.503(b)(7) and 5704.504(c), SUBRECIPIENT must pay to City an amount equal to the current market value of such property, less any portion of the value attributable to expenditures of non-federal funds for the acquisition of, or improvement to, such property; provided, however, SUBRECIPIENT may, upon request to and with prior written consent of City, instead use such property to meet one of the national objectives in 24 C.F.R. §570.208 until five (5) years after expiration or termination of this Agreement, or for such longer period of time as may be required by City in its sole discretion.
D) Reimbursement; Remedies. The City shall be entitled to reimbursement for any compensation paid in excess of work rendered or materials provided and shall be entitled to withhold disbursements for defective work or damages caused by SUBRECIPIENT’s performance of the work.
In accordance with 2 CFR 200.339, in addition to any remedies for a default under this Agreement as provided herein, at law, or in equity, City may elect to pursue the following:
i) Repayment from SUBRECIPIENT to City of any amount which the State or Federal government determines to have been misused or are subject to repayment;
ii) Modify any plans, budget, compensation terms, schedules, manner of providing services or other activities in connection with this Agreement, or take other actions directed or recommended by the State or Federal government; iii) Elect to have SUBRECIPIENT re-perform or cause to be re-performed, at SUBRECIPIENT’s sole expense, any work which failed to meet the requirements of this Agreement;
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14 iv) In the case of goods, reject the goods and require SUBRECIPIENT to provide replacement goods that meet the needs of City and the terms of this Agreement; or
v) Hire another contractor, subcontractor, or vendor to perform the work and deduct any additional costs incurred by City as a result of substituting contractors, subcontractors, or vendors from any amounts due to SUBRECIPIENT.
E) Ownership of Documents. Information, programs, software, firmware, designs, hardware, documentation, data, source code, and any literary works and other works of authorship created under or in connection with this Agreement (collectively the “Documents”) shall be delivered to the City when this Agreement expires or is terminated. SUBRECIPIENT acknowledges and agrees it has no ownership in the Documents, and such Documents are owned by the City.
F) Additional Termination Provisions. Upon receipt of a Notice of Termination or a Notice of Termination for Cause specifying the extent of the termination, the effective date of the termination, regardless of whether the termination is for cause or for convenience, SUBRECIPIENT shall promptly discontinue the Services unless such notice directs SUBRECIPIENT to the contrary. SUBRECIPIENT shall deliver and transfer title to the City for all Documents and provided materials and completed work, and work in progress, including, without limitation, drafts, documents, plans, forms, maps, products, graphics, computer programs, software, hardware, and reports created under or in connection with this Agreement. The rights and remedies provided in this article are in addition to any other rights and remedies provided under this Agreement, at law, or in equity, including, without limitation, the right to specific performance. SUBRECIPIENT acknowledges the City’s right to terminate this Agreement with or without cause as provided in this article and hereby waives any and all claims for any damages, including, without limitation, special, indirect, punitive, incidental, exemplary, or consequential damages, losses, or lost profits, that might arise from the City’s act of terminating this Agreement. City shall not be liable for any costs other than the charges or portions thereof that are authorized by this Agreement. If City terminates this Agreement for cause, and it is later determined that the termination for cause was wrongful, the termination shall automatically be converted to and treated as a termination for convenience. In such event, SUBRECIPIENT shall be entitled to receive only the amounts payable under this article, and SUBRECIPIENT specifically waives any claim for any other amounts or damages, including, without limitation, special, indirect, punitive, incidental, exemplary, or consequential damages, losses, or lost profits, arising from the City’s act of termination.
G) [FACILITIES: Force Majeure. Notwithstanding anything to the contrary set forth in this Agreement, all deadlines and other dates set forth herein, including notice and cure periods, shall be extended for delays caused by Force Majeure Events beyond the reasonable control of the non-performing party, to the extent affected by such circumstances and to the extent that due diligence is being used to resume performance at the earliest practicable time. Force Majeure Events shall include the following: Acts of God; strikes (including walk-outs and work stoppages due to a labor dispute); lockouts or 55600.00203\43139729.2
15 other industrial disturbances; acts of public enemies; orders of any kind of any governmental authority, including, without limitation, any civil or military authority, government shut down orders resulting from epidemics and pandemics, or applicable governmental declarations of regional and/or national emergency; insurrections; riots; restraint of government and people; civil disturbances; theft; vandalism; landslides; lightning; earthquakes; fire; hurricanes; extreme storms; floods; washouts; droughts; explosions; Hazardous Materials or environmental contamination not caused by or attributable to SUBRECIPIENT (including their employees, agents, representatives, subrecipients, contractors, or subcontractors); breakage or accident to machinery, transmission pipes, or canals; and/or partial or entire failure of utilities. Should such circumstances occur, the non-performing Party shall, as soon as practicable, give written notice to the other Party describing the circumstances preventing continued performance and the efforts being made to resume performance of this Agreement.] Notwithstanding anything to the contrary in this Agreement, in the event any delay in SUBRECIPIENT’s performance, whether or not such delay is due to any Force Majeure Events, continues for more than one hundred twenty (120) consecutive days, City shall have no further obligation to make further disbursements and shall have the right to terminate this Agreement with no liability to City or further obligation to SUBRECIPIENT, in addition to any other rights and remedies of City under this Agreement, at law, or in equity.
H) Confidential Information. Subject at all times to all record keeping and other obligations set forth herein, within thirty (30) days following written request following termination of this Agreement, each Party must return or destroy all confidential information marked as such of the other Parties in its possession and must not make or retain any copies of such confidential information except as provided for under this Agreement or as required to comply with any applicable legal or accounting record keeping requirements.
XI. NOTICE
A) Any notice required to be given under the provisions of this Agreement shall be in writing and shall be duly served when it shall have been delivered in person or deposited, enclosed in a wrapper with the proper postage prepaid thereon, and duly registered or certified, return receipt requested, in a United States Post Office, addressed to the Parties at the following addresses. If mailed, any notice or communication shall be deemed to be received three (3) days after the date of deposit in the United States Mail. Unless otherwise provided in this Agreement, all notices shall be delivered to the following addresses, with a courtesy copy provided to the other Parties by email at address(es) provided below:
To City: City of San Bernardino
290 North D Street
San Bernardino, CA 92401
Attn: Community Development & Housing Department
To SUBRECIPIENT: [SUBRECIPIENT]
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16 Attn:
Any Party may designate a different address by giving the other Parties ten (10) days written notice.
XII. INDEMNIFICATION
THE PROVISIONS OF THIS ARTICLE SHALL SURVIVE THE TERMINATION
OF THIS AGREEMENT, HOWEVER CAUSED, AND NO PAYMENT, PARTIAL
PAYMENT, OR ISSUANCE OF EITHER A CERTIFICATE OF SUBSTANTIAL
COMPLETION OR FINAL ACCEPTANCE IN WHOLE OR IN PART SHALL WAIVE OR RELEASE ANY OF THE PROVISIONS OF THIS ARTICLE.
TO THE EXTENT NOT OTHERWISE PROHIBITED UNDER THE LAWS OF THE STATE OF CALIFORNIA, SUBRECIPIENT (“INDEMNIFYING PARTY”)
SHALL INDEMNIFY, DEFEND (WITH COUNSEL REASONABLY
ACCEPTABLE TO CITY), RELEASE, AND HOLD HARMLESS THE CITY AND
ITS OFFICERS, OFFICIALS, DIRECTORS, MANAGERS, EMPLOYEES,
AGENTS, REPRESENTATIVES, SUCCESSORS, AND ASSIGNS
(“INDEMNIFIED PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS,
LIABILITY, EXPENSE, JUDGMENT, SUIT, CAUSE OF ACTION, DEMAND,
OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS’ FEES AND COURT COSTS THAT MAY BE
INCURRED BY THE CITY IN LITIGATION OR OTHERWISE RESISTING
SAID CLAIMS OR LIABILITIES THAT MIGHT BE IMPOSED ON THE
INDEMNIFIED PARTY AS THE RESULT OF SUCH ACTIVITIES BY THE
INDEMNIFYING PARTY OR ANOTHER ENTITY OVER WHICH THE
INDEMNIFYING PARTY EXERCISES CONTROL OR FOR WHOSE ACTS
INDEMNIFYING PARTY MAY BE LIABLE) OF ANY KIND OR CHARACTER
WHATSOEVER THAT MAY BE ASSERTED OR ACCRUE AGAINST AN
INDEMNIFIED PARTY DUE TO, ARISING OUT OF, OR IN CONNECTION WITH ANY INTENTIONAL TORT; PERSONAL INJURY, DEATH, OR
DAMAGE TO PROPERTY; INTELLECTUAL PROPERTY INFRINGEMENT; FAILURE TO PAY A LABORER, SUPPLIER, OR ANY OTHER PARTY;
BANKRUPTCY, STATE OR FEDERAL TAX LEVIES OR LIENS, OR OTHER
SIMILAR LEGAL PROCEEDINGS AFFECTING THE INDEMNIFYING
PARTY, IN WHICH THE INDEMNIFIED PARTIES MAY BECOME IN ANY WAY INVOLVED; OR ANY OTHER ACT, ERROR, OR OMISSION
COMMITTED BY THE INDEMNIFYING PARTY OR ANOTHER ENTITY
OVER WHICH THE INDEMNIFYING PARTY EXERCISES CONTROL OR
FOR WHOSE ACTS INDEMNIFYING PARTY MAY BE LIABLE, RELATING
TO THE SERVICES OR THIS AGREEMENT, AND WHICH DOES NOT
RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNIFIED PARTY.
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17 CITY WILL PROVIDE THE INDEMNIFYING PARTY PROMPT, WRITTEN
NOTICE OF ANY SUCH CLAIM OR SUIT AND SHALL REASONABLY
COOPERATE WITH THE INDEMNIFYING PARTY IN ITS DEFENSE OR SETTLEMENT OF SUCH CLAIM OR SUIT.
IF A RESTRAINING ORDER OR TEMPORARY INJUNCTION IS GRANTED
DUE TO ANY ACT, ERROR, OR OMISSION OF THE INDEMNIFYING PARTY
OR ANOTHER ENTITY OVER WHICH THE INDEMNIFYING PARTY
EXERCISES CONTROL, THE INDEMNIFYING PARTY SHALL MAKE
EVERY EFFORT, INCLUDING, BUT NOT LIMITED TO, SECURING A BOND
IN ACCORDANCE WITH APPLICABLE LAW AND SATISFACTORY TO THE
CITY TO OBTAIN THE SUSPENSION OF ANY SUCH RESTRAINING ORDER OR TEMPORARY INJUNCTION.
CITY RESERVES THE RIGHT TO BE INDEPENDENTLY REPRESENTED BY
COUNSEL OF ITS OWN CHOICE IN CONNECTION WITH ANY SUCH SUIT OR PROCEEDING.
XIII. COMPLIANCE AND STANDARDS
A) Confidential Information. The Parties agree to keep confidential the contents of all confidential discussions among the Parties. Except where disclosure is required by law, the Parties agree to keep confidential the contents of all confidential records disclosed by the disclosing Party and other information identified by the disclosing Party as confidential or deemed confidential by applicable federal, state, or local law and obtained during the performance of Services under this Agreement. Except for contractors, subcontractors, suppliers, and vendors who have a need to know in order to perform their respective scope of work in support of this Agreement and who are subjected to similar confidentiality obligations as those set forth herein, the Parties shall not release any confidential information unless the disclosing Party, in writing, authorizes such release of specific, confidential information to any third parties.
B) The Parties shall not access any information they are not authorized to receive, whether such authorization comes through this Agreement or otherwise. SUBRECIPIENT must not copy, recreate, or use any proprietary information or proprietary documents obtained from the City in connection with this Agreement other than for the performance of this Agreement.
C) SUBRECIPIENT must not divulge or otherwise make use of the trade secrets or confidential information, procedures, or policies of any former employer, client, or customer in the performance of this Agreement, nor shall SUBRECIPIENT copy, recreate, or use any proprietary information of any third party in the performance of Services under this Agreement except to the extent authorized by such third parties.
D) No Breach or Default. SUBRECIPIENT is not in breach of any other contract, obligation or covenant that would affect SUBRECIPIENT’s ability to perform under this Agreement and, as a result of entering into this Agreement, will not breach any such contract, obligation, or covenant.
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18 E) Conflict of Interest. SUBRECIPIENT has not nor shall it knowingly acquire any interest that would conflict in any manner with the performance of its obligations under this Agreement. Furthermore, no company or person, other than a bona fide employee, has been employed to solicit or secure this Agreement with the City, and SUBRECIPIENT has not paid or agreed to pay any company or person, other than a bona fide employee, any fee, commission, percentage, brokerage fee, gift, or any other consideration, contingent upon or resulting from the award or making of this Agreement. For breach or violation of this provision, the City shall have the right to terminate this Agreement without liability and, at City’s discretion, to deduct from the Subaward or otherwise recover the full amount of such fee, percentage, brokerage fee, gift, or other consideration.
F) Lobbying. SUBRECIPIENT shall not use funds received under this Agreement to directly or indirectly pay any person for influencing or attempting to influence any public employee or official in connection with the awarding of any contract or the extension, continuation, renewal, amendment, or modification of any contract. Pursuant to 31 U.S.C. § 1352 (2003), if at any time during the Term of this Agreement funding to SUBRECIPIENT exceeds $100,000.00, SUBRECIPIENT shall file with the City the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying.”
G) Affiliated Entities. SUBRECIPIENT shall not enter into any subcontract, contract agreement, purchase order, or other arrangement (“Arrangement”) for the furnishing of all or any portion of the Services or other labor or materials in connection with the Project with any party or entity if such party or entity is an Affiliated Entity (as defined below) of SUBRECIPIENT unless approval of such Arrangement has been granted by City, after full disclosure in writing by SUBRECIPIENT to City of such affiliation or relationship and all details relating to the proposed Arrangement. “Affiliated Entities” means business concerns or individuals if, directly or indirectly –
i) Either one controls or can control the other party; or ii) A third-party controls or can control both.
Any holder of more than ten percent (10%) of the issued and outstanding shares of another entity shall be deemed to have a controlling interest in said entity.
H) No Federal Exclusion.
i) Neither SUBRECIPIENT nor any of its employees is an “Ineligible Person.” An “Ineligible Person” is an individual or entity who:
a) is currently excluded, debarred, suspended, or otherwise ineligible to participate in any federal and/or state grant, health care program, or in federal and/or state procurement or nonprocurement programs. This includes but is not limited to persons who are on the List of Excluded Individuals or Entities of the Inspector General, List of Parties excluded from Federal Programs by the General Services Administration or the Medicaid Sanction List; or,
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19 b) has been convicted of a criminal offense related to the provision of health care items or services within the rules and regulations of 42 USC §1320a-7(a), but has not yet been excluded, debarred, suspended, or otherwise declared ineligible.
ii) SUBRECIPIENT agrees to promptly report to the City if it becomes an “Ineligible Person” during the Term of this Agreement, or to cease assigning any employee to provide Services if the employee becomes an “Ineligible Person” during the Term of this Agreement.
iii) SUBRECIPIENT is not debarred, suspended, or otherwise excluded from or ineligible for participation in any Federal programs, including but not limited to the following: Department of Health and Human Services (DHHS), Office of Inspector General (OIG) – List of Excluded Individuals & Entities (LEIE); U.S. General Services Administration (GSA) – Excluded Parties List System (EPLS); All States (50) Health & Human Services Commission Medicaid OIG Sanction List; Government Terrorist Watch List (OFAC/Patriot Act); Department of Commerce, Bureau of Industry and Security, Denied Persons List; and Department of Homeland Security, Immigration and Customs Enforcement (ICE) Most Wanted.
SUBRECIPIENT must immediately notify the City of any such exclusion or suspension. SUBRECIPIENT is in good standing with all State and Federal agencies that have a contracting or regulatory relationship with the City. No person who has an ownership or controlling interest in SUBRECIPIENT’s business or who is an agent, principal, or managing employee of SUBRECIPIENT has been convicted of a criminal offense related to involvement in any federal program.
I) Whistleblower Protection Act. SUBRECIPIENT understands and agrees that this Agreement and its employees working on this Agreement will be subject to the whistleblower rights and remedies in the pilot program on contractor employee whistleblower protections established at 41 U.S.C. § 4712 by section 828 of the National Defense Authorization Act for Fiscal Year 2013 (Pub. L. 112-239). SUBRECIPIENT shall inform its employees in writing, in the predominant language of the workforce, of employee whistleblower rights and protections under 41 U.S.C. § 4712. SUBRECIPIENT shall insert the substance of this clause (“Whistleblower Protection Act”) in all contracts and subcontracts entered into in connection with this Agreement.
J) Interested Parties. Prior to execution of the Agreement, SUBRECIPIENT shall, as an update, complete the City’s [Conflict of Interest Form concerning “Interested Parties.”] The information on the form must be complete and accurate.
K) Compliance with Federal Requirements. SUBRECIPIENT acknowledges and agrees it is a subrecipient (as defined in 24 C.F.R. § 570.500(c)) of the City and must comply with the applicable requirements of the Federal Grant Regulations, including, without limitation, 2 C.F.R. §§ 200.330–200.331.
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20 SUBRECIPIENT agrees to comply with all applicable federal law, regulations, executive orders, policies, procedures, and directives, as well as state and local laws, regulations, and policies governing the funds provided under this Agreement. With respect to any conflict between such federal requirements and the terms of the Agreement and the provisions of state or local law, the strictest requirement shall control except as otherwise required under federal law or regulation. Violations of law will be referred to the proper authority in the applicable jurisdiction. SUBRECIPIENT further agrees to utilize funds available under this Agreement to supplement rather than supplant funds otherwise available.
Contracts and subcontracts entered into by SUBRECIPIENT in connection with this Agreement shall comply with all applicable federal laws, regulations, executive orders, policies, procedures, and directives.
i) Fund payments are considered to be federal financial assistance subject to the Single Audit Act, codified at 31 U.S.C. §§ 7501–7507.
ii) SUBRECIPIENT is subject to a single audit or program specific audit under 2 C.F.R. § 200.501(a) when SUBRECIPIENT spends $1,000,000 or more in federal awards during the fiscal year, and SUBRECIPIENT must arrange for an independent financial and compliance audit annually for each such fiscal year and submit the results to City within thirty (30) days of completion. iii) Fund payments are subject to 2 C.F.R. § 200.303 regarding internal controls. iv) Fund payments are subject to 2 C.F.R. §§ 200.331–200.333 regarding subrecipient monitoring and management.
v) Fund payments are subject to Subpart F of the Uniform Guidance regarding audit requirements.
Subawards, if any, shall contain a provision making them subject to all of the provisions stipulated in this Agreement, including but not limited to 2 C.F.R. §§ 200.303, 200.331– 200.333, and 200.501(a) and 2 C.F.R. Part 200, Subpart F.
L) Project Direct and Indirect Costs. SUBRECIPIENT may use funds for administering the program, including costs of consultants to support effective management and oversight, including consultation for ensuring compliance with legal, regulatory, and other requirements. Costs must be reasonable and allocable as outlined in 2 C.F.R. §§ 200.404– 200.405. SUBRECIPIENT is permitted to charge both direct and indirect costs to the Subaward as administrative costs as long as they are accorded consistent treatment per 2 C.F.R. § 200.403. Each category of cost should be treated consistently in like circumstances as direct or indirect, and SUBRECIPIENT must not charge the same administrative costs to both direct and indirect cost categories, or to other programs.
M) Program Income. “Program Income” means, as defined under 24 C.F.R. § 570.500(a) and in accordance with 24 C.F.R. § 570.504(c), the gross income received by the SUBRECIPIENT that is generated by the use of the Subaward and includes the repayment, 55600.00203\43139729.2
21 interest, and return on the investment of the Subaward. Program Income funds are accrued during the program year, then included in and committed in the next year’s action plan.
SUBRECIPIENT agrees to calculate, document, and record SUBRECIPIENT’s Program Income. SUBRECIPIENT also agrees to implement written policies that explicitly identify appropriate allocation methods, accounting standards and principles, compliance monitoring checks for program income calculations, and records.
N) Cost Principles. Costs incurred, whether charged on a direct or an indirect basis, must be in conformance with 2 C.F.R. Part 200, Subpart E.
O) Reporting Obligations. SUBRECIPIENT must submit regular [monthly] progress and financial reports to the City, in form and substance satisfactory to City, containing, at a minimum, the information required under 2 C.F.R. §§ 200.328-.330, in compliance with all Federal Grant Regulations.
P) No Obligation by Federal Government
None of the Federal government, HUD, and any other federal agency or pass-through entity providing financial assistance are a party to this Agreement or any transaction between a subrecipient and a contractor or subcontractor. The Federal government or any other federal agency or pass-through entity providing financial assistance are not subject to any obligations or liable to any party for any matter relating to this Agreement.
Q) Program Fraud & False or Fraudulent Statements or Related Acts Recipients, subrecipients, and contractors must comply with 31 U.S.C. Chapter 38, Administrative Remedies for False Claims and Statements, which shall apply to the activities and actions of recipients, subrecipients, contractors, and subcontractors pertaining to any matter resulting from a contract.
R) Fraud, Waste, and Abuse Reporting
SUBRECIPIENT must promptly report to the City through the [City’s Fraud, Waste, or Abuse Program, at: [NUMBER/WEBSITE/OTHER]] and also notify the City in accordance with all the Notice provisions contained in this Agreement of all suspected or known instances and facts concerning fraud, waste, abuse, or criminal activity under this Agreement.
S) [FACILITIES: Displacement and Relocation. SUBRECIPIENT must take all reasonable steps to minimize the displacement of persons (families, individuals, businesses, nonprofit organizations, and farms) as a result of the Services. If the Services will result in the displacement of persons, SUBRECIPIENT must comply with the requirements of 24 CFR 570.606 and the Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations at 49 CFR Part 24.] XIV. PROJECT ADMINISTRATION REQUIREMENTS
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22 A) Pre-award Costs. If applicable, only pre-award costs in accordance with 24 C.F.R. § 570.200(h) are eligible for payment from Subaward funds.
B) Direct and Indirect Costs. SUBRECIPIENT may use funds provided under the Subaward to cover both direct and indirect costs.
C) Financial Management. SUBRECIPIENT agrees to comply with and adhere to any accounting principles and procedures required by federal law, as well as utilize adequate internal controls relating to performance of this Agreement. SUBRECIPIENT’s accounting systems to record expenditures must be established and maintained in accordance with generally accepted, sound accounting standards.
D) Universal Identifier and System for Award Management. SUBRECIPIENT must comply with the requirements of 2 C.F.R. Part 25 (Universal Identifier and System for Award Management (SAM)). The SUBRECIPIENT must have an active registration in SAM in accordance with 2 C.F.R. Part 25, Appendix A, and must have a Unique Entity Identifier.
The SUBRECIPIENT must also comply with provisions of the Federal Funding Accountability and Transparency Act, which includes requirements on executive compensation, and 2 C.F.R. Part 170 (Reporting and Subaward and Executive Compensation Information).
E) Procurement and Contractor Oversight. SUBRECIPIENT acknowledges that it is a subrecipient, as defined in federal law, of the City and is obligated to comply with all applicable federal requirements, including the procurement standards in 2 C.F.R. §§ 200.317–200.327, in the procurement of its contractors performing the Services on the Project under this Agreement and to include all applicable federal requirements in its contracts with such contractors. SUBRECIPIENT must maintain oversight of all activities under this Agreement and shall ensure that for any procured contracts their respective contractors perform according to the terms and conditions of the procured contracts and the terms and conditions of this Agreement.
F) Audits, Documentation & Recordkeeping/Record Retention. SUBRECIPIENT must establish a written policy for recordkeeping and maintain records sufficient to enable the City to (1) determine whether the SUBRECIPIENT has complied with this Agreement, applicable Federal statutes and regulations, and the award terms and conditions and (2) satisfy recordkeeping requirements applicable to the City through regulations and guidance issued by HUD.
i) The City, any Federal or state agency (including without limitation any federal Inspectors General), the Comptroller General of the United States, or any of their authorized representatives (each an “Auditor”), shall have the right of access to any facilities and to any records, documents, financial statements, papers, or other records of the SUBRECIPIENT in order to make audits, examinations, excerpts, and transcripts related to this Agreement.
SUBRECIPIENT must cooperate with such examinations, studies, and audits and provide the Auditor with such documents, including, without limitation, SUBRECIPIENT’s backup and support data related to any work, materials, and billings under this Agreement. The Auditor may perform such examinations, 55600.00203\43139729.2
23 studies, and audits before or after payment. The right of access of Auditor also includes timely and reasonable access to the SUBRECIPIENT’s personnel for the purpose of interview and discussion related to such documents. All payments made by City are subject to re-evaluation and refund or withholding of future payments conditioned on the results of the audit. SUBRECIPIENT agrees that in the event its performance under this Agreement is subjected to audit exceptions by appropriate federal audit agencies, SUBRECIPIENT shall be responsible for complying with such exceptions and paying City the full amount of City’s liability to the funding agency resulting from such audit exceptions.
ii) All recipients, subrecipients, contractors, subcontractors, successors, transferees, and assignees must acknowledge and agree to comply with applicable provisions governing access to records, accounts, documents, information, and facilities.
iii) To the extent required by and in accordance with 2 C.F.R. Part 200 and any applicable guidance from HUD, recipients, subrecipients (including SUBRECIPIENT), contractors, subcontractors, successors, transferees, and assignees must retain sufficient records, which may include, but are not limited to, financial records, supporting documents, statistical records, and all other records pertinent to the Agreement. Subject to and in accordance with the requirements set forth and in accordance with 2 C.F.R. Part 200 (including particularly 2 C.F.R. Part 200, Subpart D) and any applicable guidance from HUD, records shall be maintained by SUBRECIPIENT for a period of five (5) years after this Agreement has ended; provided, however, in the event of litigation, claim, or audit, the records must be retained until all litigation, claims, and audit findings involving the records have been fully resolved. iv)This Section XI(F) shall survive termination of this Agreement.
G) Personally Identifiable Information. SUBRECIPIENT must take reasonable measures to safeguard protected personally identifiable information, and other information the City designates as sensitive consistent with applicable Federal, state, local, and tribal laws regarding privacy and obligations of confidentiality. For purposes of this provision, the definition for personally identifiable information found at 2 C.F.R. § 200.1 is incorporated herein.
H) Reimbursement of Eligible Costs. SUBRECIPIENT shall not be entitled to disbursement of the Subaward except on a reimbursement basis in accordance with this Agreement, including, but not limited to, compliance with the disbursement request process provided in this section and the Federal Grant Regulations. [SELECT APPLICABLE PROVISIONS BELOW]
i) SUBRECIPIENT must submit an application for payment of the applicable portion of the Subaward in accordance with the Budget no more frequently than once in any [thirty (30) day] period (each, an “Application for Payment”) to 55600.00203\43139729.2
24 City [FACILITIES: and the lender of any other construction loan (“Construction Lender”)].
ii) [SERVICES: If the Budget includes reimbursement of eligible soft costs of the Project, such as insurance premiums (“Soft Costs”), from the Subaward, draw requests for Soft Costs eligible for reimbursement in accordance with the Budget and the Federal Grant Regulations shall be submitted as a separate Application for Payment from a construction draw request. iii) Each Application for Payment shall include invoices from any contractors or other vendors and for all project delivery costs (including utility or rent payments on behalf of beneficiaries), or, for Soft Costs, other and each Application for Payment shall be submitted timely for the costs incurred in the prior month.
iv) Upon approval of an Application for Payment, SUBRECIPIENT must submit a request for reimbursement (“Request for Reimbursement”) including the original Application for Payment and all supporting documentation (including , without limitation, timesheets and payroll reports) and evidence of payment, as well as any other forms, including but not limited to compliance and monitoring forms, required to be submitted to City in order to obtain approval of the Request for Reimbursement by the City in accordance with this Agreement and the Federal Grant Regulations.]
v) [FACILITIES: If the Budget includes reimbursement of eligible soft costs of the Project, such as insurance premiums and payments to architects and/or engineers (“Soft Costs”), from the Subaward, draw requests for Soft Costs eligible for reimbursement in accordance with the Budget and the Federal Grant Regulations shall be submitted as a separate Application for Payment from a construction draw request.
vi) SUBRECIPIENT acknowledges that City shall require an independent inspection of the progress of construction of the Project to verify the completion of the work covered by each Application for Payment (with the exception of Soft Costs) in accordance with the final plans approved by the City (together with any change orders approved by City and Construction Lender in accordance with their respective loan documents). City may accept the report from an independent third-party inspector performed on behalf of Construction Lender at City’s sole discretion (each such report an “Inspector’s Report”).
vii) Each Application for Payment shall include invoices (pay estimates) from the general contractor, or prime subcontractor, if applicable, or, for Soft Costs, other vendors for the Project (the “Contractor”) and each Application for Payment shall be submitted timely for the costs incurred in the prior month. In addition, the Application for Payment addressed to City must include: (i) a cover letter, (ii) American Institute of Architects (“AIA”) Application and Certificate for Payment Form G702 & G703, or similar form approved for use 55600.00203\43139729.2
25 by City detailing construction costs, (iii) Inspector’s Report(s), and (iv) unconditional lien releases from Contractor and subcontractors, as applicable. viii) Upon approval of an Application for Payment, SUBRECIPIENT (or Contractor on behalf of SUBRECIPIENT) must submit a request for reimbursement (“Request for Reimbursement”) including: (i) the original Application for Payment and all supporting documentation, (ii) evidence of approval of the Application for Payment by applicable Construction Lender(s) and any other parties required to approve an Application for Payment [pursuant to the Intercreditor Agreement], (iii) evidence of payment of the Application for Payment, and (iv) any other forms, including but not limited to compliance and monitoring forms, required to be submitted to City in order to obtain approval of the Request for Reimbursement by the City in accordance with this Agreement[, the Intercreditor Agreement,] and the Federal Grant Regulations.] ix) City shall have a period of [ninety (90)] days from submission of an Application for Payment to complete review of such request and shall each provide SUBRECIPIENT with written notice of either: (i) approval of the applicable Application for Payment, or (ii) notification of any deficiencies in the applicable Application for Payment. Within [seven (7)] days after the approval of a Request for Reimbursement, the City shall cause the proceeds of the approved amount of the Subaward under a particular Request for Reimbursement to be transferred for deposit into the SUBRECIPIENT’s designated account [FACILITIES: or a construction disbursement account administered by a construction lender approved by City on behalf of SUBRECIPIENT].
I) Monitoring & Compliance. To the extent required and in accordance with 2 C.F.R. Part 200, City shall have the right to monitor the activities of SUBRECIPIENT as necessary and in accordance with applicable regulations on subrecipient monitoring and management (2 C.F.R. §§ 200.331–200.333) to ensure SUBRECIPIENT and the Project are in compliance with all the requirements of this Agreement, including the timeframes and performance goals associated with the Activities. In the event the City has reasonable grounds to question the fiscal accountability, financial soundness, or compliance of SUBRECIPIENT or the Project with this Agreement, the City may suspend performance of this Agreement, upon three (3) days’ notice to SUBRECIPIENT of same, for the longer of (i) a period of sixty (60) days after City provides such notice to SUBRECIPIENT or (ii) pending resolution of an audit or other investigation as determined by City.
Substandard performance as determined by the City will constitute noncompliance with this Agreement. If action to correct such substandard performance is not taken by SUBRECIPIENT within seven (7) days after being notified by the City, the City may impose additional conditions on SUBRECIPIENT and its use of funds (per 2 C.F.R. § 200.208), suspend or terminate this Agreement, or initiate other remedies for noncompliance. Monitoring of SUBRECIPIENT shall include:
i) Reviewing financial management reports (audit, accounting, budget, and fiscal internal controls);
55600.00203\43139729.2
26 ii) Procurement procedures, record keeping, project performance, and organizational structure;
iii) Reviewing performance reports, as required by the City; and iv) Following-up and ensuring that SUBRECIPIENT takes timely and appropriate action on all deficiencies pertaining to this Agreement detected through audits, on-site reviews, and other means.
Depending upon City’s assessment of the risk posed by SUBRECIPIENT based upon the requirements of 2 C.F.R. Part 200 and/or applicable guidance from HUD, the following monitoring tools may be used by City to ensure proper accountability and compliance with program requirements and achievement of performance goals that are set forth in this Agreement:
i) Providing SUBRECIPIENT with training and technical assistance on program-related matters; and
ii) Performing on-site reviews of SUBRECIPIENT’s program operations.
J) Close Out. SUBRECIPIENT must close out the use of the Subaward and SUBRECIPIENT’s obligations under this Agreement by complying with the close-out procedures in 2 C.F.R. § 200.344. Activities during this close-out period may include, but are not limited to: making final payments, disposing of program assets (including the return of all unused materials, equipment, unspent cash advances, program income balances, and accounts receivable to the City), and determining the custodianship of records.
XV. PUBLIC CONTACT
Contact with the news media, citizens of the City, or governmental agencies shall be the responsibility of the City. Under no circumstances shall SUBRECIPIENT release any material or information developed in the performance of the Services without the express written permission of the City.
XVI. APPLICABLE LAW AND VENUE
A) The Agreement is subject to all applicable state and federal laws, orders, rules, and regulations.
B) This Agreement is governed by the laws of the State of California, unless federal law controls as to the issue.
C) The forum for any action under or related to the Agreement is exclusively in a state or federal court (if the latter has or can acquire subject matter jurisdiction) located in the City of San Bernardino, San Bernardino County, California. Each party irrevocably submits to personal jurisdiction in the state or federal courts of San Bernardino County, California. 55600.00203\43139729.2
27 D) The exclusive venue for any action under or related to the Agreement is in a state or federal court of competent jurisdiction in San Bernardino County, California, and each party waives any objection based on improper venue or forum non conveniens.
XVII. TAXES AND CHARGES
E) The City is neither liable for any property taxes, charges, or fees assessed against SUBRECIPIENT nor obligated to reimburse SUBRECIPIENT for any taxes, charges, or fees assessed against SUBRECIPIENT for the supplies provided, any Services rendered, or in connection with the Property or Project.
XVIII. PROHIBITION ON LIENS
Neither SUBRECIPIENT nor its contractors, subcontractors, agents or representatives will create or place, or permit to be created or placed, a lien or any other encumbrance on City property. If any such lien or encumbrance is placed, SUBRECIPIENT must pursue any and all lawful efforts, including, but limited to, seeking relief in a court of competent jurisdiction, to remove the lien or encumbrance from the property.
XIX. NO PERSONAL LIABILITY; NO WAIVER OF IMMUNITY
A) Nothing in this Agreement shall be construed as creating any personal liability on the part of any officer, official, manager, director, employee, agent, or representative of the City, and SUBRECIPIENT expressly agrees that execution of the Agreement does not create any personal liability on the part of any officer, official, manager, director, employee, agent, or representative of the City.
SUBRECIPIENT makes such release with the full knowledge of Civil Code Section 1542 and hereby waives any and all rights thereunder to the extent of this release. Section 1542 of the Civil Code provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT
THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR
HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
__________
SUBRECIPIENT
B) The Parties agree that no provision of this Agreement extends the liability of the City beyond the liability permitted under the laws of the State of California.
C) Neither the execution of this Agreement nor any other conduct of any Party relating to this Agreement shall be considered a waiver by the City of any right, defense, or immunity under the laws of the State of California.
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28 XX. INSURANCE REQUIREMENTS
A) SUBRECIPIENT shall, at all times during the term of this Agreement, maintain insurance coverage with not less than the type and requirements prescribed in the Insurance Requirements attached hereto as Exhibit H. Such insurance is to be provided at the sole cost and liability of the SUBRECIPIENT. The Exhibit H insurance requirements as to the types and limits of insurance coverage to be maintained by SUBRECIPIENT, and any approval of said insurance by the City, is not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by the SUBRECIPIENT pursuant to this Agreement, including but not limited to, the provisions concerning indemnification.
i) Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best’s rating of no less than [A-VII], unless otherwise acceptable to the City.
ii) SUBRECIPIENT must furnish the City, prior to the required date of coverage, or at any time afterwards upon the request by the City, true and accurate copies of all certificate(s) of insurance, with original certificates and endorsements or copies of the applicable policy language effecting coverage required by this section and a copy of the Declarations and Endorsements Pages of the CGL and any Excess policies listing all policy endorsements. iii) SUBRECIPIENT agrees insurance coverage maintained by the City shall apply in excess of and not contribute with SUBRECIPIENT’s insurance as required under this section.
iv) The City reserves the right to modify these insurance requirements, including coverage amounts, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.
v) SUBRECIPIENT shall require and verify that all contractors and subcontractors maintain insurance meeting all requirements stated herein, and SUBRECIPIENT shall ensure that City is an additional insured on such insurance. For CGL coverage, subcontractors must provide coverage with a form at least as broad as CG 20 38 04 13.
B) Generally, SUBRECIPIENT must maintain, at a minimum, the following insurance requirements. The below standards are for reference as the controlling requirements are listed in Exhibit H.
i) Commercial General Liability: Insurance Services Office Form CG 00 01 covering CGL on an “occurrence” basis, including products and completed operations, property damage, bodily injury and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
55600.00203\43139729.2
29 ii) Workers’ Compensation: As required by the State of California, with Statutory Limits, and Employer’s Liability Insurance with limit of no less than $1,000,000 per accident for bodily injury or disease.
iii) Automobile Liability Coverage: ISO Form Number CA 00 01 covering any auto (Code 1), or if SUBRECIPIENT has no owned autos, hired, (Code 8) and non-owned autos (Code 9), with limit no less than $1,000,000 per accident for bodily injury and property damage.
iv) Property Insurance: Against “all risks” of loss to the property, any personal property, improvements, or betterments, at least up to the full amount of the property, at full replacement cost with no coinsurance penalty provision, contained within or on the property. The property insurance is to be endorsed to include Legal Liability Coverage (ISO Form CP 00 40 04 02 or equivalent) with a limit equal to the replacement cost of the property. v) Public Liability Insurance: Covering all risks incident to or in connection with the execution, performance, attempted performance or nonperformance of this Agreement. The amounts of such insurance shall not be less than: Property Damage, per occurrence: $1,000,000; Bodily Injury or Death, per person:
$1,000,000; Bodily Injury or Death, per occurrence: $3,000,000. vi) Proof of insurance with proof of waiver of subrogation and City designated as an “additional insured” must be returned attached to this Agreement, when executed, as part of Exhibit H, attached hereto and incorporated herein by reference.
C) In addition to and cumulative with any other remedies City may have if the SUBRECIPIENT fails to provide or maintain any required insurance coverage, City may, at its sole option:
i) Obtain such insurance and deduct and retain the amount of the premium for such insurance from any sums due under this Agreement;
ii) Order the SUBRECIPIENT to stop work under this Agreement and/or withhold any payment(s) which become due to the SUBRECIPIENT hereunder until the SUBRECIPIENT demonstrates compliance with the insurance coverage requirements; or
iii) Terminate this Agreement.
XXI. [FACILITIES: PAYMENT BOND
A) If applicable, the SUBRECIPIENT must provide and maintain a payment bond with a sum equal to the aggregate value of the construction contract executed by the SUBRECIPIENT for the Project. If SUBRECIPIENT fails to furnish the required payment bond within thirty (30) calendar days after the SUBRECIPIENT’s execution of the construction contract, City may terminate this Agreement for convenience at no further cost to City. The payment 55600.00203\43139729.2
30 bond is solely for the protection of all claimants supplying labor and material in the prosecution of the Services provided for in the Agreement.
B) If the construction contract amount is increased in connection with a change order, the SUBRECIPIENT must increase the bond to reflect the change in contract price.
C) If, at any time during any covered period, the surety fails to meet the statutory requirements of a surety in the State of California, SUBRECIPIENT must immediately and without City’s request, replace the bond with a surety that complies with the requirements above.
D) If a contract price or project schedule increases as a result of a City requested change order, the City shall pay any and all incremental bonding fees as part of such change order as may be required by the surety.]
XXII. WAIVER OF BREACH
Waiver by any Party of a breach or violation of any provision of the Agreement is not a waiver of any subsequent breach.
XXIII. SEVERABILITY
If any provision or part of the Agreement or its application to any person, entity, or circumstance is ever held by any court of competent jurisdiction to be invalid for any reason, the remainder of the Agreement and the application of such provision or part of the Agreement to other persons, entities, or circumstances are not affected.
XXIV. SURVIVAL OF TERMS
Any provision of this Agreement that, by its plain meaning, is intended to survive the expiration or earlier termination of this Agreement including, but not limited to the indemnification provisions, shall survive such expiration or earlier termination. If an ambiguity exists as to survival, the provision shall be deemed to survive.
XXV. CONTRACT CONSTRUCTION
A) This Agreement shall not be construed against or in favor of any Party hereto based upon the fact that the Party did or did not author this Agreement.
B) The headings in this Agreement are for convenience or reference only and shall not control or affect the meaning or construction of this Agreement.
C) When terms are used in the singular or plural, the meaning shall apply to both.
D) When either the male or female gender is used, the meaning shall apply to both.
XXVI. SUCCESSORS, ASSIGNS, AND SUBCONTRACTING
A) This Agreement is binding on and inures to the benefit of the Parties and their respective successors and assigns.
55600.00203\43139729.2
31 B) No Party shall assign, sublet, award, or transfer its interest in this Agreement without written consent of the other Parties.
C) SUBRECIPIENT may not enter into any contract or subcontract in connection with this Agreement without the express written consent of the City.
XXVII. NO THIRD-PARTY BENEFICIARIES
A) The City is not obligated or liable to any party other than SUBRECIPIENT for the performance of this Agreement.
B) Except as to audit rights, nothing in the Agreement is intended or shall be deemed or construed to create any additional rights or remedies in any third party.
C) Except as to audit rights, nothing contained in the Agreement shall be construed to or operate in any manner whatsoever to increase the rights of any third party, or the duties or responsibilities of the City with respect to any third party.
XXVIII. PROJECT REQUIREMENTS
A) SUBRECIPIENT agrees not to discriminate against any person or class of persons by reason of sex, color, race, creed, religion, marital status, handicap, ancestry or national origin in its provision of the Services in compliance with 24 C.F.R. § 570.602. To the extent this Agreement provides that SUBRECIPIENT offer accommodations or services to the public, such accommodations or services shall be offered to the public on fair and reasonable terms. [FACILITIES: SUBRECIPIENT further agrees the Project must not be designed or operated to include segregated facilities, where segregated facilities means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees, that are segregated by explicit directive or are in fact segregated on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin because of written or oral policies or employee custom. The term does not include separate or single-user restrooms or necessary dressing or sleeping areas provided to assure privacy between the sexes. Sexual orientation has the meaning given by the Department of Labor’s Office of Federal Contract Compliance Programs.]
B) [FACILITIES: SUBRECIPIENT agrees the Project must be designed in compliance with the mandatory standards and policies relating to energy efficiency, which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (42 U.S.C. 6201, et seq.).]
C) [TENANT ASSISTANCE: VAWA Requirements. SUBRECIPIENT must comply with the Violence Against Women Act (“VAWA”). SUBRECIPIENT must include as part of each lease to an Eligible Household the City’s [VAWA Notice and Certification Forms], in order to comply with the requirements of 24 C.F.R. § 5.2005. SUBRECIPIENT must ensure that the [VAWA Notice and Certification Forms] are made available in multiple languages in accordance with Executive Order 13166. Within thirty (30) days of the 55600.00203\43139729.2
32 Effective Date of this Agreement, SUBRECIPIENT must deliver to City a copy of SUBRECIPIENT’s emergency transfer plan, which plan shall be based on HUD’s model emergency transfer plan in accordance with 24 CFR 5.2005(e).] D) [IF NOT FAITH-BASED: SUBRECIPIENT does not meet the criteria to qualify as and certifies it is not a faith-based organization for purposes of this Agreement.] [IF FAITH BASED: If SUBRECIPIENT is a faith-based organization, it (i) retains its independence and may continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use the Funds to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), or in any other manner prohibited by law; (ii) if applicable, may use space (including a sanctuary, chapel, prayer hall, or other space) in its facilities (including a temple, synagogue, church, mosque, or other place of worship) to carry out activities related to this Agreement without removing religious art, icons, scriptures, or other religious symbols; and (iii) retains its authority over its internal governance, and may retain religious terms in its organization’s name, select its board members on a religious basis, and include religious references in its organization’s mission statements and other governing documents. If SUBRECIPIENT engages in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), the explicitly religious activities must be offered separately, in time or location, from any programs or activities supported by or related to this Agreement or the Project, and participation must be voluntary for tenants and other beneficiaries of the Funds. If SUBRECIPIENT is a faith- based organization that intends to carry out programs or activities with direct Funds as part of the Project scope, it must give written notice to beneficiaries and prospective beneficiaries of the programs or activities describing certain protections available to them, as provided in 24 C.F.R. § 5.109(g). In addition, if a beneficiary or prospective beneficiary objects to the religious character of the organization carrying out the programs or activities, that organization must promptly undertake reasonable efforts to identify and refer the beneficiary or prospective beneficiary to an alternative provider to which the beneficiary or prospective beneficiary has no such objection.] SUBRECIPIENT acknowledges the requirements of 24 C.F.R. §5.109 apply to the Services, including, without limitation, requirements regarding disposition and change in use of real property by a faith-based organization.
XXIX. ENTIRE AGREEMENT; MODIFICATIONS
A) This instrument contains the entire Agreement between the Parties relating to the rights herein granted and obligations herein assumed.
B) Any oral or written representations or modifications concerning this instrument shall not be effective excepting a subsequent written modification signed by the Parties.
XXX. EXECUTION, MULTIPLE COUNTERPARTS
This Agreement may be executed in several counterparts. Each counterpart is deemed an original. All counterparts together constitute one and the same instrument. Each Party 55600.00203\43139729.2
33 warrants that the undersigned is a duly authorized representative with the power to execute this Agreement.
XXXI. CITY’S REPRESENTATIVE
The Director of the City’s Community Development & Housing Department, or such person’s designee (the “City’s Representative”), shall represent the City in all matters pertaining to this Agreement. Whenever a reference is made herein to an action or approval to be undertaken by the City, the City’s Representative is authorized to act unless this Agreement specifically provides otherwise or the context should otherwise require. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
55600.00203\43139729.2
Signature Page to Community Development Block Grant Subrecipient Agreement IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the Effective Date.
CITY:
CITY OF SAN BERNARDINO,
a California municipal corporation and charter city
By:
Rochelle Clayton, Acting City Manager
APPROVED AS TO FORM:
By:
City Attorney
SUBRECIPIENT:
[SUBRECIPIENT,
a _______________________]
By:
Name:
Title:
55600.00203\43139729.2
Exhibit A
Federal Award Identification Table and
Scope of Services (including Plans and Specifications)
55600.00203\43139729.2
Exhibit B
Award Terms and Conditions
55600.00203\43139729.2
Exhibit C
FEDERAL REQUIREMENTS FOR SUBRECIPIENTS
Subaward Information (2 CFR 200.332).
1. Subrecipient Name [INSERT]
2. Subrecipient’s Unique Entity Identifier [INSERT]
3. Federal Award Identification Number
(FAIN)
[INSERT]
4. Federal Award Date [INSERT]
5. Subaward Period of Performance: Start
Date and End Date
Effective Date – [Stabilization / End of
Affordability Period]
6. Subaward Budget Period Start Date and
End Date
Effective Date – [Stabilization / End of
Affordability Period]
7. Amount of Federal Funds Obligated to the
Subrecipient by the Pass-Through Entity
[INSERT]
8. Amount of Federal Funds Obligated to the
Subrecipient by the Pass-Through Entity,
Including the Current Obligation
[INSERT]
9. Total Amount of the Federal Award
Committed to the Subrecipient by the Pass-
Through Entity
[INSERT]
10. Federal Award Project Description Use of CDBG Funds for the purpose of [INSERT]
11. Name of Federal Awarding Agency
Name of Pass-Through Entity
Contact Information for Pass-Through
Entity
U.S. Department of Housing and Urban
Development
[INSERT]
[INSERT]
12. Assistance Listing Number and Title 14.228 Community Development Block Grant
13. Is the Award for Research &
Development?
No
14. Indirect Cost Rate for Award? [INSERT]
[SUBRECIPIENT] (“Obligated Party”) must comply and cause its contractors and subcontractors to comply, to the extent applicable, with the requirements of the U.S. Department of Housing and Urban Development’s (“HUD”) Community Development Block Grant program (“CDBG”), established by Title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. § 5301 et seq.). Applicable CDBG program regulations include Title 24 of the Code of Federal Regulations 55600.00203\43139729.2
(“CFR”), Part 570. 1 Obligated Party must also comply with all other applicable federal statutes, regulations, and executive orders, and the terms of the contract to which this exhibit is attached (the “Contract”) and the requirements of this Exhibit, including without limitation, the requirements, incorporated herein by reference, of the Unique Entity Identifier and System for Award Management (SAM), 2 CFR Part 25 (including the Award Term set forth in 2 CFR Part 25, Appendix A); Recipient Integrity and Performance Matters (including the Award Term and Condition for Recipient Integrity and Performance Matters set forth in 2 CFR Part 200, Appendix XII); and Reporting Subaward and Executive Compensation Information in 2 CFR Part 170 (including the Award Term set forth in 2 CFR Part 170, Appendix A).
CDBG requirements generally include, without limitation, the following, as applicable:
National Objectives under 24 CFR 570.208;
Eligible activities and costs under 24 CFR 570.201-.207 2; Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards under 2 CFR 200 (as modified by 24 CFR 570.502), including the requirements of the Single Audit Act Amendments of 1996 (31 U.S.C. § 7501-7507) under 2 CFR Part 200, Subpart F;
Grant administration requirements 3 under 24 CFR 570 Subpart J, including, without limitation, requirements for:
oRecords submission and maintenance;
oProgram Income reporting;
oReversion of assets;
oDebarment, suspension, and remedies;
Other federal program requirements under 24 CFR 570 Subpart K, including, without limitation, the following;
oFair Housing Act and title VI of the Civil Rights Act under 24 CFR 570.601; oEqual Employment Opportunity and Section 3 under 24 CFR 570.607; oNon-discrimination under 24 CFR 570.602 4;
1 CDBG regulations applicable to all CDBG programs include 24 CFR Part 570, Subparts A, C, J, K, and O. 24 CFR Subparts D, E, F, G, and I are applicable to activities funded under entitlement grants, special purpose grants, Small Cities and Insular Areas programs, Urban Development Action Grants, and State CDBG programs. 24 CFR Subparts M and N are applicable to certain loan guarantees and Urban Renewal provisions. 2 Ineligible activities are listed under 24 CFR 570.207. 24 CFR 570.209-.210 may be applicable to economic development projects and employment relocation activities.
3 Additional state law requirements may also apply. See Uniform Grant and Contract Management Act (Texas Government Code Chapter 783) and the Uniform Grant Management Standards, issued by Governor's Office of Budget and Planning. 4 Includes requirements of the Housing and Community Development Act of 1974, as amended, particularly Section 109, and Section 504 of the Rehabilitation Act of 1973. Eligibility restrictions for certain resident aliens may apply to beneficiaries under 24 CFR 570.613.
55600.00203\43139729.2
oLabor standards under 24 CFR 570.603 5;
oEnvironmental Standards under 24 CFR Part 58 under 24 CFR 570.604 6; oNational Flood Insurance Program under 24 CFR 570.605; oRelocation assistance under 24 CFR 570.606 7;
oLead-based paint under 24 CFR 570.608 8;
oProhibition on use of debarred, suspended, or ineligible contractors or subrecipients under 24 CFR 570.609;
oConflicts of interest under 24 CR 570.611;
oArchitectural Barriers Act of 1968 and Americans with Disabilities Act of 1990 (28 CFR Parts 35-36) under 24 CFR 570.614; and
Closeout procedures under 2 CFR 200.344 and as established by HUD for the applicable funding program(s).
Terms not otherwise defined in this Exhibit shall have the meaning assigned to them in the Contract unless context requires otherwise. To the extent the provisions in this Exhibit conflict with the Contract, the stricter of the provisions shall apply, unless and to the extent specifically set forth in the Contract; provided, however, that the parties intend this Exhibit to be interpreted consistently with all applicable federal laws, rules, regulations, interpretive guidance and other materials of the federal agency providing funding to the Pass-Through Entity (as defined in the Subaward Information table above) for the Contract.
National Objectives. Obligated Party covenants and agrees the purpose of the Project is to meet one or more of the “National Objectives” and other requirements set forth in 24 CFR 570.208 and certifies all activities carried out under the Contract shall be in furtherance of at least one such National Objective.
General Procurement Standards (2 CFR 200.318-.327). Obligated Party, when applicable, must procure property or services in connection with the Project in accordance with the requirements of 2 CFR 200, including the procurement standards set forth in 2 CFR 200.318-.327. Obligated Party must maintain oversight to ensure its contractors perform in accordance with the terms, conditions, and specifications of their contracts.
5 Includes section 110(a) of the Housing and Community Development Act of 1974, as amended; the Davis-Bacon Act, as amended (40 U.S.C. 3141-3148); the Copeland “Anti-Kickback” Act (40 U.S.C. 3145); and the Contract Work Hours and Safety Standards Act, as supplemented by Department of Labor Regulations under 29 CFR Parts 1, 3, 5, 6 and 7 and under 24 CFR Part 70 for volunteers.
6 Initiating the environmental review process under 24 CFR Part 58 is the responsibility of the Pass-Through Entity.
However, other environmental requirements may apply to the Contract as described in 24 CFR Part 58. Subject to 24 CFR 570.503, 570.509, and 570.604, as applicable.
7 Includes requirements under 49 CFR Part 24, as applicable. 8 Includes requirements of the Lead–Based Paint Poisoning Prevention Ac (42 U.S.C. § 4801 et seq.); the Residential Lead–Based Paint Hazard Reduction Act of 1992; and 24 CFR Part 35, as applicable. 55600.00203\43139729.2
Internal Controls (2 CFR 200.303). Obligated Party must establish and maintain effective internal control over the federal funds that provides reasonable assurance that federal funds are managed in compliance with all applicable Federal, State, and local laws, regulations, and the terms and conditions of the Federal award. Obligated Party must take reasonable measures to safeguard protected personally identifiable information and other information considered to be sensitive consistent with applicable Federal, State, and local laws regarding privacy and responsibility over confidentiality.
Labor Standards (24 CFR 570.603). Obligated Party must comply with section 110(a) of the Housing and Community Development Act of 1974, the Fair Labor Standards Act of 1938 (29 U.S.C.
Section 201 et seq.), and the Contract Work Hours and Safety Standard Act (40 U.S.C. 327 et seq.), as now or hereafter amended, and the supplementing regulations under 29 CFR Parts 1, 3, 5, 6, and 7 (and under 24 CFR Part 70 for volunteers), which regulate wage, hour, and other employment practices that govern the use of funds provided and the employment of personnel under the Contract.
Obligated Party will pay all its workers all monies earned by its workers including, but not limited to, regular wages, any overtime compensation, or any additional payments pursuant to the Fair Labor Standards Act; the Contract Work Hours and Safety Standard Act; 24 CFR Part 70; the Equal Pay Act; and Title VII of the Civil Rights Act of 1964.
National Flood Insurance Program (24 CFR 570.605). If applicable, Obligated Party shall comply with the requirements of the Flood Disaster Protection Act of 1973 (P.L. 93-234; 42 U.S.C. § 4001 et seq.) (44 CFR Parts 59 through 79) for areas identified by HUD as having special flood hazards. The use of any funds provided for acquisition or construction in identified areas shall be subject to the Mandatory Purchase of Flood Insurance requirements of section 102(a) of said act.
Displacement, Relocation, Acquisition, and Replacement of Housing (24 CFR 570.606). If the Project or any work provided in accordance with the Contract will result in the displacement of persons, Obligated Party covenants and agrees to comply with the requirements of the Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations at 49 CFR Part 24 and 24 CFR Part 42.
Equal Protection of the Laws for Faith-Based Community Organizations (24 CFR 570.607).
Obligated Party shall comply with the requirements of Executive Order 13279 and 24 CFR 5.109 to ensure the equal participation of faith-based organizations in all activities under this Contract.
Lead-Based Paint (24 CFR 570.608). Obligated Party shall comply, as applicable, with the requirements of the Lead-Based Paint Poisoning Prevention Act (43 U.S.C. 4821–4846) and implementing regulations at 24 CFR Part 35, the Residential Lead-Based Paint Hazard Reduction Act of 1992 (42 U.S.C. §§ 4851-4856), and the implementing regulations at 24 CFR Part 35, Subparts A, B, J, K and R and 40 CFR part 745, including, without limitation, taking appropriate actions to protect occupants of residential dwellings from the hazards associated with lead-based paint abatement procedures.
Eligibility Restrictions for Certain Resident Aliens and Noncitizens (24 CFR 570.613 and 24 CFR Part 5, Subpart E). Obligated Party shall comply with the applicable restrictions on the provision of benefits to newly legalized aliens under 24 CFR 570.613 and to noncitizens under 24 CFR Part 5, Subpart E.
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Housing Counseling (24 CFR 570.615). If Obligated Party provides housing counseling, as defined in 24 CFR 5.100, under the Contract, the housing counseling must be carried out in accordance with 24 CFR 5.111.
Whistleblower Protections (2 CFR 200.217). In accordance with 41 U.S.C. § 4712, Obligated Party may not discharge, demote, or otherwise discriminate against an employee in reprisal for disclosing to any of the list of persons or entities provided below, information that the employee reasonably believes is evidence of gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a federal contract (including the competition for or negotiation of a contract) or grant.
The list of persons and entities referenced in the paragraph above includes the following:
i. A member of Congress or a representative of a committee of Congress; ii. An Inspector General;
iii. The Government Accountability Office;
iv. A Federal employee responsible for contract or grant oversight or management; v. An authorized official of the Department of Justice or other law enforcement agency; A court or grand jury; or
vi. A management official or other employee of Obligated Party, contractor, or subcontractor who has the responsibility to investigate, discover, or address misconduct.
Obligated Party shall inform its employees in writing of the rights and remedies provided under this provision in the predominant native language of the workforce.
Conflicts of Interest (2 CFR 200.318(c) and 24 CFR 570.611). In accordance with 2 CFR 200.318(c), Obligated Party must maintain written standards of conduct covering conflicts of interest and governing the actions of its employees engaged in the selection, award, and administration of contracts, as well as for disciplinary actions to be applied for violations of such standards. Such standards shall, at a minimum, provide that no employee, officer, or agent of Obligated Party may participate in the selection, award, or administration of the Contract or any other contract supported by a Federal award if he or she has a real or apparent conflict of interest. Such a conflict of interest would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in or a tangible personal benefit from a firm considered for a contract.
The officers, employees, and agents of the Obligated Party may neither solicit nor accept gratuities, favors, or anything of monetary value from contractors or parties to subcontracts. Obligated Party and its parent, affiliate, or subsidiary organizations must also maintain written standards of conduct covering organizational conflicts of interest. Organizational conflicts of interest means that because of relationships with a parent company, affiliate, or subsidiary organization, the non-Federal entity is unable or appears to be unable to be impartial in conducting a procurement action involving a related organization.
In accordance with 24 CFR 570.611, in all cases other than the procurement of supplies, equipment, construction, and services, no employee, agent, consultant, officer, or elected official or appointed official of the Obligated Party who exercises or has exercised any functions or responsibilities with respect to or in connection with the Contract and related activities, or who are in a position to 55600.00203\43139729.2
participate in a decision making process or gain inside information with regard to the Contract and related activities, may obtain a financial interest or benefit from the Contract or related activities, or have a financial interest in any contract, subcontract, or agreement with respect to the Contract or related activities, or with respect to the proceeds of the Contract or related activities, either for themselves or those with whom they have business or immediate family ties, during their tenure or for one year thereafter. HUD may grant an exception to this exclusion as provided in 24 CFR 570.611(d).
REQUIRED CONTRACT PROVISIONS
Obligated Party shall comply with all of the following contract provisions. Obligated Party shall further insert in any contracts and subcontracts the provisions set forth in this exhibit, to the extent applicable, and a clause requiring contractors (and subcontractors when indicated) to include these provisions in any lower tier contracts or subcontracts. Failure to comply by Obligated Party or by any contractor or subcontractor may be grounds for termination of the Contract and for debarment as a contractor or subcontractor.
NO OBLIGATION OF THE FEDERAL GOVERNMENT
The Federal Government is not a party to this Contract and is not subject to any obligations or liabilities to the non- Federal entity, Obligated Party, or any other party pertaining to any matter resulting from the Contract.
SECTION 3 OF THE HOUSING AND URBAN DEVELOPMENT ACT OF 1968 Obligated Party acknowledges that any work to be performed under the Contract is on a project 9 assisted all or in part under a HUD program providing more than $200,000 in federal financial assistance and, pursuant to 24 CFR 570.607, is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, (12 U.S.C. § 1701u) and implementing regulations under 24 CFR Part 75 (“Section 3”). Section 3 requires that, to the greatest extent feasible, opportunities for training and employment be given to lower income residents located in the area of the project and that contracts for work in connection with the project be awarded to business concerns that are owned in substantial part by lower income persons and provide economic opportunities to lower income residents located in the area of the project in accordance with 24 CFR 75.19. Obligated Party shall comply with the requirements of Section 3 and all applicable rules and orders of HUD issued thereunder as of or prior to the Contract.
Obligated Party shall include a Section 3 clause in every contract and subcontract in connection with the Contract. At the direction of the Pass-Through Entity, Obligated Party shall take appropriate action pursuant to the contract or subcontract upon a finding that the contractor or subcontractor is in violation of any Section 3 requirements. Obligated Party shall not contract or subcontract with any party where Obligated Party has notice or knowledge that such party has been found in violation of 9 Defined under 24 CFR 75.3(a)(2) as “the site or sites together with any building(s) and improvements located on the site(s) that are under common ownership, management, and financing.” 55600.00203\43139729.2
any Section 3 requirements and shall not let any contract or subcontract unless the contractor or subcontractor has first provided Obligated Party with a preliminary statement of ability to comply with the requirements of said regulations.
DISCRIMINATION
Obligated Party must comply with the statutes and regulations prohibiting excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, religion, national origin, sex, disability, or age, including, but not limited to, Title VI of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq.) (24 CFR Part 1); Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (24 CFR Part 8); The Fair Housing Act, as amended (42 U.S.C. 3601 et seq.) (24 CFR Parts 100 and 107); Title VIII of the Civil Rights Act of 1968 (42 U.S.C. §§ 3601 et seq.); Title II of the Americans with Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); the Age Discrimination Act of 1975, as amended (42 U.S.C. §§ 6101 et seq.) (24 CFR Part 146); Executive Order 11063, as amended by Executive Order 12259 (“Nondiscrimination and Equal Opportunity in Housing under Executive Order 11063”) (24 CFR Part 107); Section 109 of Title I of the Housing and Community Development Act of 1974 (42 USC § 5309) (24 CFR Part 6); and 24 CFR 5.105 and 24 CFR 570.601-602. Obligated Party must include a provision prohibiting such discrimination in any contracts or subcontracts for activities to which these requirements apply or could apply, and all contractors and subcontractors must comply with the applicable provision.
DISABILITIES
Obligated Party acknowledges the Contract is subject to all laws and regulations that prohibit recipients of federal funding from discriminating against individuals with disabilities, including, but not limited to, the following: Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) (24 CFR Part 8); The Americans with Disabilities Act of 1990 (42 U.S.C. Sections 12101 et seq.) (28 CFR Parts 35-36); the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.); the Uniform Federal Accessibility Standards in Title 24, U.S.C. and associated regulations (24 CFR Part 40); and 24 CFR 5.105 and 24 CFR 570.614. Obligated Party must include a provision prohibiting such discrimination in any contracts or subcontracts for activities to which these requirements apply or could apply, and all contractors and subcontractors must comply with the applicable provision. 55600.00203\43139729.2
BUY AMERICA PREFERENCES FOR INFRASTRUCTURE PROJECTS (2 CFR Part 184) For any contracts involving construction, alteration, maintenance, or repair of any “infrastructure” as described in 2 CFR 184.4.4(d),10, 11 Obligated Party must comply with the “Buy America Preference” of the Build America, Buy America Act, included in the Infrastructure Investment and Jobs Act at division G, title IX, subtitle A, part I, sections 70911 through 70917 (Pub. L. 117-58), and implementing regulations at 2 CFR Part 184. 12 Further, Obligated Party must include the following Buy America Preference all contracts and subcontracts under or in connection with the Contract:
“Pursuant to the Build America, Buy America Act (BABA), enacted as part of the Infrastructure Investment and Jobs Act (IIJA). Pub. L. 117-58, 41 U.S.C. § 8301 note, the Federal Financial Assistance used to fund this infrastructure project is required to apply a domestic content procurement preference (the “Buy America Preference” or “BAP”) for all construction, alteration, maintenance, or repair of infrastructure, including buildings and real property, unless application of the BAP has been waived by HUD. Additional details on fulfilling the BABA requirements can be found at https://www.hud.gov/baba.”
ENVIRONMENTAL LAWS
Obligated Party must comply with all applicable environmental standards that may be prescribed pursuant to the following: (a) institution of environmental quality control measures under the National Environmental Policy Act of 1969 (P.L. 91-190) and Executive Order (“EO”) 11514; (b) notification of violating facilities pursuant to EO 11738; (c) protection of wetlands pursuant to EO 11990; (d) evaluation of flood hazards in floodplains in accordance with EO 11988; (e) assurance of project consistency with the approved State management program developed under the Coastal Zone Management Act of 1972 (16 U.S.C. §§1451 et seq.); (f) conformity to State (Clean Air) implementation Plans under Section 176(c) of the Clean Air Act of 1955, as amended (42 U.S.C. §§7401 et seq.), and U.S. Environmental Protection City regulations pursuant to 40 CFR Part 50, as amended; (g) protection of underground sources of drinking water under the Safe Drinking Water Act of 1974, as amended (P.L. 93-523); (h) protection of endangered species under the Endangered Species Act of 1973, as amended (P.L. 93-205); (j) Sole Source Aquifers (Environmental Protection Agency-40 CFR part 149; (k) Farmland Protection Policy Act of 1981 (7 U.S.C. § 4201, et seq.); (l) 10 Pursuant to HUD Notice CPD-25-01: CPD Implementation Guidance for the Build America, Buy America Act’s Buy America Preference, Pg.1 (https://www.hud.gov/sites/dfiles/OCHCO/documents/cpd-25-01.pdf), housing projects with five or more units will generally be considered “public” infrastructure projects that are subject to the Buy America Preference unless a waiver (general or project/product specific) or exemption (such as for disaster assistance described in 2 CFR 184.8) applies. Land acquisition, demolition, planning, capacity building, program administration, public services, training, counseling, and short-term rental assistance projects generally will not be subject to the Buy America Preference unless materials or supplies are acquired and used for or incorporated into an infrastructure project. 11 HUD considers a “project” to include all related activities consistent with 24 CFR Part 58. See HUD FAQ ID 4255 (https://www.hudexchange.info/faqs/4255/what-is-a-project). 12 The Buy America Preference will apply to (i) any construction materials listed in 2 CFR 184.3 for HUD awards made beginning in fiscal year 2024 and (ii) construction materials not listed in 2 CFR 184.3 and manufactured products for HUD awards made beginning in fiscal year 2025.
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Farmland Protection Policy (Department of Agriculture-7 CFR part 658); (m) applicable criteria and standards specified in HUD environmental regulations (24 CFR Part 51) (other than the runway clear zone and clear zone notification requirement in 24 CFR 51.303(a)(3); and (n) HUD Notice 79-33, Policy Guidance to Address the Problems Posed by Toxic Chemicals and Radioactive Materials, September 10, 1979. See also 24 CFR 570.604 and 24 CFR Part 58. Obligated Party shall include this requirement in all contracts and subcontracts under the Contract.
UNIFORM ADMINISTRATIVE REQUIREMENTS, COST PRINCIPLES, AND AUDIT REQUIREMENTS FOR FEDERAL AWARDS (2 CFR PART 200, INCLUDING ALL APPENDICES; 24 CFR 570.502, 570.610)
Obligated Party must comply with all requirements of 2 CFR Part 200, including Appendix II, as modified by 24 CFR 570.502, and include the applicable provisions in any contracts executed with contractors or subcontractors in connection with the Contract. All contractors and subcontractors must comply with the applicable provisions of 2 CFR Part 200, including, but not limited to, the following:
REMEDIES (2 CFR PART 200, APPENDIX II(A))
The administrative, contractual, or legal remedies in the Contract and CDBG regulations apply when the Obligated Party defaults, violates, or breaches the Contract.
TERMINATION FOR CAUSE/CONVENIENCE (2 CFR PART 200, APPENDIX II(B)) Federal law requires the parties to the Contract to address termination for cause and convenience, and the parties shall comply with these provisions of the Contract.
EQUAL EMPLOYMENT OPPORTUNITY (2 CFR 200, APPENDIX II(C); 41 CFR PART 60) For any contracts entered into in connection with the Contract for construction work that meet the definition of a “federally assisted construction contract” in 41 CFR 60-1.3, Obligated Party shall comply with the requirements of 2 CFR 200, Appendix II(C) and insert the equal opportunity clause provided under 41 CFR 60-1.4(b) into all applicable construction contracts, which is as follows:
During the performance of this contract, the contractor (or subcontractor, as applicable) agrees as follows:
1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, 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, sexual orientation, gender identity, 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 contractor 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.
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2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.
3) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.
4) 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' representatives 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. 5) The contractor will comply with all of the rules, regulations, and relevant orders of the Secretary of Labor.
6) The contractor will furnish all information and reports required 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 rules, regulations, and orders.
7) In the event of the contractor's noncompliance with the nondiscrimination 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, and such other sanctions may be imposed and remedies invoked by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. 8) The contractor will include the provisions of paragraphs (1) through (8) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor 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 noncompliance: Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.
Obligated Party 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 Obligated Party so participating is a State or local government, the above equal opportunity clause is not applicable to any agency, instrumentality or subdivision of such government which does not participate in work on or under the Contract. 55600.00203\43139729.2
Obligated Party 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 rules, 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.
Obligated Party further agrees that it will refrain from entering into any contract or contract modification 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 penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the Executive Order. In addition, Obligated Party agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions: Cancel, terminate, or suspend in whole or in part this grant (contract, loan, insurance, guarantee); refrain from extending any further assistance to the Obligated Party under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from the Obligated Party; and refer the case to the Department of Justice for appropriate legal proceedings.
DAVIS-BACON ACT (2 CFR Part 200, Appendix II(D))
Obligated Party shall comply with the applicable requirements of the Davis-Bacon Act (40 U.S.C. 3141-3148) and the regulations at 29 CFR Parts 1, 3, 5, and 7.
Obligated Party agrees that, except with respect to the rehabilitation or construction of residential property containing fewer than eight (8) units pursuant to 24 CFR 570.603, all contractors and subcontractors engaged under contracts in excess of $2,000.00 for construction, renovation, or repair work financed in whole or in part with federal assistance provided under the Contract shall comply with the applicable requirements of the Davis-Bacon Act and regulations at 29 CFR Parts 1, 3, 5, and 7 requiring payment of wages to laborers and mechanics not less than once a week and at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor.
Obligated Party shall insert, or cause or require to be inserted, in full in all applicable contracts a provision requiring compliance with the Davis-Bacon Act meeting the requirements of 2 CFR Part 200, Appendix II(D). Obligated Party shall notify the Pass-Through Entity of any suspected or reported violations of these requirements. Obligated Party shall be responsible for the compliance by any contractor or subcontractor with these requirements. A breach of the contract clauses above may be grounds for termination of the Contract, and for debarment as a contractor or subcontractor as provided in 29 U.S.C. § 5.12.
COPELAND “ANTI-KICKBACK” ACT (2 CFR Part 200, Appendix II (D)) Obligated Party shall comply with the applicable requirements of the Copeland “Anti-Kickback” Act (40 U.S.C. 3145) and the requirements of 29 CFR Part 3, which prohibits Obligated Party from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. 55600.00203\43139729.2
Obligated Party shall insert, or cause or require to be inserted, in full in all applicable contracts a provision requiring compliance with the Copeland “Anti-Kickback” Act meeting the requirements of 2 CFR Part 200, Appendix II(D). Obligated Party shall notify the Pass-Through Entity of any suspected or reported violations of these requirements. Obligated Party shall be responsible for the compliance by any contractor or subcontractor with these requirements. A breach of the contract clauses above may be grounds for termination of the Contract, and for debarment as a contractor or subcontractor as provided in 29 U.S.C. § 5.12.
CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (2 CFR Part 200, Appendix II(E))
For any contract entered into for construction work when the contract amount exceeds $100,000 and such contract involves the employment of mechanics or laborers, Obligated Party must comply with the Contract Work Hours and Safety Standards Act (40 U.S.C. 3701-3708), including particularly 40 U.S.C. 3702 and 3704, as supplemented by Department of Labor regulations (29 CFR Part 5).
Obligated Party shall insert, or cause or require to be inserted, in full in all applicable contracts a provision requiring compliance with the Contract Work Hours and Safety Standards Act meeting the requirements of 2 CFR Part 200, Appendix II(E). Obligated Party, or contractor, as applicable, must compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours.
Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. 3704 are applicable to contracts described in this paragraph and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous.
RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT (2 CFR Part 200, Appendix II(F))
If the Federal award funding all or part of the Contract meets the definition of a “funding agreement” under 37 CFR 401.2(a) and the Obligated Party wishes to enter into a contract with a small business firm or nonprofit organization regarding the substitution of parties, assignment, or performance of experimental, developmental, or research work under that “funding agreement,” the Obligated Party must comply with the requirements of 37 CFR Part 401, “Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements,” and any implementing regulations issued by the awarding agency.
CLEAN AIR ACT and the FEDERAL WATER POLLUTION CONTROL ACT (2 CFR Part 200, Appendix II (G))
For contracts in an amount exceeding $150,000, Obligated Party must comply with all applicable provisions of the Clean Air Act (42 U.S.C. § 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended. Obligated Party agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Clean Air Act and the Federal Water Pollution Control Act, as amended.
Obligated Party agrees to report each violation of the Clean Air Act or Federal Water Pollution Control Act to the Pass-Through Entity and understands and agrees that the Pass-Through Entity will, in turn, 55600.00203\43139729.2
report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office.
DEBARMENT / SUSPENSION AND VOLUNTARY EXCLUSION (2 CFR Part 200, Appendix II (H); 2 CFR Part 180; 2 CFR Part 2424; 24 CFR Part 5; 24 CFR 570.609) Obligated Party, for itself and its principals, warrants it is eligible or otherwise not disqualified or prohibited from participation in federal or state assistance programs. Obligated Party must verify that all contractors and subcontractors performing work under the Contract are not debarred, disqualified, or otherwise prohibited from participation in accordance with the requirements above. Obligated Party further must notify the Pass-Through Entity in writing immediately if Obligated Party or its contractors or subcontractors are not in compliance with this paragraph during the term of the Contract. If it is later determined that Obligated Party did not comply with this paragraph, the Pass- Through Entity or the Federal Government may pursue any and all available remedies (which shall be cumulative and not exclusive), including, but not limited to, suspension and/or debarment of Obligated Party or its contractors or subcontractors.
BYRD ANTI-LOBBYING AMENDMENT (31 U.S.C. § 1352; 2 CFR 200.450; 2 CFR PART 200, APPENDIX II(I); 24 CFR PART 87, APPENDIX A)
Obligated Party must comply with the applicable requirements of the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352), 2 CFR 200.450, and 24 CFR Part 87.
Pursuant to 31 U.S.C. § 1352, if at any time during the Contract term funding to such contract exceeds $100,000.00, Obligated Party shall file with the Pass-Through Entity the Federal Standard Form LLL titled “Disclosure Form to Report Lobbying” as laid out in a form available from the Pass-Through Entity upon request, which provides that Obligated Party certifies it will not and has not used Federal funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other covered award.
Each contractor or subcontractor of any tier must certify to the tier above that it will not and has not used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant or any other award covered by 31 U.S.C. § 1352. Each tier must also disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures shall be forwarded from tier to tier up to the Pass-Through Entity who in turn will forward the certification(s) to the awarding agency.
PROCUREMENT OF RECOVERED MATERIALS (2 CFR PART 200, APPENDIX II(J); 2 CFR 200.323)
Obligated Party and its contractors must comply with section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 as amended, 42 U.S.C. 6962.
The requirements of Section 6002 include procuring only items designated in the guidelines of the Environmental Protection Agency (EPA) at 40 CFR Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition, where 55600.00203\43139729.2
the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.
Obligated Party should, to the greatest extent practicable and consistent with law, purchase, acquire, or use products and services that can be reused, refurbished, or recycled; contain recycled content, are biobased, or are energy and water efficient; and are sustainable. This may include purchasing compostable items and other products and services that reduce the use of single-use plastic products.
See Executive Order 14057, section 101, Policy.
PROHIBITION ON CERTAIN TELECOMMUNICATIONS AND VIDEO SURVEILLANCE SERVICES OR EQUIPMENT (2 CFR PART 200, APPENDIX II(K); 2 CFR 200.216) Obligated Party shall not contract (or extend or renew a contract) to procure or obtain equipment, services, or systems that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system funded under the Contract. As described in Public Law 115–232, section 889, covered telecommunications equipment is telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities).
(1) For the purpose of public safety, security of government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities). (2) Telecommunications or video surveillance services provided by such entities or using such equipment.
(3) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of the National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
Obligated Party shall include the substance of this section, including this paragraph, in all contracts and subcontracts.
DOMESTIC PREFERENCES FOR PROCUREMENT (2 CFR PART 200, APPENDIX II(L); 2 CFR 200.322)
Obligated Party shall, to the greatest extent practicable and consistent with law, provide a preference for the purchase, acquisition, or use goods, products, or materials produced in the United States (including but not limited to iron, aluminum, steel, cement, and other manufactured products). The requirements of this section must be included in all contracts and subcontracts.
For purposes of this section:
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(1) “Produced in the United States’’ means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.
(2) ‘‘Manufactured products’’ means items and construction materials composed in whole or in part of nonferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete; glass, including optical fiber; and lumber.
To the extent the Contract is an infrastructure project, Obligated Party must implement the Buy America preferences set forth in 2 CFR Part 184.
MANDATORY DISCLOSURES (2 CFR 200.113; 41 U.S.C. § 2313) Obligated Party must disclose, and require its contractors and subcontractors to disclose, in a timely manner, in writing to the Federal awarding agency or the Pass-Through Entity all violations of Federal criminal law involving fraud, bribery, or gratuity violations found in the civil False Claims Act (31 U.S.C 3729-3733) potentially affecting the Federal award funding all or part of the Contract.
Obligated Party is also required to report matters related to recipient integrity and performance in accordance with Appendix II of 2 CFR Part 200. Failure to make required disclosures can result in any of the remedies described in 2 CFR 200.339.
CONTRACTING WITH SMALL BUSINESSES, MINORITY BUSINESSES, WOMEN’S
BUSINESS ENTERPRISES, VETERAN-OWNED BUSINESSES, AND LABOR SURPLUS AREA FIRMS (2 CFR 200.321)
Obligated Party must comply with the Small Businesses, Minority Businesses, Women’s Business Enterprises, Veteran-Owned Businesses, and Labor Surplus Area Firms requirements under 2 CFR 200.321. Obligated Party should ensure that small businesses, minority businesses, women's business enterprises, veteran-owned businesses, and labor surplus area firms are considered, as set forth below:
A.These business types are included on solicitation lists; B.These business types are solicited whenever they are deemed eligible as potential sources; C.Dividing procurement transactions into separate procurements to permit maximum participation by these business types;
D.Establishing delivery schedules (for example, the percentage of an order to be delivered by a given date of each month) that encourage participation by these business types; E. Utilizing organizations such as the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and F. Requiring a contractor under a Federal award to apply this section to subcontracts.
MINIMUM BONDING REQUIREMENTS (2 CFR 200.326)
If the Contract involves construction or facility improvements in excess of the simplified acquisition threshold, as that term is defined in 2 CFR Part 200, Subpart A, Obligated Party shall maintain or cause to be maintained a performance bond for one hundred percent (100%) of the contract price to secure fulfillment of all the Contract requirements, and a payment bond for one hundred percent 55600.00203\43139729.2
(100%) of the contract price to assure payments as required by law of all persons supplying labor and material in the execution of the Contract.
Record Retention and Access; Reports (2 CFR 200.332(b)(5) and 200.334-.338; 24 CFR 570.502 and 570.506-.507). Obligated Party shall maintain records and financial documents sufficient to evidence and meet, and permit the Pass-Through Entity to meet, the reporting, recordkeeping, and retention requirements of 2 CFR 200.332(b)(5) and 200.334-.338 and 24 CFR 570.502 and 570.506- 507. Obligated Party agrees to prepare and submit financial, progress, monitoring, evaluation, personnel, property, and financial records and other reports as required by the Pass-Through Entity (as directed by and in the format acceptable to the Pass-Through Entity) to assure proper accounting of all Federal funds. Obligated Party shall furnish such information that, in the judgment of the Pass- Through Entity, may be relevant to questions of compliance with contractual conditions hereunder or granting agency directives, or with the effectiveness, legality, and goals of the Contract.
Obligated Party agrees to provide the Pass-Through Entity, any Federal Agency, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and other records of Obligated Party that are pertinent to the Contract for the purposes of making audits, examinations, excerpts, and transcriptions and to allow such parties to reproduce same by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.
Obligated Party agrees to provide Pass-Through Entity, any Federal Agency, the Comptroller General of the United States, or any of their authorized representatives access to construction or other work sites pertaining to work being completed under the Contract. Obligated Party acknowledges and agrees that no language in the Contract is intended to prohibit audits or internal reviews by the Federal Agency or its authorized representatives or the Comptroller General of the United States.
In accordance with 24 CFR 570.502, records shall be maintained by Obligated Party for a period of three (3) years after expiration of the Contract or submission of the final annual performance and evaluation report, whichever is later; provided, however, if any litigation, claim, negotiation, audit, monitoring, inspection, or other action or event commences before the expiration of the required record retention period, all records must be retained until completion of the action or event and full and final resolution of all issues that arise from it.
Obligated Party shall include the substance of this section in all contracts and subcontracts. 55600.00203\43139729.2
Exhibit D
Project Budget
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Exhibit E
City’s Conflict of Interest Policy
55600.00203\43139729.2
Exhibit F
Form of Regulatory Agreement and Declaration of Covenants and Restrictions [Attached – Form Approved by City]
55600.00203\43139729.2
Exhibit G
City’s [Construction Standards]
55600.00203\43139729.2
Exhibit H
City’s Insurance Requirements and Certificate of Insurance 55600.00203\43139729.2
Exhibit I
[Intercreditor and Subordination Agreement]
55600.00203\43139729.2
Exhibit J
City’s [Minimum Property Standards]
55600.00203\43139729.2
[Exhibit K
Lease Addendum]
55600.00203\43139729.2
[Exhibit [L]
City’s Compliance Report Form]
55600.00203\43139729.2
Exhibit [M]
Affirmative Marketing Policy and Procedures