HomeMy WebLinkAboutSan Diego, County of; 2005-10-11;Contract #
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CONTRACT FOR MANAGEMENT AND IMPLEMENTATION OF
A HOME INVESTMENT PARTNERSHIPS PROJECT
This is a Contract entered into by and between the City of Carlsbad (hereinafter referred
to as “CITY”), and the COUNTY OF SAN DIEGO (hereinafter referred to as “COUNTY”), on Q7-- I/ 2005 (“Effective Date”).
W ITNES S E TH:
WHEREAS, there has been enacted into law the HOME Act, Title I1 of the Cranston-
Gonzalez National Affordable Housing Act (the “Act”), creating the HOME Investment
Partnerships Program that provides funds to expand the supply of affordable housing for very
low-income and low-income persons; and
WHEREAS, County acting as the “Participating Jurisdiction” within a HOME
Consortium as that term is used in the Act, is authorized to apply for and accept HOME
Investment Partnerships Act Grant Funds with respect to its “Urban County” and the Consortium
Cities of Carlsbad, Encinitas, La Mesa, San Marcos, Santee, and Vista; and
WHEREAS, City is a unit of general local government located within the territorial
boundaries of the County; and
WHEREAS, on, June 29, 1999, City and County renewed a cooperative agreement for
submission of a proposal to the United States Department of Housing and Urban Development
(hereinafter referred to as ‘“UD“); andor
WHEREAS, County received approval from the Board of Supervisors for the City’s
proposed project described in Attachment “A” here of (hereinafter referred to as the “Project’) on
May 10,2005; and
WHEREAS, County incorporated the City’s proposal for the Project into the County’s
Community Development Block Grant/HOME Investment PartnershipEmergency Shelter Grant
Annual Funding Plan which was submitted to HUD; and
WHEREAS, the Cooperative Agreement provided that in the event that the City proposal
is approved by HUD as part of the County proposal and a HOME Investment Partnership
program is made to the County on account of such proposal, the parties heretofore will enter into
a supplementary contract providing for implementation of the City proposal by the County, the
City or by cooperative action of the two agencies; and
WHEREAS, HUD has approved the County Annual Funding Plan for HOME Investment
Partnerships funds; and
Contract # m#- WHEREAS, it is the desire of the City and the County that the Project be implemented;
and
WHEREAS, the City shall undertake the same obligations to the County with respect to
the Project in the County’s aforesaid Annual Funding Plan for participation in the HOME
Investment Partnerships Program;
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1. WORK TO BE PERFORMED: City shall implement the scope of work as
described in Attachment “A” hereof (“Scope of Work”) hlly in accordance with the
terms of the Annual Funding Plan approved by the County and submitted to HUD in
application for fimds to carry out the Project and the Certifications which were submitted
concurrently with the Annual Funding Plan. The Annual Funding Plan and Certifications
form is hereby incorporated by reference into this contract fully as if set forth herein.
City shall also undertake the same obligations to the County that the County has
undertaken to HUD pursuant to said Annual Funding Plan and Certifications. City shall
hold County harmless against any harm that it may suffer with respect to HUD on
account of any failure on the part of City to comply with the requirements of any such
obligation. The obligations undertaken by City include, but are not limited to, the
obligation to comply with the current and most up-to-date version of each of the
following:
Title I1 of the Cranston-Gonzalez National Affordable Housing Act, as amended,
42 U.S.C. 12701;
HUD regulations relating to HOME Investment Partnerships Program (24 CFR
92.1 et seq.);
HUD regulations relating to environmental review procedures for the HOME
Investment Partnerships Program (24 CFR 92.352);
Title VI of the Civil Rights Act of 1964 (42 USC 3 2000d); Title VI1 of the Civil
Rights Act of 1964 (Public Law 88-352); Title VI11 of the Civil Rights Act of
1968 (Fair Housing Act, 42 USC 9 3601, et seq.); Section 109 of the Housing and
Community Development Act of 1974; Executive Order 11246, as amended
(equal employment opportunity); Executive Order 1 1063 (non-discrimination), as
amended by Executive Order 12259; and any HUD regulations heretofore issued
or to be issued to implement these authorities relating to civil rights;
All section 3 covered contracts shall include the following clause (referred to as
the section 3 clause):
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1. The work to be performed under this contract is subject to the
requirements of section 3 of the Housing and Urban Development Act of
1968, as amended, 12 U.S.C. 170111 (section 3). The purpose of section 3
is to ensure that employment and other economic opportunities generated
by HUD assistance or HUD-assisted projects covered by section 3, shall,
to the greatest extent feasible, be directed to low- and very low-income
persons, particularly persons who are recipients of HUD assistance for
housing.
.. 11. The parties to this contract agree to comply with HSJD's regulations in 24
CFR Part 135, which implement section 3. As evidenced by their
execution of this contract, the parties to this contract certify that they are
under no contractual or other impediment that would prevent them fkom
complying with the Part 135 regulations.
... 111. CITY agrees to send to each labor organization or representative of
workers with which CITY has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers'
representative of the CITY'S commitments under this section 3 clause,
and will post copies of the notice in conspicuous places at the work site
where both employees and applicants for training and employment
positions can see the notice. The notice shall describe the section 3
preference, shall set forth minimum number and job titles subject to hire,
availability of apprenticeship and training positions, the qualifications for
each; and the name and location of the person@) taking applications for
each of the positions; and the anticipated date the work shall begin.
iv. The CITY agrees to include this section 3 clause in every subcontract
subject to compliance with regulations in 24 CFR Part 135, and agrees to
take appropriate action, as provided in an applicable provision of the
subcontract or in this section 3 clause, upon a finding that the
subcontractor is in violation of the regulations in 24 CFR part 135. The
CITY will not subcontract with any subcontractor where the CITY has
notice or knowledge that the subcontractor has been found in violation of
the regulations in 24 CFR Part 135.
v. The CITY will certify that any vacant employment positions, including
training positions, that are filled (1) after the CITY is selected but before
the contract is executed, and (2) with persons other than those to whom the
regulations of 24 CFR Part 135 require employment opportunities to be
directed, were not filled to circumvent the contractor's obligations under
24 CFR Part 135.
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Contract # m#- vi. Noncompliance with HUD’s regulations in 24 CFR Part 135 may result in
sanctions, termination of this contract for default, and debarment or
suspension from future HUD assisted contracts.
vii. With respect to work performed in connection with section 3 covered
Indian housing assistance, section 7(b) of the Indian Self-Determination
and Education Assistance Act (25 U.S.C. 450e) also applies to the work to
be performed under this contract. Section 7(b) requires that to the greatest
extent feasible (i) preference and opportunities for training and
employment shall be given to Indians, and (ii) preference in the award of
contracts and subcontracts shall be given to Indian organizations and
Indian-owned Economic Enterprises. Parties to this contract that are
subject to the provisions of section 3 and section 7(b) agree to comply
with section 3 to the maximum extent feasible, but not in derogation of
compliance with section 7(b).
(0 The Uniform Relocation Assistance and Real Property Acquisition Policies Act of
1979, 42 USC 0 4601, et seq., and regulations adopted to implement that Act in
49 CFR Part 24;
(g) Office of Management and Budget (“OMB”) Circular A-87 entitled “Cost
Principles for State, Local and Indian Tribal Governments” and OMB Circular A-
133 entitled “Audits of States, Local Governments, and Non-Profit
Organizations”. Reference is particularly made to 24 CFR 85 entitled
“Administrative Requirements for Grants and Cooperative Agreements to State,
Local and Federally Recognized Indian Tribal Governments.”
(h) 24 CFR 92.503 concerning program income, repayments, and recaptured funds of
the HOME Regulations. Any Program Income earned by the City in carrying out
the activities of this Agreement shall be retained by the City and shall be used by
the City for projects approved by the County within the City’s jurisdiction in
accordance with HOME regulations. The City shall report all Program Income to
the County.
Upon expiration of this agreement, City shall transfer to the County any HOME
funds on hand at the time of expiration and any accounts receivable attributable to
the use of HOME funds;
(i) 24 CFR 92.252 or 92.254, as applicable, concerning “I) affordability
regulations relating to the HOME Investment Partnerships Program. Repayment
of any funds to the County is required if the housing does not meet the
affordability requirements for the specified time period;
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(P)
The following laws and regulations relating to preservation of historic places;
National Historic Preservation Act of 1966 (Public Law 89-665); the
Archaeological and Historical Preservation Act of 1974 (Public Law 93-291); and
Executive Order 11593;
The Labor Standards Regulations set forth in 24 CFR 92.354;
Prevailing Wages set forth in Labor Code Section 1720.
The Hatch Act relating to the conduct of political activities (5 U.S.C. $9 1502, et.
seq.1;
The Flood Disaster Protection Act of 1973 (42 U.S.C. $ 4106 and the
implementing regulations in 44 CFR Parts 59-79);
The Rehabilitation Act of 1973 (Public Law 93-1 12) as amended, including
Section 504 which relates to nondiscrimination in federal programs and HUD
Regulations set forth in 24 CFR Part 8;
The Clean Air Act (42 U.S.C. 0 7401, et seq.) and the Federal Water Pollution
Control Act, as amended (33 U.S.C. $ 1251, et seq.) and the regulations adopted
pursuant thereto (40 CFR Part 6);
The Drug-Free Workplace Act of 1988 (Public Law 100-690);
The Lead-Based paint Poisoning Prevention Act, the Residential Lead-Base Paint
Hazard Reduction Act of 1992, and implementing regulations at Part 35;
No member, officer or employee of the City, or its designee or agents, no member
of the governing body of the locality in which the program is situated, and no
other public official of such locality or localities who exercises any functions or
responsibilities with respect to the program during hisher tenure or for one year
thereafter, shall have any interest, direct, or indirect, in any contract or
subcontract, or the process thereof, for work to be performed in connection with
the program assisted under the Grant, and that it shall incorporate, or cause to be
incorporated, in all such contracts or subcontracts a provision prohibiting such
interest pursuant to the purposes of this certification;
In accordance with Section 519 of Public Law 101-144, the City certifies that it
adopted and is enforcing a policy prohibiting the use of excessive force by law
enforcement agencies within its jurisdiction against any individuals engaged in
nonviolent civil rights demonstrations;
The City certifies, that in accordance with Section 3 19 of Public Law 10 1 - 12 1 , to
the best of his or her knowledge and belief that:
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1. No federal appropriated funds have been paid or will be paid, by or on
behalf of the undersigned, to any person for influencing or attempting to
influence an officer or employee of any agency, a member of Congress, an
officer or employee of Congress, in connection with the awarding of any
federal contract, the making of any federal grant, the making of any
federal loan, the entering into of any cooperative contract, and the
extension, continuation, renewal, amendment, or modification of any
federal contract, grant, loan, or cooperative contract.
.. 11. If any funds other than federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer
or employee of any agency, a member of Congress, or an employee of a
member of Congress in connection with this federal contract, grant, loan,
or cooperative contract, the undersigned shall complete and submit
Standard Form-LLL, “Disclosure Form to Report Lobbying”, in
accordance with its instructions.
The City shall adopt an affirmative marketing plan in accordance with Section
92.35 1, if the housing being funded contains five or more units;
The Architectural Barriers Act of 1968 (42 U.S.C. 53 4151, et seq.); and
The bonding requirements described in 24 CFR Part 85.36 required for
construction or facility improvement contracts or subcontracts that exceed the
simplified acquisition threshold (defined at 41 U.S.C. 403(11)). These
requirements are further described in Attachment B, which is attached hereto and
incorporated by reference.
COMPLIANCE WITH LAWS: City shall comply with all applicable local, state,
and federal laws, regulations, and ordinances when performing the work required by this
Contract.
3. COMPENSATION: County shall reimburse City for the costs it incurs for work
performed under this Contract, not to exceed a maximum reimbursement of $288,356.00. City
shall not submit claims to the County nor shall County reimburse City for costs for which City is
reimbursed from a source other than the hnds allocated for work under this Contract.
4. COMPENSATION SCHEDULE: County shall pay City monthly progress
payments upon certification and submittal by City of a statement of actual expenditures incurred,
provided, however, that not more than 90% of the total agreed compensation will be paid during
the performance of this Contract. The balance due shall be paid upon certification by City that
all of the required services have been completed. Payment by County is not to be construed as
final in the event HUD disallows reimbursement for the project or any portion thereof. The 10%
retention will not apply to acquisition or service contracts.
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5. EXPENDITURE STANDARD: In order to insure effective administration and
performance of approved HOME Investment Partnerships Grant Projects and to meet HUD
performance standards, City shall demonstrate reasonable progress on implementation of the
project, expending all contracted funds within 18 months from the date the contract is executed.
In the event all hnds are not expended within 18 months, the County shall notify the City of the
expenditure deficiency. City shall have a total of 60 calendar days from the date of the County’s
written notification to correct the deficiency. If the deficiency is not corrected within that time,
City agrees that the County may reallocate the amount of the expenditure deficiency.
6. TERM: This contract shall commence on the Effective Date shall continue in
effect until terminated as provided herein.
7. TERMINATION FOR CONVENIENCE: The County may permit the agreement
to be terminated for convenience in accordance with 24 CFR 85.44.
8. AUTOMATIC TERMINATION: This Contract shall terminate at the discretion
of the County if the United States Government terminates the HOME Investment Partnerships
Grant Program or terminates the Project, which is the subject of this Contract, or upon City’s
satisfactory completion of the objectives set forth in the Scope of Work as determined by
County.
9. TERMINATION OF CONTRACT FOR CAUSE: City and County recognize
that the County is the governmental entity which executed the grant agreement received pursuant
to the County’s application and that County is responsible for the proper performance of the
Project. If City fails to fulfill in a timely and proper manner its obligations under this contract to
undertake, conduct or perform the Project identified in this Contract, or if City violates any state
laws or regulations or local ordinances or regulations applicable to implementation of the
Project, or if City violates any provisions of this contract, County shall have the right to
terminate this contract by giving at least ten (10) days’ written notice to City of the effective date
of termination. Even if County terminates the Agreement, City shall remain liable to County for
all damages sustained by County due to City’s failure to hlfill any provisions of this Contract,
and County may withhold any reimbursement payments from City for the purpose of set-off until
the exact amount of damages due to County from City is determined. City hereby expressly
waives any and all claims for damages for compensation arising under this contract except as set
forth in this section in the event of such termination.
10. CONTRACT ADMINISTRATION: The Director, Department of Housing and
Community Development, shall administer this contract on behalf of the County. The Carlsbad
City Manager shall administer this contract on behalf of the City. Within a reasonable time after
the County makes a request, City shall give the County progress reports or other documentation
as required by the County’s Contract Administrator to audit City’s performance of this Contract.
11. RECORDS AND REPORTS: The City shall maintain records and make such
reports as required by the Director, Department of Housing and Community Development, to
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enable the County to analyze City’s project. All records of the City related to this Contract or
work performed under this Contract shall be open and available for inspection by HUD and/or
County auditors during normal business hours.
12. QUARTERLY REPORTS: City shall provide the County with a quarterly report,
submitted no later than thirty (30) days after the last day of the previous quarter, which includes
a narrative of the services provided, progress towards meeting the timeline goals stated in the
contract, and an itemized accounting of the expenditures of HOME funds during the previous
quarter. Failure to submit quarterly reports in a timely manner will result in withholding of
HOME funds until the report has been submitted.
Report due dates are: January 30, April 30, July 30 and October 30.
13. INDEMNIFICATION: County shall not be liable for, and City shall defend and
indemnify County and its officers, agents, employees and volunteers against any and all claims,
deductibles, self-insured retentions, demands, liability, judgments, awards, fines, mechanics’
liens or other liens, labor disputes, losses, damages, expenses, charges or costs of any kind or
character, including attorneys’ fees and court costs (collectively, Claims), which arise out of or
are in any way connected with the work covered by this Contract arising either directly or
indirectly from any act, error, omission or negligence of City or its officers, employees, agents,
contractors, licensees or servants, including without limitation, Claims caused by the concurrent
act, error, omission or negligence, whether active or passive, of County, and/or its agents,
officers, employees or volunteers. However, City shall have no obligation to defend or
indemnify County fiom a Claim if it is determined by a court of competent jurisdiction that such
Claim was caused by the sole negligence or willful misconduct of County or its agents or
employees.
City and its successors, assigns, and guarantors, if any, jointly and severally agree to
indemnify, defend (with counsel selected by County) reimburse and hold County and its officers,
employees and agents harmless fiom any claims, judgments, damages, penalties, fines, costs,
liabilities (including sums paid in settlement of claims) or loss, including attorneys’ fees,
consultants’ fees, and experts’ fees which arise during or after the contract term for any losses
incurred in connection with investigation of site conditions, or any cleanup, remedial, removal or
restoration work required by any hazardous materials laws because of the presence of hazardous
materials, in the soil, ground water or soil vapors on the premises, and the release or discharge of
hazardous materials by City during the course of any alteration or improvements of the Premises
by City, unless hazardous materials are present solely as a result of the gross negligence or
willfbl misconduct of County, its officers, employees or agents. The indemnification provided by
this section shall also specifically cover costs incurred in responding to:
(a) Hazardous materials present or suspected to be present in the soil,
ground water to or under the Property before the Commencement
date;
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HUD#- Hazardous materials that migrate, flow, percolate, diffbse, or in
any way move on to or under the Property following the
Commencement Date; or
(b)
(c) Hazardous materials present on or under the Property as a result of
any discharge, release, dumping, spilling (accidental or otherwise),
onto the Property during or after the Term of this contract by any
person, corporation, partnership or entity other than County.
The foregoing indemnities shall survive the expiration or termination of the contract any
or any transfer of all or any portion of the Premises, or of any interest in this contract and shall
be governed by the laws of the State of California.
14. AUDIT COSTS: City shall reimburse County for all costs incurred to investigate
and audit City’s performance of its duties under the Contract if City is subsequently found to
have violated the terms of the Contract. Reimbursement shall include all direct and indirect
expenditures incurred to conduct the investigation or audit. County may deduct all such costs
from any amount due City under this Contract.
15. ENTIRE AGREEMENT. This contract constitutes the entire agreement of the
parties and supersedes any previous oral or written understandings or contracts related to the
matters covered herein.
16. MODIFICATION. This contract may not be modified except by written
amendment executed by each party.
17. ACKNOWLEDGEMENT OF FUNDING: City shall identify the County of San
Diego as the source of funding, or, if applicable, one of the sources of funding in public
announcements that are made regarding the project. Acknowledgement of the County’s fbnding
role, for example, should be included in publicity materials related to the project. In addition,
City agrees that the County shall be apprised of any special events linked to the project so that
the County may request to participate to the extent allowed by City.
18.
in Attachment B.
INSURANCE: City agrees to comply with the insurance requirements set forth
19. NO WAIVER: No failure, inaction, neglect or delay by County in exercising any
of its rights under this Contract shall operate as a waiver, forfeiture or abandonment of such
rights or any other rights under this Contract.
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HuD#- 20. NOTICE: Any notice or notices required or permitted to be given pursuant to this
Contract shall be personally served by the party giving notice or shall be served by certified mail.
Notices shall be sufficient if personally served on or if sent by certified mail, postage prepaid,
addressed to:
CITY: Raymond R Patchett, City Manager COUNTY:
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Department of Housing & Community Development
3989 Rufin Road
San Diego, CA 92123-1890
IN WITNESS WHEREOF, the parties have executed this Contract on the day and the year first
above written.
City of Carlsbad Department of Housing & Community
Development
Date: SEP 2 9 2005 Date: b-
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(ATTACHMENT A)
Scope of Work
The City has a certain project to be implemented with HOME Investment Partnership Grant
Program funds. The work to be accomplished shall comply with the terms of the Annual
Funding Plan and include the following:
CITY OF CARLSBAD-HOME FAMILY HOUSING PROJECT: Funding in the amount of up
to $288,356 to the City of Carlsbad for the partial hnding of the development and new
construction of 56 apartment units. HOME fimding will hnd the development and construction
of two 2-bedroom units.
1.
A. ESTIMATED TIME SCHEDULE: CONTRACTOR will make all good faith and
reasonable efforts to implement the project in compliance with the following
estimated implementation schedule, or earlier:
Project Completion September 2010
B. ESTIMATED BUDGET: CITY shall make all good faith and reasonable efforts to
complete the work under this Contract within the following estimated budget. In no
case shall CONTRACTOR be entitled to, or shall County reimburse CONTRACTOR
for more than $288,356 for work performed under this Contract.
Costs of Development: $288,356
Total:
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$288,356
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(ATTACHMENT B)
INSURANCE REQUIREMENTS
1. INSURANCE: For the term of this Contract, the City shall include the County in its
program of liability self-insurance. Evidence of such program of self-insurance shall be
evidenced by a "Statement of Coverage" issued by the City to the County.
A. All Subcontractors utilized to carry out the County funded Predevelopment
activities, within 10 working days prior to the inception of their contract with
City, shall submit to County certificates of insurance and appropriate separate
endorsements to the actual insurance Policy, evidencing that the Subcontractor
has obtained for the period of the Contract insurance in the following forms of
coverage and minimum amounts specified from insurance carriers with an A. M.
Best rating of A VI1 and above.
i) An occurrence policy of Commercial General Liability insurance insuring
Subcontractor against liability for bodily injury, including death, personal injury or
property damage arising out - of all operations of the Contractor during the execution
of the said contract of not less than One Million Dollars ($1,000,000) per occurrence.
(1) The City of Carlsbad and the County of San Diego, its officers, agents,
employees, and volunteers shall be added as Additional Insured by separate
endorsement to the policy.
(2) Subcontractor's liability insurance shall apply as primary insurance, and any other
insurance or self-funded program maintained by County or Board shall be excess
only and non-contributing.
ii) Statutory Workers' Compensation insurance along with Employer's Liability of not
less than One Million Dollars ($1,000,000).
iii) A Comprehensive Automobile Liability Insurance policy for bodily injury, including
death, and property damage which provides total limits of not less than one million
dollars ($1,000,000) combined single limit per occurrence applicable to all owned,
non-owned and hired vehicles.
iv) Professional Errors and Omissions Liability Insurance. If City provides andor
engages the services of any type of professional, including, but not limited to,
engineers and architects, whose failure due to a mistake or deficiency in design,
formula, plan, specifications, advisory, technical or other services could result in
liability, City or Consultant shall obtain professional errors and omissions liability
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HuD#- insurance in an amount of not less than one million dollars ($1,000,000). If this policy
contains a self retained limit, it shall not be greater than Ten Thousand Dollars
($10,000) per occurrence/event; if the coverage contains one or more aggregate
limits, a minimum of 50% of any such aggregate limit must remain available at all
times; if over 50% of any aggregate limit has been paid or reserved, County may
require additional coverage to be purchased by Consultant to restore the required
limits. The policy shall include limited contractual liability coverage. This coverage
shall be maintained for all work pursuant to the Contract.
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