Loading...
HomeMy WebLinkAbout000168 Original ContractSUBRECIPIENT AGREEMENT BETWEEN City of Port Angeles and Peninsula Plywood Group, LLC CDBG Funding for Retaining and Creating Jobs City of Port Angeles Record #000168 J This Agreement is made between the City of Port Angeles (hereinafter referred to as the "City and Peninsula Plywood Group, LLC, a Washington corporation (hereinafter called Subrecipient) for the use of retaining and creating jobs at the Port Angeles Mill, Port Angeles, Washington. WHEREAS, pursuant to Title I of the Housing and Community Development Act of 1974, as amended, the Washington State Department of Commerce is authorized by the federal Department of Housing and Urban Development (HUD) to provide State Community Development Block Grant Program funds (hereinafter referred to as CDBG funds) to units of City selected to undertake and carry out certain programs and projects under the Washington State Community Development Block Grant Program in compliance with all applicable local, state, and federal laws, regulations and policies, and WHEREAS, the City has applied for and received a CDBG award, contract number 11 -64100 -043 to fund the referenced Project; and WHEREAS, it benefits the City to engage the Subrecipient to accomplish the Scope of Service and the objectives of the local CDBG project; THE PARTIES AGREE THAT: 1. SCOPE OF SERVICES City Responsibilities The City is responsible for administration of the CDBG contract, and ensuring CDBG funds are used in accordance with all program requirements [(24 CFR 570.501(b)] and its CDBG contract with the Department of Commerce referenced above. The City will provide such assistance and guidance to the Subrecipient as may be required to accomplish the objectives and conditions set forth in this Agreement. Subrecipient Responsibilities The Subrecipient will complete in a satisfactory and proper manner as determined by the City all tasks described in the Scope of Work that is attached hereto, marked as Attachment A and incorporated herein by reference, and will perform all work necessary to accomplish the objectives of the Project. The Subrecipient will periodically meet with the City to review the status of these tasks. Principal Tasks Implement the Employment Plan approved by the assisted business. Implement the Employment and Training Agreement to coordinate job training and placement through the local Employment Security Department WorkSource Center. Track job retention and job creation, completing and submitting the Job Interview and Income Qualification form and Affirmative Action Questionnaire for each job. Meet the CDBG national objective of principally benefiting low- and moderate income (LMI) persons. Comply with applicable Policies and practices outlined in the Washington State Department of Commerce May 2010 Community Development Block Grant Management Handbook. A listing of detailed project activities have been marked as Section B: Project Activities, Milestones and Budget on Exhibit A, and are incorporated herein by reference. 2. TIME OF PERFORMANCE The effective date of this Agreement will be May 12, 2011. The Agreement will be in effect for the time period during which the Subrecipient remains in control of CDBG funds or other CDBG assets. The Agreement shall not exceed two years. 3. BUDGET The City will pass through to the Subrecipient no more than $500,000.00 in CDBG funds for eligible incurred costs and expenses for the Project according to the budget shown on the Attachment A. The funds for this budget consist of $500,000.00 from a CDBG grant recently awarded by the Washington State Department of Commerce. The $500,000.00 awarded by the Washington State Department of Commerce will be applied entirely to the projects described in Attachment A and subject to all terms and conditions stated in Attachment B. The City may require a more detailed budget breakdown, and the Subrecipient will provide such supplementary budget information in a timely fashion in the form and content prescribed by the City. Any amendments to this Agreement's Budget must first be determined by the City as consistent with its CDBG contract with the Department of Commerce and then approved in writing by the City and the Subrecipient. 4. PAYMENT The City will reimburse the Subrecipient in accordance with the payment procedures outlined in the CDBG Management Handbook, Financial Management Section for all allowable expenses agreed upon by the parties to complete the Scope of Service. Reimbursement under this Agreement will be based on billings, supported by appropriate documentation of costs actually incurred, and subject to the terms and conditions stated in Attachment B. It is expressly understood that claims for reimbursement will not be submitted in excess of actual, immediate cash requirements necessary to carry out the purposes of the Agreement. Funds available under this Agreement will be utilized to supplement rather than supplant funds otherwise available. It is understood that this Agreement is funded in whole or in part with CDBG funds through the Washington State CDBG Program as administered by the Department of Commerce and is subject to those regulations and restrictions normally associated with federally- funded programs and any other requirements that the state may prescribe. S. PERFORMANCE MONITORING The City will monitor the performance of the Subrecipient by tracking project progress, reviewing payment requests for applicable costs, managing the timely pass- through of CDBG funds, overseeing compliance with CDBG requirements, and ensuring recordkeeping and audit requirements are met. Substandard performance as determined by the City will constitute noncompliance with this Agreement. If action to correct such substandard performance is not taken by the Subrecipient within a reasonable period of time after being notified by the City, contract suspension or termination procedures will be initiated. 6. GENERAL CONDITIONS A. General Compliance The Subrecipient agrees to comply with: The requirements of Title 24 of the Code of Federal Regulations, Part 570 (HUD regulations concerning CDBG); and All other applicable Federal, state and local laws, regulations, and policies, governing the funds provided under this Agreement. B. CDBG National Objective The Subrecipient certifies the activities carried out under this Agreement meet a CDBG Program National Objective defined in 24 CFR 570.208. C. Independent Contractor Nothing contained in this Agreement is intended to, or will be construed in any manner, as creating or establishing the relationship of employer /employee between the parties. The Subrecipient will at all times remain an "independent contractor" with respect to the services to be performed under this Agreement. The City will be exempt from payment of all Unemployment Compensation, FICA, retirement, life and /or medical insurance and Workers' Compensation Insurance, as the Subrecipient is an independent contractor. D. Hold Harmless The Subrecipient will hold harmless, defend and indemnify the City from any and all claims, actions, suits, charges and judgments whatsoever that arise out of the Subrecipient's performance or nonperformance of the services or subject matter called for in this Agreement. E. Workers' Compensation The Subrecipient will provide Workers' Compensation Insurance Coverage for all of its employees involved in the performance of this Agreement. F. Insurance and Bonding The Subrecipient will carry sufficient insurance coverage to protect contract assets from loss due to theft, fraud and /or undue physical damage, and as a minimum will purchase a blanket fidelity bond covering all employees in an amount equal to cash advances from the City. G. Funding Source Recognition The Subrecipient will insure recognition of the roles of the Department of Commerce, the WA State CDBG program, and the City in providing services through this Agreement. All activities, facilities and items utilized pursuant to this Agreement will be prominently labeled as to funding source. In addition, the Subrecipient will include a reference to the support provided herein in all publications made possible with funds made available under this Agreement. H. Amendments The City or Subrecipient may amend this Agreement at any time provided that such amendments make specific reference to this Agreement, and are executed in writing, signed by a duly authorized representative of each organization, and approved by the City's governing body. Such amendments will not invalidate this Agreement, nor relieve or release the City or Subrecipient from its obligations under this Agreement. I. Suspension or Termination In accordance with 24 CFR 85.43, the City may suspend or terminate this Agreement if the Subrecipient materially fails to comply with any terms of this Agreement, which include (but are not limited to) the following: Failure to comply with any of the rules, regulations or provisions referred to herein, or such statues, regulations, executive orders, and HUD guidelines, policies or directives as may become applicable at any time; Failure, for any reason, of the Subrecipient to fulfill in a timely and proper manner its obligations under this Agreement. Ineffective of improper use of funds provided under this Agreement; or Submission by the Subrecipient to the City of reports that are incorrect or incomplete in any material respect. In accordance with 24 CFR 85.44, this Agreement may also be terminated for convenience by either the City or the Subrecipient, in whole or in part, by setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if in the case of a partial termination, the City determines that the remaining portion of the award will not accomplish the purpose for which the award was made, the City may terminate the award in its entirety. 7. ADMINISTRATIVE REQUIREMENTS A. Financial Management Accounting Standards. The Subrecipient agrees to comply with 24 CFR 84.21 -28 and agrees to adhere to the accounting principles and procedures required therein, utilize adequate internal controls, and maintain necessary source documentation for all costs incurred. Cost Principles. The Subrecipient.will administer its program in conformance with OMB Circulars A- 122, "Cost Principles for Non Profit Organizations," or A -21, "Cost Principles for Educational Institutions," as applicable. These principles will be applied for all costs incurred whether charged on a direct or indirect basis. Duplication of Costs. The Subrecipient certifies that work to be performed under this Agreement does not duplicate any work to be charged against any other contract, subcontract or other source. B. Documentation and Record Keeping 1. Records to Be Maintained. The Subrecipient will maintain all records required by the Federal regulations specified in 24 CFR 570.506 that are pertinent to the activities to be funded under this Agreement and those records described in the CDBG Management Handbook. Such records will include but not be limited to: Records providing a full description of each activity undertaken; Records demonstrating that each activity undertaken meets one of the National Objectives of the CDBG program; Records required to determine the eligibility of activities; Records required to document the acquisition, improvement, use or disposition of real property acquired or improved with CDBG assistance; Records documenting compliance with the civil rights components of the CDBG program; Financial records as required by 24 CFR 570.502, and 24 CFR 84.21 -28; Labor standards records required to document compliance with the Davis Bacon Act, the provisions of the Contract Work Hours and Safety Standards Act, and all other applicable Federal, state and local laws and regulations applicable to CDBG- funded construction projects; and Other records necessary to document compliance with Subpart K of 24 CFR Part 570. 2. Access to Records and Retention. All such records and all other records pertinent to this Agreement and work undertaken under this Agreement will be retained by the Subrecipient for a period of six years after final audit of the City's CDBG project, unless a longer period is required to resolve audit findings or litigation. In such cases, the City will request a longer period of record retention. 3. Audits and Inspections. All Subrecipient records with respect to any matters covered by this Agreement will be made available to the City, the Department of Commerce, and duly authorized officials of the state and federal government, at any time during normal business hours, as often as deemed necessary, to audit, examine, and make excerpts or transcripts of all relevant data. Any deficiencies noted in audit reports must be fully cleared by the Subrecipient within 30 days after receipt by the Subrecipient. Failure of the Subrecipient to comply with the above audit requirements will constitute a violation of this Agreement and may result in the withholding of future payments. The Subrecipient hereby agrees to have an annual agency audit conducted in accordance with current City policy concerning Subrecipient audits and OMB Circular A -133. C. Reporting Proaram Income The Subrecipient will report annually all program income (as deemed at 24 CFR 570.500(a)) generated by activities carried out with CDBG funds made available under this Agreement. The use of program income by the Subrecipient will comply with the requirements set forth at 24 CFR 570.504. Periodic Reports The Subrecipient, at such times and in such forms as the City may require, will furnish the City such periodic reports as it may request pertaining to the work or services undertaken pursuant to this Agreement, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this Agreement. Reportine Requirements CFDA 14.228. The Subrecipient shall be required to include all expenditures on the entity's SEFA as part of their reporting requirement. D. Use and Reversion of Assets The use and disposition of real property and equipment under this Agreement will be in compliance with the requirements of 24 CFR Part 84 and 24 CFR 570.502, 570.503, 570.504, as applicable, which include but are not limited to the following: The Subrecipient will transfer to the City any CDBG funds on hand and any accounts receivable attributable to the use of funds under this Agreement at the time of expiration, cancellation, or termination. Real property under the Subrecipient's control that was acquired or improved, in whole or in part, with funds under this Agreement in excess of $25,000 will be used to meet one of the CDBG National Objectives pursuant to 24 CFR 570.208 until ten (10) years after the contract between the Department of Commerce and the City is closed. If the Subrecipient fails to use CDBG- assisted real property in a manner that meets a CDBG National Objective for this 10 -year period of time, the Subrecipient will pay the City an amount equal to the current fair market value of the property less any portion of the value attributable to expenditures of non -CDBG funds for acquisition of, or improvement to, the property after the CDBG program's approval. Such payment will constitute program income to the City. The Subrecipient may retain real property acquired or improved under this Agreement after the expiration of the ten -year period. In cases in which equipment acquired, in whole or in part, with funds under this Agreement is sold, the proceeds will be program income. Equipment not needed by the Subrecipient for activities under this Agreement will be (a) transferred to the City for CDBG eligible activities as approved by the CDBG program or (b) retained after compensating the City. 8. PERSONNEL AND PARTICIPANT CONDITIONS A. Civil Rights Title VI of the Civil Rights Act of 1964: Under Title VI of the Civil Rights Act of 1964, no person will, on the grounds of race, color, creed, religion, sex or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. Section 109 of the Housing and Community Development Act of 1974: No person in the United States will on the grounds of race, color, creed, religion, sex or national origin be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this title. Age Discrimination Act of 1975, as Amended No person will be excluded from participation, denied program benefits, or subjected to discrimination on the basis of age under any program or activity receiving federal funding assistance. (42 U.S.C. 610 et. seq.) Section 504 of the Rehabilitation Act of 1973, as Amended No otherwise qualified individual will, solely by reason or his or her disability, be excluded from participation (including employment), denied program benefits, or subjected to discrimination under any program or activity receiving Federal funds. (29 U.S.C. 794) Public Law 101 -336, Americans with Disabilities Act of 1990 Subject to the provisions of this title, no qualified individual with a disability will, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. B. Section 3 of the Housing and Community Development Act of 1968 Compliance in the Provision of Training, Employment, and Business Opportunities: The work to be performed under this Agreement is on a project assisted under a program providing direct federal financial assistance from HUD and is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u. Section 3 requires that to the greatest extent feasible opportunities for training and employment be given lower- income residents of the project area; and contracts for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part, by persons residing in the area of the project. The parties to this contract will comply with the provisions of said Section 3 and the regulations set forth in 24 CFR 135, and all applicable rules and orders of HUD and the Department of Commerce issued thereunder prior to the execution of this contract. The parties to this contract certify and agree that they are under no contractual or other disability that would prevent them from complying with these provisions. The Subrecipient will send to each labor organization or representative of workers with which he has a collective bargaining agreement or other contract or understanding, if any, a notice advising the said labor organization or workers' representative of his commitments under this Section 3 clause and will post copies of the notice in conspicuous places available to employees and applicants for employment or training. The Subrecipient will include this Section 3 clause in every subcontract for work in connection with the project and will, at the direction of the applicant, or recipient of federal financial assistance, take appropriate action pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations issued by the Secretary of HUD, 24 CFR Part 135. The Subrecipient will not subcontract with any subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR Part 135 and will not let any subcontract, unless the subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. Compliance with the provisions of Section 3, the regulations set forth in 24 CFR Part 135, and all applicable rules and orders of HUD and the Department of Commerce issued hereunder prior to the execution of the contract, will be a condition of the federal financial assistance provided to the project, binding upon the applicant or recipient for such assistance, its successors, and assigns. Failure to fulfill these requirements will subject the applicant, or recipient, its consultants and subcontractors, its successors and assigned to those sanctions specified by the grant or loan agreement or contract through which federal assistance is provided, and to such sanctions as are specified by 24 CFR Part 135. C. Conduct Assignability The Subrecipient will not assign or transfer any interest in this Agreement without the prior written consent of the City thereto; provided, however, that claims for money due or to become due to the Subrecipient from the City under this contract may be assigned to a bank, trust company, or other financial institution without such approval. Notice of any such assignment or transfer will be furnished promptly to the City and the Department of Commerce. Conflict of Interest No member of the City's governing body and no other public official of such locality, who exercises any functions or responsibilities in connection with the planning or carrying out of the project, will have any personal financial interest, direct or indirect, in this Agreement; and the Subrecipient will take appropriate steps to assure compliance. The Subrecipient agrees to abide by the provisions of 24 CFR 84.42 and 570.611, which includes maintaining a written code or standards of conduct that will govern the performance of its officers, employees or agents engaged in the award and administration of contracts supported by Federal funds. The Subrecipient covenants that its employees have no interest and will not acquire interest, direct or indirect, in the study area or any parcels therein or any other interest which would conflict in any manner or degree with the performance of services hereunder. The Subrecipient further covenants that in the performance of this Agreement, no person having such interest will be employed. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion Lower Tier Covered Transactions The lower tier contractor certifies, by signing this contract that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from participation in this transaction by any Federal department or agency. Where the lower tier contractor is unable to certify to any of the statements in this contract, such contractor will attach an explanation to this contract. The contractor further agrees by signing this contract that it will not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction. D. Copyright If this Agreement results in any copyrightable material or inventions, the City and /or the Department of Commerce reserves the right to royalty -free, non exclusive and irrevocable license to reproduce, publish or otherwise use and to authorize others to use, the work or materials for governmental purposes. E. Religious Activities The Subrecipient agrees that funds provided under this Agreement will not be utilized for inherently religious activities prohibited by 24 CFR 570.200(j), such as worship, religious instruction, or proselytization. F. Personnel The Subrecipient represents that it has, or will secure at its own expense, all personnel required to fully perform under this contract. Such personnel shall not be employees of, or have any contractual relationship to, the City. All services required hereunder will be performed by the Subrecipient or under its supervision and all personnel engaged in the work shall be fully qualified and shall be authorized or permitted under state or local law to perform such services. 9. SEVERABILITY If any provision of this Agreement is held invalid, the remainder of the Agreement will not be affected thereby and all other parts of this Agreement will nevertheless be in full force and effect. 10. PERFORMANCE WAIVER The City's failure to act with respect to a breach by the Subrecipient does not waive its right to act with respect to subsequent or similar breaches. The failure of the City to exercise or enforce any right or provision will not constitute a waiver of such right or provision. 11. ENTIRE AGREEMENT This Agreement constitutes the entire agreement between the City and the Subrecipient for the use of funds received under this Agreement and it supersedes all prior communications and proposals, whether electronic, oral, or written between the City and the Subrecipient with respect to this Agreement. IN WITNESS WHEREOF, the City and the Subrecipient have executed this Agreement as of the date and year last written below. CITY OF PORT ANGELES PENINSULA PLYWOOD GROUP, LLC By: V- /Al"' By: ad. Title: f I I P r op �,M,M Dt,, c (Q1 j Title: dtii� Date: (/2 Dh Date: \lank 20 -2-0 Approve sf as to form: r William E. Bloor, City Attorney G \LEGAL \a AGREEMENTS &CONTRACTS\2011 Agrmts &Contracts \CDBG Subrecipient Agrmt PenPly 06 09 11 doc ATTACHMENT A SCOPE OF WORK AND BUDGET Contractor: City of Port Angeles Section A: Brief Description Contract No. 11- 64100 -043 The City of Port Angeles is awarded a $500,000 Community Development Block Grant (CDBG) to assist the Peninsula Plywood Group. The project will result in job creation and retention, and will support the stabilization and expansion of the local economy. The funding is available for necessary operating capital. Total project costs are estimated at $500,000. The project will retain approximately 95 full -time equivalent jobs and create approximately 20 full time equivalent jobs, with over 51% of the jobs meeting the low -and moderate income jobs criteria. 1 Section B: Project Activities, Milestones and Budget Project Activities CDBG Budget Code 21A General Admin. Schedule Execute grant agreement with Commerce. Verify the business is not on the federal Excluded Parties List (EPLS) and maintain in Done. CDBG file. Collect items A. E. of the Employment Projections and Representations summary to document initial job creation and retention. Establish a subrecipient agreement that includes the quarterly beneficiary reporting requirement and submit a signed copy to Commerce. Establish administrative, financial, reporting, and record keeping systems. Payment Requests: No more than Review payment requests from assisted business, project costs and invoices against monthly Budget Amount 18A Economic Development Direct Financial Assistance to For Profits project budget and contract start date. Once costs are approved, prepare and submit payment request to Commerce. Payment requests shall comply with the terms and conditions stated in Attachment B. Document receipt of grant funds and reimbursement of eligible costs. Submit Quarterly Job Progress Summary within 30 days of end of each calendar quarter. Complete applicable civil rights requirements. Conduct an on -site monitoring of the subrecipient to verify the grant is used according to CDBG requirements and all costs reimbursed are allowable. Resolve all monitoring issues with Commerce's Contracts Administration Unit (CAU). Grant activities are accomplished. Conduct a final public hearing to review project performance. Submit a Grantee Closeout Performance Report. List CDBG expenditures in your annual Schedule of Expenditures of federal Awards for audit purposes and schedule an OMB Circular A -133 audit. Complete the environmental and prepare environmental review record in compliance with NEPA requirements for CDBG economic development activities. Implement the Employment Plan approved by the assisted business. Implement the Employment and Training Agreement to coordinate job training and placement through the local Employment Security Department WorkSource Center. Track job retention and job creation, completing and submitting the Job Interview and Income Qualification form and Affirmative Action Questionnaire for each job. Meet the CDBG national objective of principally benefiting low -and moderate income (LMI) persons. Accomplish HUD's outcome of economic sustainability by achieving HUD's objective of creating economic opportunities through business assistance and job creation/retention. By April 30, July 31, Oct 31, Jan 31 By August, 2011 Before requesting final 5% of CDBG award Before release of funds Approx. (a© LMI jobs will be created /retained by contract end date. TOTAL: Section C: Repayment of Utilities to City Budget Category Pay $50,000 on past -due amounts. Pay new charges before they become past -due. On -going Schedule $450,000 TOTAL: $500,000 Pen Ply Subrecipient Attachment B.docx Attachment B Conditions Governing Use of Funds A. Funds from this CDBG grant will be available as follows: 1. In addition to the $50,000 to be paid on account of past due utility charges, Two Hundred Twelve Thousand Five Hundred Dollars ($212,500) will be available immediately for eligible expenses. 2. The remaining funds shall be available only after the Subrecipient secures additional funding in the amount of Four Hundred Seventy Thousand Dollars ($470,000) and prepares and implements a business, management, and operations plan approved and adopted by the Board of Directors of the Subrecipient 3. The City shall retain 5% of the funds until close out of the CDBG grant. B. Funds from this CDBG grant will only be used to pay for the following expenses: 1. New purchases of supplies, limited to: a. Veneer b. Logs c. Glue d. Polyurethane e. Paper 2. Utilities (current and past due). 3. Implementation of the business, management, and operations plan. C. As a condition of this Agreement, the Subrecipient covenants and agrees to the following: 1. payment of the first $50,000 of grant funds to the City on account of past due utility charges, 2. thereafter utility payments including interest on past due amounts to the City must remain current and paid prior to the due date of the corresponding bill, and 3. the Subrecipient timely performs and complies with all CDBG Required reporting requirements. D. Funds available from this CDBG grant may not be applied to or used for any other expenses whatsoever, including without limitation, the following: 1. capital equipment 2. investor repayments 3. invoices, or expenses incurred, or orders placed, prior to May 12, 2011 E. The Subrecipient shall re- establish in full its required utility deposit in the amount of $47,610 with the City prior to close out of grant. Prior to grant close out a payment plan shall be agreed on any remaining past due utility amounts.