Base_Agreement-_Includes_Appendix_C.pdf

AGREEMENT

THIS AGREEMENT, (“Agreement”) is made and entered into on the Click here to enter text. day of Click here to enter text., Click here to enter text. (“Effective Date”), by and between Click here to enter text. (“Consultant”) and the City of St. Petersburg, Florida, (“City”) (collectively, “Parties”).

WITNESSETH:

NOW, THEREFORE, in consideration of the promises and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

1. Consultant Duties. Consultant shall perform the scope of services set forth in Appendix

A (“Scope of Services”) and provide the Deliverables (as hereinafter defined) for the City in full and complete accordance with this Agreement. Upon receipt of a purchase order issued by the City to Consultant in accordance with this Agreement (individually, “Purchase Order” and collectively, “Purchase Orders”), Consultant shall furnish the City with the services ordered, to the extent such services are set forth in this Agreement.

2. Agreement Components.

A. The agreement components are this Agreement, the appendices to this Agreement and the following documents, which are made a part hereof by reference (“Other Documents”):

(i) Click here to enter text. (“Document 1”)

(ii) Click here to enter text. (“Document 2”)

(iii) Click here to enter text. (“Document 3”)

(iv) Click here to enter text. (“Document 4”)

B. In the event of an inconsistency or conflict between or among the documents referenced in this Agreement, the following order of precedence governs: (i) this Agreement, exclusive of its appendices, (ii) the appendices to this Agreement, and

(iii) the Other Documents. In the event of an inconsistency or conflict between or among the Other Documents, the order of precedence is the order the documents are listed above (e.g. Document 1 governs over Document 2, Document 2 governs over Document 3, etc.).

3. Term. The initial Term of this Agreement commences on the Effective Date and terminates on Click here to enter text., 20Click here to enter text., unless this Agreement is earlier terminated as provided for herein. The City reserves the right to extend this Agreement under the same terms and conditions for Click here to enter text. (Click here to enter text.)

Click here to enter text. (Click here to enter text.)-year period(s) at the end of the initial Term, provided such extension is mutually agreed upon by both Parties in writing.

References in this Agreement to “Term” includes the initial Term and all renewal Terms.

4. Ordering. The City will issue Purchase Orders on an as-needed basis. Nothing contained herein may be construed to obligate the City to issue any Purchase Orders under this Agreement. When ordering, the City will furnish Consultant with a Purchase Order number; name of department; name of person placing the order, date of order; description of services ordered; and any required schedule.

5. Payment. Provided Consultant faithfully performs its obligations contained in this

Agreement, the City shall pay Consultant in accordance with the fees and rates identified in Appendix B (“Payment”). The Payment shall not exceed ___________________. The Payment is inclusive of all out-of-pocket expenses, including but not limited to transportation, lodging, meals, materials, phone, postage, and mileage. Consultant shall invoice the City in accordance with the procedures established by the City. The Payment may only be increased in strict accordance with this Agreement.

6. Indemnification.

A. Consultant shall defend at its expense, pay on behalf of, hold harmless and indemnify the City, its officers, employees, agents, elected and appointed officials and volunteers (collectively, “Indemnified Parties”) from and against any and all claims, demands, liens, liabilities, penalties, fines, fees, judgments, losses and damages (collectively, “Claims”), whether or not a lawsuit is filed, including, but not limited to Claims for damage to property or bodily or personal injuries, including death at any time resulting therefrom, sustained by any persons or entities; and costs, expenses and attorneys’ and experts’ fees at trial and on appeal, which Claims are alleged or claimed to have arisen out of or in connection with, in whole or in part, directly or indirectly:

(i) The performance of this Agreement (including any amendments thereto) by

Consultant, its employees, agents, representatives or subcontractors; or

(ii) The failure of Consultant, its employees, agents, representatives or subcontractors to comply and conform with applicable Laws (as defined herein); or

(iii) Any negligent act or omission of the Consultant, its employees, agents, representatives, or subcontractors, whether or not such negligence is claimed to be either solely that of the Consultant, its employees, agents, representatives or subcontractors, or to be in conjunction with the claimed negligence of others, including that of any of the Indemnified Parties; or

(iv) Any reckless or intentional wrongful act or omission of the Consultant, its employees, agents, representatives, or subcontractors; or

(v) Consultant’s failure to maintain, preserve, retain, produce, or protect records in accordance with this Agreement and applicable Laws (including but not limited to Florida laws regarding public records).

B. The provisions of this paragraph are independent of, and will not be limited by, any insurance required to be obtained by Consultant pursuant to this Agreement or otherwise obtained by Consultant, and the provisions of this paragraph survive the expiration or earlier termination of this Agreement with respect to any claims or liability arising in connection with any event occurring prior to such expiration or termination.

7. Insurance.

A. Consultant shall obtain and maintain the following minimum types and amounts of insurance throughout the term at its own expense:

(i) Commercial general liability insurance in an amount of at least One Million

Dollars ($1,000,000) per occurrence, Two Million Dollars ($2,000,000) aggregate in occurrences form. This policy shall include coverage for (i) personal injury or death or property damage or destruction; (ii) business interruption; (iii) fire legal liability in the minimum amount of One Hundred Thousand Dollars ($100,000); and (iv) contractual liability under this Agreement.

(ii) Automobile liability insurance of $1,000,000 combined single limit covering all owned, hired and non-owned vehicles.

(iii) Workers’ Compensation insurance as required by Florida law and

Employers’ Liability Insurance in an amount of at least $100,000 each accident, $100,000 per employee, and $500,000 for all diseases.

(v) Professional Liability Insurance. Errors and omissions liability insurance appropriate to Consultant’s profession with a minimum limit of $1,000,000 per occurrence. If coverage is on a “Claims Made” basis, it must include the Retro date of coverage.

(vi) Pollution Liability insurance with a minimum limit of $1,000,000 per occurrence. Coverage shall apply to pollution losses arising from all services performed to comply with this Agreement. Coverage shall apply to sudden and gradual pollution conditions including discharge, dispersal, release, or escape of smoke, vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials, or other irritants, contaminants, or pollutants into or upon land, the atmosphere, or any watercourse or body of water. Coverage shall also include the cost of cleanup and remediation.

Coverage shall include bodily injury, property damage, loss of use of tangible property whether or not it has not been physically injured or destroyed, cleanup and remediation costs, penalties or fines, and defense costs including costs incurred in the investigation or adjustment of the claim. Coverage shall be provided both for the use of pollutants on site and during transit. If Professional Liability policy does not exclude pollution losses or losses related to or associated with contamination event, the Professional Liability policy can be used in place Pollution Liability Insurance. Coverage shall apply to direct and contingent pollution exposures.

B. All of Consultant’s insurance policies, except Workers’ Compensation and

Professional Liability Insurance, must name the Indemnified Parties as additional insureds.

C. All policies must provide that the City will be provided notice at least thirty (30) days prior to any cancellation, reduction, or material change in coverage.

D. Consultant shall provide the City with Certificates of Insurance on a standard ACORD form, or similar form acceptable to the City, reflecting all required coverage. At the City’s request, Consultant shall provide copies of current policies with all applicable endorsements.

E. All insurance required must be on a primary and noncontributory basis and must be provided by responsible insurers licensed in the State of Florida and rated at least A- in the then-current edition of AM Best’s Rating Services, or similar rating agency acceptable to the City.

F. If the insurance carried by Consultant has broader coverage than required in this Agreement, then that broader coverage, including but not limited to additional insured requirements, are deemed to be the requirement in this Agreement. If Consultant’s insurance limits are greater than the minimum limits set forth herein, then Consultant's insurance limits are deemed to be the required limits in this

G. Consultant hereby waives all subrogation rights of its insurance carriers in favor of the Indemnified Parties. This provision is intended to waive fully, and for the benefit of the Indemnified Parties, any rights or claims which might give rise to a right of subrogation in favor of any insurance carrier.

H. The City reserves the right to change or alter the above insurance requirements as it deems necessary.

8. Notices. Unless and to the extent otherwise provided in this Agreement, all notices, demands, requests for approvals and other communications which are required to be given by either party to the other must be in writing and will be deemed given and delivered on the date delivered in person, upon the expiration of five (5) days following the date mailed by registered or certified mail, postage prepaid, return receipt requested to the address provided below, or upon the date delivered by overnight courier (signature required) to the address provided below.

CITY:

City of St. Petersburg Procurement and Supply Management Department P. O. Box 2842 St. Petersburg, FL 33731 Phone: 727-893-7220 Attention: Stephanie Scarbrough, Esq.

CONSULTANT:

Attn: Click here to enter text.

9. Severability. Should any paragraph or portion of any paragraph of this Agreement be rendered void, invalid or unenforceable by any court of law for any reason, such determination will not render void, invalid or unenforceable any other paragraph or portion of this Agreement.

10. Due Authority. Each party to this Agreement that is not an individual represents and warrants to the other party that (i) it is a duly organized, qualified and existing entity authorized to do business under the laws of the State of Florida, and (ii) all appropriate authority exists so as to duly authorize the person executing this Agreement to so execute the same and fully bind the party on whose behalf he or she is executing.

11. Assignment. Consultant may not make any assignment of this Agreement without the prior written consent of the City. Any assignment of this Agreement contrary to this paragraph shall be void and shall confer no rights upon the assignee.

12. Termination.

A. This Agreement may be terminated at any time by the City for convenience upon thirty (30) days written notice to Consultant.

B. The City may terminate this Agreement upon written notice to Consultant in the event the Consultant defaults on any of the terms and conditions of this Agreement and such failure continues for a period of thirty (30) days following notice from the City specifying the default; provided, however, that the City may immediately terminate this Agreement, without providing the Consultant with notice of default or an opportunity to cure, if the City determines that the Consultant has failed to comply with any of the terms and conditions of this Agreement related to safety, indemnification or insurance coverage.

C. The City may terminate this Agreement as provided in Florida Statutes section

287.135 and 448.095.

13. Governing Law and Venue. The laws of the State of Florida govern this Agreement.

Venue for any action brought in state court must be in Pinellas County, St. Petersburg Division. Venue for any action brought in federal court must be in the Middle District of Florida, Tampa Division, unless a division is created in St. Petersburg or Pinellas County, in which case the action must be brought in that division. Each party waives any defense, whether asserted by motion or pleading, that the aforementioned courts are an improper or inconvenient venue. Moreover, the Parties consent to the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to said jurisdiction.

14. Amendment. This Agreement may be amended only in writing executed by the Parties.

15. Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, whether oral or written, between them.

16. Compliance with Laws. Consultant shall comply at all times with all federal, state, and local statutes, rules, regulations and ordinances, the federal and state constitutions, and the orders and decrees of lawful authorities having jurisdiction over the matter at issue (collectively, “Laws”), including but not limited to Florida laws regarding public records.

Consultant hereby makes all certifications required under Florida Statute section 287.135.

Consultant shall also comply with all applicable City policies and procedures.

17. Third-Party Beneficiary. Notwithstanding anything to the contrary contained in this

Agreement, persons or entities not a party to this Agreement may not claim any benefit hereunder or as third-party beneficiaries hereto.

18. No Liens. Consultant shall not suffer any liens to be filed against any City property by reason of any work, labor, services, or materials performed at or furnished to City property, to Consultant, or to anyone using City property through or under Consultant. Nothing contained in this Agreement shall be construed as a consent on the part of the City to subject City property or any part thereof to any lien or liability under any Laws.

19. No Construction against Preparer of Agreement. This Agreement has been prepared by the City and reviewed by the Consultant and its professional advisors. The City, Consultant, and Consultant’s professional advisors believe that this Agreement expresses their agreement and that it may not be interpreted in favor of either the City or the Consultant or against the City or the Consultant merely because of their efforts in preparing it.

20. Use of Name. Subject to the requirements of Florida laws regarding public records, neither party may use the other party’s name in conjunction with any endorsement, sponsorship, or advertisement without the written consent of the named party, except that Consultant may refer to the City in client lists.

21. Non-appropriation. The obligations of the City as to any funding required pursuant to this Agreement are limited to an obligation in any given year to budget, appropriate and pay from legally available funds, after monies for essential City services have been budgeted and appropriated, sufficient monies for the funding that is required during that year. Notwithstanding the foregoing, the City is not prohibited from pledging any legally available non-ad valorem revenues for any obligations heretofore or hereafter incurred, which pledge will be prior and superior to any obligation of the City pursuant to this

22. City Consent and Action.

A. For purposes of this Agreement, any required written permission, consent, acceptance, approval, or agreement by the City means the approval of the Mayor or his authorized designee, unless otherwise set forth in this Agreement or unless otherwise required to be exercised by City Council pursuant to the City Charter or applicable Laws.

B. For purposes of this Agreement, any right of the City to take any action permitted, allowed, or required by this Agreement may be exercised by the Mayor or his authorized designee, unless otherwise set forth in this Agreement or unless otherwise required to be exercised by City Council pursuant to the City Charter or applicable Laws.

23. Captions. Captions are for convenience only and do not control or affect the meaning or construction of any of the provisions of this Agreement.

24. Survival. All obligations and rights of any party arising during or attributable to the period prior to expiration or earlier termination of this Agreement, including but not limited to those obligations and rights related to indemnification, shall survive such expiration or earlier termination.

25. Force Majeure. In the event either party hereto is delayed or hindered in or prevented from the performance required hereunder by reason of acts of God, failure of power, public health emergencies, strikes, lockouts, labor troubles, riots, war, insurrection, or other reason of like nature not the fault of the party (“Permitted Delay”), such party will be excused for the period of time equivalent to the delay caused by such Permitted Delay.

Notwithstanding the foregoing, any extension of time for a Permitted Delay will be conditioned upon the party seeking an extension of time delivering written notice of such Permitted Delay to the other party within ten (10) days of the event causing the Permitted Delay.

26. No Waiver. No provision of this Agreement will be deemed waived by either party unless expressly waived in writing signed by the waiving party. No waiver may be implied by delay or any other act or omission of either party. No waiver by either party of any provision of this Agreement will be deemed a waiver of such provision with respect to any subsequent matter relating to such provision, and the City’s consent respecting any action by Consultant shall not constitute a waiver of the requirement for obtaining the City’s consent respecting any subsequent action.

27. Permits and Licenses. Consultant shall obtain any and all necessary permits, licenses, certifications, and approvals which may be required by any government agency in connection with Consultant’s performance of this Agreement. Upon request of the City, the Consultant shall provide the City with written evidence of such permits, licenses, certifications, and approvals.

28. Successors and Assigns. This Agreement inures to the benefit of and be enforceable by and against the Parties, their heirs, personal representatives, successors, and assigns, including successors by way of reorganization.

29. Subcontract. The hiring or use of outside services or subcontractors in connection with the performance of Consultant’s obligations under this Agreement is not permitted without the prior written approval of the City, which approval may be withheld by the City in its sole and absolute discretion. Consultant shall promptly pay all subcontractors and suppliers.

30. Relationship of Parties. Nothing contained herein may be deemed or construed by the

Parties, or by any third party, as creating the relationship of principal and agent or of partnership or of joint venture between the Parties, it being understood and agreed that nothing contained herein, nor any acts of the Parties, may be deemed to create any relationship between the Parties other than the relationship of independent contractors and principals of their own accounts.

31. Contract Adjustments.

A. Either party may propose additions, deletions or modifications to the Scope of Services (“Contract Adjustments”) in whatever manner such party determines to be reasonably necessary for proper compliance with this Agreement. Proposals for Contract Adjustments must be submitted to the non-requesting party in the form agreed to by the Parties. Contract Adjustments will be effectuated through amendments to this Agreement made in accordance with this Agreement.

B. There may be no increase in the Payment on account of any Contract Adjustment made necessary or appropriate as a result of the mismanagement, improper act, or other failure of Consultant or its employees, agents, or subcontractors to properly perform their obligations and functions under this Agreement.

C. In the event Consultant proposes a Contract Adjustment and the City does not approve such Contract Adjustment, Consultant will continue to perform the original Scope of Services in accordance with the terms and conditions of this Agreement.

D. Notwithstanding anything to the contrary contained in this Agreement, there may be no increase in the Payment except pursuant to an amendment to this Agreement made in accordance with this Agreement.

32. City Data. All data, documents and other City property remain the exclusive property of the City. Consultant agrees that such City property must be used solely for the purpose of performing the Scope of Services. Consultant shall safekeep such property and, if the City so requests, Consultant shall sign and deliver a written, itemized receipt therefore. Upon conclusion of the Scope of Services, Consultant shall return all such property to the City.

33. Deliverables. The City will solely own all right, title, and interest in and to the deliverables provided pursuant to this Agreement (“Deliverables”), including but not limited to patent, copyright, trademark, and other intellectual property rights therein. Consultant shall take all actions necessary to assure that such title vests in the City.

34. Acceptance. After notice from Consultant that it has performed the services and provided the Deliverables required pursuant to this Agreement, the City shall issue written acceptance upon the City’s confirmation that the services and Deliverables have been provided in accordance the terms and conditions of this Agreement. Within ten (10) days of receipt of Consultant’s notice that it has performed the services and provided the Deliverables, the City will notify Consultant of any discovery by the City of a non-conformance of the services and/or Deliverables with the requirements of this Agreement (“Non-Conformance”), and Consultant will have the period of time stated in the Non- Conformance notification to correct such Non-Conformance, or, if no time is stated, Consultant will have a reasonable period of time based on the severity and complexity of the Non-Conformance to correct such Non-Conformance; provided, however, that in no event shall a period exceeding ten (10) days from the date the City provides notice of Non- Conformance to Consultant be considered a reasonable period of time. The City’s issuance of written acceptance will in no way relieve Consultant of any of its obligations pursuant to this Agreement.

35. Warranties. In addition to any other warranties that may exist, Consultant warrants that it will provide the Scope of Services with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent person acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of like character and with like aims.

36. Consultant Personnel.

A. To the extent that specific personnel have been named and identified in Appendix A, Consultant shall not remove such personnel from performance of the services contemplated by this Agreement; provided, however, that removal of such personnel due to their incapacity, voluntary termination or termination due to just cause shall not constitute a violation of this sub-paragraph. If any such personnel are incapacitated, voluntarily terminate their employment, or are terminated for just cause, Consultant shall, within forty-eight (48) hours, replace such personnel with other equally qualified personnel approved by the City.

B. The City reserves the right to require Consultant to replace any persons performing services pursuant to this Agreement, including but not limited to Consultant’s employees and any affiliates’ or subcontractors’ employees, whom the City judges to be incompetent, careless, unsuitable or otherwise objectionable, or whose continued use is deemed contrary to the best interests of the City.

37. Books & Public Records.

A. For purposes of this paragraph 37, the following terms have the meaning ascribed to them below:

(i) “City Designated Records” means books and records or portions thereof that the City has designated in writing as confidential or proprietary and therefore exempt from disclosure under Florida Public Records Laws.

(ii) “Consultant Designated Records” means books and records or portions thereof that Consultant has designated in writing as a trade secret as defined by Florida Public Records Laws or as confidential or proprietary and therefore exempt from disclosure under Florida Public Records Laws.

(iii) “Florida Public Records Laws” means the Florida laws regarding public records, including but not limited to Chapter 119, Florida Statutes.

B. Consultant must maintain financial records related to this Agreement in accordance with this Agreement and generally accepted accounting principles and must comply with Florida laws regarding public records, including but not limited to Chapter 119, Florida Statutes (collectively, “Florida Public Records Laws”). Without limiting the generality of the foregoing, Consultant must:

(i) keep and maintain complete and accurate books and records related to this

Agreement for the retention periods set forth in the most recent General Records Schedule GS1-SL for State and Local Government Agencies, or the retention period required pursuant to Florida Public Records Laws, whichever is longer,

(ii) subject to paragraph 37D below, make all books and records related to this Agreement open to examination, audit and copying by the City and its professional advisors (including but not limited to independent auditors retained by the City) within a reasonable time after a request not to exceed three (3) business days,

(iii) at the City’s request, provide all electronically stored public records to the City in a format approved by the City,

(iv) ensure that the City Designated Records and Consultant Designated

Records are not disclosed except as authorized by applicable Laws for the

Term and following the expiration or earlier termination of this Agreement, and

(v) comply with all other applicable requirements of Florida Public Records

Laws.

C. IF CONSULTANT HAS QUESTIONS REGARDING THE

APPLICATION OF FLORIDA PUBLIC RECORDS LAWS AS

TO CONSULTANT’S DUTY TO PROVIDE PUBLIC RECORDS

RELATING TO THIS AGREEMENT, CONTACT THE CITY

CLERK’S OFFICE (THE CUSTODIAN OF PUBLIC RECORDS)

AT (727) 893-7448, CITY.CLERK@STPETE.ORG, OR 175

FIFTH ST. N., ST. PETERSBURG FL 33701.

D. The Parties’ obligations related to Consultant Designated Records are as follows:

(i) Consultant must act in good faith when designating records as Consultant Designated Records.

(ii) At the time of disclosure of Consultant Designated Records to the City, Consultant must provide the City with a general description of the information contained in the Consultant Designated Records and a reference to the provision of Florida Public Records Laws which exempts such Consultant Designated Records from disclosure.

(iii) Except in the case of a public records request as provided in paragraph

37D(iv) below, the City may not make copies of Consultant Designated Records or disclose Consultant Designated Records to anyone other than City employees, officials and professional advisors with a need to know the information contained in the Consultant Designated Records.

(iv) If the City receives a public records request for any Consultant Designated Records, the City shall notify Consultant of such request and shall not disclose any Consultant Designated Records if the City Attorney or designee reviews the Consultant Designated Records and determines the Consultant Designated Records appear to be exempt from disclosure pursuant to Florida Public Records Laws. If the City Attorney or designee believes that any Consultant Designated Records appear not to be exempt from disclosure under Florida Public Records Laws, the City Attorney or designee shall notify Consultant of such belief and allow Consultant an opportunity to seek a protective order prior to disclosure by the City. Within a reasonable time not to exceed five (5) business days after receiving such notification from the City Attorney or designee, Consultant shall either notify the City Attorney or designee that it withdraws the designation and does not object to the disclosure, or Consultant shall file the necessary documents with the appropriate court seeking a protective order. If Consultant does not seek a protective order within the required time frame or if the protective order is denied, the City Attorney or designee will have the sole and absolute discretion to disclose the requested Consultant Designated Records as the City Attorney or designee deems necessary to comply with Florida Public Records Laws.

(v) By designating books and records as Consultant Designated Records, Consultant agrees to defend at its expense, indemnify, and hold harmless the City Indemnified Parties from and against any and all claims, demands and actions (whether or not a lawsuit is commenced), including but not limited to any award to a plaintiff for damages and costs and attorneys’ fees incurred by a plaintiff, and for costs and attorneys’ fees (including those of the City of St. Petersburg City Attorney’s Office) incurred by the City, arising out of or in connection with Consultant’s designation of books and records as Consultant Designated Records.

E. Consultant’s obligations under this paragraph 37 survive the expiration or earlier termination of this Agreement.

38. Execution of Agreement. This Agreement may be executed in any number of counterparts, each of which is deemed to be an original, and such counterparts collectively constitute a single original Agreement. Additionally, each party is authorized to sign this Agreement electronically using any method authorized by applicable law or City policy, including any of the following: (i) a typed name on an electronic document; (ii) an image of a physical signature sent via email, fax, or other electronic transmission method;

(iii) clicking a button to indicate agreement or acceptance in an electronic signature system;

or (iv) a handwritten signature that is digitally captured on a touch device such as a tablet or smartphone.

39. Appendices. All appendices referenced in this Agreement are attached hereto and made a part of this Agreement.

40. Source of Funds. Consultant acknowledges that U.S. Department of Housing and Urban Development (“HUD”) federal financial assistance may be used to fund all or a portion of this Agreement. This Agreement is subject to each provision of the Lead Hazard Reduction Capacity Building Grant Program assistance agreement between the City and HUD (“Grant Agreement”), which is attached hereto as Appendix C and incorporated herein, as well as all applicable Federal guidelines and regulations associated with the City’s award.

Contractor’s compliance with each applicable provision of the “Federal Award Rider”, which is attached to this Agreement as Appendix D and incorporated herein, is an essential element of this Agreement.

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IN WITNESS WHEREOF the Parties have caused this Agreement to be executed by their duly authorized representatives on the day and date first above written.

Click here to enter text.:

By:

Print:

Title: _______________________________

CITY OF ST. PETERSBURG, FLORIDA:

By: ________________________________

Print: ______________________________

Title: ______________________________

ATTEST

(SEAL)

City Clerk (Designee)

Provisions of Contract Approved:

By:

Project Manager

Approved as to Form and Content:

City Attorney (Designee)

00791388.docx

(Acknowledgment of Consultant)

Under penalties of perjury, I declare that I am authorized by the Company to execute the foregoing

By:

A-1

Appendix A Scope of Services

Appendix B Payment

Appendix C City and HUD Agreement

U.S. Department of Housing and Urban Development Office of Lead Hazard Control and Healthy Homes

Lead Capacity Building Grant Program Fiscal Year 2023 - Terms and Conditions

TABLE OF CONTENTS

I GENERAL

1. Introduction

2. Overview of Award Implementation

3. Definitions

4. Federal Funding Accountability and Transparency Act (FFATA)

5. English Language

6. Code of Conduct

7. Determining Subrecipient or Contractor Classification

8. Procurement Standards

9. Build America, Buy America (BABA) Act

II PROGRAM REQUIREMENTS

1. Administrative Costs

2. Administrative Requirements

3. Advance Payment by Treasury Check or Electronic Funds Transfer

4. Cost Reimbursement

5. Amendments

6. Budget

7. Certifications and Assurances

8. Prior Approval Requirements (Changes to Award Agreement)

9. Closeout

10. Conduct of Work

11. Collection of Data

12. Contact Information Updates

13. Copyrights

14. Direct Costs

15. Disputes

16. Estimated Cost and Payment – Line of Credit Control System (LOCCS)

17. Equipment

18. Flow Down Provisions

19. Single Audit Reporting Requirements

20. HUD’s Right to Audit and Disallow Cost and Recover Funds

21. Incurrence of Costs

22. Indirect (F&A) Cost Rate

23. Inspection and Acceptance

24. Key Personnel

25. Liability Insurance

26. Limitation of Consultant Payments

27. Limitation on Payments to Influence Certain Federal Transactions

28. Lobbying Activities Prohibition

29. Eliminating Barriers that May Unnecessarily Prevent Individuals with Criminal Histories from

Participation

30. Grant Deliverables

31. Order of Precedence

32. Patent Rights (Small Business Firms and Nonprofit Organizations)

33. Period of Performance (POP) Extensions, Incurring Costs, and Obligating Federal Funds

34. Pre-award Costs

35. Profit

36. Program Income

37. Program Services Model

38. Project Management

39. Publications and News Releases

40. Release of Funds and Environmental Certification

41. Review of Deliverables

42. Sanctions

43. Scope of Work

44. Special Conditions

45. Substantial Involvement

46. Suspension and Termination

APPENDIX - List of Actions Due

I GENERAL

1. Introduction

1.1. This instrument is governed by 2 CFR Part 200 – “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards,” commonly referred to as the Uniform Guidance. The Uniform Guidance streamlines and consolidates government requirements for receiving and using Federal awards to reduce administrative burden and improve outcomes. The Office of Management and Budget (OMB) made major changes and updates to the Uniform Guidance on August 13, 2020, , that became effective November 12, 2020, and published corrections to that notice on February 22, 2021, that became effective that day.

1.2. Recipients must review their official award document for additional administrative and programmatic requirements.

a. Assistance Award/Amendment – HUD-1044 – The form shall be used by HUD and the recipient to execute the agreement; it shall also be used for changes in key personnel, the award amount, the primary contact/recipient of the quarterly assessment report, terms and conditions, and other identifying information.

b. A copy of the governing body's authorization of an individual to sign the application for assistance and the Assistance Award as the Authorized Representative must be on file in the recipient’s office.

1.3. The Grantee and any subrecipients must comply with the applicable terms and conditions outlined below. Also, the Grantee must comply with the separate Office of Lead Hazard Control and Healthy Homes (OLHCHH) Grant Program Policy Guidance applicable to its program, found on the Office’s website, www.hud.gov/healthyhomes (specifically, as of the publication of this document, on the Grant Program Policy Guidance page, https://www.hud.gov/program_offices/healthy_homes/lbp/pg).

1.4. By acceptance of the grant award, each recipient (Grantee) agrees to comply with these requirements. Failure to comply with the general terms and conditions in this document and those directly reflected on the official assistance award document may result in enforcement actions outlined in 2 CFR §200.339 and §200.340.

2. Overview of Award Implementation

2.1. This instrument reflects the acceptance by HUD of the proposed budget, key personnel and partners, and primary conditions of the applicant’s awarded proposal, or any subsequent revision, submitted in response to the Notice of Funding Opportunity (NOFO) for the Department of Housing and Urban Development, OLHCHH Grant Programs for the NOFO indicated on the HUD-1044 cover page. A final budget, work plan, and benchmarks will be developed, accepted, and incorporated with the HUD-1044 within 60 days of the award notice. As a condition of this grant award, the Grantee and subrecipients, as applicable, agree to submit the following documents:

a. A final negotiated work plan, with deliverables/outcomes measures, prioritization plan, targeted areas of program implementation; and

b. Policies and procedures for how the grant will be administered. Submit the documents listed via the Healthy Homes Grant Management System (HHGMS) within 60 calendar days of the Period of Performance start date (located on the HUD-1044).

These revisions will update the general/basic plan submitted with the proposal and include any negotiated changes to the work plan, benchmarks, and budget. A Grantee whose work plan includes conducting activities that physically alter the dwelling or its property, such as modifications considered rehabilitation or repair, will not be allowed to draw down funds before the determination by the appropriate HUD Environmental Officer that the environmental review for the work is satisfactory and HUD approval of working on the property, or the Grantee’s receipt of an approved Request for Release of Funds and Certification, as prescribed within section II.40 of this agreement. See OLHCHH Policy Guidance 2008-03 for further details.

NOTE: If the successful applicant does not provide documents in section 2.1 that are satisfactory to the Grants Officer (GO) in a timely manner, including not addressing problems identified, the grant may be terminated based on failure to successfully conclude negotiations or to provide HUD with the requested information, according to the NOFO for which the Grantee applied.

3. Definitions

The following terms and definitions are in accordance with 2 CFR Part 200 and the HUD Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing, and applicable Notices of Funding Opportunity.

3.1. Allocable Costs - Defined in 2 CFR §200.405, are costs that are assignable to a particular Federal award or cost objective if the goods or services involved are chargeable to that Federal award or cost objective in accordance with relative benefits received. This standard is met if the cost:

a. Is incurred specifically for the Federal award;

b. Benefits both the Federal award and other work of the Grantee and can be distributed in proportions that may be approximated using reasonable methods; and

c. Is necessary to the overall operation of the Grantee and is assignable in part to the Federal award in accordance with the principles in 2 CFR Part 200, subpart E – Cost Principles.

3.2. All activities that benefit from the Grantee’s indirect costs, including unallowable activities and services donated by the Grantee or to the Grantee by third parties, will receive an appropriate allocation of indirect costs.

3.3. Any cost allocable to a Federal award or cost objective may not be charged to other Federal awards to overcome fund deficiencies, to avoid restrictions imposed by law or terms and conditions of the Federal awards, or for other reasons.

3.4. Allowable Costs - Defined in 2 CFR §200.403, are those costs that are:

a. Necessary and reasonable for the performance of the Federal award and are allocable to the Federal award;

b. Conform to any limitations or exclusions set forth herein, in the NOFO, or in the Federal award as to types or amount of cost items;

c. Consistent with policies and procedures that apply uniformly to both Federally-financed and other activities of the Grantee;

d. Accorded consistent treatment. A cost may not be assigned to a Federal award as a direct cost if any other cost incurred for the same purpose in like circumstances has been allocated to the Federal award as an indirect cost;

e. Determined in accordance with generally accepted accounting principles (GAAP), except, for state and local governments and Indian tribes only, as otherwise provided for in 2 CFR Part 200;

f. Not included as a cost or used to meet cost sharing or matching requirements of any other Federally-financed program in either the current or a prior period;

g. Adequately documented. See also 2 CFR §§200.300 through 200.309; and

h. Incurred during the approved budget period.

3.5. Approving Official (also known as “Coordinator”) – A Secure Systems administrator who manages the organization’s “Users” in Secure Systems. Responsibilities include assigning Secure Systems LOCCS roles to themselves and “Users.” Approving Officials will use eLOCCS to re-certify their staff every 3 months, therefore, Approving Officials will also need to register for an ID in Secure Systems like the “Users.” For more information, visit eLOCCS Access Guidelines for Business Partners.

3.6. Assistance Award/Amendment- HUD-1044 - The HUD-1044 is used by HUD and the recipient to execute the agreement; it is also used for changes in key personnel, the award amount, the primary contact/ recipient of the quarterly assessment report, terms and conditions, and other identifying information.

3.7. Authorized Representative or Official (AR) - The official at the operational level who has the responsibility for the full measure of the mission and the authority to obligate funds to support the grant from the Grantee.

3.8. Certifying Officer - The “responsible Federal official” as that term is used in section 102 of the National Environmental Policy Act (NEPA) and in statutory provisions cited in 24 CFR §58.1(b), and as defined at 24 CFR §58.2(a)(2). The Certifying Officer is therefore responsible for all the requirements of section 102 of NEPA and the related provisions in 40 CFR parts 1500 through 1508, and 24 CFR part 58, including the related Federal authorities listed in 24 CFR §58.5. The Certifying Officer must also:

a. Represent the responsible entity and be subject to the jurisdiction of the Federal courts.

The Certifying Officer will not be represented by the Department of Justice in court; and

b. Ensure that the responsible entity reviews and comments on all environmental impact statements prepared for Federal projects that may have an impact on the recipient's program.

3.9. Contract - Defined in 2 CFR §200.1, is a legal instrument by which a recipient or subrecipient purchases property or services needed to carry out the project or program under a Federal award.

3.10. Contractor - An entity that receives a contract as defined in 2 CFR §200.1.

3.11. Direct Costs - Described in 2 CFR §200.413, are those costs that can be identified specifically with a particular final cost objective, such as a Federal award, or other internally or externally funded activity, or that can be directly assigned to such activities relatively easily with a high degree of accuracy. Typical direct costs chargeable to Federal awards are:

a. Compensation of employees for the time devoted and identified specifically to the performance of those awards;

b. Cost of materials acquired, consumed, or expended specifically for the awards;

c. Equipment and other approved capital expenditures; and

d. Travel expenses incurred specifically to carry out the award.

Any direct cost of a minor amount may be treated as an indirect cost for reasons of practicality where such accounting treatment for that item of cost is consistently applied to all cost objectives.

A cost may not be assigned to a Federal award as a direct cost if any other cost incurred for the same purpose in like circumstances has been allocated to the Federal award as an indirect cost.

Refer to the Notice of Funding Opportunity (NOFO) for specific information regarding what constitutes direct costs for your program and any applicable programmatic requirements to which a Grantee must adhere.

3.12. Disallowed Costs - Those charges to an award that HUD determines to be unallowable, in accordance with the applicable Federal statutes, regulations, or the terms and conditions contained in the award.

3.13. Equipment - A tangible personal property (including information technology systems) having a useful life of more than one year and a per-unit acquisition cost which equals or exceeds the lesser of the capitalization level established by the non-Federal entity for financial statement purposes, or $5,000. Examples include X-ray fluorescence (XRF) machines, office equipment and furnishings, modular offices, telephone networks, information technology equipment and systems, air conditioning equipment, reproduction and printing equipment, and motor vehicles.

3.14. Government Technical Representative (GTR) - The HUD Official who is responsible for the technical administration of the grant, the evaluation of performance under the grant, the acceptance of technical reports or projects, and other such specific responsibilities as may be stipulated in the grant.

3.15. Grant Award (Federal Award) - A legal instrument of financial assistance between a Federal awarding agency or pass-through entity and a non-Federal entity that, consistent with 31 U.S.C. 6302, 6304:

a. Is used to enter into a relationship the principal purpose of which is to transfer anything of value to carry out a public purpose authorized by a law of the United States (see 31 U.S.C. 6101(3)), and not to acquire property or services for the Federal awarding agency or pass-through entity's direct benefit or use;

b. Is distinguished from a cooperative agreement in that it does not provide for substantial involvement of the Federal awarding agency in carrying out the activity contemplated by the Federal award.

c. Does not include an agreement that provides only:

a. Direct United States Government cash assistance to an individual;

b. A subsidy;

c. A loan;

d. A loan guarantee; or

e. Insurance.

HUD grant agreements consist of the HUD-1044 and any special award conditions.

3.16. Grantee (or Recipient) A non-Federal entity, usually but not limited to non-Federal entities that receive a Federal award directly from the Federal awarding agency. The term Grantee does not include subrecipients or individuals that are beneficiaries of the award.

3.17. Grants Officer (GO) - The official authorized by HUD to execute and/or administer the grant.

3.18. Guidelines - Definitions, standards, and information contained in the latest edition of the “Guidelines for the Evaluation and Control of Lead-Based Paint Hazards in Housing.” The Guidelines are incorporated by reference into the grant. See https://www.hud.gov/program_offices/healthy_homes/lbp/hudguidelines

3.19. Healthy Homes Grant Management System (HHGMS) - The OLHCHH online data management system that allows the processing of administrative and technical actions, and quarterly reporting among the Grantee, Government Technical Representative, and Grants Officer.

3.20. HUD - The U.S. Department of Housing and Urban Development.

3.21. High Risk Designation - The designation of the Grantee that may be given by HUD to indicate that HUD will be conducting heightened monitoring of the Grantee’s performance as a result of unsatisfactory performance or when a Grantee has not complied with Federal statutes, regulations, including 2 CFR Part 200, or requirements established in the award and these provisions, including failure to submit reports on time and in accordance with the requirements contained in these provisions. The “high-risk” designation will stay in place until the corrective actions specified by HUD in the High-Risk Designation Amendment have been addressed to HUD’s satisfaction. If the corrective actions are not addressed within the time frame specified, HUD may pursue sanctions as defined in Section II.42 or Suspension and Termination as described in section II.46.

3.22. Indirect Costs - Those costs that have been incurred for common or joint purposes. These costs benefit more than one cost objective and cannot be readily identified with a particular final cost objective without effort disproportionate to the results achieved. After direct costs have been determined and assigned directly to Federal awards and other activities as appropriate, indirect costs are those remaining to be allocated to benefitted cost objectives. A cost may not be allocated to a Federal award as an indirect cost if any other cost incurred for the same purpose, in like circumstances, has been assigned to a Federal award as a direct cost.

Indirect costs are generally charged to Federal awards through the development and application of an indirect cost rate (ICR).

Requirements for development and submission of indirect (F&A) cost rate proposals and cost allocation plans are contained in Appendices III-VII and Appendix IX of 2 CFR Part 200 as follows:

a. Appendix III to Part 200 - Indirect (F&A) Costs Identification and Assignment, and Rate Determination for Institutions of Higher Education (IHEs)

b. Appendix IV to Part 200 - Indirect (F&A) Costs Identification and Assignment, and Rate Determination for Nonprofit Organizations

c. Appendix V to Part 200 - State/Local Governmentwide Central Service Cost…