HomeMy WebLinkAboutC-8586-12 - Community Development Block Grant (CDBG) - Covid-19 Small Business Emergency Relief Grant AgreementN
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V) COMMUNITY DEVELOPMENT BLOCK GRANT — COVID-19
00 SMALL BUSINESS EMERGENCY RELIEF GRANT AGREEMENT
t
v BETWEEN THE CITY OF NEWPORT BEACH AND
RICHER GROWTH CONCEPTS, LLC
THIS COMMUNITY DEVELOPMENT BLOCK GRANT SMALL BUSINESS
EMERGENCY RELIEF GRANT AGREEMENT ("Agreement") is made and entered
into as of this 1St day of February, 2021 ("Effective Date") by and between the
CITY OF NEWPORT BEACH, a California municipal corporation and charter city
("City"), and RICHER GROWTH CONCEPTS, LLC, a California limited liability
company ("Grantee"), whose address is 5001 Birch Street, Newport Beach,
California, and is made with reference to the following:
RECITALS
A. City participates in the Community Development Block Grant ("CDBG") program,
Catalog of Federal Domestic Assistance number 14.218, administered by the
United States Department of Housing and Urban Development ("HUD"), under
Title I of the Housing and Community Development Act of 1974 (42 USC § 5301,
etseq.), as amended from time to time (the "Act"), and the regulations promulgated
thereunder (24 CFR § 570, et seq.) ("Regulations"). This Agreement is funded
with supplemental Community Development Block Grant program monies made
available by the Coronavirus Aid, Relief and Economic Security Act (Public Law
116-136, the "CARES Act") for purposes of making grants to prevent, prepare for,
and respond to the coronavirus (COVID-19) pandemic ("CDBG-CV Program").
B. The City has been allocated certain funding under the CDBG-CV Program which
may, and the City Council for the City of Newport Beach has directed, be used to
provide grants to eligible small businesses needing financial assistance in
overcoming the temporary loss of revenue due to the COVID-19 pandemic.
C. All activities funded with CDBG Funds must meet one of the CDBG program's
national objectives: benefit low- and moderate -income persons; aid in the
prevention or elimination of slums or blight; or meet community development
needs having a particular urgency as defined in 24 CFR § 570.208.
D. On July 14, 2020 the City Council approved the program guidelines for the
"Newport Beach Smali Business Emergency Relief Grant Program" ("Program
Guidelines") governing the provision of grants funded by the CDBG-CV Program
to qualifying small businesses in the City.
E. Grantee is the owner and operator of Richer Growth Concepts, LLC, located at
5001 Birch Street, Newport Beach, California (the "Site"), and has submitted an
application for a small business grant under the Program Guidelines
("Application"), and in consideration for being awarded the grant, Grantee agrees
to comply with the terms and conditions set forth in this Agreement, and subject to
Grantee's compliance with the same, the City desires to award a CDBG-CV
Program grant to Grantee.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties
as follows:
1.0 GRANTEE OBLIGATIONS
1.1 Use of Grant Funds. Grantee hereby agrees to use the CDBG-CV
Program funds granted by the City hereunder ("Grant Funds") in accordance with the
terms and conditions of this Agreement. Grantee shall use the Grant Funds exclusively
for the purposes described in Grantee's Application, and to cover the actual cost of day-
to-day expenses such as payroll, rent / lease payments, commercial mortgage payments
utilities, inventory, or similar expenses that occur in the ordinary course of Grantee's
business operations; provided that up to twenty-five percent (25%) may be used for
general working capital as Grantee's business moves towards reopening day-to-day
operations ("Approved Expenses").
1.2 Representations and Warranties. Grantee hereby represents and
warrants to the City that Grantee has read and is familiar with all of the terms, conditions,
and provisions of the Program Guidelines, dated August 14, 2020, and based thereon,
Grantee represents and warrants that: Grantee is a small business with 30 or fewer full-
time or equivalent full-time and part-time employees, including the business owner, that
qualifies to receive the Grant Funds under the Program Guidelines; Grantee has been
negatively affected by COVID-19 with reference to the criteria in the Program Guidelines;
Grantee satisfies the requirements for "CDBG Eligibility" as set for the Program
Guidelines; Grantee's Application and all information submitted in connection therewith is
true, correct, and accurate; and Grantee will not undertake any activities requiring the City
or Grantee to comply with federal or state law requirements for the payment of "prevailing
wages" (Davis -Bacon Act, 40 USC Section 276a et seg.).
1.3 Compliance with Law and Uniform Requirements. Grantee shall use
the Grant Funds in accordance with all applicable federal, state, or local ordinances,
resolutions, statutes, rules, and regulations, as the same may be amended from time to
time. This Agreement is subject to and incorporates the terms of the Act and Regulations,
federal laws and regulations governing CDBG-CV funds, and all amendments or
successor regulations or guidelines thereto._
1.4 Licenses, Permits, Fees and Assessments. Grantee shall obtain, at
its sole cost and expense, such licenses, permits and approvals as may be required for
the lawful operation of Grantee's business that benefits for the use of Grant Funds.
1.5 Program Income. Grantee agrees that it shall not use Grant Funds
received from the City in any manner that will provide Grantee with "program income," as
defined in 24 CFR, Part 570.504. If "program income" is generated, Grantee shall return
all "program income" to the City at the end of the Agreement term.
1.6 Further Responsibilities of Parties. Both parties agree to use
reasonable care and diligence to perform their respective obligations under this
Agreement, and to act in good faith to execute all instruments, prepare all documents and
take all actions as may be reasonably necessary to carry out the purposes of this
Agreement.
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2.0 DISBURSEMENT OF CDBG FUNDS
2.1 Amount of Grant Funds. The City hereby awards Grantee a CBDG-
CV Program grant in the amount of FIVE THOUSAND DOLLARS ($5,000.00) to pay the
costs of Grantee's Approved Expenses ("Grant Funds"). Subject to Section 2.3, fifty
percent (50%) of the Grant Funds, totaling TWO THOUSAND FIVE HUNDRED
DOLLARS ($2,500.00), will be disbursed by the City within four (4) weeks of the Effective
Date ("First Disbursement"), and; the remaining fifty percent (50%) of the Grant Funds
totaling TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500.00), will be disbursed
after Grantee provides appropriate documentation of its use of the Grant Funds, as
determined in the City's reasonable discretion, but in no event earlier than four (4) weeks
following the receipt of such documentation ("Second Disbursement").
2.2 Grant Conditional. The parties understand and agree that the Grant
to Grantee, if any, is conditioned upon receipt of CDBG-CV Program funds by the City
from HUD and obtaining all required approvals from HUD to use such funds consistent
with the Program Guidelines. If CDBG-CV Program funds, in whole or in part, are not
received from HUD for any reason, the City shall not have any obligation to make the
Grant to Grantee through any other source of City funds.
2.3 Method of Payment. City shall remit the First Disbursement of Grant
Funds to Grantee upon Grantee's submittal to City of a detailed invoice, in a form
acceptable to the City, showing the Approved Expenses to be paid by Grantee with the
First Disbursement of Grant Funds. City shall remit the Second Disbursement to Grantee
upon Grantee's submittal to City of a detailed invoice, in a form acceptable to the City,
setting forth the amounts actually expended by Grantee for Approved Expenses with
funds received by the First Disbursement; together with an invoice showing the Approved
Expenses to be paid by Grantee with the Second Disbursement. Within thirty (30) days
of Grantee's use of all Grant Funds, Grantee shall submit an invoice to the City showing
the Approved Expenses paid by Grantee with the Second Disbursement. Invoices
required by this section shall, at a minimum, set forth each expense category, a
description of the expense, and a statement that no funds from another source have been
utilized for said expenses. Said invoices shall be accompanied with such additional
supporting information as may be requested by the City, including, but not limited to, paid
receipts for each expense.
2.4 The City reserves the right to withhold all or any portion of the Grant
Funds from Grantee if the invoices and supporting records are not submitted to City in
the manner required by this Agreement. Subject to compliance with this Agreement, the
City shall remit the Second Disbursement within thirty (30) days of Grantee's submission
of a complete invoice therefor.
(a) In the event Grantee is in default under the terms of this Agreement, City
shall have no obligation to continue paying Grantee after the date of default.
(b) City may withhold payment to Grantee of any disputed sums until
satisfaction of the dispute with respect to such payment. Such withholding
shall not be deemed to constitute a failure to pay according to the terms of
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this Agreement. Grantee shall have an immediate right to appeal to the City
Manager or designee with respect to such disputed sums.
2.5 Maintenance of CDBG Funds. All Grant Funds received by Grantee
shall be maintained in an account separate and apart from all other funds of Grantee with
a bank or savings and loan association qualified to do business in the State of California
and insured by the Federal Deposit Insurance Corporation.
2.6 Term. This Agreement is effective from the Effective Date, through
and including the date that is one (1) calendar year after the Effective Date, unless earlier
terminated as set forth below.
(a) Obligations that Survive Term. Notwithstanding the expiration or earlier
termination of this Agreement, Grantee's obligations to City shall not
terminate until all closeout requirements are completed. In addition, the
following obligations of Grantee shall survive the expiration or earlier
termination of this Agreement: (a) Grantee's indemnity obligations; (b) the
obligation to cause audits to be performed relating to Grantee's activities
and costs under this Agreement; (c) the obligation to repay to City any City
Grant proceeds improperly disbursed to Grantee or used for ineligible
expenditures or otherwise required to be repaid under this Agreement; and
(d) any other obligations which cannot by their nature be performed until
after the expiration or earlier termination of the Agreement, such as the
submittal of payment request and reports for the last quarter of the term of
this Agreement. No expiration or termination under this Agreement shall
release either party then in default from liability for such default. All terms
of this Agreement shall survive as necessary for the purpose of enabling
either party to enforce its provisions or pursue an action with respect to a
default of this Agreement.
2.7 Reversion of Assets. Upon the expiration or sooner termination of
this Agreement, Grantee shall transfer to the City: (i) any and all Grant Funds on hand;
and (ii) any accounts receivable attributable to the use of Grant Funds.
3.0 RECORDS
Grantee shall keep such books and records as necessary to document the actual
Approved Expenses paid by Grantee from the Grant Funds and to enable the City and
HUD to evaluate Grantee's compliance with this Agreement. Said records shall include,
but not be limited to: documentation evidencing Grantee's satisfaction of the "CDBG
Eligibility" requirements set forth in the Program Guidelines; receipts, purchase orders,
and similar documents evidencing use of the Grant Funds; and such other records as
may be reasonably requested by the City. Grantee shall make available to City and HUD
and/or their representatives during normal business hours of City all such records
pertaining to the use of funds provided under this Agreement for inspection, including the
right to copy, audit and make records and transcripts from such records. Grantee is
required to retain the records described herein for a period of five (5) years following the
termination of this Agreement.
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4.0 ENFORCEMENT OF AGREEMENT
4.1 Applicable Law. This Agreement shall be construed and interpreted
both as to validity and to performance of the parties in accordance with the laws of the
State of California and the United States, as applicable. Legal actions concerning any
dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in
the Superior Court of the County of Orange, State of California, the United States District,
or any other appropriate court in Orange County.
4.2 Termination. Either party may terminate this Agreement for
convenience upon thirty (30) days' notice. City may immediately terminate this
Agreement upon the termination, suspension, discontinuation or substantial reduction in
CDBG-CV funding for this Agreement. Additionally, City may terminate this Agreement
upon 7 days' written notice if City determines in its sole discretion that such action is
necessary to respond to an earthquake, fire or other Act of God. In the event of
termination, Grantee shall only be entitled to that portion of the Grant Funds allocated
before the before the City's termination to the extent available. In accordance with 24
CFR Section 85.43, the City may immediately suspend or terminate this Agreement occur
if Grantee materially fails to comply with any term of the award including this Agreement,
and if the City demands reimbursement for prior payments to Grantee due to Grantee's
failure to comply with any applicable term of this Agreement, the Act or the Regulations,
Grantee shall reimburse the City in the amount of such disallowed payments. If this
Agreement is terminated or suspended, the City in its sole discretion may withhold further
awards to Grantee.
4.3 Waiver. Waiver by either party of any of the conditions of
performance under this Agreement shall not be a waiver of any other condition of
performance under this Agreement. In no event shall the making by City of any payment
to Grantee constitute or be construed as a waiver by City of any breach of covenant, or
any default that may then exist on the part of Grantee, and the making of any such
payment by City shall in no way impair or prejudice any right or remedy available to City
with regard to such breach or default.
4.4 Rights and Remedies are Cumulative. Except with respect to rights
and remedies expressly declared to be exclusive in this Agreement, the rights and
remedies of the parties are cumulative and the exercise by either party of one or more of
such rights or remedies shall not preclude the exercise by it, at the same or different
times, of any other rights or remedies for the same default or any other default by the
other party.
5.0 COMPLIANCE WITH LAWS
5.1 Grantee agrees to comply with all applicable federal, state, City and
local laws, regulations and policies governing the City Grant in the performance of this
Agreement, including the following:
(a) The regulations, policies, guidelines and requirements of Title 24 of the
Code of Federal Relations ("CFR") Part 570 (the U.S. Housing and Urban
Development regulations concerning Community Development Block
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Grants), including Subpart K and all amendments or successor regulations
or guidelines thereto; except that (1) Grantee does not assume City's
environmental responsibilities described in 24 CFR § 570.604; and (2)
Grantee does not assume City's responsibility for initiating the review
process under the provisions of 24 CFR Part 52.
(b) City's CDBG Program Guidelines.
(c) 2 CFR Part 200 as related to the acceptance and use of federal funds
under the federally -assisted program and administrative requirements.
(d) Executive Order 11246 (as amended by Executive Orders 11375 and
12086 (1978) and Executive Orders 13665 and 13672 (2014)) and
implementing regulations at 41 CFR Chapter 60, which require that during
the performance of this Agreement, Grantee shall not discriminate against
any employee or applicant for employment because of race, religion, sex,
color or national origin. Grantee shall consider all applicants without regard
to their race, religion, sex, or national origin with respect to the following
without limitation: employment, upgrading, demotion, or transfer:
recruitment or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship. Grantee agrees to post in conspicuous places, available to
employees and employment applicants, notices setting forth the provisions
of this nondiscrimination clause.
(e) In its solicitations or advertisements for employees, Grantee shall state
that all qualified applicants will receive consideration for employment
without regard to race, color, religion, sex or national origin.
(f) The restrictions against discrimination as required by Executive Order
11063, as amended by Executive Order 12259 and implementing
regulations at 24 CFR Part 107.
(g) Title VI of the Civil Rights Act of 1964, and Section 109 of the Housing
and Community Development Act of 1974, which provides that no person
shall, on the grounds of race, color, national origin or sex, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.
(h) Section 504 of the Rehabilitation Act of 1973 (29 USC § 701 et seq.), as
amended, and implementing regulations.
(i) The Age Discrimination Act of 1975 (42 USC § 6101 et seq.), as
amended, and implementing regulations.
(j) Section 3 of the Housing and Urban Development Act of 1968, as
amended (12 USC § 1701 et seq.) which requires that to the greatest extent
feasible, opportunities for training and employment be given to lower
income residents of the Program area and contracts for work in connection
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with the Program be awarded to business concerns that are located in, or
owned in substantial part by, persons residing in the Program area.
(k) The relocation requirements of Title II and the acquisition requirements
of Title III of the Uniform Relocation Assistance and Real Property
Acquisition Act of 1970, as amended (24 CFR Part 42).
(1) The restrictions prohibiting use of CDBG Funds for religious activities as
set forth in 24 CFR Section 570.2000).
(m)The labor standard requirements as set forth in 24 CFR Part 570,
Subpart K and HUD regulations issued to implement said requirements.
(n) The program income requirements as set forth in 24 CFR Section 570.
504. Additionally, City requires remittance of all Program income balances
held by Grantee, with the exception of those needed for immediate cash
needs, cash balances of a revolving loan fund, cash balances from a lump
sum drawdown, or cash or investments held for Section 108 security needs.
(o) Title VII of the Civil Rights Act of 1968 (42 USC Chapter 21) as
amended.
(p) The lead-based paint requirements of 24 CFR Part 35 issued pursuant
to the Lead -Based Paint Poisoning Prevention Act (42 USC § 4801 et seq.)
(q) Executive Order 11988 and 11738 relating to the evaluation of flood
hazards and the prevention, control and abatement of water pollution.
(r) The flood insurance purchase requirement of Section 102(a) of the
Flood Disaster Protection Act of 1978.
(s) 2 CFR Section 200.312 as it pertains to maintaining a property inventory
system to numerically identify HUD purchased property and document its
acquisition date.
5.2 Grantee understands that every person who requests or receives a
federal contract, grant, loan or cooperative agreement from a federal agency or receives
or requests from a federal agency a commitment that would provide for the United States
to insure or guarantee a loan must file with that agency a written declaration and certify
that he or she has not made and will not make any prohibited expenditure. Further, any
person who requires or receives from a person referred to above, a subcontract under a
federal contract, a subgrant or contract under a federal grant, a contract or subcontract
to carry out any purpose for which a particular federal loan is made, or contract under a
federal cooperative agreement, is required to file a written declaration with the person
who received the federal contract, grant, loan or commitment to insure or guarantee a
loan.
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6.0 PROGRAM MANAGER
Grantee shall designate a Program Manager, who shall be available to City at all
reasonable times during the Agreement term. Grantee has designated Karen Bauman to
be its Program Manager. Grantee shall not remove or reassign the Program Manager
without prior written approval from City.
7.0 CITY ADMINISTRATION
This Agreement shall be administered by the Community Development
Department. The Community Development Director or designee, shall be the City
Administrator and shall have the authority to act for City under this Agreement. The City
Administrator or designee shall represent City in all matters pertaining to this Agreement.
8.0 FINANCIAL RECORDS
8.1 Financial Records. Grantee shall keep records of all CDBG Funds
received from City under the terms and conditions of this Agreement and of all costs and
expenses related to the Program in accordance with the provisions contained in 2 CFR
Part 200 with its subparts and appendices.
(a) All CDBG Funds received by Grantee from City pursuant to this
Agreement shall be maintained separate and apart from any other funds of
Grantee or of any principal or member of Grantee in an account in a banking
or savings and loan institution.
(b) No costs shall be invoiced or billed except for expenditures authorized
pursuant to the terms of this Agreement.
(c) The itemized costs shall include sufficient detail to provide a sound basis
for City to effectively monitor costs under the Agreement. Grantee also
agrees to use the Payment Requests/Invoice Forms as provided by City.
8.2 Access to Records. City and HUD and/or their representatives shall
have full and free access to, and the right to examine, inspect, copy and audit, all books
and records of Grantee pertaining to this Agreement at all times during normal business
hours.
8.3 Audits.
(a) The City or its authorized representatives shall, at all times during the
term of this Agreement and for a period of five (5) years thereafter, have
access, for the purpose of audit or inspection, to any and all books,
documents, papers, records, property, and premises of the Grantee. The
Grantee's staff shall cooperate fully with authorized auditors when they
conduct audits and examinations of the Grantee's program. A financial
audit of the Grantee's performance under this Agreement shall be
conducted at City's discretion. If indications of misappropriation or
misapplication of the City Grant cause the City to require a special audit,
the cost of the audit will be encumbered and deducted from this
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Agreement's Program Budget. Should the special audit confirm
misappropriation or misapplication of the City Grant, the Grantee shall
reimburse the City within thirty (30) calendar days.
(b) The Grantee acknowledges that audits may also be conducted by
Federal, State or local funding source agencies and shall comply with the
audit requirements of such agencies, including but not limited to OMB
Circular A-133. The Grantee shall perform all audits of its books and records
required by CDBG requirements or City or HUD and a copy of such audits
shall be forwarded to the City within thirty (30) days after completion.
Grantee shall be subject to all audit and review requirements imposed on
City in connection with this Agreement and shall, at its sole cost and
expense, cause such audits and reviews to be timely performed.
9.0 REPORTING REQUIREMENTS
9.1 Grantee agrees to provide City with a written summary and an
unduplicated count of persons benefitted by Grantee's Program on or before xx. The
report shall contain, without limitation, income level, and other data as may be requested
by City, of each person assisted and the result of such assistance. If Grantee fails to do
so, City may withhold funds until the required written reports are received.
9.2 Said summary shall include the following:
(a) Documentation of the income level of persons and/or families
participating in or benefitted by Grantee's Program;
(b) Ethnicity, race and head of household data, consistent with 24 CFR §
570.506(g)(2); and
9.2.1 Reimbursement Requests. The payment request shall
include the total amount requested and itemized statements and
invoices, with such supporting information as City may
reasonably require, documenting that the costs for which Grantee
seeks payment are solely for eligible Program expenses incurred
and verifying that the expenditures were made and incurred by
Grantee. The supporting information required by City may
include without limitation, receipts, canceled checks, time
records, billing statements, bank statements, evidence of
procurement, and contracts. The payment request shall itemize
the eligible Program expenses by listing each budget line item
category from the Program Budget and including the following
information for each category: (a) a description and the amount
of each eligible Program expense included within that category
for which reimbursement is sought; (b) the total amount budgeted
in the Project Budget to the budget line item category; and (c) the
total amount reimbursed to Grantee for the budget line item
category to date. Incomplete or inaccurate payment requests
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may be partially or fully denied at the sole discretion of the City
Administrator.
10.0 STANDARD OF CARE
10.1 All of the Program Services shall be performed by Grantee or under
Grantee's supervision. Grantee represents that it possesses the professional and
technical personnel required to perform the Program Services required by this
Agreement, and that it will perform all Program Services in a manner commensurate with
community professional standards and with the ordinary degree of skill and care that
would be used by other reasonably competent practitioners of the same discipline under
similar circumstances.
10.2 All Program Services shall be performed by qualified and
experienced personnel who are not employed by City. Grantee certifies that the Program
Services conform to the requirements of this Agreement and all applicable federal, state
and local laws.
10.3 Grantee represents and warrants to City that it has, shall obtain, and
shall keep in full force and effect during the term hereof, at its sole cost and expense, all
licenses, permits, qualifications, insurance and approvals of whatsoever nature that is
legally required of Grantee to practice its profession. Grantee shall maintain a City of
Newport Beach business license during the term of this Agreement.
10.4 Grantee shall not be responsible for delay, nor shall Grantee be
responsible for damages or be in default or deemed to be in default by reason of strikes,
lockouts, accidents, acts of God, or the failure of City to furnish timely information or to
approve or disapprove Grantee's Program Services promptly, or delay or faulty
performance by City, contractors, or governmental agencies.
11.0 HOLD HARMLESS
11.1 To the fullest extent permitted by law, Grantee shall indemnify,
defend and hold harmless City, its elected or appointed officers, agents, officials,
employees, and volunteers and any other person or entity owning or otherwise in legal
control of the property upon which Grantee performs the Program Services contemplated
by this Agreement (collectively, the "Indemnified Parties") from and against any and all
claims (including, without limitation, claims for bodily injury, death or damage to property),
demands, obligations, damages, actions, causes of action, suits, losses, judgments,
fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's
fees, disbursements and court costs) of every kind and nature whatsoever (individually,
a Claim; collectively, "Claims"), which may arise from or in any manner relate (directly or
indirectly) to this Agreement, the performance of Program Services provided under this
Agreement including, without limitation, defects in workmanship or materials or Grantee's
presence or activities conducted for the Program (including the negligent and/or willful
acts, errors and/or omissions of Grantee, its Board, principals, officers, agents,
employees, vendors, suppliers, consultants, subcontractors, anyone employed directly or
indirectly by any of them or for whose acts they may be liable or any or all of them).
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11.2 Notwithstanding the foregoing, nothing herein shall be construed to
require Grantee to indemnify the Indemnified Parties from any Claim arising from the sole
negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall
be construed as authorizing any award of attorney's fees in any action on or to enforce
the terms of this Agreement. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Grantee.
12.0 INDEPENDENT CONTRACTOR
Grantee is an independent business and Grantee is not a contractor, agent or
employee of City. The manner and means of conducting its business is under the control
of Grantee, except to the extent they are limited by statute, rule or regulation and the
express terms of this Agreement. No civil service status or other right of employment
shall accrue to Grantee or its employees or agents. Nothing in this Agreement shall be
deemed to constitute approval for Grantee or any of Grantee's employees or agents, to
be the agents or employees of City. Grantee shall have the responsibility for and control
over the means of performing its business, provided that Grantee is in compliance with
the terms of this Agreement. City acknowledges that it has no interest in the business of
Grantee.
13.0 COOPERATION
Grantee agrees to work closely and cooperate fully with City Administrator and any
other agencies that may have jurisdiction or interest in the Program Services to be
performed.
14.0 PROGRESS
Grantee is responsible for keeping the City Administrator and/or designee informed
on a regular basis regarding the status and progress of the Program.
15.0 PROHIBITION AGAINST ASSIGNMENTS AND TRANSFERS
Except as specifically authorized under this Agreement, this Agreement shall not
be assigned, transferred contracted or subcontracted out by Grantee without the prior
written approval of City. Any of the following shall be construed as an assignment: the
sale, assignment, transfer or other disposition of any of the issued and outstanding capital
stock of Grantee, or of the interest of any general partner or joint -venturer or syndicate
member or cotenant if Grantee is a partnership or joint -venture or syndicate or co-
tenancy, which shall result in changing the control of Grantee. Control means fifty percent
(50%) or more of the voting power, or twenty -Ove percent (25%) or more of the assets of
the corporation, partnership or joint -venture.
16.0 RESERVED
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17.0 OWNERSHIP OF DOCUMENTS
17.1 Each and every report, document and any other writing produced,
including performance reports, client information, demographics, file documents or other
source documents required to be produced or kept by the Grantee to comply with HUD
regulations or requirements (hereinafter "Documents"), prepared or caused to be
prepared by Grantee, its officers, employees, agents and subcontractors, in the course
of implementing this Agreement, shall become the exclusive property of City, and City
shall have the sole right to use such materials in its discretion without further
compensation to Grantee or any other party. Grantee shall, at Grantee's expense,
provide such Documents to City upon prior written request.
17.2 Documents prepared by Grantee pursuant to this Agreement are not
intended or represented to be suitable for reuse by City or others on any other project.
Any use of completed Documents for other projects and any use of incomplete
Documents without specific written authorization from Grantee will be at City's sole risk
and without liability to Grantee. Further, any and all liability arising out of changes made
to Grantee's deliverables under this Agreement by City or persons other than Grantee is
waived against Grantee and City assumes full responsibility for such changes unless City
has given Grantee prior notice and has received from Grantee written consent for such
changes.
18.0 COMPUTER DELIVERABLES
All written documents shall be transmitted to City in City's latest adopted version
of Microsoft Word, Excel or portable digital format (.pdf).
19.0 CONFIDENTIALITY
Grantee shall keep confidential all notes, communication, reports, information and
data received, prepared or assembled pursuant to the performance of this Agreement.
Such materials shall not be made available to any person, firm, corporation or entity
without the prior written consent of the City. Such materials shall not, without prior written
consent of the City, be used by the Grantee for any purposes other than the performance
of the Program Services.
20.0 INTELLECTUAL PROPERTY INDEMNITY
The Grantee shall defend and indemnify City, its elected or appointed officers,
agents, officials, employees, and volunteers against any and all liability, including costs,
for infringement or alleged infringement of any United States' letters patent, trademark,
or copyright, including costs, contained in Grantee's Documents provided under this
Agreement.
21.0 RESERVED
22.0 CONFLICTS OF INTEREST
22.1 The Grantee or its employees maybe subject to the provisions of the
California Political Reform Act of 1974 (the "Political Reform Act") and/or Government
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Code §§ 1090 et seq., which (1) require such persons to disclose any financial interest
that may foreseeably be materially affected by the Program services performed under this
Agreement, and (2) prohibit such persons from making, or participating in making,
decisions that will foreseeably financially affect such interest.
22.2 If subject to the Political Reform Act and/or Government Code §§
1090 et seq., Grantee shall conform to all requirements therein. Failure to do so
constitutes a material breach and is grounds for immediate termination of this Agreement
by City. Grantee shall indemnify and hold harmless City for any and all claims for
damages resulting from Grantee's violation of this Section.
23.0 NOTICES
23.1 All notices, demands, requests or approvals, including any change
in mailing address, to be given under the terms of this Agreement shall be given in writing,
and conclusively shall be deemed served when delivered personally, or on the third
business day after the deposit thereof in the United States mail, postage prepaid, first-
class mail, addressed as hereinafter provided. All notices, demands, requests or
approvals from Grantee to City shall be addressed to City at:
Community Development Department
Attn: Real Property Administrator
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA 92660
Phone: 949-644-3236
23.2 All notices, demands, requests or approvals from City to Grantee
shall be addressed to Grantee at:
Release in Motion
Attn: Karen Bauman
5001 Birch Street
Newport Beach, CA 92660
Phone: 949-423-6373
24.0 TERMINATION
24.1 This Agreement may be terminated at any time by either party upon
thirty (30) calendar days prior written notice to the other party. City may immediately
terminate this Agreement upon the termination, suspension, discontinuation or
substantial reduction in CDBG Funds for this Agreement activity or if for any reason the
timely completion of Grantee's services is rendered improbable, infeasible or impossible.
Additionally, City may terminate this Agreement upon seven (7) calendar days prior
written notice if City determines in its sole discretion that such action is necessary to
respond to an earthquake, fire or other act of God. In such event, Grantee shall be
reimbursed for all Program Services rendered in accordance with this Agreement to the
date of such termination, subject to the requirements in Section 9.2.1, limited to the extent
CDBG Funds are available and recovered by City.
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24.2 In accordance with 2 CFR § 200, subpart D, suspension or
termination may occur if Grantee materially fails to comply with any term of this
Agreement.
24.3 If the funding source requires reimbursement from City for prior
payments to Grantee due to Grantee's failure to comply with any applicable term of this
Agreement, regulation or statute, Grantee shall reimburse City in the amount of such
disallowed payments immediately upon demand from City, and before additional allowed
payments will be made.
24.4 The Agreement may be terminated for convenience in accordance
with 2 CFR § 200.339(a)(4).
25.0 REVERSION OF ASSETS
25.1 Upon the termination or expiration of the term of this Agreement,
Grantee shall comply with 24 CFR § 570.503(b)(7) and transfer to City any CDBG Funds
on hand at the time of such termination or expiration and any accounts receivable
attributable to the use of CDBG Funds. In addition, if it is determined, as a result of an
audit or otherwise, that any of the disbursements of City Grant proceeds were improper
or made for expenditures not eligible for reimbursement, Grantee shall immediately repay
to City the amounts of such disbursements.
25.2 Any real property under Grantee's control that was acquired or
improved in whole or in part with CDBG Funds in excess of Twenty -Five Thousand Dollars
($25,000.00) shall either be: (a) used to meet one of the national objectives stated in 24
CFR § 570.901 for five (5) years after termination or expiration of this Agreement; or (b)
disposed of in a manner that results in City's being reimbursed in the amount of 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.
Reimbursement to City shall not be required after the period of time specified in this
Section 25.2. Grantee shall not dispose of any real or personal property acquired in full
or in part with CDBG Funds through sale, use or relocation without the expressed and
prior written permission of City.
26.0 LOBBYING
Grantee hereby certifies that, in compliance with 31 USC § 1352:
26.1 No federal funds shall 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, or an employee of a Member
of Congress in connection with the awarding of any federal contract, the making of any
federal grant, the making of any federal loan, the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any
federal contract, grant, loan, or cooperative agreement.
26.2 If any funds other than federal appropriated funds have been paid or
will be paid to any person for influencing or attempting to influence an officer or employee
of any agency, a Member of Congress, an officer or employee of Congress or an
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employee of a Member of Congress in connection with this federal contract, grant, loan
or cooperative agreement, the undersigned shall complete and submit Standard Form -
LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
26.3 Grantee shall require that the language of this certification be
included in the contract documents for all sub -awards at all levels (including subcontracts,
subgrants, and contracts under grants, loans, and cooperative agreements) and that all
subcontractors shall certify and disclose accordingly.
27.0 CONDITIONS FOR FAITH -BASED ORGANIZATIONS
27.1 If Grantee represents that it is, or may be deemed to be, a religious
or faith -based organization, Grantee agrees that, in connection with performance of
Program Services:
(a) It will not discriminate against any person applying for Program Services
on the basis of religion and will not limit Program Services or give
preference to persons on the basis or religion;
(b) It will provide no religious instruction or counseling, conduct no religious
worship or services, engage in no religious proselytizing, and exert no other
religious influence in the provision of Program Services;
(c) The funds received under this Agreement shall not be used to construct,
rehabilitate, or restore any facility which is owned by Grantee if such facility
is used as the Grantee's principal place of worship or is used for inherently
religious activities.
28.0 DRUG FREE WORKPLACE
Grantee shall comply with the Drug -Free Workplace Act (15 USC § 654), and shall
make all good faith efforts to continue to maintain a drug-free workplace, including
establishing a drug-free awareness program to inform employees about the dangers of
drug abuse and Grantee's policy and penalties for drug abuse violations occurring in the
workplace.
29.0 STANDARD PROVISIONS
29.1 Recitals. City and Grantee acknowledge that the above Recitals are
true and correct and are hereby incorporated by reference into this Agreement.
29.2 Compliance with all Laws. Grantee shall at its own cost and expense
comply with all statutes, ordinances, regulations and requirements of all governmental
entities, including federal, state, county or municipal, whether now in force or hereinafter
enacted. In addition, all Program Services performed by Grantee shall conform to
applicable City, county, state and federal laws, rules, regulations and permit requirements
and be subject to approval of the City Administrator and City.
29.3 Waiver. A waiver by either party of any breach, of any term, covenant
or condition contained herein shall not be deemed to be a waiver of any subsequent
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breach of the same or any other term, covenant or condition contained herein, whether
of the same or a different character.
29.4 Integrated Contract. This Agreement represents the full and
complete understanding of every kind or nature whatsoever between the parties hereto,
and all preliminary negotiations and agreements of whatsoever kind or nature are merged
herein. No verbal agreement or implied covenant shall be held to vary the provisions
herein.
29.5 Conflicts or Inconsistencies. In the event there are any conflicts or
inconsistencies between this Agreement and the Program Guidelines, or any application
documents, the terms of this Agreement shall govern.
29.6 Interpretation. The terms of this Agreement shall be construed in
accordance with the meaning of the language used and shall not be construed for or
against either party by reason of the authorship of the Agreement or any other rule of
construction which might otherwise apply.
29.7 Amendments. This Agreement may be modified or amended only by
a written document executed by both Grantee and City and approved as to form by the
City Attorney.
29.8 Severability. If any term or portion of this Agreement is held to be
invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the
remaining provisions of this Agreement shall continue in full force and effect.
29.9 Controlling Law and Venue. The laws of the State of California shall
govern this Agreement and all matters relating to it and any action brought relating to this
Agreement shall be adjudicated in a court of competent jurisdiction in the County of
Orange, State of California.
29.10 Equal Opportunity Employment. In the performance of this
Agreement, Grantee shall not discriminate against any employee, subcontractor or
employment applicant because of race, color, creed, religion, sex, marital status, national
origin, ancestry, age, physical or mental handicap, medical condition or sexual
orientation. Grantee will take affirmative action to ensure that employees are treated
without regard to their race, color, creed, religion, sex, marital status, national origin,
ancestry, age, physical or mental handicap, medical condition or sexual orientation.
29.11 No Attorney's Fees. In the event of any dispute or legal action arising
under this Agreement, the prevailing party shall not be entitled to attorney's fees.
29.12 Counterparts. This Agreement may be executed in two (2) or more
counterparts, each of which shall be deemed an original and all of which together shall
constitute one (1) and the same instrument.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on the dates written below.
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
Date: S.%ZRl ZoZ4
CITY OF NEWPORT BEACH,
a California municipal corporation
Date: 4/9-!� 2�
By: -par By:614y6k� ..
Aaron C. Harp uM 0SIJA 1 Grace K. Leung
City Attorney City Manager
ATTEST:
Date: 3-30-202
By:
Leilani I. Brown
City Clerk
GRANTEE:
RICHER GROWTH CONCEPTS, LLC,
a California limited liability company
Date: 2.-1 ( I 2" 21(
By: / 6-�
V ✓vi
IcAQ-JAL,,
[END OF SIGNATURES]
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