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HomeMy WebLinkAboutC-4303 - MOU Agreement for Section 108 Loan Repayment FY 09-10I M 0 MEMORANDUM OF UNDERSTANDING AGREEMENT The City of Newport Beach ( "City) has received a grant from the United States Department of Housing and Urban Development ( "HUD ") under Title I of the Housing and Urban Development Act of 1974, as amended (hereinafter referred to as the "Act'). As one of the programs to be funded by the City from the HUD grant, the City desires as of July 1, 2009, to authorize the ECONOMIC DEVELOPMENT DIVISION, a City of Newport Beach Department (hereinafter referred to as the "Department') to provide the services (herein the "Services ") set forth in Exhibit "A" to this MEMORANDUM OF UNDERSTANDING AGREEMENT (herein the "Memorandum "). This memorandum sets forth the obligations of the Department regarding the Services. 1. CONTENTS. Exhibit "A" is attached hereto and the Department acknowledges that the said exhibit is incorporated herein by this reference. 2. SCOPE OF SERVICES. The Department hereby agrees to perform all work necessary to complete the services set forth in Exhibit "A" to this Memorandum. All services shall be performed to the satisfaction of the City's Economic Development Division. 3. TIME OF PERFORMANCE. The services of the Department shall commence as of July 1, 2009, and shall be completed on or before June 30, 2010 (herein sometimes referred to as the "program year"). 4. CHANGES/TERMINATION /BUDGET MODIFICATION. The authorization granted by the Memorandum may be terminated by the City at any time. The City may, from time to time, make changes in the scope of services to be performed hereunder, and will so notify the Department in writing. The City reserves the right to reduce funding allocations contained in this memorandum at any time, and for any reason. 5. COMPENSATION. The Department shall be paid by the City out of funds allocated to the Department from the City's FY 2009 -2010 Program Year Community Development Block Grant (CDBG) Funds received from HUD to pay for the services. The funds shall be disbursed to the Department, subject to availability and approval by HUD, in an amount not to exceed ONE HUNDRED NINETY SEVEN THOUSAND FIVE HUNDRED THIRTY FIVE DOLLARS AND 00 /100 ($197,535.00). The sum shall include all related costs in accordance with the limitations and funding requirements set forth in Exhibit "A" attached hereto. The City shall disburse the funds on a reimbursement basis for the Services. 6. MAINTENANCE AND AVAILABILITY OF RECORDS. The Department must establish and maintain, on a current basis, a project records file and adequate accounting system in accordance with generally accepted accounting principals and standards. The Department shall retain all records for at least five (5) years after the termination of this Memorandum. The Department shall make available for inspection, its performance, financial, and all other records pertaining to the performance of this Memorandum, to authorize City and HUD personnel, and allow those personnel to inspect and monitor its facilities and program operations, including the interview of Department's staff and program participants as required to enable the City and HUD officials to fulfill their obligations to ensure compliance with all applicable laws and regulations. 7. NON - EXPENDABLE PROPERTY. A record shall be maintained by the Department for each of non - expendable property acquire under this Memorandum. This record shall be made available to the City upon request. The term "Non- expendable property" shall include tangible personal property (including but not limited to office equipment), real property and any interest in such real property, including any mortgage, trust deed, or other encumbrance of real property, and the funds received from the sale of any interest in real property. Any utilization of funds from the disposition, including sale, of non - expendable property must have approval of the City and HUD and otherwise comply with HUD or other Federal laws and regulations. In the event of termination of this Memorandum, the City reserves the right to determine the final disposition of said non - expendable property, including funds and /or any other assets derived there from. The disposition may include the City taking possession of said non - expendable property. The term "Non - expendable personal property" means leased and purchased tangible personal property having a useful life of more than two (2) years and an acquisition cost of $1,000 or more per unit. 8. PROGRAM REPORTS. Quarterly, the Department shall provide the City, on forms provided by the City, a program report on the status of the scope of services, and evidence of compliance with HUD regulations no later that the 15th of the month following the end of each quarter. The Department shall maintain project data and make available project records that might be required for the annual evaluation and biennial audit. The Department shall provide the City an accounting of program income on a quarterly basis. The Department shall be required to compile and maintain, as part of the record, files that verify that program recipients, clients or beneficiaries met applicable program eligibility requirements 9. 10. pursuant to Title 24 Code of Federal Regulations Part 570, Subpart J, Section 570.506. The Department shall provide the information required by the City and hereby agrees to and shall provide the information required for submission to HUD in August of each year for the annual evaluation performance report for the previous 12- month period ending June 30, 2009; and shall provide the City with such information as may be reasonably required at various times for reporting to HUD, the City Council, and other citizen committees. CERTIFICATION AND ASSURANCES. The Department acknowledges that it understands that the funds for this Memorandum are originally provided by HUD and that, consequently, the expenditure of these funds is subject to specific requirements set forth in various Federal regulations and agreements between the City and HUD. In particular, this Memorandum is subject to requirements contained in Title 24 Code of Federal Regulations Part 570 and Title 1 of the Housing and Community Development Act of 1974. The Department agrees to ensure compliance with all Federal requirements in all sub- contracts or sub - grants entered into pursuant to this Memorandum. The Department will not use funds provided this Memorandum to pay for entertainment, meals or gifts. 11. NOTICES. All notices to parties, requested in writing, shall be sent to the City: City of Newport Beach Attn: Kathlyn Bowden Economic Development Coordinator 3300 Newport Blvd. P.O. Box 1768 Newport Beach, CA, 92658 -8915 With a copy to: LDM Associates, Inc. Attn: Rudy E. Munoz, Senior Vice President 10722 Arrow Route, Suite 822 Rancho Cucamonga, CA 91730 Phone: (909) 476 -6006 x 103 Fax: (909) 476 -6086 3 12. REQUEST FOR RENTAL FINAL PAYMENT. If applicable, the City reserves the right to withhold ten percent (10 %) of the funding amount authorized by this Memorandum on a completed project until the City receives a copy of a "Certificate of Completion" for each such completed project, as executed by the property owner. 13. BUDGET MODIFICATIONS. The City Manager, the Assistant City Manager, or his /her Designee is authorized to modify the budget of this Memorandum in the form of a written amendment or written document hereto for the movement of funds within the budget categories identified in Exhibit "A" on behalf of the City, when such modifications: A. Are at least ten percent (10 %) of the total Memorandum amount; B. Are specifically requested by the Department or the City in writing prior to May 15, 2010; C. Do not alter the total amount of compensation under this Memorandum; D. Will not change the project goals or scope of services; E. Are in the best interest of the City, HUD, and the Department in performing the scope of services under this Memorandum; and F. If related to salaries, are in accordance with any applicable salary ordinances or laws. 14. TIME OF PERFORMANCE MODIFICATIONS. The City Manager may grant time of performance modifications to this Memorandum when such modifications: A. In the aggregate, do not exceed twelve (12) calendar months; B. Are specifically request by the Department or the City in writing; C. Will not change the project goals or scope of services; D. Are in the best interest of the City, HUD, and the Department in performing the scope of services under this Memorandum; 4 E. Do not alter the amount of compensation under this Memorandum; and F. Is memorialized by written amendment hereto signed by the parties. 15. TERMINATION. A. This memorandum may be terminated on thirty (30) days' written notice. In the event of such termination, the Department shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Memorandum may be suspended or terminated by the City upon five (5) days written notice for violation by the Department of Federal Laws governing the use of Community Development Block Grant Funds. In the event of such suspension or termination, Department shall only be entitle to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. In Accordance with Title 24 C.F.R. Part 85.43, Suspension of termination may occur if the Department materially fails to comply with any term of this award. This award may also be terminated for convenience in accordance with Title 24 C.F.R. Part 85.44. 16. REIMBURSEMENT. In the event that the City is required to reimburse the Federal Government as a result of a determination, after audit, that the Department has misused funds, the Department shall pay the City all disallowed sums within thirty (30) days after the receipt of notice by the Department of the amount due. 17. D"IS -BACON ACT. The Department shall comply fully with the requirements of Title I of the Housing and Community Development Act of 1974, as amended, and other applicable laws including Section 110 of the Act covering Davis - Bacon, as amended, (40 U.S.C. 276a — 276a -7) and related acts; the Contract Works Hours and Safety Act (40 U.S.C. 327 — 333); the Copeland Act (40 U.S.C. 276(c)); and U.S Secretary of Labor Regulations (20 C.F.R., Part 3 & 5). Davis -Bacon and related acts will be enforced, and if the State and Federal wage rates are applicable, then the higher of the two will be used. Any contractor or sub - contractor working on a federally assisted project must be eligible to participate in the award of that contract. 6 18. SUSPENSION OF FUNDING. The City may suspend payments to the Department prior to termination in whole or in part of cause. Cause shall include the following: A. Failure to comply in any respect with either the terms and/ or conditions of this Memorandum. B. Submission to the City of reports which are incorrect or incomplete in any substantial and material respect. C. Termination or suspension of the grant of the funds to the City from HUD for this program. The City may also withhold payment of any unearned portion of the amount authorized under this Memorandum if the Department is unable or unwilling to accept any additional conditions that may be required by law, by executive order, by regulation, or by other policy announced by HUD at any time. Upon the suspension of funds, the Department agrees not to expand any funds related to or connected with any area of conflict concerning which the City has determined that suspension of funds is necessary. 19. DISALLOWED COSTS. The Department hereby covenants and agrees that it has full responsibility to ensure the proper expenditure of CDBG fund paid to it under this Memorandum. Any funds expended by the Department under this Memorandum which are later determined by HUD, the City, or representatives thereof, not to have been allowable, must be immediately returned to the City. If the Department fails to refund any disallowed cost, the City may, in its sole discretion, terminate any and all contracts or agreements (including this Memorandum) with the Department effective immediately thereon. 20. FINANCIAL PHASE -OUT PERIOD. The Department agrees to complete all necessary financial phase -out procedures required by the City's Economic Development Division, within a period of not more than sixty (60) calendar days from the expiration date of this Memorandum or any earlier termination hereof. This time period will be referred to as the financial phase -out period. The City shall not be held liable to provide reimbursement for any expenses or costs associated with the financial phase -out, if such costs or expenses will result in total program expenditures exceeding the total amount of the project budget. After the expiration of the financial phase -out period, those funds not paid to the Department under this Memorandum, if any, shall be immediately 6 reprogrammed by the City into other eligible activities in the City. The City's Program Manager shall request a final financial audit for activities performed under this Memorandum at the expiration of the final phase -put period. 21. USE OF FUNDS. All funds approved under this Memorandum shall be used solely for cost approved in the program budget for this Project attached hereto as Exhibit "A" and made a part hereof. Separate financial records shall be kept for each funding source. 22. PROGRAM INCOME. A. "Program Income," as defined at Title 24 C.F.R. Part 570.500 (a), means gross income received by the Department directly generated from the use of CDBG funds. When such income is generated by an activity that is only partially assisted with CDBGF funds, the income shall be prorated to reflect the percentage of CDBG funds used. L Program income includes, but not limited to the following: (a) Proceeds from the disposition by sale or long term lease of real property purchase or improvement with CDBG funds; (b) Proceeds from the disposition of equipment purchased with CDBG funds; (c) Gross income from the use or rental of real personal property acquired by the Department with CDBG funds, less the costs incidental to the generation of such income; (d) Gross income from the use or rental of real property owned by the Department that was constructed or improved with CDBG funds, less the cost incidental to the generation of such income; (e) Payments of principal and interest on loans made using CDB funds. (f) Proceeds from the sale of loans made with CDBG funds; (g) Proceeds from the sale of obligations secured by loans; (h) Interest earned on funds held in a revolving fund account; (i) Interest earned on program income pending disposition of such income; (j) Funds collected through special assessments made against properties owned and occupied by households not of low and moderate income, where such assessment are used to recover all or part of the CDBG portion of a public improvement. (ii) Program income does not include interest earned (except for interest described in Title 24 C.F.R. Part 570.513) on cash advances from the U.S Treasury. Such Interest shall be remitted to HUD for transmittal to the U.S Treasury and will not be reallocated under Section 106(c) or (d) of the Act. Examples of other receipts that are not considered program income are proceed from fund raising activities carried out by the Department receiving CDBG assistance; funds collected through special assessments used to recover the non- CDBG portion of a public improvement; and proceeds from the disposition of real property acquired or improved with CDBG funds when such disposition occurs after the applicable time period specked in Title 24 C.F.R. Part 570.503(b) (8). B. Any program income received by the Department shall be immediately returned to the City. C. The Department shall file a quarterly statement with the City regarding the monthly amount of program income generated by Department within two months of its generation. 23. CLOSE -OUT PROCEDURES. This Memorandum shall be closed out when: A. All costs to be paid for by CDBG funds have been incurred, with the exception of close -out costs and costs associated with contingent liabilities as set forth in Title 24 C.F.R. Part 570.509(1); B. Any rehabilitation activities to private property have actually been completed; and B C. Other responsibilities of the Sub - recipient under the Memorandum have been completed. Upon close -out and after demand by the City, the Department shall provide the City with: A full and complete listing of all outstanding loans; ii. Original loan documents and any all original security instruments for all loans generated with CDBG funds; iii. Document assigning the loan from the Department to the City. 24. UNIFORM ADMINISTRATIVE REQUREMENTS. To the extent applicable, the Department shall comply with the requirements and standards of OMB Circular No. A-87, "Cost Principles for State, Local, and Indian Tribal Governments", as applicable, OMB Circular No. A -128, "Audits of State, Local Government" and Title 24 C.F.R. Part 85 "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments". 25. INTERPRETATION. A. Order of Precedence. In the event there are inconsistencies or conflicts in this Memorandum or any exhibits or attachments hereto, the inconsistencies shall be resolved by giving precedence in the following order. Housing and Urban Development Act of 1974, including any amendment thereto; ii. The Regulations as approved by the Secretary of the U.S Department of Housing and Urban Development ( "HUD "); and any additional regulations codified in the Code of Federal Regulations applicable to the CDBG program; iii. The provisions of this Memorandum and Exhibits and attachments thereto. iv. In case of conflict between the terms of this Memorandum and the terms contained in any document attached as an exhibit, the terns of the Memorandum will strictly prevail unless said terms are in conflict with federal, state or local law, in which case said law shall strictly prevail. G 10 IN WITNESS WHEREOF, the parties have caused the Memorandum to be executed on the day and year first above written. Terms and conditions understood and accepted: APPROVED AS TO FORM: OFF CE OF THE CITY ATTORNEY Aaron C. Harp, Assistant City Attorney for the City of Newport Beach I_'%a1*35 r By: C)�, �'v� Leilani Brown, City Clerk \�PoRV CITY OF NEWPORT BEACH, A Municipal Corporation By: Z��z Z4� omer BU , City Manager for the City of Newport Beach DEPARTMENT: Economic Development By: Sharron Wood, Assistant City Manager Exhibit A 12 CITY OF NEWPORT BEACH CDBG Exhibit A: Section 108 Loan Repayment Project: Section 108 Loan Repayment Organization: City of Newport Beads Description: Funds will be used to repay the City's Section 108 Loan. The loan was used to partially fund public improvements to the Balboa Target Area totaling $8 million. The scope of work includes: the Balboa Village Pedestrian and Streetscape Plan, Street Improvements to Balboa Blvd., Pier Parking Lot, Pier Plaza, and Lot A connecting access to Main Street. HUD Matrix Code: 108 Loan Payment CDBG I $197,535 Eligibility Citation: 1570,201 ( c ) I HOME 1 $0 National Objective: 1 570 Mad (a Area ESG I $0 Accomplishment I N/A HOPWA I $0 Goal: Start Date: 107/01/2009 1 Other: 1 $0 End Date: 06/30/2010 1 Total: 1 $197,535 Service Area: Balboa Peninsula Census Tract/Block Group 62800.1 Help the homeless? No Help persons with HIV / AIDS? No Help persons with Special Needs? No 13 City of Newport Beach 3300 Newport Blvd Newport Beach, CA 92658 Kathlyn Bowden, AICP Economic Development Coordinator Phone: 949 -644 -3230