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HomeMy WebLinkAbout2006 CON CDC City of National City - Housing Rehab AgreementAGREEMENT BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND CITY OF NATIONAL CITY FOR THE USE OF HOME INVESTMENT PARTNERSHIP ACT (HOME) FUNDS This Agreement, made and entered into by and between the Community Development Commission of the City of National City, California, hereinafter called "CDC", City of National City, hereinafter called "SUB -RECIPIENT." I. RECITALS A. CDC is recipient of funds from the United States Department of Housing and Urban Development (hereinafter called "HUD") pursuant to Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et seq.) as amended and the regulations of (24 C.F.C. Section 570 et seq. ("Regulations")(hereinafter called "ACTS"). B. CDC has approved the provision of federal funds under the ACT to be used by the SUB -RECIPIENT as provided in the program description attached (Exhibit "A") and incorporated herein by reference. C. SUB -RECIPIENT represents that it shall perform the work as set forth in the Statement of Work for a 12 month period beginning July 1, 2006 and ending June 30, 2007. D. SUB -RECIPIENT warrants that it has the expertise and experience to perform the work set forth in the Statement of Work. E. CDC shall provide HOME Investment Partnership Program "HOME" funds to the SUB -RECIPIENT in the amount of $314, 301.51, for the purpose of rehabilitating owner occupied low-income housing units in National City. NOW THEREFORE, in consideration of the foregoing recitals and based on the mutual covenants below, the parties hereby agree as follows: II. SUB -RECIPIENT OBLIGATIONS A. Use of Funds: SUB -RECIPIENT agrees to use all federal funds provided by the CDC to SUB -RECIPIENT pursuant to the provisions of this Agreement for said program. SUB - RECIPIENT'S failure to perform as required may, in addition to other remedies set forth in Page 1 of 12 this Agreement, result in re -adjustment of the amount of funds the CDC is otherwise obligated to pay to SUB -RECIPIENT under Section III hereof. 1. SUB -RECIPIENT agrees to use said funds to pay for necessary and reasonable costs to operate said program. Said amount shall include wages, administrative costs, employee benefits comparable to other similarly situated employees, and other allowable program costs. 2. SUB -RECIPIENT shall not use any funds received pursuant to this Agreement for the purpose of 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 cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 3. LOW INCOME REQUIREMENT - The services to be performed by SUB - RECIPIENT be provided primarily to persons of low- income households. A minimum of 51% of the persons provided services shall be of low income, as determined by the most current HUD Income Limits for the San Diego SMSA, a copy of which is attached hereto and incorporated herein (Exhibit "B"). Grantee shall use reasonable means to determine the income level of each person or family served. B. Reports: The SUB -RECIPIENT shall provide the CDC with a quarterly report, submitted no later than 40 days after the last day of the previous quarter. The fourth quarterly report shall also include an Annual Performance Report. Said report shall include the following statistical date for persons/households served during the previous quarter. 1. The total number of persons/households served; 2. The number of persons/households receiving each type of service provided; 3. Of the persons/households served, the number of residents and non-residents of National City; 4. Annual gross household income by standard categories, adjusted for family size (low, moderate, other); 5. Race or ethnicity according to standard categories (Black, Hispanic, Asian/Pacific Islander, Native American, White); 6. Number of female -headed households served; and, 7. Narrative of contract objectives (in Agreement) comparing current objectives versus original objectives in Agreement. Provide explanation if not meeting original objectives. Page 2 of 12 C. Program Income: Transfers of grant funds by the CDC to the SUB -RECIPIENT shall be adjusted according to the principles described in 24 C.F.R. 507.504 (b) (2) (i) and (ii). Any program income on hand when this Agreement expires, or received after this Agreement's expiration, shall be paid to the CDC as required by Section II-0 of this Agreement and 24 C.F.R. 507.503(B). D. Uniform Administrative Requirements: The SUB -RECIPIENT shall comply with applicable uniform administrative requirements as described in 24 C.F.R. Part 85.22 and OMB Circular A-87 and I-122 and 24 C.F.R. 570.503 (D)(4). E. Separation of Accounts: All funds received by SUB -RECIPIENT from the CDC pursuant to this Agreement shall be maintained separately and apart from any other funds of SUB - RECIPIENT or of any principal or member of SUB -RECIPIENT in an account in a federally insured banking or savings and loan institution. No monies shall be withdrawn from such account except for expenditures authorized by this Agreement. F. Retention of Records: All accounting records and evidence pertaining to all costs of SUB - RECIPIENT and all documents related to this Agreement shall be kept available at SUB - RECIPIENT'S office or place of business for the duration of the Agreement and thereafter for five (5) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings, or litigation arising out of the performance of this Agreement; or (b) costs and expenses of this Agreement to which CDC or any other governmental agency takes exception, shall be retained beyond the five (5) years until resolution or disposition of such appeals, litigation claims, or exceptions. G Compliance with Applicable Laws: SUB -RECIPIENT agrees to comply fully with all applicable federal, state, and local laws, ordinances, regulations, and permits, including but not limited to federal CDBG financial and contractual procedures, and OMB Circular Nos. A-87, A-122, and A-110 with Attachments A, B, C, F, H, N, and 0, as set forth in 24 C.F.R. 570.502(b). Said federal documents are on file in the office of the (CDC) Community Development Commission, 1243 National City Boulevard, National City, California 91950, and are incorporated herein by reference. The SUB -RECIPIENT shall secure any new permits required by authorities herein with jurisdiction over the project, and shall maintain all presently required permits. The SUB -RECIPIENT shall ensure that the requirements of the California Environmental Quality Act are met for any permits or other entitlement required to carry out the terms of this Agreement. H. Affirmative Action Policy: 1. Provision of Program Services a. SUB -RECIPIENT shall not, on the grounds of race, religion, color, national origin, sex, sexual preference, or handicap, exclude any person from participation in, deny any person the benefits of, or subject any person to discrimination under any program or activity funded in whole or in part with HOME funds. Page 3of12 b. SUB -RECIPIENT shall not under any program or activity funded in whole or in part with HOME funds, on the grounds of race, religion, color, national origin, sex, sexual preference, or handicap: 1) Deny any facilities, services, financial aid or other benefits provided under the program or activity; or 2) Provide any facilities, services, financial aid, or other benefits which are different or are provided in a different form from that provided to others under the program or activity; or 3) Subject to segregated or separate treatment in any facility in, or in any matter of process related to receipt of any service or benefit under the program or activity; or 4) Restrict in any way access to, or in the enjoyment of any advantage or privilege enjoyed by others in connection with facilities, services, financial aid, or other benefits under the program or activity; or 5) Treat an individual differently from others in determining whether the individual satisfies any admission, enrollment, eligibility, membership, or other requirement or condition which the individual must meet in order to be provided any facilities, services, or other benefits provided under the program or activity; or 6) Deny any opportunity to participate in a program or activity as an employee. c. SUB -RECIPIENT may not utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination on the basis of race, religion, color, national origin, sex, sexual preference, or handicap, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, religion, color, national origin, sex, sexual preference or handicap. d. SUB -RECIPIENT, in determining the site or location of housing or facilities provided in whole or in part with HOME funds, may not make selections of such site or location which have the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination on the grounds of race, color, national origin, or sex, or which have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Civil Rights Act of 1964 and amendments thereto: e. In administering a program or activity funded in whole or in part with HOME funds regarding which the SUB -RECIPIENT has previously discriminated against persons on the grounds of race, religion, color, national origin, sex, sexual preference or handicap, the SUB -RECIPIENT Page 4of12 must take affirmative action to overcome the effects of prior discrimination. f. Even in the absence of such prior discrimination, a SUB -RECIPIENT in administering a program or activity funded in whole or in part with HOME funds should take affirmative action to overcome the effects of conditions which would otherwise result in limiting participation by persons of a particular race, color, national origin, or sex. Where previous discriminatory practice or usage tends, on the grounds of race, religion, color, national origin, sex, sexual preference, or handicap, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which HOME funding applies, the SUB -RECIPIENT has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purpose of the Civil Rights Act of 1964. A SUB -RECIPIENT shall not be prohibited by this part from taking any eligible action to ameliorate an imbalance in services or facilities provided to any geographic area or specific group of persons within its jurisdiction where the purpose of such action is to overcome prior discriminatory practice or usage. h. Notwithstanding anything to the contrary in Sections J. 1. (a. through h.), nothing contained herein shall be construed to prohibit any SUB - RECIPIENT from maintaining or constructing separate living facilities or rest -room facilities for the different sexes. Furthermore, selectivity on the basis of sex is not prohibited when institutional or custodial services can properly be performed only by a member of the same sex as the recipients of the services. g. 2. Employment Discrimination a. SUB -RECIPIENT shall not discriminate against any employee or application for employment because of race, color, religion, sex, national origin, age, or handicap. SUB -RECIPIENT shall take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, age, or handicap. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rate -of -pay or other forms of compensation and selection for training including apprenticeship. SUB - RECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause. b. SUB -RECIPIENT shall, in all solicitations or advertisements for employees placed by or on behalf of SUB -RECIPIENT, state that all qualified Page5of12 g. applications will receive consideration for employment without regard to race, color, religion, sex, national origin, age, or handicap. c. SUB -RECIPIENT shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the CDC's contracting officers, advising the labor union or workers' representative of SUB - RECIPIENT'S commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notices in conspicuous places available to employees and applicants for employment. d. SUB -RECIPIENT shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. e. SUB -RECIPIENT shall furnish to the CDC all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the related rules, regulations, and orders. f. In the event of SUB -RECIPIENT'S failure to comply with any rules, regulations, or orders required to be complied with pursuant to this Agreement, the CDC may cancel, terminate, or suspend in whole or in part its performance and SUB -RECIPIENT may be declared ineligible for further government contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions as may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. SUB -RECIPIENT shall include the provisions of Section H. J. 2. (a. through f.), "Affirmative Action Policy," paragraphs (1) through (6) in every subcontract or purchase order unless exempted by rules, regulations, or order of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. SUB -RECIPIENT shall take such action with respect to any subcontract or purchase order as the CDC may direct as a means of enforcing such provisions including sanctions for non- compliance; provided, however, that in the event SUB -RECIPIENT becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the CDC, SUB -RECIPIENT may request the United States to enter into such litigation to protect the interests of the United States. h. SUB -RECIPIENT shall not discriminate on the basis of age in violation of any provision of the Age Discrimination Act of 1975 (42 U.S.C. 6101 et Page 6of12 seq.) or with respect to any otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). SUB -RECIPIENT shall also provide ready access to and use of all HOME fund -assisted buildings to physically handicapped persons in compliance with the standards established in the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.). 3. Remedies: In the event of SUB -RECIPIENT'S failure to comply with any rules, regulations, or orders required to be complied with pursuant to this Agreement, the CDC may cancel, terminate, or suspend in whole or in part its performance and SUB -RECIPIENT may be declared ineligible for furthergovernment contracts and any such other sanctions as may be imposed and remedies invoked as provided by law. L. Ineligibility of Sub -Recipients or Contractors: SUB -RECIPIENT shall not use HOME funds directly or indirectly in its operations or to employ, award contracts to, or otherwise engage the services of, or fund any contractor during any period of debarment, suspension, or placement in ineligibility status of the SUB -RECIPIENT or such contractor under the provisions of 24 C.F.R. Part 24. M. Conflict -of -Interest: In the procurement of supplies, equipment, construction, and services by SUB -RECIPIENT, the conflict -of -interest provision in Attachment 0 of OMB Circular No. A-110 and 24 C.F.R. 570.611 shall apply. N. Condition for Religious Organizations: SUB -RECIPIENT shall comply with all applicable conditions of 24 C.F.R. 570.503 (b) (6) prescribed by HUD for the use of HOME funds by religious organizations if SUB -RECIPIENT is a religious organization. O. Suspension and Teiiiunation: In accordance with 24 C.F.R. 85.43, suspension or termination may occur if SUB -RECIPIENT materially fails to comply with any term of this Agreement and/or the award, and the Agreement and/or the award may be terminated for convenience in accordance with 24 C.F.R. 85.44. P. Reversion of Assets: Upon the termination or expiration of the term of this Agreement, the SUB -RECIPIENT shall comply with 24 C.F.R. 570.503 (b) (8) and transfer to the CDC any HOME funds on hand at the time of such termination or expiration and any accounts receivable attributable to the use of HOME funds. Any real property under the SUB - RECIPIENT'S control that was acquired or improved in whole or in part with HOME funds in excess of twenty-five thousand dollars ($25,000.00) shall either be: 1. Used to meet one of the national objectives stated in 24 C.F.R. 570.901 until five (5) years after termination or expiration of this Agreement, or for such longer period of time as determined to be appropriate by the CDC; or 2. Disposed of in a manner that results in the CDC's being reimbursed in the amount of the current fair -market value of the property less any portion of the value Page 7of12 attributable to expenditures of non -HOME funds for acquisition of, or improvement to, the property. Reimbursement to the CDC shall not be required after the period of time specified in Section H. O. 1. Of this Agreement. Licensing: SUB -RECIPIENT agrees to obtain and maintain all licenses, registrations, accreditations, and inspections from all agencies governing its operations. SUB - RECIPIENT shall insure that its staff shall also obtain and maintain all required licenses, registrations, accreditations, and inspections from all agencies governing SUB - RECIPIENT'S operations hereunder. R. Inspection of Records: The CDC and the United States Government and/or their representatives shall have access for purposes of monitoring, auditing, and examining SUB - RECIPIENT'S activities and performance, to books, documents, and papers, and the right to examine records of SUB -RECIPIENT'S subcontractors, bookkeepers, and accountants, employees, and participants in regard to said program. The CDC and the Unites States Government and/or their representative shall also schedule on -site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder is conducted or in which any of the records of SUB -RECIPIENT are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. S. Independent Contractor: SUB -RECIPIENT'S relationship to the CDC shall be that of an independent contractor. SUB -RECIPIENT shall have no authority, express or implied, to act on behalf of the CDC as an agent, or to bind the CDC to any obligation whatsoever, unless specifically authorized in writing by the CDC Director. SUB -RECIPIENT shall be solely responsible for performance of any of its employees, agents, or subcontractors under this Agreement. SUB -RECIPIENT shall report to the CDC any and all employees, agents, and consultants performing work in connection with this project, and all shall be subject to the approval of the CDC. T. Liability Insurance: 1. SUB -RECIPIENT shall, throughout the duration of this Agreement, maintain comprehensive general liability insurance, covering all operations (of SUB - RECIPIENT, its agents and employees) performed in connection with this Agreement including, but not limited to, premises and automobile. 2. SUB -RECIPIENT shall maintain a minimum of $1,000,000 combined single limit per -occurrence general liability insurance and a minimum of $300,000 combined single -limit automobile insurance. 3. All insurance companies affording coverage to the SUB -RECIPIENT shall be required to add the City of National City and the CDC as "additional insured" under the insurance policy for all work performed in accordance with this Agreement. Page8of12 4. All insurance companies affording coverage to the SUB -RECIPIENT shall be insurance organizations authorized by the Insurance Commissioner of the State Department of Insurance to transact business of insurance in the State of California. 5. All insurance companies affording coverage shall provide thirty (30) days written notice to the City of National City and the CDC should the policy be canceled before the expiration date. For the purposes of this notice requirement, any material change in the policy prior to the expiration shall be considered a cancellation. 6. SUB -RECIPIENT shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to the CDC Attorney, concurrently with the submittal of this Agreement. 7. SUB -RECIPIENT shall provide a substitute certificate of insurance no later than thirty (30) days prior to the policy expiration date. Failure by the SUB -RECIPIENT to provide such a substitution and extend the policy expiration date shall be considered a default by SUB -RECIPIENT and may subject the SUB -RECIPIENT to a suspension or termination of work under the Agreement. 8. Maintenance of insurance by the SUB -RECIPIENT as specified in this Agreement, shall in no way be interpreted as relieving the SUB -RECIPIENT of any responsibility whatever; and, the SUB -RECIPIENT may carry, at its own expense, such additional insurance as it deems necessary. 9. SUB -RECIPIENT shall maintain, throughout the duration of this Agreement, workers' compensation insurance in statutory amount; and provide a certificate of insurance certifying that it carries such insurance; and that the policy shall not be canceled nor the coverage reduced except upon thirty (30) days prior written notice to the CDC at the address specified in Section IV. B. herein. 10. SUB -RECIPIENT may comply with the requirement of the Subsection T by maintaining a lawful self -insured status during the term of this agreement. U. SUB -RECIPIENT'S Indemnification to CITY: SUB -RECIPIENT shall indemnify and hold harmless the CDC and it's officers, agents, and employees against all claims for damages to persons or property arising out of the conduct of the SUB -RECIPIENT or its employees, agents, subcontractors, or others in connection with the execution of the work covered by this Agreement, except for those claims arising only from the sole negligence or sole willful conduct of the CDC and their officers, agents, or employees. V. Assignment and Delegation: This Agreement and any portion thereof shall not be assigned or transferred, nor shall any of the SUB -RECIPIENT'S duties be delegated, without the express written consent of the CDC. Any attempt to assign or delegate this Agreement without the express written consent of the CDC shall be void and of no force or effect. Consent by the CDC to one assignment shall not be deemed to be a consent to any subsequent assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Page 9of12 W. Entire Agreement: This Agreement comprises the entire integrated understanding between the CDC and the SUB -RECIPIENT concerning negotiations, representations, or agreements. X. Interpretation of the Agreement: The interpretation, validity, and enforcement of the Agreement shall be governed by and construed under the laws of the State of California. The Agreement does not limit any other rights or remedies available to the CDC. The SUB - RECIPIENT shall be responsible for complying with all local, state, and federal laws whether or not said laws are expressly stated or referred to herein. Should any provision herein be found or deemed to be invalid, the Agreement shall be construed as not containing such revision, and all other provisions which are otherwise lawful shall remain in full force and effect, and to this end the provisions of this Agreement are severable. Y. Agreement Modification: This Agreement may not be modified orally or in any manner other than by an agreement in writing, signed by the parties hereto. Z. Attorneys Fees: In the event any legal action or proceeding is commenced to interpret or enforce the terms of, or obligations arising out of, this Agreement, or to recover damages for the breach thereof, the party prevailing in any such action or proceeding shall be entitled to recover from the non -prevailing party all reasonable attorney's fees, costs, and expenses incurred by the prevailing party. III. MISCELLANEOUS PROVISIONS A. Termination of Agreement: The CDC or SUB -RECIPIENT may terminate this Agreement by giving written notice to the other party thirty (30) days prior to effective date of termination. Additionally, the CDC shall have the right, in accordance with 24 C.F.R. 85.43, to terminate this Agreement immediately or withhold payment of any invoice for failure of the SUB -RECIPIENT to comply with the terms and conditions of this Agreement. Should the CDC decide to terminate this Agreement, after a full evaluation of all circumstances has been completed, the SUB -RECIPIENT shall, upon written request, have the right to an appeal process. A copy of the appeal process will be attached to any termination notice. If the CDC finds that the SUB -RECIPIENT has violated the terms and conditions of this Agreement, the SUB -RECIPIENT may be required to: 1. Repay all monies received from the CDC under this Agreement; and/or 2. Transfer possession of all materials and equipment purchased with grant money to the CDC. In the case of early termination, a final payment may be made to the SUB -RECIPIENT upon receipt of a Final Report and invoices covering eligible costs incurred prior to termination. The total of all payments, including the final payment, shall not exceed the amount specified in this Agreement. B. Notices: All notices, demands, requests, consents, or other communications which this Agreement contemplates or authorizes, or requires orpermits either party to give to the Page l0 of 12 other, shall be in writing and shall be personally delivered or mailed to the respective party as follows: TO: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 1243 National City Boulevard National City, CA 91950 and TO: CITY OF NATIONAL CITY Building and Safety Department 1243 National City Boulevard National City, CA 91950 Either party may change its address by notice to the other party as provided herein. Communications shall be deemed to have been given and received on the first to occur of (a) actual receipt at the offices of the party to whom the communication is to be sent, as designated above, or (b) three working days following the deposit in the United States Mail of registered or certified mail, postage prepaid, return receipt requested, addressed to the offices of the party to whom the communication is to be sent, as designated above. C. Signatures: The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the SUB -RECIPIENT and the CDC. Page 11 of 12 IN WITNESS WHEREOF the parties heretofore themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Agreement to be executed by setting hereunto their signatures this 22nd day of August, 2006. CITY OF NATIONAL CITY COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NAIONAL CITY By: Attest By: Chris aa, Chairman ecutive Director George H. Eiser, III, CDC/City Attorney Attachments: Exhibit "A" Program Description Exhibit "B" HUD Income Limits for the San Diego SMSA Page 12 of 12 RESOLUTION NO. 2006 — 181 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE ALLOCATION OF $314,301.51 IN HOME FUNDS TO THE CITY'S BUILDING AND SAFETY DEPARTMENT FOR THE PURPOSE OF REHABILITATING LOW-INCOME HOUSING UNITS, AND AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT WITH THE CITY FOR THIS PURPOSE WHEREAS, the Community Development Commission of the City of National City (CDC) is in charge of administrating the HOME Program; and WHEREAS, the CDC is required under the HOME Program to assist low-income families with decent and safe living conditions: and WHEREAS, the CDC has funds totaling $314,301.51 from the HOME Program to allocate to the National City Building and Safety Department for their Lead Safe Abatement and Healthy Homes Program. NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of the City of National City hereby authorizes the allocation of $314,301.51 in HOME funds to the National City Building and Safety Department for the purpose of rehabilitating low-income housing units, and authorizes the Chairman to execute an agreement with the City of National City for this purpose. PASSED and ADOPTED this 22nd day of August 2006. ATTES ris - ta, ecretary APPROVED AS TO FORM: George H. Eiser, III Legal Counsel Passed and adopted by the Community Development Commission of National City, California, on August 22, 2006, by the following vote, to -wit: Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: NICK INZUNZA Chairman Cgaignunity Development Commission Secretary Co unity evelopment Commission By: Deputy HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2006-181 of the Community Development Commission of the City of National City, California, passed and adopted on August 22, 2006. Secretary Community Development Commission By: Deputy Community Development Commission COUNCIL AGENDA STATEMENT 38 MEETING DATE: August 22, 2006 AGENDA ITEM NO. ITEM TITLE: : Resolution of the Community Development Commission authorizing the Allocation of $314,301.51 in HOME Funds to the City's Building and Safety Department for the purpose of rehabilitating low-income housing units, and Authorizing the Chairman to Execute an Agreement with the City for this purpose PREPARED BY: DEPARTMENT: Community Development Commission Angela Nazareno Economic Development Manager EXPLANATION: The HOME Program is requesting the allocation of funds to the Building and Safety Department's Healthy Homes Dem- onstration and Lead Abatement Programs for the purpose of rehabilitation of owner occupied low —income housing units. Such eligible HOME activities administered through this program include but not limited to: weatherization, ADA compli- ance, lead abatement, code compliance, remodeling, or heating and cooling systems. Environmental Review: X N/A Financial Statement: Funds are available and budgeted through the HOME Program for a total of $314,301.51 in Fund Account #165. Account No. r STAFF RECOMMENDATION: Authorize allocation and approve attached CDC agreement and Resolution. BOARD/COMMISSION RECOMMENDATION: N/A l ATTACHMENTS (Listed Below) 1. Resolution 3. HUD Income limits Resolution No. 5. Lead Abatement Program 2. CDC Agreement 4. Healthy Homes Program Description RESOLUTION NO. 2006 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE ALLOCATION OF $314,301.51 IN HOME FUNDS TO THE CITY'S BUILDING AND SAFETY DEPARTMENT FOR THE PURPOSE OF REHABILITATING LOW-INCOME HOUSING UNITS, AND AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT WITH THE CITY FOR THIS PURPOSE WHEREAS, the Community Development Commission of the City of National City (CDC) is in charge of administrating the HOME Program; and WHEREAS, the CDC is required under the HOME Program to assist low-income families with decent and safe living conditions: and WHEREAS, the CDC has funds totaling $314,301.51 from the HOME Program to allocate to the National City Building and Safety Department for their Lead Safe Abatement and Healthy Homes Program. NOW, THEREFORE, BE IT RESOLVED, that the Community Development Commission of the City of National City hereby authorizes the allocation of $314,301.51 in HOME funds to the National City Building and Safety Department for the purpose of rehabilitating low-income housing units, and authorizes the Chairman to execute an agreement with the City of National City for this purpose. PASSED and ADOPTED this 22nd day of August 2006. Nick Inzunza, Chairman ATTEST: Chris Zapata, Secretary APPROVED AS TO FORM: George H. Eiser, III Legal Counsel AGREEMENT BETWEEN THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AND CITY OF NATIONAL CITY FOR THE USE OF HOME INVESTMENT PARTNERSHIP ACT (HOME) FUNDS This Agreement, made and entered into by and between the Community Development Commission of the City of National City, California, hereinafter called "CDC", City of National City, hereinafter called "SUB -RECIPIENT." I. RECITALS A. CDC is recipient of funds from the United States Department of Housing and Urban Development (hereinafter called "HUD") pursuant to Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et seq.) as amended and the regulations of (24 C.F.C. Section 570 et seq. ("Regulations")(hereinafter called "ACTS"). B. CDC has approved the provision of federal funds under the ACT to be used by the SUB -RECIPIENT as provided in the program description attached (Exhibit "A") and incorporated herein by reference. C. SUB -RECIPIENT represents that it shall perform the work as set forth in the Statement of Work for a 12 month period beginning July 1, 2006 and ending June 30, 2007. D. SUB -RECIPIENT warrants that it has the expertise and experience to perform the work set forth in the Statement of Work. E. CDC shall provide HOME Investment Partnership Program "HOME" funds to the SUB -RECIPIENT in the amount of $314, 301.51, for the purpose of rehabilitating owner occupied low-income housing units in National City. NOW THEREFORE, in consideration of the foregoing recitals and based on the mutual covenants below, the parties hereby agree as follows: II. SUB -RECIPIENT OBLIGATIONS A. Use of Funds: SUB -RECIPIENT agrees to use all federal funds provided by the CDC to SUB -RECIPIENT pursuant to the provisions of this Agreement for said program. SUB - RECIPIENT'S failure to perform as required may, in addition to other remedies set forth in Page 1 of 12 this Agreement, result in re -adjustment of the amount of funds the CDC is otherwise obligated to pay to SUB -RECIPIENT under Section IlI hereof. 1. SUB -RECIPIENT agrees to use said funds to pay for necessary and reasonable costs to operate said program. Said amount shall include wages, administrative costs, employee benefits comparable to other similarly situated employees, and other allowable program costs. 2. SUB -RECIPIENT shall not use any funds received pursuant to this Agreement for the purpose of 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 cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement. 3. LOW INCOME REQUIREMENT - The services to be performed by SUB - RECIPIENT be provided primarily to persons of low- income households. A minimum of 51% of the persons provided services shall be of low income, as determined by the most current HUD Income Limits for the San Diego SMSA, a copy of which is attached hereto and incorporated herein (Exhibit "B"). Grantee shall use reasonable means to determine the income level of each person or family served. B. Reports: The SUB -RECIPIENT shall provide the CDC with a quarterly report, submitted no later than 40 days after the last day of the previous quarter. The fourth quarterly report shall also include an Annual Performance Report. Said report shall include the following statistical date for persons/households served during the previous quarter. 1. The total number of persons/households served; 2. The number of persons/households receiving each type of service provided; 3. Of the persons/households served, the number of residents and non-residents of National City; 4. Annual gross household income by standard categories, adjusted for family size (low, moderate, other); 5. Race or ethnicity according to standard categories (Black, Hispanic, Asian/Pacific Islander, Native American, White); 6. Number of female -headed households served; and, 7. Narrative of contract objectives (in Agreement) comparing current objectives versus original objectives in Agreement. Provide explanation if not meeting original objectives. Page 2 of 12 C. Program Income: Transfers of grant funds by the CDC to the SUB -RECIPIENT shall be adjusted according to the principles described in 24 C.F.R. 507.504 (b) (2) (i) and (ii). Any program income on hand when this Agreement expires, or received after this Agreement's expiration, shall be paid to the CDC as required by Section II-0 of this Agreement and 24 C.F.R. 507.503(B). D. Uniform Administrative Requirements: The SUB -RECIPIENT shall comply with applicable uniform administrative requirements as described in 24 C.F.R. Part 85.22 and OMB Circular A-87 and I-122 and 24 C.F.R. 570.503 (D)(4). E. Separation of Accounts: All funds received by SUB -RECIPIENT from the CDC pursuant to this Agreement shall be maintained separately and apart from any other funds of SUB - RECIPIENT or of any principal or member of SUB -RECIPIENT in an account in a federally insured banking or savings and loan institution. No monies shall be withdrawn from such account except for expenditures authorized by this Agreement. F. Retention of Records: All accounting records and evidence pertaining to all costs of SUB - RECIPIENT and all documents related to this Agreement shall be kept available at SUB - RECIPIENT'S office or place of business for the duration of the Agreement and thereafter for five (5) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings, or litigation arising out of the performance of this Agreement; or (b) costs and expenses of this Agreement to which CDC or any other governmental agency takes exception, shall be retained beyond the five (5) years until resolution or disposition of such appeals, litigation claims, or exceptions. Compliance with Applicable Laws: SUB -RECIPIENT agrees to comply fully with all applicable federal, state, and local laws, ordinances, regulations, and permits, including but not limited to federal CDBG financial and contractual procedures, and OMB Circular Nos. A-87, A-122, and A-110 with Attachments A, B, C, F, H, N, and 0, as set forth in 24 C.F.R. 570.502(b). Said federal documents are on file in the office of the (CDC) Community Development Commission, 1243 National City Boulevard, National City, California 91950, and are incorporated herein by reference. The SUB -RECIPIENT shall secure any new peiwuits required by authorities herein with jurisdiction over the project, and shall maintain all presently required permits. The SUB -RECIPIENT shall ensure that the requirements of the California Environmental Quality Act are met for any permits or other entitlement required to carry out the terms of this Agreement. H. Affirmative Action Policy: 1. Provision of Program Services a. SUB -RECIPIENT shall not, on the grounds of race, religion, color, national origin, sex, sexual preference, or handicap, exclude any person from participation in, deny any person the benefits of, or subject any person to discrimination under any program or activity funded in whole or in part with HOME funds. Page 3 of 12 b. SUB -RECIPIENT shall not under any program or activity funded in whole or in part with HOME funds, on the grounds of race, religion, color, national origin, sex, sexual preference, or handicap: 1) Deny any facilities, services, financial aid or other benefits provided under the program or activity; or 2) Provide any facilities, services, financial aid, or other benefits which are different or are provided in a different form from that provided to others under the program or activity; or 3) Subject to segregated or separate treatment in any facility in, or in any matter of process related to receipt of any service or benefit under the program or activity; or 4) Restrict in any way access to, or in the enjoyment of any advantage or privilege enjoyed by others in connection with facilities, services, financial aid, or other benefits under the program or activity; or 5) Treat an individual differently from others in determining whether the individual satisfies any admission, enrollment, eligibility, membership, or other requirement or condition which the individual must meet in order to be provided any facilities, services, or other benefits provided under the program or activity; or 6) Deny any opportunity to participate in a program or activity as an employee. c. SUB -RECIPIENT may not utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination on the basis of race, religion, color, national origin, sex, sexual preference, or handicap, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to individuals of a particular race, religion, color, national origin, sex, sexual preference or handicap. d. SUB -RECIPIENT, in determining the site or location of housing or facilities provided in whole or in part with HOME funds, may not make selections of such site or location which have the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination on the grounds of race, color, national origin, or sex, or which have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Civil Rights Act of 1964 and amendments thereto: e. In administering a program or activity funded in whole or in part with HOME funds regarding which the SUB -RECIPIENT has previously discriminated against persons on the grounds of race, religion, color, national origin, sex, sexual preference or handicap, the SUB -RECIPIENT Page 4 of 12 g. must take affirmative action to overcome the effects of prior discrimination. f. Even in the absence of such prior discrimination, a SUB -RECIPIENT in administering a program or activity funded in whole or in part with HOME funds should take affirmative action to overcome the effects of conditions which would otherwise result in limiting participation by persons of a particular race, color, national origin, or sex. Where previous discriminatory practice or usage tends, on the grounds of race, religion, color, national origin, sex, sexual preference, or handicap, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which HOME funding applies, the SUB -RECIPIENT has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purpose of the Civil Rights Act of 1964. A SUB -RECIPIENT shall not be prohibited by this part from taking any eligible action to ameliorate an imbalance in services or facilities provided to any geographic area or specific group of persons within its jurisdiction where the purpose of such action is to overcome prior discriminatory practice or usage. h. Notwithstanding anything to the contrary in Sections J. 1. (a. through h.), nothing contained herein shall be construed to prohibit any SUB - RECIPIENT from maintaining or constructing separate living facilities or rest -room facilities for the different sexes. Furthermore, selectivity on the basis of sex is not prohibited when institutional or custodial services can properly be performed only by a member of the same sex as the recipients of the services. 2. Employment Discrimination a. SUB -RECIPIENT shall not discriminate against any employee or application for employment because of race, color, religion, sex, national origin, age, or handicap. SUB -RECIPIENT shall take affirmative action to insure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, national origin, age, or handicap. Such action shall include, but not be limited to, the following: employment, upgrading, demotion, or transfer, recruitment or recruitment advertising, layoff or termination, rate -of -pay or other forms of compensation and selection for training including apprenticeship. SUB - RECIPIENT agrees to post in conspicuous places, available to employees and applicants for employment, notices setting forth the provisions of this non-discrimination clause. b. SUB -RECIPIENT shall, in all solicitations or advertisements for employees placed by or on behalf of SUB -RECIPIENT, state that all qualified Page 5 of 12 applications will receive consideration for employment without regard to race, color, religion, sex, national origin, age, or handicap. c. SUB -RECIPIENT shall send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the CDC's contracting officers, advising the labor union or workers' representative of SUB - RECIPIENT'S commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notices in conspicuous places available to employees and applicants for employment. d. SUB -RECIPIENT shall comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. e. SUB -RECIPIENT shall furnish to the CDC all information and reports required by Executive Order No. 11246 of September 24, 1965, and by the related rules, regulations, and orders. g. In the event of SUB -RECIPIENT'S failure to comply with any rules, regulations, or orders required to be complied with pursuant to this Agreement, the CDC may cancel, terminate, or suspend in whole or in part its performance and SUB -RECIPIENT may be declared ineligible for further government contracts in accordance with procedures authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions as may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. SUB -RECIPIENT shall include the provisions of Section II. J. 2. (a. through f.), "Affirmative Action Policy," paragraphs (1) through (6) in every subcontract or purchase order unless exempted by rules, regulations, or order of the Secretary of Labor issued pursuant to Section 204 of Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. SUB -RECIPIENT shall take such action with respect to any subcontract or purchase order as the CDC may direct as a means of enforcing such provisions including sanctions for non- compliance; provided, however, that in the event SUB -RECIPIENT becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the CDC, SUB -RECIPIENT may request the United States to enter into such litigation to protect the interests of the United States. h. SUB -RECIPIENT shall not discriminate on the basis of age in violation of any provision of the Age Discrimination Act of 1975 (42 U.S.C. 6101 et Page 6 of 12 seq.) or with respect to any otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). SUB -RECIPIENT shall also provide ready access to and use of all HOME fund -assisted buildings to physically handicapped persons in compliance with the standards established in the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.). 3. Remedies: In the event of SUB -RECIPIENT'S failure to comply with any rules, regulations, or orders required to be complied with pursuant to this Agreement, the CDC may cancel, terminate, or suspend in whole or in part its performance and SUB -RECIPIENT may be declared ineligible for furthergovernment contracts and any such other sanctions as may be imposed and remedies invoked as provided by law. Ineligibility of Sub -Recipients or Contractors: SUB -RECIPIENT shall not use HOME funds directly or indirectly in its operations or to employ, award contracts to, or otherwise engage the services of, or fund any contractor during any period of debarment, suspension, or placement in ineligibility status of the SUB -RECIPIENT or such contractor under the provisions of 24 C.F.R. Part 24. Conflict -of -Interest: In the procurement of supplies, equipment, construction, and services by SUB -RECIPIENT, the conflict -of -interest provision in Attachment 0 of OMB Circular No. A-110 and 24 C.F.R. 570.611 shall apply. N. Condition for Religious Organizations: SUB -RECIPIENT shall comply with all applicable conditions of 24 C.F.R. 570.503 (b) (6) prescribed by HUD for the use of HOME funds by religious organizations if SUB -RECIPIENT is a religious organization. O. Suspension and Termination: In accordance with 24 C.F.R. 85.43, suspension or termination may occur if SUB -RECIPIENT materially fails to comply with any term of this Agreement and/or the award, and the Agreement and/or the award may be terminated for convenience in accordance with 24 C.F.R. 85.44. P. Reversion of Assets: Upon the termination or expiration of the term of this Agreement, the SUB -RECIPIENT shall comply with 24 C.F.R. 570.503 (b) (8) and transfer to the CDC any HOME funds on hand at the time of such termination or expiration and any accounts receivable attributable to the use of HOME funds. Any real property under the SUB - RECIPIENT'S control that was acquired or improved in whole or in part with HOME funds in excess of twenty-five thousand dollars ($25,000.00) shall either be: 1. Used to meet one of the national objectives stated in 24 C.F.R. 570.901 until five (5) years after termination or expiration of this Agreement, or for such longer period of time as determined to be appropriate by the CDC; or 2. Disposed of in a manner that results in the CDC's being reimbursed in the amount of the current fair -market value of the property less any portion of the value Page 7of12 attributable to expenditures of non -HOME funds for acquisition of, or improvement to, the property. Reimbursement to the CDC shall not be required after the period of time specified in Section II. O. 1. Of this Agreement. Licensing: SUB -RECIPIENT agrees to obtain and maintain all licenses, registrations, accreditations, and inspections from all agencies governing its operations. SUB - RECIPIENT shall insure that its staff shall also obtain and maintain all required licenses, registrations, accreditations, and inspections from all agencies governing SUB - RECIPIENT'S operations hereunder. R. Inspection of Records: The CDC and the United States Government and/or their representatives shall have access for purposes of monitoring, auditing, and examining SUB - RECIPIENT'S activities and performance, to books, documents, and papers, and the right to &amine records of SUB -RECIPIENT'S subcontractors, bookkeepers, and accountants, employees, and participants in regard to said program. The CDC and the Unites States Government and/or their representative shall also schedule on -site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder is conducted or in which any of the records of SUB -RECIPIENT are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. S. Independent Contractor: SUB -RECIPIENT'S relationship to the CDC shall be that of an independent contractor. SUB -RECIPIENT shall have no authority, express or implied, to act on behalf of the CDC as an agent, or to bind the CDC to any obligation whatsoever, unless specifically authorized in writing by the CDC Director. SUB -RECIPIENT shall be solely responsible for performance of any of its employees, agents, or subcontractors under this Agreement. SUB -RECIPIENT shall report to the CDC any and all employees, agents, and consultants performing work in connection with this project, and all shall be subject to the approval of the CDC. T. Liability Insurance: 1. SUB -RECIPIENT shall, throughout the duration of this Agreement, maintain comprehensive general liability insurance, covering all operations (of SUB - RECIPIENT, its agents and employees) performed in connection with this Agreement including, but not limited to, premises and automobile. 2. SUB -RECIPIENT shall maintain a minimum of $1,000,000 combined single limit per -occurrence general liability insurance and a minimum of $300,000 combined single -limit automobile insurance. 3. All insurance companies affording coverage to the SUB -RECIPIENT shall be required to add the City of National City and the CDC as "additional insured" under the insurance policy for all work performed in accordance with this Agreement. Page 8 of 12 4. All insurance companies affording coverage to the SUB -RECIPIENT shall be insurance organizations authorized by the Insurance Commissioner of the State Department of Insurance to transact business of insurance in the State of California. 5. All insurance companies affording coverage shall provide thirty (30) days written notice to the City of National City and the CDC should the policy be canceled before the expiration date. For the purposes of this notice requirement, any material change in the policy prior to the expiration shall be considered a cancellation. 6. SUB -RECIPIENT shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to the CDC Attorney, concurrently with the submittal of this Agreement. 7. SUB -RECIPIENT shall provide a substitute certificate of insurance no later than thirty (30) days prior to the policy expiration date. Failure by the SUB -RECIPIENT to provide such a substitution and extend the policy expiration date shall be considered a default by SUB -RECIPIENT and may subject the SUB -RECIPIENT to a suspension or termination of work under the Agreement. 8. Maintenance of insurance by the SUB -RECIPIENT as specified in this Agreement, shall in no way be interpreted as relieving the SUB -RECIPIENT of any responsibility whatever; and, the SUB -RECIPIENT may carry, at its own expense, such additional insurance as it deems necessary. 9. SUB -RECIPIENT shall maintain, throughout the duration of this Agreement, workers' compensation insurance in statutory amount; and provide a certificate of insurance certifying that it carries such insurance; and that the policy shall not be canceled nor the coverage reduced except upon thirty (30) days prior written notice to the CDC at the address specified in Section IV. B. herein. 10. SUB -RECIPIENT may comply with the requirement of the Subsection T by maintaining a lawful self -insured status during the term of this agreement. U. SUB -RECIPIENT'S Indemnification to CITY: SUB -RECIPIENT shall indemnify and hold harmless the CDC and it's officers, agents, and employees against all claims for damages to persons or property arising out of the conduct of the SUB -RECIPIENT or its employees, agents, subcontractors, or others in connection with the execution of the work covered by this Agreement, except for those claims arising only from the sole negligence or sole willful conduct of the CDC and their officers, agents, or employees. V. Assignment and Delegation: This Agreement and any portion thereof shall not be assigned or transferred, nor shall any of the SUB -RECIPIENT'S duties be delegated, without the express written consent of the CDC. Any attempt to assign or delegate this Agreement without the express written consent of the CDC shall be void and of no force or effect. Consent by the CDC to one assignment shall not be deemed to be a consent to any subsequent assignment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Page 9of12 W. Entire Agreement: This Agreement comprises the entire integrated understanding between the CDC and the SUB -RECIPIENT concerning negotiations, representations, or agreements. X. Interpretation of the Agreement: The interpretation, validity, and enforcement of the Agreement shall be governed by and construed under the laws of the State of California. The Agreement does not limit any other rights or remedies available to the CDC. The SUB - RECIPIENT shall be responsible for complying with all local, state, and federal laws whether or not said laws are expressly stated or referred to herein. Should any provision herein be found or deemed to be invalid, the Agreement shall be construed as not containing such revision, and all other provisions which are otherwise lawful shall remain in full force and effect, and to this end the provisions of this Agreement are severable. Y Agreement Modification: This Agreement may not be modified orally or in any manner other than by an agreement in writing, signed by the parties hereto. Z. Attorney's Fees: In the event any legal action or proceeding is commenced to interpret or enforce the terms of, or obligations arising out of, this Agreement, or to recover damages for the breach thereof, the party prevailing in any such action or proceeding shall be entitled to recover from the non -prevailing party all reasonable attorneys fees, costs, and expenses incurred by the prevailing party. III. MISCELLANEOUS PROVISIONS A. Termination of Agreement: The CDC or SUB -RECIPIENT may terminate this Agreement by giving written notice to the other party thirty (30) days prior to effective date of termination. Additionally, the CDC shall have the right, in accordance with 24 C.F.R. 85.43, to terminate this Agreement immediately or withhold payment of any invoice for failure of the SUB -RECIPIENT to comply with the terms and conditions of this Agreement. Should the CDC decide to terminate this Agreement, after a full evaluation of all circumstances has been completed, the SUB -RECIPIENT shall, upon written request, have the right to an appeal process. A copy of the appeal process will be attached to any termination notice. If the CDC fmds that the SUB -RECIPIENT has violated the terms and conditions of this Agreement, the SUB -RECIPIENT may be required to: 1. Repay all monies received from the CDC under this Agreement; and/or 2. Transfer possession of all materials and equipment purchased with grant money to the CDC. In the case of early termination, a final payment may be made to the SUB -RECIPIENT upon receipt of a Final Report and invoices covering eligible costs incurred prior to termination. The total of all payments, including the final payment, shall not exceed the amount specified in this Agreement. B. Notices: All notices, demands, requests, consents, or other communications which this Agreement contemplates or authorizes, or requires orpermits either party to give to the Page l0 of 12 other, shall be in writing and shall be personally delivered or mailed to the respective party as follows: TO: COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY 1243 National City Boulevard National City, CA 91950 and TO: CITY OF NATIONAL CITY Building and Safety Department 1243 National City Boulevard National City, CA 91950 Either party may change its address by notice to the other party as provided herein. Communications shall be deemed to have been given and, received on the first to occur of (a) actual receipt at the offices of the party to whom the communication is to be sent, as designated above, or (b) three working days following the deposit in the United States Mail of registered or certified mail, postage prepaid, return receipt requested, addressed to the offices of the party to whom the communication is to be sent, as designated above. C. Signatures: The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the SUB -RECIPIENT and the CDC. Page 11 of 12 IN WITNESS WHEREOF the parties heretofore themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Agreement to be executed by setting hereunto their signatures this 22nd day of August, 2006. CITY OF NATIONAL CITY COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: By: Nick Inzunza, Mayor Nick Inzunza, Chairman Attest By: Chris Zapata, Executive Director Approved as to Form By: George H. Eiser, III, CDC/City Attorney Attachments: Exhibit "A" Program Description Exhibit "B" HUD Income Limits for the San Diego SMSA Page 12 of 12 TABLE OF BASIC & MAXIMUM STATUTORY MORTGAGE LIMITS National Housing Act - January 1, 2006 Sections 221(3)3 (Nonprofit/Cooperative Mortgagors) and 234 No. Bed- room 1 2 3 4+ BASIC LIMITS 2700/©Maximum Limits- High Cost Areas 2400/oMaximum Limits- Other Areas 3600/oMaximum Limits - Special Limit Areas Non- Elevator Non- Elevator Non- Elevator Non- Elevator Elevator Elevator Elevator Elevator S45,507 S47,890 122,869 129,303 109,217 114,936 163,825 172,404 52,470 54,897 141,669 148,222 125,928 131,753 188,892 197,629 63,279 66,755 170,853 180,239 151,870 160,212 227,804 240,318 80,998 86,358 218,695 233,167 194,395 207,259 291,593 310,889 90,235 94,795 243,635 255,947 216,564 227,508 324,846 341,262 Section 221(D)4 No, Bed- room 0 1 2 3 4+ BASIC LIMITS 270 % Maximum Limits- High Cost Areas 240 0/0 Maximum Limits- Other Areas 360 % Maximum Limits - Special Limit Areas Non- Elevator Non- Elevator Non- Elevator Non- Elevator Elevator Elevator Elevator Elevator S40,955 544,239 110,579 119,445 98,292 106,174 147,438 159,260 46,488 50,714 125,518 136,928 111,571 121,714 167,357 182,570 56,192 61,667 151,718 166,501 134,861 148,001 202,291 222,001 70,531 79,776 190,434 215,395 169,274 191,462 253,912 287,194 79,923 87,571 215,792 236,442 191,815 210,170 287,723 315,256 National City Healthy Homes Demonstration Program Abstract The National City Healthy Homes Demonstration Program (NCHHP) will demonstrate that by requiring regularly scheduled Healthy Homes inspections for rental units (annual or bi-annual depending on the condition of the unit) to ensure the absence of health and safety hazards prior to the rental of a unit, the number of sick or injured children will be reduced. This will in turn reduce the number of absences from schools, the number of EMT calls and ER visits due to asthma, poisoning, injuries and lead poisoning. The end result would be a savings in medical costs, and healthier, safer homes for National City families. The NCHHP will inspect 480 older deteriorating housing units where low-income children under 6 reside to assess any existing health and safety hazards and will evaluate children's respiratory health and risk of illness. The NCHHP will then repair/rehab 165 of the children's homes using grant funds. Of the total 480 units inspected, 215 rental units will be repaired using landlord resources and 93 owner occupied units using incentives. Lead hazards will be referred to the existing Lead Hazard Control Program. Our target area includes seven National City inner-city neighborhoods: West Side, Bay Side, El Pueblo, Civic Center, Central City, Olivewood, Sweetwater and Summercrest. These neighborhoods were selected because 86% of the housing stock was built before 1978 and 35% of the residents have children under the age of 6 who are living below the federal poverty level. Children under the age of 6 make up 11% of the population and 67% of the children in the area are Latino, a traditionally underserved minority group. National City is one of three cities in the County with the largest proportion of housing units in need of rehabilitation according to the AI. Seventy-six percent of the units are rentals and a majority of those have absentee landlords. It has the lowest median household income in the county with the highest concentration of minority populations. Area statistics indicate that children in the area have the highest rate of unintentional injury deaths among ages 0-19 and the 2°d highest number of children born with low birth weight. Twenty-six percent of the Latino population does not have medical insurance. The National City Building and Safety Department is the lead agency and fiscal agent for the proposed Healthy Homes Demonstration Program, a coalition of local government, community -based nonprofit organizations, and health organizations including two core program partners: the Environmental Health Coalition (EHC), and Paradise Valley Hospital (PVH). Other participants include the National City Fire Department, Christmas in July, Metropolitan Area Advisory Agency (MAAC) Weatherization Department, the Burn Institute and a broad array of faith and community -based nonprofit organizations. National City will administer the finances and coordinate the project activities including; the identification and inspection of units, writing job specifications and bids, performing final inspections, leverage existing weatherization and rehabilitation resources and monitoring contract compliance. EHC will provide outreach, education, inspection services and perform training on toxic hazards in the home. PVH will provide inspection services, in -home education on asthma triggers and health care referral for respiratory illness in children. All program participants have experience in housing inspection, education and outreach. The Environmental Health Coalition is a 25 year old nonprofit environmental justice organization that promotes a holistic approach to health promotion, looking at both community and household factors that impact health since 1987, developing bilingual Spanish -English educational materials, providing training and outreach, and providing lead testing through a variety of funding sources. EHC staff will be creating education and outreach materials for the program as well as perfoinung inspections. Paradise Valley Hospital Respiratory Care Department provides the only "in -home" asthma education program, exclusively utilizing respiratory therapists. The staff are licensed respiratory therapists and certified asthma educators (AE-C). The South Bay Asthma Advocacy Program was established in 2002 and provides in -home asthma education, environmental assessment and case management for asthmatic patients and their families. The staff is comprised of multi -racial, multi-lingual professionals whose mission is to create the preferred asthma disease management program. National City is committed to providing safe and healthy homes for the residents of the City. In addition to directing the Building and Safety Department to apply for a FY2005 Healthy Homes Demonstration grant, the City implemented a housing inspection program in 2001 that included lead inspections. In 2001 the Building and Safety Department received a State grant for Housing Code Enforcement and for Code Enforcement Capital Expenditures in 2003. It applied for and received a Lead Hazard Control Reduction grant in 2003. In 2004 the City formed an Asthma Committee to look into the increasing number of cases on asthma in the City. The City will provide housing inspections of electrical, structural, mechanical, fire safety and plumbing systems. The City will use it's code enforcement powers to require that all landlords not interested in having their unit repaired to fix their units with their own resources. We request $996,495.91 in HUD funds to implement our Healthy Homes Demonstration grant. Our matching funds are $ 370,903.78, comprised of $15,675.23 in -kind services from EHC, $ 27,219.00 in -kind services from PVH, $43,000 in -kind services from Christmas in July, $1,000 in -kind services for National City Fire Department, $75,000 in - kind services from MAAC, $5,000 in -kind services from the San Diego Burn Institute for smoke detectors and $204,009.55 in -kind services for National City Building and Safety Department. In addition, we will use code enforcement methods to enforce the California Health and Safety Code, which makes sub -standard housing and lead paint a violation of the law. The NCHHP will leverage at least $109,000 from property owners. The proposed program will contact 1260 units in order to identify 480 units to inspect. The inspection will consist of an initial EHC contact and visual inspection to see if environmental hazards exist and inspect for roaches and carbon monoxide, then inspections by PVH to perform an in -home environmental inspection for asthma triggers and the City to perform an inspection of the electrical, plumbing, fire safety and structure will be completed. A completed report will be sent to the landlord and 165 units that qualify will be referred for repairs using grant funds. If the unit does not qualify the owner will receive a notice to repair the unit at their own expense. All jobs will be bid. A follow-up inspection will be done to educate the tenant on the prevention of environmental hazards. EHC will provide education and outreach for the program. The City will work on an ordinance to require regular inspections for all rental units in National City and will present the program to other code enforcement groups. Costs will be kept low by training local contractors and maintenance workers and by working with the Urban Corps, a local group that performs job training for at -risk teens and by using previously developed lost cost methods of repair. National City Lead Hazard Control Program Summary National City is pleased to announce the award of a new grant from the HUD Lead Hazard Control Program, This grant will provide funds for the reduction of lead hazards in approximately 410 privately owned single - and multi -family residential units in National City where low-income children under six years old reside. Our target area is five National City inner-city neighborhoods: West Side, Bay Side, El Pueblo, Civic Center and Central City. These neighborhoods were selected because 86% of the housing stock was built before 1978 and 35% of the residents of the target area who have children under 6 are below the federal poverty level. The target area has 537 units and 1200 children that are considered high risk. The National City Building and Safety Department is the lead agency and fiscal agent for the proposed Lead Hazard Control Program, a coalition of area government, community -based, and nonprofit organizations, including as core program partners the National City Community Development Commission (CDC), Environmental Health Coalition (EHC), and the Metropolitan Area Advisory Committee (MAAC Project). Other participants include the National City Health Center, Operation Samahan Clinic, MAAC and SDG&E Energy Team weatherization programs, and Christmas in July housing rehabilitation program. National City will coordinate and administer project. activities and finances, identify units, perform lead risk assessments and clearances, leverage existing housing rehabilitation resources, and monitor contract compliance. EHC will provide outreach, education, and recruitment services, perform training in lead hazard reduction cleaning and maintenance techniques, and create a public registry of lead -controlled homes. MAAC will perform the lead hazard control work. EHC will ensure that children under six referred to the program receive lead screening through the local clinics. The County Health and Human Services Agency will provide case management. EHC is a 23-year-old non-profit organization that has been involved in lead poisoning prevention education since 1987, developing bilingual Spanish -English educational materials, providing training and outreach, and conducting lead testing through a by a variety of funding sources. MAAC Project is a 35-year-old multipurpose social service agency with a focus on the Latino community. In. 1992 MAAC became the first non-profit organization in California licensed to perform lead removal and weatherization services. MAAC staff is trained to conduct lead hazard control and interim control activities. In the past National City has been committed to eliminating childhood lead poisoning. In 2001, the City implemented the Housing Inspection Program that included lead inspections. The housing inspectors were trained to identify lead hazards. In addition, the City distributed paint for those tenants and owners willing to paint their homes in a lead safe manner. The City also held lead seminars and distributed brochures to let the residents know of the dangers of lead. Lead is listed as a code violation by the housing inspectors. The City will receive $2,984,152 in HUD funds to implement our Lead Hazard Control Program. Matching funds of $1,569,423 come from in -kind services from all partners. In addition, we will use code enforcement methods to enforce the California Health & Safety Code, which makes lead paint hazards a housing code violation. Rental property owners who can afford to will be required to control the lead in their rental units. The proposed Lead Hazard Control program will provide up to $12,500 for labor and materials per single- family unit and up to $7,500 for labor and materials per multi -family unit with an additional $10,000 to control lead hazards in common areas. Over the course of the 42-rnonth grant period, approximately 110 residential units will be treated. All tenants and owners of units undergoing lead hazard control will be provided with information on lead -safe cleaning and maintenance practices and be encouraged to attend a free hands-on workshop. AGREEMENT FOR LEGAL SERVICES THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "CDC") and the Law Office of Donald W. Detisch, (the "Firm"). This Agreement sets forth the parties' mutual understanding concerning legal services to be provided by the Finn and the fee arrangement for said services. Article 1. Retainer. The CDC hereby retains the Firm to assist in representing the CDC in connection with legal services pertaining to real estate, redevelopment law and related litigation, subject to this Agreement. Article 2. Scope of Services. The CDC shall have the right in its sole discretion to determine the particular services to be performed by the Firm under this Agreement. These services may include the following: consultation, litigation, and transactional services as needed by the CDC for Eminent Domain Law, including right of entry agreements, resolutions of necessity, administrative record inquiries, relocation plans and related public hearings, and any and all litigation, consultation, and acquisition of real and personal property through real estate and purchase sales agreements; preparation of Exclusive Negotiation Agreements, Owner Participation Agreements, Disposition and Development Agreements, and other related real estate, redevelopment and housing related documents, ordinances, and resolutions; and appearance before any administrative agencies and boards to provide expert testimony for the above referenced legal services. It is expected that the Firm will work with the CDC's Legal Counsel and staff. Article 3. Compensation. Compensation paid under this Agreement shall be as follows: Attorney $175 per hour; Paralegal/Legal Assistant $85 per hour; and Legal Intern per hour. A. The Firm shall not use more than one attorney for the same specific task without the CDC's approval. The Firm may use the minimum number of attorneys for this engagement consistent with good professional practice after consulting with and obtaining approval by the CDC. B. The Firm agrees to document a plan and budget consistent with the scope of services described above in Article 2 to be agreed to by the CDC's Legal Counsel and the Firm. The CDC shall not be obligated to pay the Firm amounts not discussed, budgeted, and agreed to before being incurred by the Firm. C. The CDC has appropriated or otherwise duly authorized the payment of an amount not to exceed $100,000 for legal services and out-of-pocket disbursements pursuant to this Agreement. In no event shall the total fees plus out-of-pocket disbursements exceed this amount without written authorization of the CDC. Page 1 of 9 Agreement for Legal Services D. The Firm shall keep the CDC advised monthly as to the level of attorney hours and client services performed under Article 1. The Firm will not charge the CDC for travel time; however, the Firm may charge for work performed for the CDC during any travel time. E. The CDC further agrees to reimburse the Firm, in accordance with the procedures set forth in this Article, for telephone, fax, mail, messengers, federal express deliveries, document reproduction, client -requested clerical overtime, lodging, and similar out-of-pocket expenses charged by the Firm as a standard practice to its clients generally, with the exception of travel and meals. In any billing for disbursements, the Firm shall provide the CDC with a statement breaking down the amounts by category of expense. The following items shall not be reimbursed, unless the CDC has specifically agreed otherwise: (1) Word Processing, clerical or secretarial charges, whether expressed as a dollar disbursement or time charge. (2) Storage of open or closed files, rent, electricity, local telephone, postage, receipts or transmission of telecopier documents, or any other items traditionally associated with overhead. (3) Photocopy charges in excess of $.10 (ten cents) per page. (4) Auto mileage rates in excess of the rate approved by the Internal Revenue Service for income tax purposes. (5) Secretarial overtime. Where case requirements demand overtime, the CDC will consider reimbursement on a case -by -case basis. The CDC will not reimburse overtime incurred for the convenience of the Firm's failure to meet deadlines known in advance. (6) Equipment, books, periodicals, research materials, Westlaw/Lexis or like items. (7) Express charges, overnight mail charges, messenger services or the like, without the CDC's prior consent. The CDC expects these expenses to be incurred in emergency situations only. Where case necessity requires the use of these services, the CDC will consider reimbursement on a case -by -case basis. (8) Travel and meals. (9) Late payment charge and/or interest. Due to the nature of the CDC's payment process, the CDC will not pay any late charges or interest charges to bills. Every effort will be made to pay bills promptly. Page 2 of 9 Agreement for Legal Services F. Bills from the Firm should be submitted to George Eiser, Legal Counsel, 1243 National City Boulevard, National City, CA 91950-4301. The individual time and disbursement records customarily maintained by the Firm for billing evaluation and review purposes shall be made available to the CDC in support of bills rendered by the Firm. G. The Firm agrees to forward to the CDC a statement of account for each one -month period of services under this Agreement, and the CDC agrees to compensate the Firm on this basis. The Firm will consult monthly with the CDC as to the number of attorney hours and client disbursements which have been incurred to date under this Agreement, and as to future expected levels of hours and disbursements. H. Billing Format. Each billing entry must be complete, discrete and appropriate. (1) Complete (a) Each entry must name the person or persons involved. For instance, telephone calls must include the names of all participants. (b) The date the work was performed must be included. (c) The hours should be billed in .10 hour increments. (d) The specific task performed should be described, and the related work product should be reference"telephone call re: trial brief," "interview in preparation for deposition"). (e) The biller's professional capacity (partner, associate, paralegal, etc.) should be included. (2) Discrete: Each task must be set out as a discrete billing entry; neither narrative nor block billing is acceptable. (3) Appropriate: The CDC does not pay for clerical support, administrative costs, overhead costs, outside expenses or excessive expenses. For example, the CDC will not pay for secretarial time, word processing time, air conditioning, rental of equipment, including computers, meals served at meetings, postage, online research, or the overhead costs of sending or receiving faxes. Neither will the CDC pay for outside expenses such as messenger delivery fees, investigative services, outside computer litigation support services, or overnight mail. I. Staffing. Every legal matter should have a primarily responsible attorney and a paralegal assigned. The CDC's representative may review staffing to insure that it is optimal to achieve the goals of the engagement at the least cost. Page 3 of 9 Agreement for Legal Services (1) Paralegals are to be used to the maximum extent possible to enhance efficiency and cost-effectiveness. All tasks typically considered associate work should be considered for assignment to a paralegal. (2) Once an attorney is given primary responsibility for an engagement, that person should continue on the legal matter until the matter is concluded or the attorney leaves the firm. The CDC will not pay the costs of bringing a new attorney up to speed. (3) If more than one attorney is going to perform the same task, prior approval from the CDC must be had. This includes document review. Article 4. Independent Contractor. The Firm shall perform services as an independent contractor. It is understood that this contract is for unique professional services. Accordingly, the duties specified in this Agreement may not be assigned or delegated by the Firm without prior written consent of the CDC. Retention of the Firm is based on the particular professional expertise of the individuals rendering the services required in the Scope of Services. Article 5. Confidentiality of Work. All work performed by the Firm including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the Firm pursuant to this Agreement is for the sole use of the CDC. All such work product shall be confidential and not released to any third party without the prior written consent of the CDC. Article 6. Compliance with Controlling Law. The Firm shall comply with all applicable laws, ordinances, regulations, and policies of the federal, state, and local governments as they pertain to this Agreement. In addition, the Firm shall comply immediately with any and all directives issued by the CDC or its authorized representatives under authority of any laws statutes, ordinances, rules, or regulations. The laws of the State of California shall govern and control the terms and conditions of this Agreement. Article 7. Acceptability of Work. The CDC shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the Firm and the CDC cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm in this Agreement, the CDC or the Firm shall give to the other written notice. Within ten (10) business days, the Firm and the CDC shall each prepare a report which supports their position and file the same with the other party. The CDC shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm. Article 8. Indemnification. The Firm agrees to indemnify and hold the CDC and its agents, officers, and employees harmless from and against all claims asserted or liability established for damages or injuries to any person or property, including injury to the Firm's employees, agents, or officers, which arise from or are connected with or caused or claimed to be Page 4 of 9 Agreement for Legal Services caused by the acts or omissions of the Firm and its agents, officers, or employees in performing the work or other obligations under this Agreement, and all expenses of investigating and defending against same; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CDC, its agents, officers, or employees. Article 9. Insurance. The Firm shall not commence work under this Agreement until it has obtained all insurance required in this Article with a company or companies acceptable to the CDC. At its sole cost and expense, the Firm shall take and maintain in full force and effect at all times during the term of this Agreement the following policies of insurance: A. Commercial general liability insurance with a combined single limit of not less than one million dollars ($1,000,000). B. For all of the Firm's employees which are subject to this Agreement, to the extent required by the State of California, Workers' Compensation Insurance in the amount required by law. C. Errors and omissions insurance in an amount not less than two million dollars ($2,000,000) per claim. D. All insurance required by express provision of this Agreement shall be carried only in responsible insurance companies licensed to do business in the State of California. The policies carried pursuant to paragraph 9.A above shall name as additional insureds the CDC and its Board officials, officers, employees, agents, and representatives. All policies shall contain language, to the extent obtainable, to the effect that: (1) the insurer waives the right of subrogation against the CDC and its elected officials, officers, employees, agents, and representatives; (2) the policies are primary and not contributing with any insurance that may be carried by the CDC; (3) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to the CDC by certified mail. Before this Agreement shall take effect, the Firm shall furnish the CDC with copies of all such policies upon receipt of them, or a certificate evidencing such insurance. The Firm may effect for its own account insurance not required under this Agreement. Article 10. Drug Free Work Place. The Firm agrees to comply with the City of National City's Drug -Free Workplace requirements. Every person awarded a contract by the CDC for the provision of services shall certify to the CDC that it will provide a drug -free workplace. Any subcontract entered into by the Firm pursuant to this Agreement shall contain this provision. Article 11. Non -Discrimination Provisions. The Firm shall not discriminate against any subcontractor, vendor, employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or Page 5 of 9 Agreement for Legal Services medical condition. The Firm will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Firm agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. Article 12. Effective Date and Term. This Agreement shall be effective upon execution by the Firm and CDC and continue until written notice of cancellation, unless otherwise provided herein. This Agreement may be terminated at any time by either party with sixty (60) days' written notice to the other. Notice of termination by the Firm shall be given to the CDC's Legal Counsel. Article 13. Notification of Change in Form. The Firm has the right to effect changes in form including but not limited to: the change in form from a partnership to a professional law corporation; the change in form of any partner or partners from an individual or individuals to a professional law corporation; the change in form of any corporate partner or partners to any individual partners. The CDC shall be promptly notified in writing of any change in form. Article 14. Notices. In all cases where written notice is to be given under this Agreement, service shall be deemed sufficient if said notice is deposited in the United States mail, postage paid. When so given, such notice shall be effective from the date of mailing of the notice. Unless otherwise provided by notice in writing from the respective parties, notice to the Agency shall be addressed to: George Eiser, Legal Counsel Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 cc: Chris Zapata Executive Director Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 Page 6 of 9 Agreement for Legal Services Notice to the Firm shall be addressed to: Donald W. Detisch, Attorney at Law 110 West A Street, Suite 750 San Diego, CA 92101 Nothing contained in this agreement shall preclude or render inoperative service or such notice in the manner provided by law. Article 15. Headings. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Article 16. Miscellaneous Provisions. A. Time of Essence: Time is of the essence for each provision of this Agreement. B. California Law: This Agreement shall be construed and interpreted in accordance with the laws of the State of California. The Firm covenants and agrees to submit to the personal jurisdiction of any state court in the State of California for any dispute, claim, or matter arising out of or related to this Agreement. C. Integrated Agreement: This Agreement including attachments and/or exhibits contains all of the agreements of the parties and all prior negotiations and agreements are merged in this Agreement. This Agreement cannot be amended or modified except by written agreement, and mutually agreed upon by the CDC and the Firm. D. Severability: The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. E. Waiver: The failure of the CDC to enforce a particular condition or provision of this Agreement shall not constitute a waiver of that condition or provision or its enforceability. F. Conflict of Interest: During the term of this Agreement, the Firm shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the CDC. This prohibition shall not preclude the CDC from expressly agreeing to a waiver of a potential conflict of interest under certain circumstances. G. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. Page 7 of 9 Agreement for Legal Services H. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, and (iii) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Article 17. Subconsultants. From time to time the Firm has needed to engage the services of subconsultants such as appraisers and/or other experts in connection with its work for CDC. Historically, the Firm has obtained the prior approval of CDC to engage these individuals and firms and obtained the CDC's concurrence that it, not the Firm, will pay for the services of these consultants. The arrangement has proven satisfactory to the parties and therefore that practice will be continued. The CDC's prior approval will be obtained and the CDC, however, will be entirely responsible for the payment of the consultants engaged on behalf of the Firm and the CDC. Any disputes by and between a subconsultant and the CDC shall be handled as set forth in Article 7. however, the Firm shall not be responsible for any payments to the subconsultant. Page 8 of 9 Agreement for Legal Services IN WITNESS WHEREOF, the parties have executed this Amended Agreement on the 21st day of November 2006. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: LAW OFFICE OF DONALD W. By: Nick Inz nza, s W. De isch Attorney at Law APPROVED AS TO FORM: George H. Eiser, III Legal Counsel By:` lnc i s (Name) (Title) 6 u. --- Page 9 of 9 Agreement for Legal Services RESOLUTION NO. 2006 — 241 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT WITH THE LAW OFFICES OF DONALD W. DETISCH FOR AS -NEEDED LEGAL SERVICES WHEREAS, the Community Development Commission of the City of National City (CDC) is charged with implementing the National City Redevelopment Plan; and WHEREAS, the CDC desires to retain the Law Offices of Donald W. Detisch to continue to provide legal services to the CDC, when requested; and WHEREAS, the Law Offices of Donald W. Detisch is a qualified and experienced law firm, and has satisfactorily provided legal services to the CDC on a variety of projects and issues pertaining to eminent domain law, redevelopment law, and related litigation. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute an Agreement with the Law Offices of Donald W. Detisch to provided as -needed legal services. PASSED and ADOPTED this 21st day of November, 2006. Nick Inzunza, Chairman ATTEST: Bra• sr n , Secretary APPROVED AS TO FORM: George H. Eiser, III Legal Counsel Passed and adopted by the Community Development Commission of National City, California, on November 21, 2006, by the following vote, to -wit: Ayes: Councilmembers Inzunza, Morrison, Natividad, Parra. Nays: None. Absent: Zarate. Abstain: None. AUTHENTICATED BY: NICK INZUNZA Chairman Coi, Development Commission Secretary.' mu R, Development Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2006-241 of the Community Development Commission of the City of National City, California, passed and adopted on November 21, 2006. Secretary Community Development Commission By: Deputy City of National City, California COMMUNITY DEVELOPMENT COMMISSION AGENDA STATEMENT MEETING DATE November 21, 2006 AGENDA ITEM NO. 38 ITEM TITLE Approve Agreement with the Law Offices of Donald W. Detisch for as needed legal services and authorizing the Chairman to execute said Agreement PREPARED BY DEPARTMENT Xavier Del Valle, Senior Project Manager Community Development Commission (CDC) EXPLANATION On March 16, 2004, the CDC approved an Agreement with the Law Offices of Donald W. Detisch for as needed legal services. The Agreement needs to be renewed, and staff desires to retain Mr. Detisch to continue to provide legal services to the CDC, when requested. Mr. Detisch is a qualified and experienced attorney, and has satisfactorily provided legal services to the CDC on a variety of projects and issues pertaining to Eminent Domain Law, redevelopment law, and related litigation. Pursuant to the Agreement, legal services may include the following: consultation, litigation, and transactional services as needed by the CDC for Eminent Domain Law, including right of entry agreements, resolutions of necessity, administrative record inquiries, relocation plans and related public hearings, and any and all litigation, consultation, and acquisition of real and personal property through real estate and purchase sales agreements; preparation of Exclusive Negotiation Agreements, Owner Participation Agreements, Disposition and Development Agreements, and other related real estate, redevelopment and housing related documents, ordinances, and resolutions; and appearance before any administrative agencies and boards to provide expert testimony for the above referenced legal services. Environmental Review CEQA is not applicable Financial Statement The Agreement sets a not to exceed amount of $100,000 for services from the effective date until written notice of cancellation of the Agreement by either party. STAFF RECOMMENDATION Adopt resolution approving an Agreement with the Law Offices of Donald W. Detisch for as needed legal services and authorizing the Chairman to execute said Agreement ATTACHMENTS 1. Resolution 2. Agreement Resolution No. ..2D&o 2 A-200 (9/80) RESOLUTION NO. 2006 — RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY AUTHORIZING THE CHAIRMAN TO EXECUTE AN AGREEMENT WITH THE LAW OFFICES OF DONALD W. DETISCH FOR AS -NEEDED LEGAL SERVICES WHEREAS, the Community Development Commission of the City of National City (CDC) is charged with implementing the National City Redevelopment Plan; and WHEREAS, the CDC desires to retain the Law Offices of Donald W. Detisch to continue to provide legal services to the CDC, when requested; and WHEREAS, the Law Offices of Donald W. Detisch is a qualified and experienced law firm, and has satisfactorily provided legal services to the CDC on a variety of projects and issues pertaining to eminent domain law, redevelopment law, and related litigation. NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute an Agreement with the Law Offices of Donald W. Detisch to provided as -needed legal services. PASSED and ADOPTED this 21st day of November, 2006. Nick Inzunza, Chairman ATTEST: Brad Raulston, Secretary APPROVED AS TO FORM: George H. Eiser, III Legal Counsel AGREEMENT FOR LEGAL SERVICES THIS AGREEMENT FOR LEGAL SERVICES (the "Agreement") is made between THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY (the "CDC") and the Law Office of Donald W. Detisch, (the "Finn"). This Agreement sets forth the parties' mutual understanding concerning legal services to be provided by the Firm .and the fee arrangement for said services. Article 1. Retainer. The CDC hereby retains the Firm to assist in representing the CDC in connection with legal services pertaining to real estate, redevelopment law and related litigation, subject to this Agreement. Article 2. Scope of Services. The CDC shall have the right in its sole discretion to determine the particular services to be performed by the Firm under this Agreement. These services may include the following: consultation, litigation, and transactional services as needed by the CDC for Eminent Domain Law, including right of entry agreements, resolutions of necessity, administrative record inquiries, relocation plans and related public hearings, and any and all litigation, consultation, and acquisition of real and personal property through real estate and purchase sales agreements; preparation of Exclusive Negotiation Agreements, Owner Participation Agreements, Disposition and Development Agreements, and other related real estate, redevelopment and housing related documents, ordinances, and resolutions; and appearance before any administrative agencies and boards to provide expert testimony for the above referenced legal services. It is expected that the Firm will work with the CDC's Legal Counsel and staff. Article 3. Compensation. Compensation paid under this Agreement shall be as follows: Attorney $175 per hour; Paralegal/Legal Assistant $85 per hour; and Legal Intern per hour. A. The Firm shall not use more than one attorney for the same specific task without the CDC's approval. The Firm may use the minimum number of attorneys for this engagement consistent with good professional practice after consulting with and obtaining approval by the CDC. B. The Firm agrees to document a plan and budget consistent with the scope of services described above in Article 2 to be agreed to by the CDC's Legal Counsel and the Firm. The CDC shall not be obligated to pay the Firm amounts not discussed, budgeted, and agreed to before being incurred by the Firm. C. The CDC has appropriated or otherwise duly authorized the payment of an amount not to exceed $100,000 for legal services and out-of-pocket disbursements pursuant to this Agreement. In no event shall the total fees plus out-of-pocket disbursements exceed this amount without written authorization of the CDC. Page 1 of 9 Agreement for Legal Services D. The Firm shall keep the CDC advised monthly as to the level of attorney hours and client services performed under Article 1. The Firm will not charge the CDC for travel time; however, the Firm may charge for work performed for the CDC during any travel time. E. The CDC further agrees to reimburse the Firm, in accordance with the procedures set forth in this Article, for telephone, fax, mail, messengers, federal express deliveries, document reproduction, client -requested clerical overtime, lodging, and similar out-of-pocket expenses charged by the Firm as a standard practice to its clients generally, with the exception of travel and meals. In any billing for disbursements, the Firm shall provide the CDC with a statement breaking down the amounts by category of expense. The following items shall not be reimbursed, unless the CDC has specifically agreed otherwise: (1) Word Processing, clerical or secretarial charges, whether expressed as a dollar disbursement or time charge. (2) Storage of open or closed files, rent, electricity, local telephone, postage, receipts or transmission of telecopier documents, or any other items traditionally associated with overhead. (3) Photocopy charges in excess of $.10 (ten cents) per page. (4) Auto mileage rates in excess of the rate approved by the Internal Revenue Service for income tax purposes. (5) Secretarial overtime. Where case requirements demand overtime, the CDC will consider reimbursement on a case -by -case basis. The CDC will not reimburse overtime incurred for the convenience of the Firm's failure to meet deadlines known in advance. (6) Equipment, books, periodicals, research materials, Westlaw/Lexis or like items. (7) Express charges, overnight mail charges, messenger services or the like, without the CDC's prior consent. The CDC expects these expenses to be incurred in emergency situations only. Where case necessity requires the use of these services, the CDC will consider reimbursement on a case -by -case basis. (8) Travel and meals. (9) Late payment charge and/or interest. Due to the nature of the CDC's payment process, the CDC will not pay any late charges or interest charges to bills. Every effort will be made to pay bills promptly. Page 2 of 9 Agreement for Legal Services F. Bills from the Firm should be submitted to George Eiser, Legal Counsel, 1243 National City Boulevard, National City, CA 91950-4301. The individual time and disbursement records customarily maintained by the Firm for billing evaluation and review purposes shall be made available to the CDC in support of bills rendered by the Firm. G. The Firm agrees to forward to the CDC a statement of account for each one -month period of services under this Agreement, and the CDC agrees to compensate the Firm on this basis. The Firm will consult monthly with the CDC as to the number of attorney hours and client disbursements which have been incurred to date under this Agreement, and as to future expected levels of hours and disbursements. H. Billing Format. Each billing entry must be complete, discrete and appropriate. (1) Complete (a) Each entry must name the person or persons involved. For instance, telephone calls must include the names of all participants. (b) The date the work was performed must be included. (c) The hours should be billed in .10 hour increments. (d) The specific task performed should be described, and the related work product should be referencq"telephone call re: trial brief," "interview in preparation for deposition"). (e) The biller's professional capacity (partner, associate, paralegal, etc.) should be included. (2) Discrete: Each task must be set out as a discrete billing entry; neither narrative nor block billing is acceptable. (3) Appropriate: The CDC does not pay for clerical support, administrative costs, overhead costs, outside expenses or excessive expenses. For example, the CDC will not pay for secretarial time, word processing time, air conditioning, rental of equipment, including computers, meals served at meetings, postage, online research, or the overhead costs of sending or receiving faxes. Neither will the CDC pay for outside expenses such as messenger delivery fees, investigative services, outside computer litigation support services, or overnight mail. I. Staffing. Every legal matter should have a primarily responsible attorney and a paralegal assigned. The CDC's representative may review staffing to insure that it is optimal to achieve the goals of the engagement at the least cost. Page 3 of 9 Agreement for Legal Services (1) Paralegals are to be used to the maximum extent possible to enhance efficiency and cost-effectiveness. All tasks typically considered associate work should be considered for assignment to a paralegal. (2) Once an attorney is given primary responsibility for an engagement, that person should continue on the legal matter until the matter is concluded or the attorney leaves the firm. The CDC will not pay the costs of bringing a new attorney up to speed. (3) If more than one attorney is going to perform the same task, prior approval from the CDC must be had. This includes document review. Article 4. Independent Contractor. The Firm shall perform services as an independent contractor. It is understood that this contract is for unique professional services. Accordingly, the duties specified in this Agreement may not be assigned or delegated by the Firm without prior written consent of the CDC. Retention of the Firm is based on the particular professional expertise of the individuals rendering the services required in the Scope of Services. Article 5. Confidentiality of Work. All work performed by the Firm including but not limited to all drafts, data, correspondence, proposals, reports, and estimates compiled or composed by the Firm pursuant to this Agreement is for the sole use of the CDC. All such work product shall be confidential and not released to any third party without the prior written consent of the CDC. Article 6. Compliance with Controlling Law. The Firm shall comply with all applicable laws, ordinances, regulations, and policies of the federal, state, and local governments as they pertain to this Agreement. In addition, the Firm shall comply immediately with any and all directives issued by the CDC or its authorized representatives under authority of any laws statutes, ordinances, rules, or regulations. The laws of the State of California shall govern and control the terms and conditions of this Agreement. Article 7. Acceptability of Work. The CDC shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event the Firm and the CDC cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm in this Agreement, the CDC or the Firm shall give to the other written notice. Within ten (10) business days, the Firm and the CDC shall each prepare a report which supports their position and file the same with the other party. The CDC shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to the Firm. Article 8. Indemnification. The Firm agrees to indemnify and hold the CDC and its agents, officers, and employees harmless from and against all claims asserted or liability established for damages or injuries to any person or property, including injury to the Firm's employees, agents, or officers, which arise from or are connected with or caused or claimed to be Page 4 of 9 Agreement for Legal Services caused by the acts or omissions of the Firm and its agents, officers, or employees in performing the work or other obligations under this Agreement, and all expenses of investigating and defending against same; provided, however, that this indemnification and hold harmless shall not include any claims or liability arising from the established sole negligence or willful misconduct of the CDC, its agents, officers, or employees. Article 9. Insurance. The Firm shall not commence work under this Agreement until it has obtained all insurance required in this Article with a company or companies acceptable to the CDC. At its sole cost and expense, the Firm shall take and maintain in full force and effect at all times during the term of this Agreement the following policies of insurance: A. Commercial general liability insurance with a combined single limit of not less than one million dollars ($1,000,000). B. For all of the Firm's employees which are subject to this Agreement, to the extent required by the State of California, Workers' Compensation Insurance in the amount required by law. C. Errors and omissions insurance in an amount not less than two million dollars ($2,000,000) per claim. D. All insurance required by express provision of this Agreement shall be carried only in responsible insurance companies licensed to do business in the State of California. The policies carried pursuant to paragraph 9.A above shall name as additional insureds the CDC and its Board officials, officers, employees, agents, and representatives. All policies shall contain language, to the extent obtainable, to the effect that: (1) the insurer waives the right of subrogation against the CDC and its elected officials, officers, employees, agents, and representatives; (2) the policies are primary and not contributing with any insurance that may be carried by the CDC; (3) the policies cannot be cancelled or materially changed except after thirty (30) days' notice by the insurer to the CDC by certified mail. Before this Agreement shall take effect, the Firm shall furnish the CDC with copies of all such policies upon receipt of them, or a certificate evidencing such insurance. The Firm may effect for its own account insurance not required under this Agreement. Article 10. Drug Free Work Place. The Firm agrees to comply with the City of National City's Drug -Free Workplace requirements. Every person awarded a contract by the CDC for the provision of services shall certify to the CDC that it will provide a drug -free workplace. Any subcontract entered into by the Firm pursuant to this Agreement shall contain this provision. Article 11. Non -Discrimination Provisions. The Firm shall not discriminate against any subcontractor, vendor, employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or Page 5 of 9 Agreement for Legal Services medical condition. The Firm will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The Firm agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CDC setting forth the provisions of this non-discrimination clause. Article 12. Effective Date and Term. This Agreement shall be effective upon execution by the Firm and CDC and continue until written notice of cancellation, unless otherwise provided herein. This Agreement may be terminated at any time by either party with sixty (60) days' written notice to the other. Notice of termination by the Firm shall be given to the CDC's Legal Counsel. Article 13. Notification of Change in Form. The Firm has the right to effect changes in form including but not limited to: the change in form from a partnership to a professional law corporation; the change in form of any partner or partners from an individual or individuals to a professional law corporation; the change in form of any corporate partner or partners to any individual partners. The CDC shall be promptly notified in writing of any change in form. Article 14. Notices. In all cases where written notice is to be given under this Agreement, service shall be deemed sufficient if said notice is deposited in the United States mail, postage paid. When so given, such notice shall be effective from the date of mailing of the notice. Unless otherwise provided by notice in writing from the respective parties, notice to the Agency shall be addressed to: George Eiser, Legal Counsel Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 cc: Chris Zapata Executive Director Community Development Commission of the City Of National City 1243 National City Boulevard National City, CA 91950 Page 6 of 9 Agreement for Legal Services Notice to the Firm shall be addressed to: Donald W. Detisch, Attorney at Law 110 West A Street, Suite 750 San Diego, CA 92101 Nothing contained in this agreement shall preclude or render inoperative service or such notice in the manner provided by law. Article 15. Headings. All article headings are for convenience only and shall not affect the construction or interpretation of this Agreement. Article 16. Miscellaneous Provisions. A. Time of Essence: Time is of the essence for each provision of this Agreement. B. California Law: This Agreement shall be construed and interpreted in accordance with the laws of the State of California. The Firm covenants and agrees to submit to the personal jurisdiction of any state court in the State of California for any dispute, claim, or matter arising out of or related to this Agreement. C. Integrated Agreement: This Agreement including attachments and/or exhibits contains all of the agreements of the parties and all prior negotiations and agreements are merged in this Agreement. This Agreement cannot be amended or modified except by written agreement, and mutually agreed upon by the CDC and the Firm. D. Severability: The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render the other provisions unenforceable, invalid, or illegal. E. Waiver: The failure of the CDC to enforce a particular condition or provision of this Agreement shall not constitute a waiver of that condition or provision or its enforceability. F. Conflict of Interest: During the term of this Agreement, the Firm shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the CDC. This prohibition shall not preclude the CDC from expressly agreeing to a waiver of a potential conflict of interest under certain circumstances. G. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. Page 7 of 9 Agreement for Legal Services H. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, and (iii) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. Article 17. Subconsultants. From time to time the Firm has needed to engage the services of subconsultants such as appraisers and/or other experts in connection with its work for CDC. Historically, the Firm has obtained the prior approval of CDC to engage these individuals and firms and obtained the CDC's concurrence that it, not the Firm, will pay for the services of these consultants. The arrangement has proven satisfactory to the parties and therefore that practice will be continued. The CDC's prior approval will be obtained and the CDC, however, will be entirely responsible for the payment of the consultants engaged on behalf of the Firm and the CDC. Any disputes by and between a subconsultant and the CDC shall be handled as set forth in Article 7. however, the Firm shall not be responsible for any payments to the subconsultant. Page 8 of 9 Agreement for Legal Services IN WITNESS WHEREOF, the parties have executed this Amended Agreement on the 21st day of November 2006. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: Nick Inzunza, Chair `Banat W. D`efissch Attorney at Law LAW OFFICE OF DONALD W. APPROVED AS TO FORM: George H. Eiser, III Legal Counsel By: JALDW • T"1 Sel (Name) (Title) 6 Page 9 of 9 Agreement for Legal Services City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 December 7, 2006 Donald Detisch, Attorney At Law 110 West A Street, Suite 750 San Diego, CA 92101 Project: National City — As Needed Legal Services Dear Mr. Detisch: On November 21 st, 2006, the Community Development Commission of the City of National City passed and adopted Resolution No. 2006-241 approving an agreement for as needed legal services. We are pleased to enclose one fully executed original agreement and one certified copy of the Resolution for your records. Should you have any questions, please contact Mr. Chris Zapata, Executive Director, Community Development Commission at 336-4240. Sincerely, Michael R. Della City Clerk JAH Enclosure File C2006-69 ® Recycled Paper