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RES 1998-2364 - Agmt with the Stephen Center Inc for transitional housing facility L/ , °AAHA'^ of o Fey Planning Dep ent 6 46. � , RECEIVEDOmaha/Douglas Civic Center 1819 Farnam Street,Suite 1100 Ea I+ 98 AUG 114 P 2. 1 t Omaha,Nebraska 68183 0110 o .. (402)444-5200 Ao�_ = - 4try' r, _ (402)444-5150 apEDFEe03 August 259,s �199� -2:a Telefax(402)444-6140 City of Omaha O A�HA. E N R.ASii.' Hal Daub,Mayor Honorable President and Members of the City Council, The attached Resolution approves an Agreement between the City of Omaha and the Stephen Center, Inc., a Nebraska Non-Profit Corporation, 2723 "Q" Street, Omaha, Nebraska 68107, for the construction of an eight unit transitional residential facility at 27th& "Q" Streets and the subsequent occupancy of each unit by single homeless men. The transitional facility will be designed in accordance with accessibility requirements pursuant to the Fair Housing Act and Section 504 of the Housing and Community Development Act of 1973. Funding from the City in the amount of $420,000.00 in Fiscal Year 1996 Home Investment Partnerships Program (HOME) funds will be in the form of a grant. Covenants will be placed on the property as a lien to ensure continued use of the facility as a transitional shelter for homeless men for a period of twenty years. The construction of 8 units of transitional housing will help fill a need in our community by providing housing with supportive services to single men with the goal of helping homeless individuals move to permanent living and self-sufficiency to the extent possible. The contractor has on file a current Annual Contract Compliance Report Form(CC-1). As is City policy, the Human Relations Director will review the contractor to ensure compliance with the Contract Compliance Ordinance. Your favorable consideration of this Resolution will be appreciated. Sincerely, Referred to City Council for Consideration: 7 �7 r Robert C. Peters, Acting Director Date Mayor's Office/Title Date Planning Department ved as to Funding: & Lt • � �/ 1 Sg Louis A. D'Ercole. Directo Date George vis, Jr., Director ate �era. t roArit m Finance Department �4 Human elations Department P:\PLN2\3852.MAF � I AGREEMENT THIS AGREEMENT is entered into by and between the City of Omaha, a Municipal Corporation in Douglas County, Nebraska (sometimes hereinafter referred to as "City"), and the Stephen Center, Inc., a Nebraska non-profit corporation, Omaha,Nebraska, (sometimes hereinafter referred to as "Owner") on the terms, conditions and provisions as set forth below: RECITALS: WHEREAS, the City of Omaha is a municipal corporation located in Douglas County, Nebraska, and is organized and existing under the laws of the State of Nebraska, and is authorized and empowered to exercise all powers conferred by the State Constitution, laws, Home Rule Charter of the City of Omaha, 1.956, as amended, and local ordinances, including but not limited to, the power to contract; and, WHEREAS, the City of Omaha annually receives I-IOME Investment Partnerships Funds under Title II of the National Affordable Housing Act of 1990, as amended, for the purpose of providing affordable housing opportunities to residents; and, WHEREAS, the City Council approved the 1996 Consolidated Submission for Community Planning and Development Programs(Consolidated Plan)on November 21, 1995,by Resolution No. 3038; and, WHEREAS, the Consolidated Plan identified the provision of transitional housing opportunities as a priority need in the City of Omaha; and, WHEREAS, the Stephen Center, Inc.,proposes the construction of an eight unit transitional residential facility located at 27th& "Q" Streets and the subsequent occupancy of each unit by single homeless men, this proposal being consistent with the Consolidated Plan; and, 1 � , • • WHEREAS, it is in the best interests of the City of Omaha and the residents thereof that the City enter into an Agreement with the Stephen Center, Inc., to provide funding in the amount of $420,000.00 for the construction of an eight unit transitional housing facility by the Stephen Center, Inc. NOW, THEREFORE, in consideration of these mutual covenants, the Stephen Center and the City of Omaha do hereby agree as follows: SECTION 2. DEFINITIONS - ABBREVIATIONS 1.1 "City" shall mean - the City of Omaha, a Nebraska Municipal Corporation. 1.2 "Owner" shall mean - Stephen Center, Inc., a Nebraska non-profit corporation, 2723 "Q" Street, Omaha,Nebraska 68107 (see Exhibit A). 1.3 "Director" shall mean-the Planning Director of the City of Omaha. 1.4 "Recipient" shall mean - the City of Omaha. 1.5 "Developer" shall mean - a public or private non-profit agency, authority or organization receiving HOME funds to undertake eligible activities. In this Agreement, the developer is the Stephen Center, Inc. 1.6 "HUD" shall mean -the U.S. Department of Housing and Urban Development. 1.7 "HOME" shall mean-the program conducted under the provisions of the Cranston-Gonzalez National Affordable Housing Act,Title II, Subtitle A-HOME Investment Partnerships(P.L. 101-625) and the Code of Federal Regulations (24 CFR Part 92). 1.8 "HOME Funds" shall mean - a portion of the 1.996 City of Omaha HOM.E Investment Partnerships Program grant awarded to the City in a total amount not to exceed $420,000.00 as may be available to grant during the program year 1996, conditioned upon actual receipt of same, for the purposes stated herein. 1.9 "HOME Grant" shall mean - HOME funds in an amount not to exceed $420,000.00. The HOME Grant shall be repayable upon sale, assignment or other transfer of the property or portion thereof by the Owner during the term of this Agreement. -2- . 1.10 "Property" or"Subject Property" shall mean - the property legally described as: Lot 4, Lot 5, Lot 6 and the East 1/2 of Lot 7, Block 12, _letter's Addition, as surveyed, platted and recorded in Douglas County,Nebraska, together with all improvements thereon. 1.11 "Construction Contract" shall mean - ensuing contracts for all work to be performed upon. property for authorized projects. 1.12 "Construction Work" shall mean - all work or services provided for in professional services or construction contracts and as may be required hereunder(see Exhibit B, Scope of Work). 1.13 "Progress Payment" shall mean - that portion of the total construction.contract paid in one or more disbursements, based upon the value of the construction, administrative or professional services work completed at the time the payment request is made. SECTION 2. DUTIES AND CONDITIONS OF CITY FINANCING 2.1 Subject to and conditioned upon actual receipt of same,the City agrees to make available to the Owner, in the form of a grant, $420,000.00 in HOME Funds as hereinabove described and defined in Sections 1..8 and 1..9. Such grant shall be subject to the terms and conditions contained herein. Further, such grant shall be used only for the purposes set forth in this Agreement. Further, HOME Funds shall be used only for the following purposes: 2.1.1 Costs associated with the acquisition of property. 2.1.2 Architectural engineering, legal, financial and administrative services for the preparation of all design and construction documents and construction supervision necessary for site preparation, the installation of public improvements, and all construction work. All contracts for services and construction documents pursuant to this Section must be approved by the Planning Director prior to funding of such contracts. 2.1.3 Funds paying for contractual work shall be payable in consideration with the construction progress payment schedule as described in Section. 2.2 in accordance with the Director's prior approval. 2.1.4 Performance bonds and insurance, required by the Director, shall name the City as an "additional insured". 2.1.5 City funding pursuant to this Section shall be contingent upon receipt of and subject to the availability of HOME Investment Partnership Grant funds in amounts adequate to meet any contractual obligations in force upon the date of execution of this Agreement, as well as this proposed obligation. Should adequate funding not be available, the City shall notify the Owner as soon as reasonably possible. At such -3- time, the responsibilities of the Owner under Section 3 of this Agreement shall be released, the provisions of Section 6.10 will be exercised and the Agreement will be terminated. • 2.1.6 The Owner may not request disbursement of funds under this Agreement until the funds are needed for payment of eligible costs based upon the value of the construction, administration, or professional services work completed at the time the payment request is made. The amount of each request must be limited to the actual amount needed. 2.2 The City does hereby agree to make progress payments and final payment, as may be authorized by the Director or his designated representative, upon receipt, verification, and approval of an AiA Document G702 "Application and Certificate for Payment". A 10% retainage will be held by the City on each progress payment for construction work and on. the final payment. A final payment will not be made until all punch list items have been corrected to the satisfaction of the Owner and the Planning Department and until such time as the certified audit required by Section 3.8, herein, is approved by the Director. 2.3 In no event shall the City assume any obligation to make any or all of the above-referenced funding available,nor shall the City incur any liability hereunder,unless and until the Owner has submitted for and received the approval of the Director of all of the following: 2.3.1 Duly executed contracts for Construction Work; 2.3.2 A Performance and Labor Materials Bond and/or an Irrevocable Letter of Credit in force for one year following the completion of the Construction Work from the General Contractor in an aggregate amount of the Contract bid. The Bonds and/or Letters of Credit shall be in favor of the City and shall be submitted for review and approval by the Director. The City reserves the right to reject the Letters of Credit and choice of surety for the Bonds. 2.4 No payments shall be made for any work, labor, material or expenses incurred which the Director deems to be: 2.4.1 Unacceptable or substandard; or, 2.4.2 Not in accordance with this Agreement or contract as approved for this project; or, 2.4.3 Not in conformance with applicable state,federal and/or local laws, including but not limited to, the building, plumbing and/or electrical codes; or, 2.4.4 Not in conformance with all plans, working drawings and/or specifications as approved. -4- 2.5 In no event shall the City become obligated to make any payments for any work performed, materials furnished, expense incurred, or any other expenditure of any kind whatsoever, unless same is expressly included in this Agreement. 2.6 In no event shall the City assume any obligations to make or continue to make any or all of the above-referenced funding available, nor shall the City incur any liability hereunder, unless and until the Owner has timely and fully complied with its duties and obligations arising hereunder. 2.7 The City shall review and approve all plans, working drawings and/or specifications for public improvements, site preparation and residential rehabilitation and perform interim and final inspections on each rehabilitation phase. 2.8 The City shall review and monitor the required reports that identify the progress/accomplishments of the Owner,on the activities included in this Agreement and on contracts entered into with third parties pursuant thereto. 2.9 After completion of construction, the property must comply with all appropriate City codes and ordinances, and with Federal Section 8 Housing Quality Standards such compliance continuing for the duration of this Agreement. 2.9.1 The City may perform periodic inspections to ensure compliance with Section 2.9. 2.10 During the period of project development and construction work, and for the term of this Agreement, the Owner shall: 2.10.1 Maintain insurance in at least the amount of the grant and apply such insurance proceeds to the reconstruction of the project or repayment in full of the grant. 2.10.2 Ensure that the property remains free and clear of all superior encumbrances, including liens and judgments. 2.11 The City shall perform an environmental assessment in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA) and related authorities listed in HUD's implementing regulations at 24 CFR Parts 50 and 58. 2.12 The City shall secure the FIOME Grant with a covenant as defined in Section 3.2 to insure that the Owner repays the HOME Grant upon sale, assignment or other transfer of the property or portion thereof by the Owner for a period of twenty years from completion of construction as determined by the City. The City shall release the covenant should the Owner meet said conditions during the term of Agreement. -5- • SECTION 3. DUTIES AND RESPONSIBILITIES OF THE OWNER 3.1 The Owner does hereby certify,contract and agree that any and all funding obtained or made available hereunder shall be used solely and exclusively for the express purpose of the construction of an eight(8) unit transitional residential facility located at 27th& "Q" Streets and the subsequent occupancy of each unit by single homeless men, in strict compliance with this Agreement and the construction contract, as approved, as well as the plans, drawings, and other specifications, as approved. 3.1.1 The Owner agrees that, during the term of this Agreement, 100% of the units must be occupied by low income single homeless men whose annual income does not exceed 60% of the "Median Income by Family Size" as published by HUD, and as further updated and revised by HUD to reflect the current or most recent income level statistics, a copy of the relevant portion of which is attached hereto, marked as Exhibit C and incorporated herein by this reference. 3.1.2 In addition to the above, the Owner agrees that 20%of the units shall be occupied by very low income single homeless men whose annual income does not exceed 50% of the "Median Income by Family Size" as described in Section 3, Paragraph 3.1.1. 3.1.3 In no event shall eligible persons be charged rental amounts in excess of the regulatory limits as specified in the HOME Regulations, 24 CFR Part 92, Subpart F, Section 92.252, for the leasing of rental housing units assisted with HOME funds 24 CFR Part 92, Subpart F, is attached hereto as Exhibit D (also see Section 6.18 Other Program Requirements of this Agreement). 3.1.4 If, through breach of this Agreement, the Owner fails to maintain the occupancy, affordability and use restrictions enumerated in Section 3.1 of the Agreement, all HOME funds previously provided to the Owner through fulfillment of this Agreement shall promptly be returned to the City of Omaha. 3.2 The Owner agrees to execute an Acknowledgement of Covenants guaranteeing the use and period of affordability as stated herein. Such Acknowledgement of Covenants shall be filed against the Property, upon acquisition, an example of such Acknowledgement of Covenants is attached hereto as Exhibit E. The Owner, for itself, its successors and assigns, further agrees that the restrictions and covenants in this Agreement shall be covenants running with the land, and that they, in any event and without regard to technical classification or designation, legal or otherwise, shall be binding, to the fullest extent permitted by law and equity, and enforceable by, the City, its successors and assigns, against the Owner, its successors and assigns to any part of the property that is the subject of this Agreement, or any interest therein and any party in the possession or occupancy of any part of said property. The Owner, for itself, its successors and assigns, further covenants and agrees, that without regard to whether the City or the United States is an owner of any interest in the land to -6- • which the covenants relate, the covenants running with the land shall remain in effect for a period of twenty (20) years after the date of the completion of the construction project, or until such date thereafter to which it may be modified by proper amendment of this Agreement, on which date such covenants may terminate. 3.3 The Owner shall be responsible for payment of any costs that exceed those specified in this Agreement. 3.4 The Owner shall submit to the Director, for his review and approval, all working drawings, plans and specifications necessary or incidental to this project. In addition, the Owner shall submit duly authorized construction contracts for the Director's review and approval. The - Director reserves the right to reject, modify or amend any or all of the foregoing. Upon approval, no changes or amendments may be made to any of the foregoing without the written approval of the Director. In no event shall the City become obligated to make any payments or release grant proceeds for any work performed, materials furnished, expenses incurred, or any other expenditure of whatsoever kind or nature unless same was expressly included in one or more of the above-mentioned documents as approved. 3.5 The Owner shall: 3.5.1 Procure and maintain property insurance in an amount sufficient to protect the City's interest in the property during the term of the Agreement and the term of any financing documents. The policy must include the City of Omaha as an additional insured. In the event of loss or damage to the property, the Owner must provide written notification to the City of such loss. Proceeds from any claim under this policy may, at the discretion of the Director, be either applied to restore or replace the improvements damaged or be released to the City to satisfy the Owner's obligation to the City under the terms of this Agreement. 3.5.2 Procure and maintain Performance and Labor Materials Bonds and/or Irrevocable Letters of Credit in force for one year following completion of the Construction work from the General Contractor in an aggregate amount of the contract bid. The Letters of Credit and/or Bonds shall be in favor of the City and shall be submitted for review and approval by the Director. The City reserves the right to reject the Letters of Credit and the choice of surety for the Bonds. 3.5.3 Obtain a certificate from each contractor or subcontractor to be used on this project to the effect that each contractor or subcontractor has not been disbarred to or disqualified by the U.S. Department of housing and Urban Development (HUD). The Director shall approve all contractors and subcontractors prior to being hired by the Owner. -7- 3.5.4 Comply with allprovisions and regulations of the HOME Program and have an pY g g annual audit completed in compliance with OMB Circular A-1.33. A copy of the audit shall be provided to the Director. OMB-Circular A-133, attached as Exhibit F. 3.5.5 Make best efforts to ensure that construction services, contracts and employment opportunities are affirmatively marketed to women and members of minority groups. The Owner shall submit to the Director, for his review and approval, a Minority and Women Business Participation Plan which discusses employment opportunities for persons in these groups (see Exhibit G). 3.5.6 Employ affirmative marketing procedures in the advertising and marketing of the completed project. In marketing, the Owner shall also conform to the non- discrimination provisions hereinafter set forth. The Owner shall comply with the affirmative marketing responsibilities specified in Exhibit H. 3.5.7 Comply with Section 504 of the Rehabilitation Act of 1973 regarding the two (2) accessible project units and ensure that all work on these units is in accordance with the design standards as stated in the Uniform Federal Accessibility Standards. (Exhibit I). 3.6 The Owner shall commence and complete construction in accordance with the following: 3.6.1 The Owner shall commence work on this project as soon as possible after receipt of a written notice to proceed from the:Director. Any work performed or costs incurred prior to the issuance of such a notice shall be the sole responsibility of the Owner. 3.6.2 The Owner shall complete the acquisition and construction work of the eight(8)unit transitional residential housing units on or before December 31, 1998. Upon the sole discretion of the Director, this date may be extended up to eighteen months from the date of execution of this Agreement. 3.7 During the construction period, the Owner shall: 3.7.1 Ensure that all work performed and the Construction Work as completed is in conformance with all State, Federal, and local laws, ordinances, regulations and codes; including but not limited to, Section 8 housing Quality Standards (HQS) as established by HUD. The Director shall assist the Owner in the same manner the Director provides technical assistance to other developers, during the construction phase to ensure compliance with such requirements. 3.7.2 Use no lead-based paint in the performance of this Agreement, including the performance of any subcontractor. "Lead-based paint" means any paint containing more than six one-hundredths of one (1) percentum of lead by weight (calculated as -8- lead metal) in the total nonvolatile content of the paint, or the equivalent measure of lead in the dried film of paint already applied. The Owner further agrees to abide by all Federal requirements regarding lead-based paint poison prevention. 3.8 The Owner shall submit to the Director a certified audit of all costs including contractor costs. This audit shall be performed by a duly qualified professional, whom shall first be approved by the Director in writing. .This audit shall be submitted to the Director for review and approval. The final amount of the Grant assistance will be based on the audited costs. If the final project cost is less than the estimated cost, the City and the Owner shall share the cost savings proportionately. If the final project cost is greater than the estimated cost, any additional costs shall be the responsibility of the Owner: 3.9 During the construction period and during the term of this Agreement, the Owner shall: 3.9.1. Maintain the property in a safe and sanitary condition at all times. 3.9.2 Ensure that all taxes and special assessments are paid and kept current. 3.10 The Owner shall provide services for.clients as required in the Scope of Work Summary, attached hereto as Exhibit B and made a part hereof by reference. 3.11. The Owner specifically hereby states, agrees and certifies that it is familiar with the limited purpose set forth in the Federal Laws, Rules and Regulations, and in the laws of the State of Nebraska, for which personal information requested may be used and that the information received will be used solely for those limited purposes and not to harass, degrade or humiliate any person. The information released shall be used for the limited purpose stated, and the Owner further agrees to indemnify and hold harmless the City of Omaha for any liability arising out of the improper use by the Owner of information provided. 3.12 The Owner, Contractor and Subcontractors shall maintain such records and accounts, including property, personnel and financial records, as are deemed necessary by the City to assure a proper accounting for all expenses. The Comptroller General of the United States, or any of their duly authorized.representatives, or any duly authorized representatives of the City of Omaha, as approved by the Planning Director, shall have access to any books, documents, papers,records and accounts of the Owner,Contractor, or subcontractors which are directly pertinent to this project for the purpose of making audit, examination, excerpts and transcriptions. Such records and accounts shall be retained for five years from the contract period completion. Any contract entered into by the Owner with any Contractor or Subcontractor shall include this Section to ensure said access. 3.13 The Owner shall submit to the City the following reports in accordance with the submission timelines as specified: -9- 3.1.3.1 Construction Progress Reports - The Owner will provide quarterly reports to the Director describing the progress of construction, and any significant problems and/or • delays in construction on this project. The progress reports are required until such time as all construction work is completed and the final payment for construction is issued by the City. 3.13.2 Occupancy Reports - The owner will provide to the Director an initial report, and annual reports for the term of this Agreement, on the extent to which each racial and ethnic group and single-headed households (by gender of household head) have applied for, participated in, or benefited from, the leasing of units/bedrooms in the completed project. 3.14 For each family or individual occupying a unit/bedroom in the property, the Owner shall retain the following records during the term of this.Agreement: (a) name, address, and unit occupied (b) date of occupancy, (c) copy of lease/rental agreement, (d) percent Median Family Income as determined annually pursuant to Section • 3.1. • 3.15 The owner shall comply with all environmental requirements for review and impact on the environment. SECTION 4. TERM OF THE AGREEMENT This Agreement shall be in full force and effect and will continue for a period of twenty (20) years from completion of construction as determined by the City. • SECTION 5. MUTUAL AGREEMENTS The Owner agrees, and the City states, that the City: 5.1 Is not acting as the Owner's architect or engineer. 5.2 Makes no warranties, express or implied, as to the construction work. 5.3 Owes no duty to the Owner or any other persons that arise because of any inspection of the premises by the City's agents or employees. 5.4 May inspect the property at any reasonable time, including a final inspection to certify completion prior to final disbursement of grant/loan proceeds. -10- 5.5 Shall be held harmless by the Owner for all injury and damages arising by virtue of this Agreement. SECTION 6. PROVISIONS Of THE AGREEMENT 6.1 Equal Employment Opportunity Section 3 Clause. Attached hereto as Exhibits J and K, and made a part hereof by this reference,are the equal employment provisions of this Agreement. 6.2 Non-Discrimination. The Owner shall not, in the performance of this Agreement, discriminate or permit discrimination in violation of federal or state laws or local ordinances because of race, color, handicap, familial status, sex, age, political or religious opinions, affiliations or national origin. 6.3 Captions. Captions used in this Agreement are for convenience and are not used in the construction of this Agreement. 6.4 Applicable Law. Parties to this Agreement shall conform with all existing and applicable City ordinances, resolutions, state laws, federal laws, and all existing and applicable rules and regulations. Nebraska law will govern the terms and the performance under this Agreement. 6.5 Interest of the City. Pursuant to Section 8.05 of the Home Rule Charter, no elected official or any officer or employee of the City shall have a financial interest, direct or indirect, in any City agreement. Any violation of this section with the knowledge of the person or corporation contracting with the City shall render the Agreement voidable by the Mayor or Council. 6.6 Merger. This Agreement shall not be merged into any other oral or written agreement, lease or deed of any type. 6.7 Modification. This Agreement and any related documents securing the financing, contain the entire agreement of the parties. No representations were made or relied upon by either party other than those that are expressly set forth herein. No agent, employee, or other representative of either party is empowered to alter any of the terms herein unless done in writing and signed by an authorized officer of the respective parties, pursuant to Section 10- 142 of the Omaha Municipal Code. 6.8 - Assignment. The Owner may not assign its rights or obligations under this Agreement without the express prior written consent of the City. 6.9 Strict Compliance. All provisions of this Agreement and each and every document that shall be attached shall be strictly complied with as written, and no substitution or change shall be made except upon written direction from authorized representatives of the parties. -11- y .y 6.10 Termination. This Agreement may be suspended or terminated in accordance with 24 CFR 85.43, Enforcement or 24 CFR 85.44, Termination for Convenience (Exhibit L). Upon termination of this Agreement, all funds and interest in any account hereunder shall become the property of the City and shall be returned to the City. 6.11 Reversion of Assets. Upon expiration of this Agreement,the Owner must transfer to the City any HOME funds on hand at the time of expiration and any accounts receivable attributable to the use of HOME funds. Notwithstanding the above,this Property shall be subject to the covenant set out in Section 3. 6.12 Indemnification. The Owner shall indemnify and hold the City harmless from and against: (1) any and all claims arising from contracts between the Owner and third parties made to effectuate the purposes.of this Agreement; and, (2)any and all claims, liabilities or damages arising from the preparation or presentation of any of the work covered by this Agreement. 6.13 Default. If, through any cause, the Owner shall fail to fulfill in a timely and proper manner any obligations under this Agreement, or violate any of the covenants, representations or agreements hereof,the City may,upon written notice,terminate this Agreement or such parts thereof as to this Agreement:, and may hold the Owner liable for any damages caused to the City by reasons of such default and termination. • 6.14 Nebraska Law. This Agreement shall be a contract made under and governed by the laws of the State of Nebraska. 6.15 Unenforceable Provisions. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition of enforceability without invalidating the remaining provisions hereof or affecting the validity of enforceability of such provision in any other jurisdiction. 6.16 Disclosure of Lobbying. The Owner shall certify and disclose, to the best of its knowledge and belief, that: (a) No Federal appropriated funds have been paid or will be paid, by or on behalf of the Owner, to any person for influencing or attempting to influence an officer or employee of Congress, or an employee of a Member of Congress in connection with . the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment or modification of any Federal contract, grant, loan, or cooperative agreement. (b) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any -12- 11 agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the Owner shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. (c) The language of this certification be included in the award documents for all. subawards at all tiers, (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. 6.1.7 Subrecipients. The Owner shall comply with the requirements and the standards of OMB Circular No. A-122, "Cost Principles for the Nonprofit Organizations" (Exhibit M) and with the requirements of Attachments B, F, H, paragraph 2, and 0 to OMB Circular A-1 10 (Exhibit N). 6.18 Other Program Requirements. The Owner shall be required to carry out each activity of this Agreement in compliance with all Federal laws and regulations described in Subparts A, E, F, and H of the Home Investment Partnerships Program; 24 CFR Part 92 (Exhibit D). SECTION 7. AUTHORIZED REPRESENTATIVES In further consideration of the mutual covenants herein contained,the parties hereto expressly agree that for purposes of notice, including legal service of process, during the term of this Agreement,and for the period of any applicable statute or limitations thereafter,the following named individuals shall be authorized representatives of the parties: (1) Robert C. Peters City of Omaha Acting Director, Planning Department Omaha/Douglas Civic Center 1819 Farnam Street Omaha,NE 68183 (2) Judith Mascarello, Executive Director Stephen Center, Inc. A Nebraska Non-Profit Corporation 2723 "Q" Street Omaha,Nebraska 68107 -13- IN WITNESS WHEREOF,the parties have executed this Agreement as of the date indicated below. ATTEST: CITY OF 0 HA: u - � U CITY CLERK OF THE CITY OF OMAHA MAY R OF THE CITY OF OMAHA WITNESS: STEPHEN CENTER, INC. A Nebraska Non-Profit Co'!oratiio'n ) 1/4„4„,c, 7 j.frz.44, BY �S S NAME: DATE TITLE: Executive Director '6/0?1/Fli DATE APPROVED AS TO FORM: . (17 ASSISTANT CITY ATTORNEY DATE P:\PLN2\3854.MAF -14- SCHEDULE OF EXHIBITS Exhibit Location Description A Section 1.2 Articles of Incorporation, Board of Directors, and Corporate Resolution B Section 1.12, 3.10 Scope of Work C Section 3.1.1 Median Income by Family Size D Section 3.1.3, 6.18 24 CFR Part 92, Subparts A, E, F and H. E Section 3.2 Example of Acknowledgement of Covenants F Section 3.5.4 OMB Circular A-133 G Section 3.5.5 Minority and Women Business Participation Plan H Section 3.5.6 Affirmative Marketing Plan I Section 3.5.7 Uniform Federal Accessibility Standards J Section 6.1 Equal Employment Opportunity Clause K Section 6.1 Affirmative Action Plan (Section 3 Clause) L Section 6.10 Termination - CFR 85.43 and CFR 85.44 M Section 6.17 OMB Circular N Section 6.17 • Attachments B, F, H, and 0 to OMB Circular A-110 Exhibits identified herein are made a part hereof by reference and are a part of the provisions of the Agreement. Exhibits D, F, G, and I through M are on file in the Planning Department. P:\PLN2\3854.MAF _ 0 E C 1 6 1983. EXHIBIT "A" ATTACHMENT II t y:ti y Itc:cIpt No./11O ' 4.• `t BOOK�i 2 F'??. STATE OF I IEBRAEKA 1 SS SECRETARY'S OFFICE • C ),, ,e ^i ARTICLES OF INCORPORATION I'A Sd rtco deedom oll 71 • - OF -' Smeary et State y STEPHEN CENTER, INC. $3a ea ARTICLE I ' The name of the Corporation shall be Stephen Center, Inc. . ARTICLE II The Corporation shall have' perpetual duration. ARTICLE III . The Corporation .s organized as a non-profit corporation to establish facilities, Or, provide aid in order •; .o establish facilities, in which destitute; abandoned, rfegtected and dependent individuals may find .or obtain suitable care and fellowship; to provide special training and- rehabilitative • services to those in need of such services; and to .promote programs and activities designed to eliminate violence among destitute individuals. ARTICLE 'IV The Corporation shall have and exercise all powers allowed non-profit corporations by the Non-Profit Corporation Act of the State of Nebraska, as amended, except as otherwise limited in these Articles of Incorporation. • ARTICLE V Notwithstanding any provision to the ' contrary contained • within these Articles of Incorporation or the By-Laws of the Corporation, this Organization shall abide by- enumerated .pinciples: 1. The corporation shall exist and conducts its affairs in conformity with and in furtherance of those of a charitable organization' is defin'o8.. in Section 501 (c) (3) of the Internal • -3\ir cooK.177_F".-Zt51 • Revenue Code of 1954. 2. 7n the event the Corporation is dissolved for any reason at any time, after the satisfaction of all Corporate obligations all remaining assets shall be distributed exclusively for the purposes of the Corporation in such manner, or to such organization or organizations organized and operated exclusively for charitable, educational, religious or scientific purposes as shall at the time qualify as a exempt organization or organizations under Section 501(c) (3) of the Internal Revenue Code. of 1954, or corresponding provisions of any subsequent federal tax laws. 3. The Corporation shall not engage in•any of the following acts: (a) Acts of self-dealing as defined in Section 4941 (d) of the Internal Revenue . Code of 1954, or corresponding provisions of any subsequent federal • tax laws. ' (b) Retain any excess business holdings as defined in Section 4943(c) of the Internal Revenue Code of 1954, or corresponding provisions of any subsequent federal tax laws. (c) Shall not fail to distribute its income for each taxable year at such time and in such manner as not to become subject to undistributed income taxes, imposed by Section 4942 of the Internal Revenue Code of 1954, or corresponding provisions of any subsequent federal tax laws. (d) No investment shall be made in such a manner as to incur tax under Section 4944 of the Internal Revenue Code of 1954, or corresponding' provisions of any subsequent federal tax laws. (e) Shall not make any taxable expenditures as defined in Section 4945(d) of the Internal Revenue Code of 1954, or corresponding provisions of any subsequent federal tax laws. 4. No part of the net earnings of the Corporation shall • inure to the benefit of, or be distributed to its Members, trustees, officers or other private persons, except that the Corporation shall be authorized and empowered to pay reasonable compensation for services rendered and to make payments and • B SOKF•.�_.PGard distributions in furtherance of the purposes set forth in these Articles of Incorporation. 5. No substantial part of the activities of the Corporation shall be the carrying on of propaganda, or otherwise attempting to influence legislation, and the Corporation shall* not participate in, or intervene in, including the publishing or distribution of statements, any political campaign on behalf of any candidate for public office. 6. The Corporation shall not carry on any other activities ' not permitted to be carried on by a corporation exempt from federal income tax under Section 501 (c) (3) of the Internal Revenue . Code of 1954, or corresponding provisions of any • subsequent federal tax laws or by a corporation, contributions to which are deductible under Section 170(c) (2) of the Internal Revenue Code of 1954, or corresponding :provisions of any subsequent federal tax laws or such activities as may be in violation of the •Nebraska Non-Profit Corporation Act, as it shall be amended. from time to time. • ARTICLE VI The street address of the initial registered office of the Corporation is 5002 South 54th 'Street, Omaha, Nebraska' 68117. The name of the initial registered agent at • such address. is Richard C. McNeil. • • • ARTICLE VI • The names and addresses of the initial Board of Directors of the Corporation shall be as follows: Name . Address Richard C. McNeil 5002 South 54th Street Omaha, Nebraska 68117 • Sharon C. McNeil 5002 tvutfi'SdfIC"stree 't - -•• " Omaha, Nebraska 68117 • William E. Reicks 5437 South 50th Street Omaha, Nebraska 68117 • • ECCIC1-2 ,,.-_i e John B. Balkus 5504 "S" Street Omaha, Nebraska. 68117 David C. Ostblum 5823 "T" Street Omaha, Nebraska 68117 • ARTICLE VII The names and addresses of the incorporators are: Name • Address • Gregg H. Coffman 1823 Harney Street 100 Historic Library Plaza • • Omaha, Nebraska 68102 Karen M. Beard 1823 Harney Street 100 Historic Library Plaza • Omaha, Nebraska 68102 Dated this 15th day of December, 1983. Greg.A0 . o Incorpor • Kardn M. Beard, ncorporator GHC43 • • • • : -1.Ms..tw Gm ��._q�1,�r1A.at:{15 C`• • "iE.lIJ1i COU CORDED 1 :t 11G�!" MLI iLi.b: • 7•I g • • • • ;� I 1 ATTACHMENT IV BOARD OF DIRECTORS STEPHEN CENTER, INC. 1998 EXECUTIVE COMMITTEE President: Brandon Melton (Bitsy) Vice-President, Human Resources Catholic Health Services 3439 South 161 Circle Omaha,Ne 68114 334-1104 (H) 333-4665 (Home Fax) 548-1213 (W) 393-6427 (Fax) President Elect: Cindy Frank Community Volunteer 517 South 94 Avenue Omaha,Nebraska 68114 399-9362 399-8195 (fax) Treasurer: Lou Anne Rinn General Attorney Union Pacific Railroad 2119 So. 61st Street Omaha,NE 68106 553-8651 (H) 271-4227(W) 271-7107(FAX) Secretary: Jacqueline Devaney, RN Community Volunteer 3542 South 48th Avenue Omaha,NE 68106 553-5603 Executive Director: Judy Mascarello 7915 Chinawood Ave. Apt#3 LaVista,NE 68128 339-4895 (H) 731-0238 (W) BOARD MEMBERS Sponsors Board President: Pam Hoesing 8723 No. 57th St. Omaha,NE 68152 571-3075 (H) 354-6504 (W) ,354-6480 • Edmund Russell Sheryl Hamilton Russell&Associates 705 No. 155th Ave. 7402 Webster St. Omaha,NE 68154 Omaha,NE 68114 498-4489(H) 391-4489 (H) Jacqueline L. Boryca Robert J. Broderick Bank of Nebraska Peter Kewitt (Retired) 15561 Shirley Circle 3434 No. 143 Circle Omaha,NE 68144 333-7489 (H) Omaha,Ne 68164 331-8570 (FAX) 496-2815 (H) 331-8550 ext. 120(W) Bonnie Janke Gwen Teeple 10021 Harney Parkway South 50 Pickard Lane Omaha,NE 68114 Council Bluff, Iowa 51501 398-1397(H) 366-9705 (H) 636-3001 (W) Steve Hayes CEO Omaha Printing 17025 West Maple Road Omaha,Nebraska 68116 734-4400(W) 289-3139(H) Pennie Davis CEO Greater Omaha Packing 8405 Indian Hills Dr. Omaha,Ne 68114 731-3480(W) 391-2358 (H) THE STEPHEN CENTER 2723 "Q" Street • OMAHA. NEBRASKA 681.07-3447 • 731-0238 Crisis Shelter - MOBA Medical Clinic - Transitional Housing Program - HERO Program Board of Directors Brandon Melton President Cindy Frank July 28, 1997 Vice President Betty Nelum Planning Department Secretary Omaha/Douglas Civic Center Thomas McCormick 1819 Farnam Street, Suite 1100 Treasurer Jackie Boryca Omaha, Ne 68183-0110 Robed Broderick Pennie Davis Jacqueline Devaney Steve Hayes James Hollander To Whom It May Concern: Michelle Mapes Stephanie S.Mason Patty Mendlik The Stephen Center Board of Directors has approved the signing of the contract Tim McMahon John Minton with the City of Omaha for release of the Home Fund Grant awarded to the Betsye Ries,Paragas Stephen Center, so thatplans mayproceed on the eight efficiencyapartment Gerald Ries,M.D. p P g p Louise Anne Rinn building to be built adjacent to the Stephen Center. Edmund Russell Kathy Safranek Judy Mascarello As the Executive Director of the Corporation, Mrs. Judith Mascarello has been Executive Director delegated the administrative and management responsibilities required to carry out Richard Wilinard the center's mission, strategic education and operational objectives. Judith Director of Facilities Mascarello is authorized to execute such documents as are necessary to fulfill the Margaret Evans Director of H.E.R.O.Program Stephen Center's contractual obligation. Lora Johnson C.D.Counselor If you have questions or need clarification of Mrs. Mascarello's responsibilities and Phyllis Knicky authority, as Executive Director of the Stephen Center, please don't hesitate to call Director of MOBA Clinie me at 402-334-1104. Bev Hoschar Administrative Assistant Sincerely Yours, V. Brandon Melton President, Board of Director Stephen Center cc: Judith Mascarello • EXHIBIT B SCOPE OF WORK The Stephen Center, Inc., will use City of Omaha Home Investment Partnerships Program funds to construct an eight (8) unit, approximately 5,000 square foot, transitional living facility for occupancy by homeless individuals with disabilities. This transitional living facility will be constructed on land owned by the Stephen Center, Inc., just east of its emergency shelter for the homeless at 2723 Q Street. The facility will contain eight (8) one-bedroom units containing bathrooms and kitchen eating space. In addition, the facility will contain space for laundry, meetings, and counseling offices. The project will be completed in reasonably like manner to the attached site plan schematic and floor plan layout. 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C In = \ CC r N o c3i CD WM G a) (EO - >'L co 0 () N rzr, CC Clc s co .E •N ao 5 >' r �N CO ' LC) CD co a) c) r CD N •• Cl) /CCI C 0 MCD _ cc •E o CC CC E x o — c4 Z 0 ,- N U r � Nua - LL 4 Exhibit E ACKNOWLEDGMENT OF COVENANT RUNNING WITH LAND WHEREAS, on , by Resolution No. , the City Council of the City of Omaha authorized the execution of an Agreement between the City of Omaha and The Stephens Center, Inc., a Non-Profit Corporation, wherein the City would provide a grant to The Stephens Center, Inc. in the amount of from FY98 HOME Investment Partnerships Program funds for the acquisition and rehabilitation of approximately eight dwelling units to be used as transitional housing by low income households currently residing in emergency shelters for the homeless to be located at Omaha,Nebraska, and legally described as: Legal Description. (commonly known as ) WHEREAS, The Stephens Center, Inc. hereby acknowledges as follows: The Stephens Center, Inc.,for itself, its successors and assigns, further agrees that the restrictions and covenants in the Agreement shall be covenants running with the land and that they, in any event and without regard to technical classification and designation, legal or otherwise, shall be binding, to the fullest extent permitted by law and equity, and enforceable by, the City, its successors and assigns, against The Stephens Center,Inc., its successors and assigns,to any part of the property that is the subject of the Agreement, or any interest therein and any party in the possession or occupancy of any part of said property. The Stephens Center, Inc., for itself, its successors, and assigns, further covenants and agrees, that without regard to whether the City or the United States is an owner of any interest in the land to which the covenants relate, the covenants running with the land shall remain in effect for fifteen years after the date of the completion of the rehabilitation project, the period specified or referred to in the Agreement, or until such date thereafter to which it may be modified by proper amendment of the Agreement,on which date such covenants may terminate. The Stephens Center, Inc., for itself, successor and assigns, further covenants and agrees that the transitional housing units will be maintained for low income households currently residing in emergency shelters for the homeless for the term of this covenant. THE STEPHENS CENTER, INC. a Non-profit Corporation By: Judy Mascarello,Executive Director Date: v Covenant Running with Land-Address Page 2 STATE OF NEBRASKA ) ) s.s. COUNTY OF DOUGLAS ) On this day of , 1998, before me, the undersigned, a Notary Public in and for said County,personally came Judy Mascarello, Executive Director, The Stephens Center, Inc., a Non-Profit Corporation, personally to me known to be the identical person whose name is affixed to the above and foregoing instrument as Acknowledgment of Covenants Running with Land, and have acknowledged the same instrument and the execution thereof to be his voluntary act and deed, for the purpose therein expressed. In testimony whereof, I have hereunto set my hand and affixed by notarial seal at Omaha, Nebraska on the day and date last above written. NOTARY PUBLIC My Commission expires tJ8ii i / CITY OF OMAHA AFFIRMATIVE MARKETING POLICY AND MONITORING PROCEDURES Affirmative Marketing Policy In furtherance of the City of Omaha's commitment to non-discrimination and equal opportunity in housing, the City of Omaha establishes procedures to affirmatively market units constructed or rehabilitated under any City-assisted program or project. These procedures are intended to further the objectives of Title VIII of the Civil Rights Act of 1968 and Executive Order 11063. It is the affirmative marketing goal of the City of Omaha to assure that individuals who normally might not apply for vacant rehabilitated units because of their race or ethnicity: . know about the vacancies . feel welcome to apply . have the opportunity to rent the units This policy will be carried out through the following procedures: 1. Informing the public, potential tenants, and owners about Federal fair housing laws and affirmative marketing policies • The City of Omaha will inform the public, potential tenants, and owners about its affirmative marketing policy and Title VIII and Executive Order 11063. • The City will place public notices in the Omaha World Herald and the North Omaha Star to inform owners of the program. City representatives will meet with property owners and assist them in preparing program applications as requested and necessary. Owners selected for a program shall notify in-place tenants in writing of their involvement in the program and provide them with the following options: 1. Remain in the present unit during rehabilitation. 2. Move temporarily to another unit within the project while his/her unit is being rehabilitated. 3. Permanently relocate or voluntarily abandon the unit during the rehabilitation. Owners shall post the HUD Equal Housing Opportunity Logo in the project building and display the Fair Housing Poster in their rental office. le ' • • Owners shall use media accessible to minorities when advertising the availability of rental units • Owners shall use the Equal Housing Opportunity logo, slogan or statement in all advertising. • Owners shall maintain a non-discriminatory hiring policy. ▪ Owners shall adopt a fair housing policy. 2. Informing low and moderate-income persons about available units Property Owners having vacant rental rehabilitation units may call the Omaha Housing Authority (OHA) (444-6900) and place units on OHA's "Available Unit" list. This list is distributed to families who have received Certificates of Family Participation and are looking for units to rent. The listing will remain on the "Available" list for 35 calendar days then be removed. If still vacant, the property may be relisted. When rehabilitated units are available for initial occupancy, the owner shall inform the following outreach agencies of this fact in writing and submit a copy of the letters to the City of Omaha, Planning Department, Housing and Community Development Division, Rental Rehabilitation Program, 1819 Farnam Street, Room 1111, Omaha, Nebraska 68183: ▪ Chicano Awareness, Inc. 4821 South 24th Street • Omaha, NE 68107 • Native American Community Development Corp. 2226 Leavenworth Street Omaha, Nebraska 68102 • Family Housing Advisory Services 2416 Lake Street Omaha, NE 68111 Urban League of Nebraska 3022 North 24th Street Omaha, NE 68111 3. Recordkeeping The City of Omaha will keep records of the following: local media advertisements of the Rental Rehabilitation Program • contact dates with outreach agencies and Omaha Housing Authority • correspondence informing outreach agencies of vacancies ▪ Race and gender data of initial occupants and persons inquiring about availability of units Tenant Survey forms -2- 4. Assessment of Actions The Owners' affirmative marketing efforts will be assessed by the City to: • determine good faith efforts of Owners to affirmatively market vacant units; and, • determine whether a sufficient number of racial and ethnic families have applied for vacant units. The City will take corrective action if it is found that property owners are not carrying out established procedures of the City's Affirmative Marketing Policy and Monitoring Procedures. Affirmative Marketing Policy Monitoring Procedures 1. Duties and Responsibilities of the Owner a) The Owner shall post the H.U.D. Equal Housing Opportunity Logo in the building project, and in the rental office. b) The Owner shall submit to the City a copy of all letters notifying the outreach agencies listed below of vacancies: . Omaha Housing Authority 540 South 27th Street Omaha, NE 68105 . Chicano Awareness, Inc. • 4821 South 24th Street Omaha, NE 68107 . Native American Community Development Corp. 2226 Leavenworth Street Omaha, NE 68102 . Family Housing Advisory Services 2416 Lake Street Omaha, NE 68111 . Urban League of Nebraska 3022 North 24th Street Omaha, NE 68111 c) The Owner shall submit to the City a copy of all advertisements placed in the local newspapers. All advertisements must include the Equal Housing Opportunity Logo, Slogan, or Statement. d) The Owner shall submit to the City a Racial/Gender Form, attached as Exhibit 1, which includes the name, racial/ethnic characteristics, income, family size, and gender for each person responding to the advertisement. e) The Owner shall meet with each in-place tenant and all tenants of initially occupied vacant units and complete a Tenant Survey Form, a copy of which is attached and marked Exhibit 2. -3- A f) The Owner shall submit to the City the original Tenant Survey Form and retain a copy for proper recordkeeping. g) The Owner shall provide each in-place tenant in the project with a copy of the City of Omaha's written Tenant Assistance Policy (TAP) and shall advise said tenant(s) of the impact of the project on him or her. The Owner shall provide the TAP to the tenant immediately after submission of the owner's application for participation in the Rental Rehabilitation Program. 2 Duties and Responsibilities of the City a) The City shall assess the affirmative marketing procedures to determine good faith efforts of the Owner to affirmatively market the vacant units by monitoring the Owners' performance in carrying out the Duties and Responsibilities of the Owner as outlined in Section 1. b) The City shall assess the affirmative marketing efforts of the Owner to determine whether a sufficient number of racial and ethnic families have applied for vacant units. This determination will be made by reviewing the information provided on the Racial/Gender Form and Tenant Survey Form to determine the proportion of racial/gender participation versus overall participation. c) The City shall take the following corrective action if it is found that the Owner is not carrying out established procedures of affirmatively marketing units: . Notify the Owner in writing of any violations of the Owners Duties and Responsibilities. . The Owner will be given thirty (30) days upon receipt of written notification to provide evidence of compliance. Upon the Owner's request, the City will provide technical assistance. . If the Owner fails to comply with the Affirmative Marketing Policy and Monitoring Procedures the City may declare the loan in default. • • -4- v r EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET �� WASHINGTON. D.C. 20503 .-raw • November 19, 1993 THE DIRECTOR For go ME CIRCULAR NO. A-110 Revised. TO THE HEADS OF EXECUTIVE DEPARTMENTS AND ESTABLISHMENTS SUBJECT: Uniform Administrative Requirements for Grants and Agreements With Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations 1. Purpose. This Circular sets forth standards for obtaining consistency and uniformity among Federal agencies in the administration of grants to and agreements with institutions of higher education, hospitals, and other non-profit organizations. 2. Authority. Circular A-110 is issued under the authority of 31 U.S.C. 503 (the Chief Financial Officers Act) , 31 U.S.C. 1111, 41 U.S.C. :405 (the Office of Federal Procurement Policy Act) , Reorganization Plan No. 2 of 1970, and E.O. 11541 ("Prescribing the Duties of the Office of Management and Budget and the Domestic Policy Council in the Executive Office of the President") . 3 . Policy. Except as provided herein, the standards set forth in this Circular are applicable to all Federal agencies. If any statute specifically prescribes policies or specific requirements that differ from the standards provided herein, the provisions of the statute shall govern. The provisions of the sections of this Circular shall be applied by Federal agencies to recipients. Recipients shall apply the provisions of this Circular to subrecipients performing substantive work under grants and agreements that are passed through or awarded by the primary recipient, if such subrecipients are organizations described in paragraph 1. This Circular does not apply to grants, contracts, or other agreements between the Federal Government and units of State or local governments covered by OMB Circular A-102, "Grants and Cooperative Agreements with State and Local Governments, " and the Federal agencies' grants management common rule which standardized and codified the administrative requirements Federal agencies impose on State and local grantees. In addition, subawards and contracts to State or local governments are not covered by this Circular. However, this Circular applies to subawards made by State and local governments to organizations covered by this Circular. Federal agencies may apply the provisions of this Circular to commercial organizations, foreign governments, organizations under the jurisdiction of foreign governments, and international organizations. 4. Definitions. Definitions of key terms used in this Circular are contained in Section .2 in the Attachment. 5. Reauired Action. The specific requirements and responsibilities of Federal agencies and institutions of higher education, hospitals, and other non-profit organizations are set forth in this Circular. Federal agencies responsible for awarding and administering grants to and other agreements with organizations described in paragraph 1 shall adopt the language in the Circular unless different provisions are required by Federal statute or are approved by OMB. 6. 0MB Responsibilities. OMB will review agency regulations and implementation of this Circular, and will provide interpretations of policy requirements and assistance to insure effective and efficient implementation. Any exceptions will be subject to approval by OMB, as indicated in Section .4 in the Attachment. Exceptions will only be made in particular cases where adequate justification is presented. 7. Information Contact. Further information concerning this Circular may be obtained by contacting the Office of Federal Financial Management, Office of Management and Budget, Washington, DC 20503, Telephone (202) 395-3993. 8. Termination Review Date. This Circular will have a policy review three years from date of issuance. . 9. Effective Date. The standards set forth in this Circular which affect Federal agencies will be effective 30 days. after publication of the final revision in the Federal Register. Those standards which Federal agencies impose on grantees will be adopted by agencies in codified regulations within six months after publication in the Federal Register. Earlier implementation is encoura• -- 4- *� E. Panetta •irector Attachment -2- • Grants and Agreements with Institutions of Higher Education, and Other Non-Profit Organizations • Hospitals, SUBPART A - GENERAL Sec .1 Purpose. X .2 Definitions. .3 Effect on other issuances. .4 Deviations. X .5 Subawards. 1 SUBPART B - PRE-AWARD REQUIREMENTS . 10- Purpose. . 11 Pre-award policies. . 12 Forms for applying for Federal assistance. X . 13 Debarment and suspension. X . 14 Special award conditions. X . 15 Metric system of measurement. X . 16 Resource Conservation and Recovery Act. . 17 Certifications and representations. SUBPART C - POST-AWARD REQUIREMENTS Financial and Program Management .20 Purpose of financial and program management. X . 21 Standards for financial management systems. x . 22 Payment. .23 Cost sharing or matching. .24 Program income. .25 Revision of budget and program plans. k' .26 Non-Federal audits. K .27 Allowable costs. X .28 Period of availability of funds. • Property Standards X' . 30 Purpose of property standards. X . 31 Insurance coverage. .32 Real property. .33 Federally-owned and exempt property. Y .34 Equipment. )( . 35 Supplies and other expendable property. X . 36 Intangible property. X .37 Property trust relationship. 3 r Procurement Standards ,.40 Purpose of procurement standards. ,.41 Recipient responsibilities. k .42 Codes of conduct. x' .43 Competition. X .44 Procurement procedures. X .45 Cost and price analysis. X .46 Procurement records. X .47 Contract administration. ,.48 Contract provisions. . Reports and Records .50 Purpose of reperts and records. ,.51 Monitoring and reporting program performance. . 52 Financial reporting. .53 Retention and access requirements for records. Termination and Enforcement X .. 60 Purpose of termination and enforcement. • X . 61 Termination. • X . 62 Enforcement. , SUBPART D - AFTER-THE-AWARD REQUIREMENTS .70 Purpose. .71 Closeout procedures. subsequent adjustments and continuing responsibilities. - X .73 Collection of amounts due. APPENDIX A - CONTRACT PROVISIONS SUBPART A - General urpose. This Circular establishes uniform a- dministrate irements for Federal grants and a ments awarded to institute f higher educatio pitals, and other non-profit organizations. ing agencies shall not impose additional or into • nt r ' ements, except as provided in Sect' .4, and .14 or ss specifically require eral statute or executive order. o it izations that implement Federal programs for the State also subject to State requirements. .2 Definitions. (a) Accrued expenditures means the charges incurred by the recipient during a given period requiring the provision of 4 funds for: (1) goods and other tangible property received; • (2) services performed by employees, contractors, subrecipients, and other payees; and, (3) other amounts becoming owed under programs for which no current services or performance is required. (b) Accrued income means the sum of: (1) earnings during a given period from (i) services performed by the recipient, and* (ii) goods and other tangible property delivered to purchasers, and (2) amounts becoming owed to the recipient for which no current services or performance is required by the recipient. (c) Acquisition cost of equipment means the net invoice price of the equipment, including the cost of mcdificaticns, attachments, accessories, or auxiliary apparatus necessary to make the property usable for the purpose for which it was acquired. Other charges, such as the cost of installation, transportation, taxes, duty or protective in-transit insurance, shall be included or excluded from the unit acquisition cost in accordance with the recipient's regular accounting practices. (d) Advance means a payment made by Treasury check or other appropriate payment mechanism to a recipient upon its request either before outlays are made by the recipient or through the use of predetermined payment schedules. (e) Award means financial assistance that provides support or stimulation to accomplish a public purpose. Awards include grants and other agreements in the form of money or property in lieu of money, by the Federal Government to an eligible recipient. The term does not include: technical assistance, which provides services instead of money; other assistance in the form of loans, loan guarantees, interest subsidies, or insurance; direct payments of any kind to individuals; and, contracts which are required to be entered into and administered under procurement laws and regulations. (f) Cash contributions means the recipient's cash outlay, including the outlay of money contributed to the recipient by third parties. (g) Closeout means the process by which a Federal awarding agency determines that all applicable administrative actions and all required work of the award have been completed by the recipient and Federal awarding agency. (h) Contract means a procurement contract under an award or subaward, and a procurement subcontract under a recipient's or subrecipient's contract. 5 (i) Cost sharing or matching means that portion of project or program costs not borne by the Federal Government. (j) Date of completion means the date on which all work under an award is completed or the date on the award document, or any supplement or amendment thereto, on which Federal sponsorship ends. (k) Disallowed costs means those charges to an award that the Federal awarding agency determines to be unallowable, in accordance with the applicable Federal cost principles or other terms and conditions contained in the award. (1) Equipment means tangible nonexpendable •personal property including exempt property charged directly to the award having a useful life of more than one year and an acquisition cost of $5000 or more per unit. However, consistent with recipient policy, lower limits may be established. (m) Excess property means property under the control of any Federal awarding agency that, as determined by the head thereof, is no longer required for its needs or the discharge of its responsibilities. (n) Exempt property means tangible personal property acquired in whole or in part with Federal funds, where the Federal awarding agency has statutory authority to vest title in the recipient without further obligation to the Federal Government. An example of exempt property authority is contained in the Federal Grant and Cooperative Agreement Act (31 U.S.C. 6306) , for property acquired under an award to conduct basic or applied research by a non-profit institution of higher education or non-profit organization whose principal purpose is conducting scientific research. (o) Federal awarding agency means the Federal agency that provides an award to the recipient. (p) Federal funds authorized means the total amount of Federal funds obligated by the Federal Government for use by the recipient. This amount may include any authorized carryover of unobligated funds from prior funding periods when permitted by agency regulations or agency implementing instructions. (q) Federal share of real property, equipment, or supplies means that percentage of the property's acquisition costs and any improvement expenditures paid with Federal funds. (r) Funding period means the period of time when Federal funding is available for obligation by the recipient. 6 (s) Intangible property and debt instruments means, but is not • limited to, trademarks, copyrights, patents and patent applications and such property as loans, notes and other debt instruments, lease agreements, stock and other instruments of property ownership, whether considered tangible or intangible. (t) Obligations means the amounts of orders placed, contracts and grants awarded, services received and similar transactions during a given period that require payment by the recipient during the same or a future period. (u) Outlays or expenditures means charges made to the project or program. They may be reported on a cash or accrual basis. For reports prepared on a cash basis, outlays are the sum of cash disbursements for direct charges for goods and services, the amount of indirect expense charged, the value of third party in-kind contributions applied and the amount of cash advances and payments made to subrecipients. For reports prepared on an accrual basis, outlays are the sum of cash disbursements for direct charges for goods and services, the amount of indirect expense incurred, the value of in-kind contributions applied, and the net increase (or decrease) in the amounts owed by the recipient for goods and other property received, for services performed by employees, contractors, subrecipients and other payees and other amounts becoming owed under programs for which no current services or performance are required. (v) Personal property means property of any kind except real property. It may be tangible, having physical existence, or intangible, having no physical existence, such as copyrights, patents, or securities. (w) Prior approval means written approval by an authorized official evidencing prior consent. (x) Program income means gross income earned by the recipient that is directly generated by a supported activity or earned as a result of the award (see exclusions in paragraphs .24 (e) and (h) ) . Program income includes, but is not limited to, income-from fees for services performed, the use or rental of real Cr personal property acquired under federally-funded projects, the sale of commodities or items fabricated under an award, license fees and royalties on patents and copyrights, and interest on loans made with award funds. Interest earned on advances of Federal funds is not program income. Except as otherwise provided in Federal awarding agency regulations or the terms and conditions of the award, program income does not include the receipt of principal on loans, rebates, credits, discounts, etc. , or interest earned on any of them. 7 (y) project costs means all allowable costs, as set forth in the applicable Federal cost principles, incurred by a recipient and the value of the contributions made by third parties in accomplishing the objectives of the award during the project period. (z) Project period means the period established in the award document during which Federal sponsorship begins and ends. (aa) Property means, unless otherwise stated, real property, equipment, intangible property and debt instruments. (bb) Real property means land, including land improvements, structures and appurtenances thereto, but excludes movable machinery and equipment. (cc) Recipient means an organization receiving financial assistance directly from Federal awarding agencies to carry out a project or program. The term includes public and private institutions of higher education, public and private hospitals, and other quasi-public and private non-profit organizations such as, but not limited to, community action agencies, research institutes, educational associations, and health centers. The term may include commercial organizations, foreign or international organizations (such as agencies of the United Nations) which are recipients, subrecipients, or contractors or subcontractors of recipients or subrecipients at the discretion of the Federal awarding agency. The term does not include government-owned contractor-operated facilities or research centers providing continued support for mission-oriented, large-scale programs that are government-owned or controlled, or are designated as federally-funded research and development centers. (dd) Research and development means all research activities, both basic and applied, and all development activities that are supported at universities, colleges, and other non-profit institutions. "Research" is defined as a systematic study directed toward fuller scientific knowledge or understanding of the subject studied. "Development" is the systematic use of knowledge and understanding gained from research directed toward the production of useful materials, devices, systems, or methods, including design and development of prototypes and processes. The term research also includes activities involving the training of individuals in research techniques where such activities utilize the same facilities as other research and development activities and where such activities are not included in the instruction function. (ee) Small awards means a grant or cooperative agreement not exceeding the small purchase threshold fixed at 41 U.S.C. 403 (11) (currently $25, 000) . 8 (ff) Subaward means an award of financial assistance in the form of money, or property in lieu of money, made under an award by a recipient to an eligible subrecipient or by a subrecipient to a lower tier subrecipient. The term includes financial assistance when provided by any legal agreement, even if the agreement is called a contract, but does not include procurement of goods and services nor does it include any form of assistance which is excluded from the definition of "award" in paragraph (e) . (gg) Subrecipient means the legal entity to which a subaward is made and which is accountable to the recipient for the use of the funds provided. The term may include foreign or international organizations (such as agencies of the United Nations) at the discretion of the Federal awarding agency. (hh) Supplies means all personal property excluding equipment, intangible property, and debt instruments as defined in this section, and inventions of a contractor conceived or first actually reduced to practice in the performance of work under a funding agreement ("subject inventions") , as defined in 37 CFR part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts, and Cooperative Agreements. " (ii) Suspension means an action by a Federal awarding agency that temporarily withdraws Federal sponsorship under an award, pending corrective action by the recipient or pending a decision to terminate the award by the Federal awarding agency. Suspension of an award is a separate action from suspension under Federal agency regulations implementing E.O.s 12549 and 12689 , "Debarment and Suspension. " (jj ) Termination means the cancellation of Federal sponsorship, in whole or in part, under an agreement at any time prior to the date of completion. (kk) Third party in-kind contributions means the value of non- cash contributions provided by non-Federal third parties. Third party in-kind contributions may be in the form of real property, equipment, supplies and other expendable property, and the value of gbods and services directly benefiting and specifically identifiable to the project or program. (11) Unliguidated obligations, for financial reports prepared on a cash basis, means the amount of obligations incurred by the recipient that have not been paid. For reports prepared on an accrued expenditure basis, they represent the amount of obligations incurred by the recipient for which an outlay has not been recorded. 9 (mm) Unobliaated balance means the portion of the funds authorized by the Federal awarding agency that has not been obligated by the recipient and is determined by deducting the cumulative obligations from the cumulative funds authorized. (nn) Unrecovered indirect cost means the difference between the amount awarded and the amount which could have been awarded under the recipient's approved negotiated indirect cost rate. (oo) Working capital advance means a procedure where by funds are advanced to the recipient to cover its estimated disbursement needs for a given initial period. . 3 Effect on other issuances. For awards subject t• his C1 ular, all administrative requirements of codified - ogram regal- ' ons, program manuals, handbooks and other -- regulatory material hich are inconsistent with the requi - .ents of this Circular sha be superseded, except to the - ent they are required by sta - e, or authorized in acc• :ance with the deviations provisio in Section .4 . . 4 Deviations. The • - ice o Management and Budget (OMB) may grant exceptions for cla of grants or recipients subject to the requirements of this irc• -r when exceptions are not prohibited by statute. - •wever, in - se interest of maximum uniformity, exceptio from the require. - is of this Circular shall be permitte• •nly in unusual circums' - .ces. Federal awarding agenc ' - may apply more restrictive r- - irements to a class of rec' •ients when approved by OMB. Federa -warding agencies :y apply less restrictive requirements whe -warding small - •ands, except for those requirements which are st- utory. Exc=• ions on a case-by-case basis may also be made by Fede = - -rding agencies. . 5 Subawards. Unless sections of this Circular specifically exclude subrecipients from coverage, the provisions of this Circular shall be applied to subrecipients performing work under awards if such subrecipients are institutions of higher education, hospitals or other non-profit organizations. State and local government subrecipients are subject to the provisions of regulations implementing the grants management common rule, "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments, " published at 53 FR 8034 (3/11/88) . SUBPART B - Pre-Award Requirements . 10 ur . 11 through i es forms and instructions and e used in appl in awards. 10 .11 Pre-award polic ies. (a) Use of Grants and Cooperative Agreements, and Contract . In -ach instance, the Federal awarding agency shall deci• - on •e appropriate award instrument (i.e. , grant, coope- -tive a• eement, or contract) . The Federal Grant and Cooperative Agr-ement Act (31 U.S.C. 6301-08) governs the use •f grants, coop- ative agreements and contracts. A grant or coope ,tive agreement shall be used only when - principal purpose of a transaction is to accomplish a p • is purpose of suppo or stimulation authorized by Federal statute. The statu' -ry criterion for choosing betwee grants and cooperative agreements is that for the lat -r, "substantial involvement 's expected between the execu axe agency and the State, local • -vernment, or other recipi nt when carrying out the activi contemplated in the ag eement. " Contracts shall be used wh-n the principal pure a is acquisition of property or servi• es for the direct nefit or use of the Federal Government. (b) Public Notice and Pri .rity Settin . Federal awarding agencies shall notify e publi of its intended funding priorities for discreti- ary • -nt programs, unless funding priorities are establish- • by ederal statute. . 12 Forms for applying for 'ederal assistance. (a) Federal awarding agencie sha comply with the applicable report clearance requir= s.ents o 5 CFR part 1320, "Controlling Paperwork :urdens o the Public, " with regard to all forms used by e Federal - arding agency in place of or as a supplement • the Standard orm 424 (SF-424) series. (b) Applicants shall se the SF-424 serie or those forms and instructions prescribed by the Federal -warding agency. (c) For Federal p -grams covered by E.O. 123 "Intergover . -ntal Review of Federal Progr- "s, " the applicant shall complete the appropriate se- ions of the SF- 424 (Application for Federal Assistance) inch ating whether the appl ' ation was subject to review by the ate Single Point o Contact (SPOC) . The name and address • the SPOC for a • -rticular State can be obtained from the ' -deral award' g agency or the Catalog of Federal Domesti Assistance. The SPOC shall advise the applicant whether the pro-ram for which application is made has been selec• -d by t -t State for review. (d) ederal awarding agencies that do not use the SF-424 fo should indicate whether the application is subject to rev ew by the State under E.O. 12372. 11 . 13 Debarment and suspension. Federal awarding agencies and recipients shall comply with the nonprocurement debarment and suspension common rule implementing E.O.s 12549 and 12689, "Debarment and Suspension. " This common rule restricts subawards and contracts with certain parties that are debarred, suspended or otherwise excluded from or ineligible for participation in Federal assistance programs or activities. . 14 Special award conditions. If an applicant or recipient: (a) has a history of poor performance, (b) is not financially stable, (c) has a management system that does not meet the standards prescribed in this Circular, (d) has not conformed to the terms and conditions of a previous award, or (e) is not otherwise responsible, Federal awarding agencies may impose additional requirements as needed, provided that such applicant or recipient is notified in writing as to: the nature of the additional requirements, the reason why the additional requirements are being imposed, the nature of the corrective action needed, the time allowed for completing the corrective actions, and the method for requesting reconsideration of the additional requirements imposed. Any special conditions shall be promptly removed once the conditions that prompted them have been corrected. . 15 Metric system of measurement. The Metric Conversion Act, as amended by the Omnibus Trade and Competitiveness Act (15 U. S.C. 205) declares that the metric system is the preferred measurement system for U.S. trade and commerce. The Act requires each Federal agency to establish a date or dates in consultation with the Secretary of Commerce, when the metric system of measurement will be used in the agency's procurements, grants, and other business-related activities. Metric implementation may take longer where the use of the system is initially impractical or likely to cause significant inefficiencies in the accomplishment of federally-funded activities. Federal awarding agencies shall follow the provisions of E.O. 12770, "Metric Usage in Federal Government Programs. " . 16 Resource Conservation and Recovery Act (RCRA) (Pub. L. 94-580 codified at 42 U.S.C. 6962) . Under the Act, any State agency or agency of a political subdivision of a State which is using appropriated Federal funds must comply with Section 6002. Section 6002 requires that preference be given in procurement programs to the purchase of specific products containing recycled materials identified in guidelines developed by the Environmental Protection Agency (EPA) (40 CFR parts 247-254) . Accordingly, State and local institutions of higher education, hospitals, and non-profit organizations that receive direct Federal awards or other Federal funds shall give preference in their procurement programs funded with Federal funds to the purchase of recycled products pursuant to the EPA guidelines. 12 . 17 Certifications and representations. Unless ited • by sta or codified regulation, each Federa ding agency is authorize d encouraged to allow re ' ' ents to submit certifications an resentation ired by statute, executive order, or regulation on a basis, if the recipients have ongoing and contiiu' ati ' s with the agency. Annual certification representations be signed by responsible offici ith the authority to ensure re ' nts' compliance the pertinent requirements. SUBPART C - Post-Award Requirements Financial and Program Management . 20 Purpose of financial and program management. ions u h .28 prescribe standards nancial management system , s for maki ents and rules for: satisfying cost sharing and irements, accounting for program income, bu evision approvals, ma ' s determini owability of cost, and establishing fund a • ility. .21 Standards for financial management systems. (a) Federal awarding agencies shall require recipients to relate financial data to performance data and develop unit cost information whenever practical. (b) Recipients' financial management systems shall provide for the following. (1) Accurate, current and complete disclosure of the financial results of each federally-sponsored project or program in accordance with the reporting requirements set forth in Section .52 . If a Federal awarding agency requires reporting on an accrual basis from a recipient that maintains its records on other than an accrual basis, the recipient shall not be required to establish an accrual accounting system. These recipients may develop such accrual data for its reports on the basis of an analysis of the documentation on hand. (2) Records that identify adequately the source and application of funds for federally-sponsored activities. These records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest. (3) Effective control over and accountability for all funds, property and other assets. Recipients shall 13 • adequately safeguard all such assets and assure they are used solely for authorized purposes. (4) Comparison of outlays with budget amounts for each award. Whenever appropriate, financial information should be related to performance and unit cost data. (5) Written procedures to minimize the time elapsing between the transfer of funds to the recipient from the U.S. Treasury and the issuance or redemption of checks, warrants or payments by other means for program purposes by the recipient. To the extent that the provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101-453) govern, payment methods of State agencies, instrumentalities, and fiscal agents shall be consistent with CMIA Treasury-State Agreements or the CMIA default procedures codified at 31 CFR part 205, "Withdrawal of Cash from the Treasury for Advances under Federal Grant and Other Programs. " (6) Written procedures for determining the reasonableness, allocability and allowability of costs in accordance with the provisions of the applicable Federal cost principles and the terms and conditions of the award. (7) Accounting records including cost accounting records that are supported by source documentation. (c) Where the Federal Government guarantees or insures the repayment of money borrowed by the recipient, the Federal awarding agency, at its discretion, may require adequate bonding and insurance if the bonding and insurance requirements of the recipient are not deemed adequate to protect the interest of the Federal Government. (d) The Federal awarding agency may require adequate fidelity bond coverage where the recipient lacks sufficient coverage to protect the Federal Government's interest. (e) Where bonds are required in the situations described above, the bonds shall be obtained from companies holding certificates of authority as acceptable sureties, as prescribed in 31 CPR part 223 , "Surety Companies Doing Business with the United States. " 14 .22 Payment. (a) Payment methods shall minimize the time elapsing between the transfer of funds from the United States Treasury and the issuance or redemption of checks, warrants, or payment by other means by the recipients. Payment methods of State agencies or instrumentalities shall be consistent with Treasury-State CMIA agreements or default procedures codified at 31 CFR part 205. (b) Recipients are to be paid in advance, provided they maintain or demonstrate the willingness to maintain: (1) written procedures that minimize the time elapsing between the transfer of funds and disbursement by the recipient, and (2) financial management systems that meet the standards for fund control and accountability as established in Section .21. Cash advances to a recipient organization shall be limited to the minimum amounts needed and be timed to be in accordance with the actual, immediate cash requirements of the recipient organization in carrying out the purpose of the approved program or project. The timing and amount of cash advances shall be as close as is administratively feasible to the actual disbursements by the recipient organization for direct program or project costs and the proportionate share of any allowable indirect costs. (c) Whenever possible, advances shall be consolidated to cover anticipated cash needs for all awards made by the Federal awarding agency to the recipient. (1) Advance payment mechanisms include, but are not limited to, Treasury check and electronic funds transfer. (2) Advance payment mechanisms are subject to 31 CFR part 205. (3) Recipients shall be authorized to submit requests for advances and reimbursements at least monthly when electronic fund transfers are not used. (d) Requests for Treasury check advance payment shall be submitted on SF-270 , "Request for Advance or Reimbursement, " or other forms as may be authorized by OMB. This form is not to be used when Treasury check advance payments are made to the recipient automatically through the use of a predetermined payment schedule or if precluded by special Federal awarding agency instructions for electronic funds transfer. (e) Reimbursement is the preferred method when the requirements in paragraph (b) cannot be met. Federal awarding agencies may also use this method on any construction agreement, or 15 A if the major portion of the construction project is accomplished through private market financing or Federal loans, and the Federal assistance constitutes a minor portion of the project. (1) When the reimbursement method is used, the Federal awarding agency shall make payment within 30 days after receipt of the billing, unless the billing is improper. (2) Recipients shall be authorized to submit request for reimbursement at least monthly when electronic funds transfers are not used. (f) If a recipient cannot meet the criteria for advance payments and the Federal awarding agency has determined that reimbursement is not feasible because the recipient lacks sufficient working capital, the Federal awarding agency may provide cash on a working capital advance basis. Under this procedure, the Federal awarding agency shall advance cash to the recipient to cover its estimated disbursement needs for an initial period generally geared to the awardee's disbursing cycle. Thereafter, the Federal awarding agency shall reimburse the recipient for its actual cash disbursements. The working capital advance method of payment shall not be used for recipients unwilling or unable to provide timely advances to their subrecipient to meet the subrecipient's actual cash disbursements. (g) To the extent available, recipients shall disburse funds available from repayments to and interest earned on a revolving fund, program income, rebates, refunds, contract settlements, audit recoveries and interest earned on such funds before requesting additional cash payments. (h) Unless otherwise required by statute, Federal awarding agencies shall not withhold payments for proper charges made by recipients at any time during the project period unless (1) or (2) apply. (1) A recipient has failed to comply with the project objectives, the terms and conditions of the award, or Federal reporting requirements. (2) The recipient or subrecipient is delinquent in a debt to the United States as defined in OMB Circular A-129, "Managing Federal Credit Programs. " Under such conditions, the Federal awarding agency may, upon reasonable notice, inform the recipient that payments shall not be made for obligations incurred after a specified date until the conditions are corrected or the indebtedness to the Federal Government is liquidated. 16 (i) Standards governing the use of banks and other institutions as depositories of funds advanced under awards are as follows. (1) Except for situations described in paragraph (i) (2) , Federal awarding agencies shall not require separate depository accounts for funds provided to a recipient or establish any eligibility requirements for depositories for funds provided to a recipient. However, recipients must be able to account for the receipt, obligation and expenditure of funds. (2) Advances of Federal funds shall be deposited and maintained in insured accounts whenever possible. (j ) Consistent with the national goal of expanding the opportunities for women-owned and minority-owned business enterprises, recipients shall be encouraged to use women- owned and minority-owned banks (a bank which is owned at least 50 percent by women or minority group members) . (k) Recipients shall maintain advances of Federal funds in interest bearing accounts, unless (1) , (2) or (3) apply. (1) The recipient receives less than $120, 000 in Federal awards per year. (2) The best reasonably available interest bearing account would not be expected to earn interest in excess of $250 per year on Federal cash balances. (3) The depository would require an average or minimum balance so high that it would not be feasible within the expected Federal and non-Federal cash resources. (1) For those entities where CMIA and its implementing regulations do not apply, interest earned on Federal advances deposited in interest bearing accounts shall be remitted annually to Department of Health and Human Services, Payment Management System, Rockville, MD 20852 . Interest amounts up to $250 per year may be retained by the recipient for administrative expense. State universities and hospitals shall comply with CMIA, as it pertains to interest. If an entity subject to CMIA uses its own funds to pay pre-award costs for discretionary awards without prior written approval from the Federal awarding agency, it waives its right to recover the interest under CMIA. (m) Except as noted elsewhere in this Circular, only the following forms shall be authorized for the recipients in requesting advances and reimbursements. Federal agencies 17 l�� • • shall not require more than an original and two copies of these forms. (1) SF-270, Request for Advance or Reimbursement. Each Federal awarding agency shall adopt the SF-270 as a standard form for all nonconstruction programs when electronic funds transfer or predetermined advance methods are not used. Federal awarding agencies, however, have the option of using this form for construction programs in lieu of the SF-271, "Outlay Report and Request for Reimbursement for Construction Programs. " (2) SF-271, Outlay Report and Request for Reimbursement for Construction Programs. Each Federal awarding agency shall adopt the SF-271 as the standard form to be used for requesting reimbursement for construction programs. However, a Federal awarding agency may substitute the SF-270 when the Federal awarding agency determines that it provides adequate information to meet Federal needs. . 23 Cost sharing or matching. (a) 11 contributions, including cash and third part in-kind, s = 11 be accepted as part of the recipient's c• t sharing or mat • 'ng when such contributions meet all of e following criter'• - . (1) Are v- ifiable from the recipient' records. (2) Are not i luded as contributi •ns for any other federally-a •sted project • program. (3) Are necessary an• reaso. :ble for proper and efficient accomplishment of • oj-ect or program objectives. (4) Are allowable under the -pplicable cost principles. (5) Are not paid • the Federal overnment under another award, exce• where authorize• by Federal statute to be used for ••st sharing or matchi (6) Are p-•vided for in the approved bu• --et when required by • e Federal awarding agency. (7) onform to other provisions of this Circul- , as applicable. (b) Unrecovered indirect costs may be included as part of • •st sharing or matching only with the prior approval of the Federal awarding agency. 18 l -king any fund or budget transfers between the two type- of wo supported. (k) For bo construction and nonconstruction awards, ederal awarding = •encies shall require recipients to - ' fy the Federal awa •ing agency in writing promptly enever the amount of Fe. = al authorized funds is expe ed to exceed the needs of the re 'pient for the project • - iod by more than $5000 or five per -nt of the Federal - •ard, whichever is greater. This noti ' cation shall n- be required if an application for additi- al fundi - is submitted for a continuation award. • (1) When requesting approval f- .udget revisions, recipients shall use the budget fo.:•s tha were used in the application unless the Federal aw- ding agen • indicates a letter of request suffices. (m) Within 30 cale..ar days from the date o • receipt of the request for dget revisions, Federal awa .ing agencies shall rev' the request and notify the recipient whether the bud- -t revisions have been approved. If •e revision is still nder consideration at the end of 30 cale -ar days, th- ederal awarding agency shall inform the reci• ' ent in iting of the date when the recipient may expect th: decision. . 26 Non-Federal audits. (a) Recipients and subrecipients that are institutions of higher education or other non-profit organizations shall be subject to the audit requirements contained in OMB Circular A-133 , "Audits of Institutions of Higher Education and Other Non- Profit Institutions. " (b) State and local governments shall be subject to the audit requirements contained in the Single Audit Act (31 U. S.C. 7501-7) and Federal awarding agency regulations implementing OMB Circular A-128 , "Audits of State and Local Governments. " (c) Hospitals not coveted by the audit provisions of OMB Circular A-133 shall be subject to the audit requirements of the Federal awarding agencies. (d) Commercial organizations shall be subject to the audit requirements of the Federal awarding agency or the prime recipient as incorporated into the award document. . 27 Allowable costs. For each kind of recipient, there is a set of Federal principles for determining allowable costs . Allowability of costs shall be determined in accordance with the 25 cost principles applicable to the entity incurring the costs. Thus, allowability of costs incurred by State, local or federally-recognized Indian tribal governments is determined in accordance with the provisions of OMB Circular A-87, "Cost Principles for State and Local Governments. " The allowability of costs incurred by non-profit organizations is determined in accordance with the provisions of OMB Circular A-122, "Cost Principles for Non-Profit Organizations. " The allowability of costs incurred by institutions of higher education is determined in accordance with the provisions of OMB Circular A-21, "Cost Principles for Educational Institutions. " The allowability of costs incurred by hospitals is determined in accordance with the provisions of Appendix E of 45 CFR part 74, "Principles for Determining Costs Applicable to Research and Development Under Grants and Contracts with Hospitals. " The allowability of costs incurred by commercial organizations and those non-profit organizations listed in Attachment C to Circular A-122 is determined in accordance with the provisions of the Federal Acquisition Regulation (FAR) at 48 CFR part 31. .28 Period of availability of funds. Where a funding period is specified, a recipient may charge to the grant only allowable costs resulting from obligations incurred during the funding period and any pre-award costs authorized by the Federal awarding agency. Property Standards . 30 Purpose of property standards. Sections .31 through .37 set forth uniform standards governing management and disposition of property furnished by the Federal Government whose cost was charged to a project supported by a Federal award. Federal awarding agencies shall require recipients to observe these standards under awards and shall not impose additional requirements, unless specifically required by Federal statute. The recipient may use its own property management standards and procedures provided it observes the provisions of Sections .31 through .37. . 31 Insurance coverage. Recipients shall, at a minimum, provide the equivalent insurance coverage for real property and equipment acquired with 'Federal funds as provided to property owned by the recipient. ' Federally-owned property need not be insured unless required by the terms and conditions of the award. Real property. Each Federal awarding agency s prescribe re recipients conc e use and disposition of real propert le or in part under awards. Unless e provided by statute, suc a , shall contain the following. 26 • : ) Title to real property shall vest in the recipient subject to the condition that the recipient shall use the real property for the authorized purpose of the project as lo. g = s it is needed and shall not encumber the property wit out a• •roval of the Federal awarding agency. (b) The ecipient shall obtain written approval by the .-deral award , g agency for the use of real property in ot•er federa y-sponsored projects when the recipient d- termines that the •roperty is no longer needed for the p •ose of the original • oject. Use in other projects shall .e limited to those unde federally-sponsored projects (i.e , awards) or programs tha• have purposes consistent with • ose authorized for support b the Federal awarding agency. (c) When the real pr•• •erty is no longer need- • as provided in paragraphs (a) an' (b) , the recipient s . 11 request disposition instru • ions from the Feder-1 awarding agency or its successor Federa awarding agency The Federal awarding agency shall observe • e or more of e following disposition instructio - . (1) The recipient may be •ermit -d to retain title without further obligation to • e :ederal Government after it compensates the Federal Government for that percentage =t value of the property of the current fair mark p p y attributable to the Fe• -r participation in the project. (2) The recipient may b- directed o sell the property under guidelines p ovided by th Federal awarding agency and pay t - Federal Gover ent for that percentage of t - current fair mar et value of the property attri• table to the Federa participation in the project ( - ter deducting actual d reasonable selling and -ix-up expenses, if any, om the sales proceeds) . When the recipient is autho ized or required • sell the property, proper sa es procedures shall be -stablished that provide for competition to the ext: t practicable and result in the hi hest possib e return. (3) The . ecipient may be directed to transfer title to the pr• •erty to the Federal Government or to an elig' le •ird party provided that, in such cases, the rec ient all be entitled to compensation for its attributa le percentage of the current fair market value of the property. 27 I410 . - 3 Federally-owned and exempt property. (a) Fed, ally-owned property. (1) T le to federally-owned property remains vested in a e Fed- al Government. Recipients shall submit annu- ly an i entory listing of federally-owned propert in their stody to the Federal awarding agency. pon completi••n of the award or when the propert is no longer ne—ed, the recipient shall report • e property to the Fede-al awarding agency for fur - Federal agency utili =tion. (2) If the Federal a arding agency has o further need for the property, it - all be declar- • excess and reported to the General Serv'ces Admin. , ration, unless the Federal awarding age has - atutory authority to dispose of the propert b alternative methods (e.g. , the authority provided b the Federal Technology Transfer Act (15 U.S. 3 0 (I) ) to donate research equipment to educat' , al an. non-profit organizations in accordance wi .0. 12821 "Improving Mathematics and Science Educ - ion in Suppo • of the National Education Goa = . ") Appropriate i tructions shall be issued to - recipient by the Fe. -ral awarding agency. (b) Exempt proper- When statutory authorit exists, the Federal awa ing agency has the option to v- -t title to property quired with Federal funds in the r=cipient without urther obligation to the Federal Gove "ent and under onditions the Federal awarding agency con 'ders app priate. Such property is "exempt property. " hould a F eral awarding agency not establish conditions, ti le to xempt property upon acquisition shall vest in the re 'pient without further obligation to the Federal Government. . 34 Equipment. (a) Title to equipment acquired by a recipient with Federal funds shall vest in the recipient, subject to conditions of this section. (b) The recipient shall not use equipment acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute, for as long as the Federal Government retains an interest in the equipment. (c) The recipient shall use the equipment in the project or program for which it was acquired as long as needed, whether or not the project or program continues to be supported by 28 Federal funds and shall not encumber the property without approval of the Federal awarding agency. When no longer needed for the original project or program, the recipient shall use the equipment in connection with its other federally-sponsored activities, in the following order of priority: (i) Activities sponsored by the Federal awarding agency which funded the original project, then (ii) activities sponsored by other Federal awarding agencies. (d) During the time that equipment is used on the project or program for which it was acquired, the recipient shall make it available for use on other projects or programs if such other use will not interfere with the work on the project or program for which the equipment was originally acquired. First preference for such other use shall be given to other projects or programs sponsored by the Federal awarding agency that financed the equipment; second preference shall be given to projects or programs sponsored by other Federal awarding agencies. If the equipment is owned by the Federal Government, use on other activities not sponsored by the Federal Government shall be permissible if authorized by the Federal awarding agency. User charges shall be treated as program income. (e) When acquiring replacement equipment, the recipient may use the equipment to be replaced as trade-in or sell the equipment and use the proceeds to offset the costs of the replacement equipment subject to the approval of the Federal awarding agency. (f) The recipient's property management standards for equipment acquired with Federal funds and federally-owned equipment shall include all of the following. (1) Equipment records shall be maintained accurately and shall include the following information. (i) A description of the equipment. (ii) Manufacturer's serial number, model number, Federal stock number, national stock number, or other identification number. (iii) Source of the equipment, including the award number. (iv) Whether title vests in the recipient or the Federal Government. (v) Acquisition date (or date received, if the equipment was furnished by the Federal Government) and cost. 29 11111 (vi) Information from which one can calculate the percentage of Federal participation in the cost of the equipment (not applicable to equipment furnished by the Federal Government) . (vii) Location and condition of the equipment and the date the information was reported. / (viii) Unit acquisition cost. (ix) Ultimate disposition data, including date of disposal and sales price or the method used to determine current fair market value where a recipient compensates the Federal awarding agency for its share. (2) Equipment owned by the Federal Government shall be identified to indicate Federal ownership. (3) A physical inventory of equipment shall be taken and the results reconciled with the equipment records at least once every two years. Any differences between quantities determined by the physical inspection and those shown in the accounting records shall be investigated to determine the causes of the difference. The recipient shall, in connection with the inventory, verify the existence, current utilization, and continued need for the equipment. (4) A control system shall be in effect to insure adequate safeguards to prevent loss, damage, or theft of the equipment. Any loss, damage, or theft of equipment shall be investigated and fully documented; if the equipment was owned by the Federal Government, the recipient shall promptly notify the Federal awarding agency. (5) Adequate maintenance procedures shall be implemented to keep the equipment in good condition. (6) Where the recipient is authorized or required to sell the equipment, proper sales procedures shall be established which provide for competition to the extent practicable and result in the highest possible return. (g) When the recipient no longer needs the equipment, the equipment may be used for other activities in accordance with the following standards. For equipment with a current per unit fair market value of $5000 or more, the recipient may retain the equipment for other uses provided that_ compensation is made to the original Federal awarding agency 30 • or its successor. The amount of compensation shall be computed by applying the percentage of Federal participation in the cost of the original project or program to the current fair market value of the equipment. If the recipient has no need for the equipment, the recipient shall request disposition instructions from the Federal awarding agency. The Federal awarding agency shall determine whether the equipment can be used to meet the agency's requirements. If no requirement exists within that agency, the availability of the equipment shall be reported to the General Services Administration by the Federal awarding agency to determine whether a requirement for the equipment exists in other Federal agencies. The Federal awarding agency shall issue instructions to the recipient no later than 120 calendar days after the recipient's request and the following procedures shall govern. (1) If so instructed or if disposition instructions are not issued within 120 calendar days after the recipient's request, the recipient shall sell the equipment and reimburse the Federal awarding agency an amount • computed by applying to the sales proceeds the percentage of Federal participation in the cost of the original project or program. However, the recipient shall be permitted to deduct and retain from the Federal share $500 or ten percent of the proceeds, whichever is less, for the recipient's selling and handling expenses. (2) If the recipient is instructed to ship the equipment elsewhere, the recipient shall be reimbursed by the Federal Government by an amount which is computed by applying the percentage of the recipient's participation in the cost of the original project or program to the current fair market value of the equipment, plus any reasonable shipping or interim storage costs incurred. (3) If the recipient is instructed to otherwise dispose of the equipment, the recipient shall be reimbursed by the Federal awarding agency for such costs incurred in its disposition. (4) The Federal awarding agency may reserve the right to transfer the title to the Federal Government or to a third party named by the Federal Government when such third party is otherwise eligible under existing statutes. Such transfer shall be subject to the following standards. 31 C (i) The equipment shall be appropriately identified in the award or otherwise made • known to the recipient in writing. (ii) The Federal awarding agency shall issue disposition instructions within 120 calendar days after receipt of a final inventory. The final inventory shall list all equipment acquired with grant funds and federally-owned equipment. If the Federal awarding agency fails to issue disposition instructions within the 120 calendar day period, the recipient shall apply the standards of this section, as appropriate. (iii) When the Federal awarding agency exercises its right to take title, the equipment shall be subject to the provisions for federally- owned equipment. . 35 Supplies and other expendable property. (a) Title to supplies and other expendable property shall vest in the recipient upon acquisition. If there is a residual inventory of unused supplies exceeding $5000 in total aggregate value upon termination or completion of the project or program and the supplies are not needed for any other federally-sponsored project or program, the recipient shall retain the supplies for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of compensation shall be computed in the same manner as for equipment. (b) The recipient shall not use supplies acquired with Federal funds to provide services to non-Federal outside organizations for a fee that is less than private companies charge for equivalent services, unless specifically authorized by Federal statute as long as the Federal Government retains an interest in the supplies. . 36 Intangible proprty. (a) The recipient may copyright any work that is subject to copyright and was developed, or for which ownership was purchased, under an award. The Federal awarding agency(ies) reserve a royalty-free, nonexclusive and irrevocable right to reproduce, publish, or otherwise use the work for Federal purposes, and to authorize others to do so. (b) Recipients are subject to applicable regulations governing patents and inventions, including government-wide 32 regulations issued by the Department of Commerce at 37 CFR part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements. " (c) Unless waived by the Federal awarding agency, the Federal Government has the right to (1) and (2) . (1) Obtain, reproduce, publish or otherwise use the data first produced under an award. (2) Authorize others to receive, reproduce, publish, or otherwise use such data for Federal purposes. (d) Title to intangible property and debt instruments acquired under an award or subaward vests upon acquisition in the recipient. The recipient shall use that property for the originally-authorized purpose, and the recipient shall not encumber the property without approval of the Federal awarding agency. When no longer needed for the originally authorized purpose, disposition of the intangible property shall occur in accordance with the provisions of paragraph . 34 (g) . . 37 Property trust relationship. Real property, equipment, intangible property and debt instruments that are acquired or improved with Federal funds shall be held in trust by the recipient as trustee for the beneficiaries of the project or program under which the property was acquired or improved. Agencies may require recipients to record liens or other appropriate notices of record to indicate that personal or real property has been acquired or improved with Federal funds and that use and disposition conditions apply to the property. Procurement Standards .40 Purpose of procurement standards. Sections .41. through .4:3 set forth standards for use by recipients in establishing procedures for the procurement of supplies and other expendable property, equipment, real property and other services with Federal funds. These standards are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and executive orders. No additional procurement standards or requirements shall be imposed by the Federal awarding agencies upon recipients, unless specifically required by Federal statute or executive order or approved by OMB. .41 Recipient responsibilities. The standards contained in this section do not relieve the recipient of the contractual responsibilities arising under its contract(s) . The recipient is the responsible authority, without recourse to the Federal- 33 awarding agency, regarding the settlement and satisfaction of all contractual and administrative issues arising out of procurements entered into in support of an award or other agreement. This includes disputes, claims, protests of award, source evaluation or other matters of a contractual nature. Matters concerning violation of statute are to be referred to such Federal, State or local authority as may have proper jurisdiction. .42 Codes of conduct. The recipient shall maintain written standards of conduct governing the performance of its employees engaged in the award and administration of contracts. No employee, officer, or agent shall participate in the selection, award, or administration of a contract supported by Federal funds if a real or apparent conflict of interest would be involved. Such a conflict would arise when the employee, officer, or agent, any member of his or her immediate family, his or her partner, or ' an organization which employs or is about to employ any of the parties indicated herein, has a financial or other interest in the firm selected for an award. The officers, employees, and agents of the recipient shall neither solicit nor accept gratuities, favors, or anything of monetary value from contractors, or parties to subagreements. However, recipients may set standards for situations in which the financial interest is not substantial or the gift is an unsolicited item of nominal value. The standards of conduct shall provide for disciplinary actions to be applied for violations of such standards by officers, employees, or agents of the recipient. .43 Competition. All procurement transactions shall be conducted in a manner to provide, to the maximum extent practical, open and free competition. The recipient shall be alert to organizational conflicts of interest as well as noncompetitive practices among contractors that may restrict or eliminate competition or otherwise restrain trade. In order to ensure objective contractor performance and eliminate unfair competitive advantage, contractors that develop or draft specifications, requirements, statements of work, invitations for bids and/or requests for proposals shall be excluded from competing for such procurements. Awards shall be made to the bidder or offeror whose bid or offer is responsive to the solicitation and is most advantageous to the recipient, price, quality and other factors considered. Solicitations shall clearly set forth all requirements that the bidder or offeror shall fulfill in order for the bid or offer to be evaluated by the recipient. Any and all bids or offers may be rejected when it is in the recipient's interest to do so. . 44 Procurement procedures. (a) All recipients shall establish written procurement procedures. These procedures shall provide for, at a minimum, that (1) , (2) and (3) apply. 34 (1) Recipients avoid purchasing unnecessary items. (2) Where appropriate, an analysis is made of lease and purchase alternatives to determine which would be the most economical and practical procurement for the Federal Government. (3) Solicitations for goods and services provide for all of the following. (i) A clear and accurate description of the technical requirements for the material, product or service to be procured. In competitive procurements, such a description shall not contain features which unduly restrict competition. (ii) Requirements which the bidder/offeror must fulfill and all other factors to be used in evaluating bids or proposals. (iii) A description, whenever practicable, of technical requirements in terms of functions to be performed or performance required, including the range of acceptable characteristics or minimum acceptable standards. (iv) The specific features of "brand name or equal" descriptions that bidders are required to meet when such items are included in the solicitation. (v) The acceptance, to the extent practicable and economically feasible, of products and services dimensioned in the metric system of measurement. (vi) Preference, to the extent practicable and economically feasible, for products and services that conserve natural resources and protect the environment and are energy efficient. (b) Positive efforts shall be made by recipients to utilize small businesses, minority-owned firms, and women's business enterprises, whenever possible. Recipients of Federal awards shall take all of the following steps to further this goal. 35 (1) Ensure that small businesses, minority-owned firms, and women's business enterprises are used to the fullest extent practicable. (2) Make information on forthcoming opportunities available and arrange time frames for purchases and contracts to encourage and facilitate participation by small businesses, minority-owned firms, and women's business enterprises. (3) Consider in the contract process whether firms competing for larger contracts intend to subcontract with small businesses, minority-owned firms, and women's business enterprises. (4) Encourage contracting with consortiums of small businesses, minority-owned firms and women's business enterprises when a contract is too large for one of these firms to handle individually. (5) Use the services and assistance, as appropriate, of such organizations as the Small Business Administration and the Department of Commerce's Minority Business Development Agency in the solicitation and utilization of small businesses, minority- owned firms and women's business enterprises. (c) The type of procuring instruments used (e.g. , fixed price contracts, cost reimbursable contracts, purchase orders, and incentive contracts) shall be determined by the recipient but shall be appropriate for the particular procurement and for promoting the best interest of the program or project involved. The "cost-plus-a-percentage-of-cost" or "percentage of construction cost" methods of contracting shall not be used. (d) Contracts shall be made only with responsible contractors who possess the potential ability to perform successfully under the terms and conditions of the proposed procurement. Consideration shall be given to such matters as contractor integrity, record of past performance, financial and technical resources or accessibility to other necessary resources. In certain circumstances, contracts with certain parties are restricted by agencies' implementation of E.O.s 12549 and 12689, "Debarment and Suspension. " (e) Recipients shall, on request, make available for the Federal awarding agency, pre-award review and procurement documents, such as request for proposals or invitations for bids, independent cost estimates, etc. , when any of the following conditions apply. 36 • (1) A recipient's procurement procedures or operation fails to comply with the procurement standards in the Federal awarding agency's implementation of this Circular. (2) The procurement is expected to exceed the small purchase threshold fixed at 41 U.S.C. 403 (11) (currently $25, 000) and is to be awarded without competition or only one bid or offer is received in response to a solicitation. (3) The procurement, which is expected to exceed the small purchase threshold, specifies a "brand name" product. (4) The proposed award over the small purchase threshold is to be awarded to other than the apparent low bidder under a sealed bid procurement. (5) A proposed contract modification changes the scope of a contract or increases the contract amount by more than the amount of the small purchase threshold. .45 Cost and price analysis. Some form of cost or price analysis shall be made and documented in the procurement files in connection with every procurement action. Price analysis may be accomplished in various ways, including the comparison of price quotations submitted, market prices and similar indicia, together with discounts. Cost analysis is the review and evaluation of each element of cost to determine reasonableness, allocability and allowability. .46 Procurement records. Procurement records and files for purchases in excess of the small purchase threshold shall include the following at a minimum: (a) basis for contractor selection, (b) justification for lack of competition when competitive bids or offers are not obtained, and (c) basis for award cost or price. .47 Contract administration. A system for contract administration shall be maintained to ensure contractor conformance with the terms, conditions and specifications of the contract and to ensure adequate and timely follow up of all purchases. Recipients shall evaluate contractor performance and document, as appropriate, whether contractors have met the terms, conditions and specifications of the contract. .48 Contract provisions. The recipient shall include, in addition to provisions to define a sound and complete agreement, the following provisions in all contracts. The following provisions shall also be applied to subcontracts. (a) Contracts in excess of the small purchase threshold shall contain contractual provisions or conditions that allow for 37 administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provide for such remedial actions as may be appropriate. (b) All contracts in excess of the small purchase threshold shall contain suitable provisions for termination by the recipient, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. (c) Except as otherwise required by statute, an award that requires the contracting (or subcontracting) for construction or facility improvements shall provide for the recipient to follow its own requirements relating to bid guarantees, performance bonds, and payment bonds unless the construction contract or subcontract exceeds $100, 000. For those contracts or subcontracts exceeding $100, 000, the Federal awarding agency may accept the bonding policy and requirements of the recipient, provided the Federal awarding agency has made a determination that the Federal Government's interest is adequately protected. If such a determination has not been made, the minimum requirements shall be as follows. (1) A bid guarantee from each bidder equivalent to five percent of the bid price. The "bid guarantee" shall consist of a firm commitment such as a bid bond, certified check, or other negotiable instrument accompanying a bid as assurance that the bidder shall, upon acceptance of his bid, execute such contractual documents as may be required within the time specified. (2) A performance bond on the part of the contractor for 100 percent of the contract price. A "performance bond" is one executed in connection with a contract to secure fulfillment of all the contractor's obligations under such contract. (3) A payment bond on the part of the contractor for 100 percent of the contract price. A "payment bond" is one executed in connection with a contract to assure payment as required by statute of all persons supplying labor and material in the execution of the work provided for in the contract. (4) Where bonds are required in the situations described herein, the bonds shall be obtained from companies holding certificates of authority as acceptable - 38 sureties pursuant to 31 CFR part 223 , "Surety Companies Doing Business with the United States. " (d) All negotiated contracts (except those for less than the small purchase threshold) awarded by recipients shall include a provision to the effect that the recipient, the Federal awarding agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers and records of the contractor which are directly pertinent to a specific program for the purpose of making audits, examinations, excerpts and transcriptions. (e) All contracts, including small purchases, awarded by recipients and their contractors shall contain the procurement provisions of Appendix A to this Circular, as • applicable. Reports and Records Purpose of reports and records. Sections through • forth the procedures f ' oring and reporting on the recipie and program performance and the necessa reporting hey also set forth reco ion requirements. . 51 Monitoring and reporting program performance. (a) Recipients are responsible for managing and monitoring each project, program, subaward, function or activity supported by the award. Recipients shall monitor subawards to ensure subrecipients have met the audit requirements as delineated in Section . 26. (b) The Federal awarding agency shall prescribe the frequency with which the performance reports shall be submitted. Except as provided in paragraph .51(f) , performance reports shall not be required more frequently than quarterly or, less frequently than annually. Annual reports shall be due 90 calendar days after the grant year; quarterly or semi-annual reports shall be due 30 days after the reporting period. The Federal awarding agency may require annual reports before the anniversary dates of multiple year awards in lieu of these requirements. The final performance reports are due 90 calendar days after the expiration or termination of the award. (c) If inappropriate, a final technical or performance report shall not be required after completion of the project. (d) When required, performance reports shall generally contain, for each award, brief information on each of the following. 39 (1) A comparison of actual accomplishments with the goals and objectives established for the period, the findings of the investigator, or both. Whenever appropriate and the output of programs or projects can be readily quantified, such quantitative data should be related to cost data for computation of unit costs. (2) Reasons why established goals were not met, if appropriate. (3) Other pertinent information including, when appropriate, analysis and explanation of cost overruns or high unit costs. (e) Recipients shall not be required to submit more than the original and two copies of performance reports. (f) Recipients shall immediately notify the Federal awarding agency of developments that have a significant impact on the award-supported activities. Also, notification shall be given in the case of problems, delays, or adverse conditions which materially impair the ability to meet the objectives of the award. This notification shall include a statement of the action taken or contemplated, and any assistance needed to resolve the situation. (g) Federal awarding agencies may make site visits, as needed. (h) Federal awarding agencies shall comply with clearance requirements of 5 CFR part 1320 when requesting performance data from recipients. 52 Financial reporting. (a) The •Mowing forms or such other forms as may be appr• •ed by OMB . e authorized for obtaining financial info -tion from recipients. (1) SF-269 or S 69A, Financial Status R= sort. (i) Each F- -eral awardi - agency shall require recipient to us- e SF-269 or SF-269A to report the s s of funds for all nonconstru ion -•rojects or programs. A Federa :warding a. -ncy may, however, have the - •tion of not re. . .ring the SF-269 or SF- =-A when the SF-270, Re•• est for Advance or Reimbursement, or SF-272, - - sort of Federal Cash Transactions, is determin to provide adequate information to meet its -eds, except that a final SF-269 or SF-26• shall 40 Termination and Enforcement . 60 Purpose of termination and enforcement. Sections . 61 and .62 set forth uniform suspension, termination and enforcement procedures. . 61 Termination. (a) Awards may be terminated in whole or in part only if (1) , (2) or (3) apply• (1) By the Federal awarding agency, if a recipient materially fails to comply with the terms and conditions of an award. (2) By the Federal awarding agency with the consent of the recipient, in which case the two parties shall agree upon the termination conditions, including the effective date and, in the case of partial termination, the portion to be terminated. (3) By the recipient upon sending to the Federal awarding agency written notification setting forth the reasons for such termination, the effective date, and, in the case of partial termination, the portion to be terminated. However, if the Federal awarding agency determines in the case of partial termination that the reduced or modified portion of the grant will not accomplish the purposes for which the grant was made, it may terminate the grant in its entirety under either paragraphs (a) (1) or (2) . (b) If costs are allowed under an award, the responsibilities of the recipient referred to in paragraph .71(a) , including those for property management as applicable, shall be considered in the termination of the award, and provision shall be made for continuing responsibilities of the recipient after termination, as appropriate. .62 Enforcement. (a) Remedies for noncompliance. If a recipient materially fails to comply with the terms and conditions of an award, whether stated in a Federal statute, regulation, assurance, application, or notice of award, the Federal awarding agency may, in addition to imposing any of the special conditions outlined in Section . 14 , take one or more of the following actions, as appropriate in the circumstances. (1) Temporarily withhold cash payments pending correction of the deficiency by the recipient or more severe enforcement action by the Federal awarding agency. 45 / t� (2) Disallow (that is, deny both use of funds and any applicable matching credit for) all or part of the cost of the activity or action not in compliance. (3) Wholly or partly suspend or terminate the current award. (4) Withhold further awards for the project or program. (5) Take other remedies that may be legally available. (b) Hearings and appeals. In taking an enforcement action, the awarding agency shall provide the recipient an opportunity for hearing, appeal, or other administrative proceeding to which the recipient is entitled under any statute or regulation applicable to the action involved. (c) Effects of suspension and termination. Costs of a recipient resulting from obligations incurred by the recipient during a suspension or after termination of an award are not allowable unless the awarding agency expressly authorizes them in the notice of suspension or termination or subsequently. Other recipient costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if (1) and (2) apply. (1) The costs result from obligations which were properly incurred by the recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable. (2) The costs would be allowable if the award were not suspended or expired normally at the end of the funding period in which the termination takes effect. (d) Relationship to debarment and suspension. The enforcement remedies identified in this section, including suspension and termination, do not preclude a recipient from being subject to debarment and suspension under E.O.s 12549 and 12689 and the Federal awarding agency implementing regulations (see Section .13) . SUBPART D - After-the-Award Requirements se. Sections .71 through .73 conta' closeout procedure er ro sequent disallows en s. 46 4 t SI .71 Closeout procedures. (a) Recipients shall submit, within 90 calendar days after - . .te of completion of the award, all financial, perform• ce, ana• other reports as required by the terms and conditi •ns of the -ward. The Federal awarding agency may approve exten ions when requested by the recipient. (b) Unless t - Federal awarding agency authorizes a• extension, a recipien shall liquidate all obligations i urred under the award n• later than 90 calendar days after the funding period or the date of completion as specif ' -d in the terms and conditions .f the award or in agency 'mplementing instructions. (c) The Federal awardin• agency shall m- e prompt payments to a recipient for allowab e reimbursab e costs under the award being closed out. (d) The recipient shall promp y .-fund any balances of unobligated cash that the F=•eral awarding agency has advanced or paid and that ' s -ot authorized to be retained by the recipient for use n o -r projects. OMB Circular A- 129 governs unreturned -mounts .at become delinquent debts. (e) When authorized by e terms and co •itions of the award, the Federal awardi g agency shall m- - a settlement for any upward or downwa•. adjustments to the -deral share of costs after closeout . eports are received. (f) The recipie shall account for any real an• personal property - quired with Federal funds or recei ed from the Federal 'overnment in accordance with Sections .31 throug .37. (g) In • e event a final audit has not been performed p•ior to t - closeout of an award, the Federal awarding agenc shall •etain the right to recover an appropriate amount afte fully considering the recommendations on disallowed cos resulting from the final audit. .72 Subsequent adjustments and continuing responsibilities. (a) The closeout of an award does not affect any of the following. (1) The right of the Federal awarding agency to disallow costs and recover funds on the basis of a later audit or other review. 47 iN ' (2) The obligation of the recipient to return any funds due as a result of later refunds, corrections, or other transactions. (3) Audit requirements in Section .26. • (4) Property management requirements in Sections .31 through .37. (5) Records retention as required in Section .53 . (b) After closeout of an award, a relationship created under an award may be modified or ended in whole or in part with the consent of the Federal awarding agency and the recipient, provided the responsibilities of the recipient referred to in paragraph .73 (a) , including those for property management as applicable, are considered and provisions made for continuing responsibilities of the recipient, as appropriate. .73 Collection of amounts due. (a) Any funds paid to a recipient in excess of the amount to which the recipient is finally determined to be entitled under the terms and conditions of the award constitute a debt to the Federal Government. If not paid within a reasonable period after the demand for payment, the Federal awarding agency may reduce the debt by (1) , (2) or (3) . (I) Making an administrative offset against other requests for reimbursements. (2) Withholding advance payments otherwise due to the recipient. (3) Taking other action permitted by statute. (b) Except as otherwise provided by law, the Federal awarding agency shall charge interest on an overdue debt in accordance with 4 CFR Chapter II, "Federal Claims Collection Standards. " 48 Appendix A • Contract Provisions All contracts, awarded by a recipient including small purchases, shall contain the following provisions as applicable: 1. Equal Employment Opportunity - All contracts shall contain a provision requiring compliance with E.O. 11246, "Equal Employment Opportunity, " as amended by E.O. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity, " and as supplemented by regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor. " 2 . Copeland "Anti-Kickback" Act (18 U. S.C. 874 and 40 U. S.C. 276c) - All contracts and subgrants in excess of $2000 for construction or repair awarded by recipients and subrecipients shall include a provision for compliance with the Copeland "Anti- Kickback" Act (18 U.S.C. 874) , as supplemented by Department of Labor regulations (29 CFR part 3, "Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States") . The Act provides that each contractor or subrecipient shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he is otherwise entitled. The recipient shall report all suspected or reported violations to the Federal awarding agency. 3 . Davis-Bacon Act, as amended (40 U.S.C. 276a to a-7) - When required by Federal program legislation, all construction contracts awarded by the recipients and subrecipients of more than $2000 shall include a provision for compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) and as supplemented by Department of Labor regulations (29 CFR part 5, "Labor Standards Provisions Applicable to Contracts Governing Federally Financed and Assisted Construction") . Under this Act, contractors shall be required to pay wages to laborers and mechanics at a rate not less than the minimum wages specified in a wage determination made by the Secretary of Labor. In addition, contractors shall be required to pay wages not less than once a week. The recipient shall place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation and the award of a contract shall be conditioned upon the acceptance• of the wage determination. The recipient shall report all suspected or reported violations to the Federal awarding agency. 4 . Contract Work Hours and Safety Standards Act (40 U. S.C. 327- 333) - Where applicable, all contracts awarded by recipients in excess of $2000 for construction contracts and in excess of $2500 49 for other contracts that involve the employment of mechanics or laborers shall include a provision for compliance with Sections • 102 and 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333) , as supplemented by Department of Labor regulations (29 CFR part 5) . Under Section 102 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than 1 1/2 times the basic rate of pay for all hours worked in excess of 40 hours in the work week. Section 107 of the Act is applicable to construction work and provides that no laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. 5. Rights to Inventions Made Under a Contract or Agreement - Contracts or agreements for the performance of experimental, developmental, or research work shall provide for the rights of the Federal Government and the recipient in any resulting invention in accordance with 37 CFR part 401, "Rights to Inventions Made by Nonprofit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements, " and any implementing regulations issued by the awarding agency. 6. Clean Air Act (42 U. S.C. 7401 et seg. ) and the Federal Water Pollution Control Act (33 U. S.C. 1251 et seg. ) , as amended - Contracts and subgrants of amounts in excess of $100, 000 shall contain a provision that requires the recipient to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. 7401 et seq. ) and the Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq. ) . Violations shall be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA) . 7 . Byrd Anti-Lobbvinq Amendment 131 U. S.C. 1352) - Contractors who apply or bid for an award of $100, 000 or more shall file the required certification. : Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient. 50 8. Debarment and Suspension (E.O.s 12549 and 12689) — No contract shall be made to, parties listed on the General Services Administration's List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and 12689, "Debarment and Suspension. " This list contains the names of parties debarred, suspended, or otherwise excluded by agencies, and contractors declared ineligible under statutory or regulatory authority other than E.O. 12549. Contractors with awards that exceed the small purchase threshold shall provide the required certification regarding its exclusion status and that of its principal employees. • 51 c 25A CITY OF OMAHA LEGISLATIVE CHAMBER , Omaha,Nebr August 25 19 98 RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: • WHEREAS,under Title II of the National Affordable Housing Act of 1990,the City of Omaha annually receives a HOME Investment Partnerships Program entitlement for the purpose of providing affordable housing opportunities for low income households; and, WHEREAS, the City of Omaha 1996 Consolidated Submission for Community Planning and Development Programs(Consolidated Plan)was approved by City Council Resolution No. 3038 on November 21, 1995; and, WHEREAS, the Consolidated Plan identified the provision of transitional housing opportunities for low income households as a priority need in the City of Omaha; and, WHEREAS, the City Council approved the City of Omaha 1996 HOME Program Description and Funding Allocations contained in the Consolidated Plan;and, WHEREAS, the Stephen Center, is currently engaged in the operation and administration of an emergency shelter for the homeless located at 2723 "Q"Street,Omaha,Nebraska 68107; and, WHEREAS, the Stephen Center currently operates a transitional housing program; and, WHEREAS,the Stephen Center proposes the construction of an eight unit transitional residential facility at 27th & "Q" Streets and the subsequent occupancy of each unit by single homeless men; and, WHEREAS, it is in the best interests of the City of Omaha and the residents thereof that the City enter into an Agreement with the Stephen Center, Inc., to provide HOME funding in the amount of$420,000.00 for the purpose of constructing the eight unit transitional housing facility. By Councilmember . Adopted . City Clerk Approved Mayor * C-25A CITY OF OMAHA LEGISLATIVE CHAMBER Omaha,Nebr August 25 19 98 PAGE-2- • NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: THAT,the attached Agreement,as recommended by the Mayor,between the City of Omaha and the Stephen Center,Inc.,a Nebraska Non-Profit Corporation, 2723 "Q" Street, Omaha, Nebraska 68107, in an amount of $420,000.00 for the purpose of constructing an eight unit transitional housing facility at 27th and"Q" Streets and the subsequent occupancy of each unit by single homeless men,is hereby approved. Funds in the amount of$420,000.00 shall be paid from the HOME Program Fund No. 186, Organization 5012. APPROVED AS TO FORM: jL (1__I a � ASSISTANT CITY ATTORNEY DATE P:\PLN2"3853.MAF By ounci ember Adopted AUG 1998 --� ity Clerk Approved /� .. 119 aor , E% « pc i y tipCD O CD. 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