Loading...
RES 1997-2119 - Agmt with Holyu Name Housing Corporation for grant for tree trimming and utilities for OPPD and MUD , • • ., - : ' : her.,0244mal, ifAHA,N (..--•!,1,0 4eP i r- Planning Department PvttEC �7 4 i Omaha/Douglas Civic Center Wet-�L1v115^ 4 i r�, 1 (3 1819 Farnam Street,Suite 1100 18 7 n� '.[Y � 1' L9Z. ' `� Omaha,Nebraska 68183-0110 o t- �A.- " (402)444-5200 o4' '-t r i c l.n' i #, (402)444-5150 °{y Telefax(402)444-6140 �TFD FEBRV� f� ,�, a yf t^1't P'} 3>�is Rd� � City of Omaha Hal Daub,Mayor Honorable President and Members of the City Council, The attached proposed Resolution approves an Agreement between the City of Omaha and Holy Name Housing Corporation(HNHC), a Nebraska Non-profit Corporation, 3014 North 45th. Street, Omaha,Nebraska 68104, in the amount of$80,000.00 in FY 97 Community Development Block Grant(CDBG) funds to be used in the development of a housing subdivision in the vicinity of 51 st and Nebraska Avenue. This funding will provide for tree trimming and the installation of utilities by OPPD and MUD in this deteriorated, vacant area. The HNHC proposes to develop the site as a 35-unit single-family housing subdivision. This housing development project is included in the 1997 Consolidated Submission for Community Planning and Development Programs approved by the City Council on December 3, 1996,. by Resolution No. 3195. 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. .. This project represents an innovative method of encouraging infill development and expanding home ownership opportunities for low and moderate income families desiring to live in a North Omaha community. Your favorable consideration of this Resolution will be appreciated. Sincerely, Referred ity Council for Consideration: l't1/ . 1/-± 7- /�. 9 Robert C. Peters Date i Mayor's Office/Titl Date 7. Acting Planning Director Apr ved: Approved: ii..,14.4"--I . 7#77/ /J 1, Louis A. D'Erco e • II at6 George L. Davis, r. (i 1-7,.„ ') Date Finance Director tioN Human Relations Director P:\PLN2\4103.MAF <M1 • AGREEMENT THIS AGREEMENT is entered into by and between the City of Omaha and the Holy Name Housing Corporation,a Nebraska Non-profit Corporation(HNHC), 3014 North 45th Street, Omaha, Nebraska 68104, also referred to as "Developer", for the residential development of a deteriorated, vacant site at 51st and Nebraska Avenue for future construction of single-family housing. RECITALS: WHEREAS, the City of Omaha (hereinafter referred to as "the City") 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, 1956, as amended, and local ordinances, including but not limited to,the power to contract; and, WHEREAS,the City annually receives Community Development Block Grant funds under Title I of the Housing and Community Development Act of 1974, as amended, for the purpose of benefitting low and moderate income residents, eliminating slums and blight and for other urgent community development needs; and, WHEREAS, the City has initiated the Housing Development Program for the purpose of encouraging construction of residential structures in the City; and, WHEREAS,the Mayor recommended various projects in the 1997 Consolidated Submission for Community Planning and Development Programs (Consolidated Plan) including the 51st and Nebraska Avenue Housing Development Program; and, WHEREAS,the City Council approved the 1997 Consolidated Plan on December 3, 1996, by Resolution No. 3195; and, A WHEREAS, HNHC has submitted a proposal for the development of a deteriorated, vacant site at 51st and Nebraska Avenue as a single-family housing subdivision; and, WHEREAS, it is in the best interests of the citizens of the City of Omaha to enter into an Agreement with HNHC for this development project which encourages the construction of residential units on vacant parcels such as the site mentioned above. IN CONSIDERATION of the mutual agreements herein contained, the parties hereto agree as follows: Section 1. Definitions The following terms shall have the following meanings for all purposes of this Agreement. 1.1 "City" shall mean-the City of Omaha, a Nebraska Municipal Corporation. 1.2 "Developer" shall mean - Holy Name Housing Corporation, a Nebraska Non-profit Corporation, (HNHC) 3014 North 45th Street, Omaha, Nebraska 68104. (See Exhibit A). 1.3 "Director" shall mean-the Planning Director of the City of Omaha. 1.4 "Construction Contract" shall mean- the contract for work at the 51st and Nebraska Avenue site. 1.5 "Redevelopment Site" shall mean-the vacant site at 51st and Nebraska Avenue, and legally described as Lots 8 - 17 (inclusive), Block 1, and Lots 1 - 10 (inclusive),Block 2,Fred Gordon's Addition, City of Omaha, Douglas County,Nebraska, together with improvements thereon. 1.6 "CDBG-Grant" shall mean - Community Development Block Grant Funds in the amount of$80,000.00 secured by a Covenant running with the land, made subject to the terms, conditions and provisions of the grant agreement under which said grant is made,which shall provide, inter alia,that same shall be repayable upon sale or transfer of the property within five (5) years from project completion, except as provided in Paragraph 6.8 of this Agreement. The grant may only be used for the purposes described herein. 1.7 "Community Development Block Grant(CDBG)" shall mean-the program conducted under the provisions of the Housing and Community Development Act of 1974, as amended(42 U.S.C. 5301 et. seq.), and the Code of Federal Regulations(24 CFR Part 570). - 2 - 1.8 "Subrecipient" shall mean - a public or private non-profit agency, authority or organization receiving CDBG funds to undertake eligible activities. In this Agreement, the Subrecipient is Holy Name Housing Corporation. 1.9 "Recipient" shall mean-the City of Omaha. 1.10 "Program Income" shall mean - the gross income received by the Recipient or Subrecipient directly generated by an activity that is only partially assisted with CDBG funds,the income shall be prorated to reflect the percentage of CDBG funds use. (See Exhibit B) 1.11 "Construction Work" shall mean - all work or services provided for in professional services or Construction Contracts as may be required hereunder. 1.12 "CDBG Funds" shall mean-the portion of the Community Development Block Grant awarded to the City as may be available during Program Year 1997 for use specified herein,in an amount not to exceed$80,000.00 conditioned upon actual receipt of same, for the purposes stated herein. 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 HNHC $80,000.00 in funds received for use in the program year commencing January 1, 1997,under the CDBG program as hereinabove described and defined. Funding shall be subject to the terms and conditions specified and contained in this Agreement. The City will secure its CDBG Grant with a Covenant running with the land. The City shall insure that HNHC repays the CDBG Grant upon sale, grant, mortgage, assignment or other transfer of the property or portion thereof by HNHC, except as provided in Paragraph 6.8 of this Agreement. Further, funding, which shall be in an amount not to exceed $80,000.00 during FY 97, shall be used only for the following purposes: 2.1.1. Architectural,engineering,legal,and administrative services for the preparation of all design and construction documents and construction supervision necessary for tree trimming and the installation of utilities by OPPD and MUD associated with a residential subdivision on the 51st and Nebraska Avenue site. These documents, at a minimum, shall include a schematic site development plan; a preliminary plat, and a final plat. All contracts for services and construction documents pursuant to this Section must be approved by the Planning Director,prior to funding of such contracts. - 3 - 2.1.2 Tree trimming and the installation of utilities by OPPD and MUD. Each construction contract pursuant to this Section must be approved by the Planning Director,prior to funding of such contracts. 2.1.3 City funding pursuant to this Section shall be contingent upon receipt of and subject to availability of Community Development Block Grant funds in FY 97 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 HNHC as soon as reasonably possible. At this time,the responsibilities of HNHC under Section 3 of this Agreement shall be released and the Agreement will be terminated. 2.1.4 Funds paying for contractual work shall be payable within the limits of the budget as described in Exhibit C. In accordance with the Director's prior approval, Performance Bonds and insurance, as required by the Director, shall name the City as an additional insured. 2.2 The City shall review and monitor the quarterly reports that identify the progress/accomplishments of HNHC, on the activities included in this Agreement and on contracts entered into with third parties pursuant thereto. 2.3 The.City shall review and approve all plans for public improvements and site preparation, and perform interim and final inspections on each construction phase. 2.4 In no event shall the City assume any obligation to make any or all of the above- referred funding available,nor shall the City incur any liability hereunder, unless and until HNHC has submitted for and received the approval of the Director of all of the following: 2.4.1 duly executed contracts for Construction Work; and, 2.4.2 Performance and Labor Materials Bonds, in favor of the City, and/or Irrevocable Letters of Credit in force for one year following the completion of the Construction Work from the General Contractor and all Subcontractors in aggregate amounts of the contract bids. The Letters of Credit and/or Bonds 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. 2.5 In no event shall the City assume any obligation 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 HNHC has timely and fully complied with its duties and obligations arising hereunder. - 4 - a • 2.6 In the event that all of the terms and conditions for funding as set forth hereinabove have been fully complied with,the City does hereby agree to make only those progress payments as may be authorized to be paid by the Director or his designate upon receipt, verification and approval of an American Institute of Architects Document G702 "Application and Certificate for Payment",provided that no payments shall be made for any acquisition,work,labor,material or expense incurred which the Director, in his sole discretion, deems to be : 2.6.1 unacceptable or substandard; or, 2.6.2 not in accordance with this Agreement or the Construction Contract as approved; or, 2.6.3 not in conformance with the applicable state, federal and local laws, including but not limited to,the building,plumbing and/or electrical codes; or, 2.6.4 not in conformance with the working drawings and/or specifications as approved. Progress payments for development fees, if any, shall be prorated based upon the percentage of site preparation and public improvements completed. 2.7 The City agrees to provide HNHC funds, as described in Section 2.1 herein, to carry out the services described herein for a period of twenty-four months from the time of favorable consideration by the City Council. Section 3. Duties and Responsibilities of HNHC 3.1 HNHC agrees to develop the 51st and Nebraska Avenue Redevelopment Site described in Section 1.5 of this Agreement in conformance with the requirements contained herein. 3.2 HNHC shall be responsible for the security and maintenance of 51st and Nebraska Avenue Redevelopment Site. 3.3 HNHC shall contract for architectural and engineering services for the preparation of all design and construction documents, cost estimates, and construction supervision necessary for the platting and subdivision of the 51st and Nebraska Avenue Redevelopment Site. As specified in Section 2.3, HNHC shall obtain the approval of the Director of all contracts, plans, and plats pursuant to this Section. 3.4 HNHC shall contract for and complete tree trimming and the installation of utilities by OPPD and MUD as specified in Section 2.1. HNHC shall obtain the approval of the Director for all construction contracts,prior to the start of such contracts. - 5 - 3.5 HNHC does hereby certify, contract and agree that any and all funding obtained by it or made available to it hereunder, shall be used solely and exclusively for the express purpose of developing the Redevelopment Site in strict compliance with this Agreement and the Construction Contracts as approved, as well as the drawings and other specifications as approved. 3.6 HNHC shall submit to the Director, for his review and approval, all working drawings, plans and specifications necessary or incidental to this project. In addition, HNHC 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 loan proceeds for any work performed, materials furnished, expenses incurred, or any other expenditures of whatsoever kind or nature unless same was expressly included in one or more of the above-mentioned documents as approved. 3.7 HNHC shall not commence any work hereunder until such time as it has received a written notice to proceed as issued by the Director. Any work performed prior to the issuance of such notice shall be the sole responsibility of HNHC. 3.8 HNHC agrees to 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) per centum of lead by weight (calculated as lead metal)in the total nonvolatile content of the paint, or the equivalent measure of lead in the dried film of paint already applied. HNHC further agrees to abide by all Federal requirements regarding lead-based paint poison prevention. 3.9 HNHC shall ensure that all work performed and the construction 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 HNHC in the same manner the Director provides technical assistance to other developers during the construction phase to ensure compliance with such requirements. 3.10 HNHC shall obtain a certificate from each contractor or subcontractor to be used on this project to the effect that such contractor or subcontractor has not been disbarred or disqualified by the U.S. Department of Housing and Urban Development. The Director shall approve all contractors and subcontractors prior to being hired by HNHC. 3.11 HNHC shall ensure that property insurance,all taxes,regular and special, are to be paid up-to-date as of the scheduled time for loan closing. - 6 - s 3.12 HNHC shall submit to the Director,for his review and approval,a minority and women business participation plan which discusses economic development and employment opportunities. HNHC shall make best efforts to ensure that construction services, contracts and employment opportunities are affirmatively marketed to women and members of minority groups. 3.13 HNHC 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 HNHC, contractor or subcontractor 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 HNHC with any contractor or subcontractor shall include this Section to ensure said access. 3.14 HNHC shall ensure that the residential development conforms to City housing and zoning ordinances. HNHC shall carry out all construction in an efficient manner. 3.15 HNHC shall comply with and ensure that applicable bid documents, contracts, and subcontracts for site preparation and public improvements contain the Federal labor standards provisions and the applicable Department of Labor wage determination and that no contractor is ineligible for Federally assisted work. The wage determination may be modified to keep it current. All actions modifying a general wage determination applies, if notice of such action is published less than 10 days before contract award. The City will send these modifications to HNHC (Exhibit D). 3.16 HNHC 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 HNHC further agrees to indemnify and hold harmless the City of Omaha for any liability arising out of the improper use of the information provided. 3.17 HNHC shall maintain fiscal integrity of the program, which include all financial and narrative reports required by the City of Omaha and the U.S. Department of Housing and Urban Development. 3.18 HNHC shall ensure that any Program Income received will be returned to the City of Omaha within thirty(30)days of receipt. In the event the City shall cease to fund the redevelopment of the Property, HNHC shall have no further responsibility under the terms of the Agreement, except to return any unobligated CDBG funds, if any, provided to HNHC under this Agreement. - 7 - 3.19 HNHC shall execute any and all documents necessary to establish covenants to effect the purposes of this Agreement that shall run with the land. 3.20 The HNHC, for itself, its successors and assigns, agrees that the restriction 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 HNHC, 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 HNHC,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 five(5)years after the date of completion of the project, the period specified or referred to in this Agreement, or until such date thereafter to which it may be modified by proper amendment of this Agreement, or which date such covenants may terminate (Exhibit E). Section 4. Terms of the Agreement This Agreement shall be effective for a period of twenty-four months from the time of favorable consideration by the City Council. Section 5. Mutual Agreements HNHC agrees, and the City states, that the City: 5.1 Is not acting as HNHC's architect or engineer. 5.2 Makes no warranties, express or implied, as to the Construction Work. 5.3 Owes no duty to HNHC or any other person that shall 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 loan proceeds. 5.5 Shall be held harmless by HNHC for all injury and damages arising by virtue of this Agreement. 5.6 HNHC shall execute at closing covenants securing compliance with Federal regulations governing CDBG programs. - 8 - Section 6. Provisions of the Agreement 6.1 Equal Employment Opportunity/Affirmative Action Plan. Attached hereto as Exhibits "F" and "G" and made a part hereof by reference are the equal employment provisions of this Agreement. 6.2 Non-Discrimination. HNHC shall not in the performance of this Agreement, discriminate or permit discrimination in violation of race, color, sex, age,political or religious opinions, affiliations, national origin, familial status or handicap. 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 the City 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 contains 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. HNHC may, without City Council approval, assign its rights and/or obligations under this Agreement to a Nebraska Limited Partnership,so long as HNHC remains a general partner. • 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 officer of the parties, pursuant to Section 10-142 of the Omaha Municipal Code. - 9 - 6.10 Termination. This Agreement may also be suspended or terminated in accordance with 24 CFR 85.43, Enforcement or 24 CFR 85.44, Termination for Convenience (Exhibit H). Upon termination of this Agreement,all funds and interest in any account hereunder become the property of the City and shall be returned to the City of Omaha. 6.11 Subrecipients. HNHC shall comply with the requirements and standards of OMB Circular No. A-122, "Cost Principles for the Non-Profit Organizations" (Exhibit I). 6.12 Other Program Requirements. HNHC shall be required to carry out each activity of this Agreement in compliance with all Federal laws and regulations described in Subpart K of the CDBG Program Entitlement Grant Regulations Handbook 6500 (Exhibit J). 6.13 Reversion of Assets. Upon the expiration of this Agreement, HNHC shall transfer to the City of Omaha any CDBG funds on hand at the time of expiration and not required for the purpose of this Agreement. 6.14 HNHC shall indemnify and hold the City harmless from and against: (1) any and all claims arising from contracts between HNHC 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. 6.15 If, through any cause, HNHC 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 HNHC liable for any damages caused to the City by reason of such default and termination. 6.16 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 or enforceability of such provision in any other jurisdiction. 6.17 This Agreement shall be a contract made under and governed by the laws of the State of Nebraska. 6.18 Disclosure of Lobbying. HNHC 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 undersigned,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 - 10 - • • = 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 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 undersigned 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. Section 7. Authorized Representative 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) City of Omaha • Robert C. Peters Acting Planning Director Omaha/Douglas Civic Center 1819 Farnam Street Omaha,Nebraska 68183 (2) Developer: Holy Name Housing Corporation, a Nebraska Non-Profit Corporation Sr. Marilyn Ross, Executive Director 3014 North 45th Street • Omaha,Nebraska 68104 - 11 - IN WITNESS WHEREOF,the parties have executed this Agreement as of the date indicated below: ATTEST: CITY OF OMA , : 91 Y CLE F T CITY OF OMAHA DA t MAYOR •F THE CITY OF OMAHA D E HOLY NAME HOUSING CORPORATION,A NEBRASKA NON-PROFIT CORPORATION By: I.n 7"/".c�!'�i ci.* I //,. Br. William Cloughley, (ce-P'sident lO 9 9 Daj ACKNOWLEDGEMENT STATE OF NEBRASKA ) ) SS. COUNTY OF DOUGLAS ) The foregoing Agreement was acknowledged before me this /a-Fh day of 19 q7,by Br. William Cloughley,Vice-President, Holy Name Housing Corporation, o beha f of the Corporation. GENERAL NOTARY-SW.1111Mbi I DAISY L YOUNG ! Notary blic MY Comm EijApia.lta APPROVED AS TO FORM: 7-/Cg ASSISTANT CITY ATTORNEY DATE P:\PLN2\4105.MAF - 12 - .‘ r- SCHEDULE OF EXHIBITS Agreement Exhibit Location Description A 1.1 Articles of Incorporation - Holy Name Housing Corporation, Corporation Resolution, List of Board Members B 1.10 Definition- Program Income C 2.1.4 Project Budget and Development Schedule D 3.15 Davis-Bacon Wage Determination E 3.20 Acknowledgement of Covenant Running With Land F 6.1 Equal Employment Opportunity Clause G 6.1 Affirmative Action Plan H 6.10 Termination- CFR 85.43 and CFR 85.44 I 6.11 OMB Circular No. A-122 J 6.12 Other Program Requirements -Handbook 6500, Subpart K P:\PLN2\4106.MAF 07/10/1997 13:56 4024517187 HOLYNAMEHOUSING PAGE 05 . • E4))6 A • ..... • . 4, a " ARTICLES OF INCORPORATION OF • HOLY NAME HOUSING CORPORATION Pursuant to the provisions of the Nebraska Nonprofit corporation Act, the undersigned natural persons of the age of eighteen years or more, acting as incorporators, do. hereby set forth: ARTICLE I • - Name The name of the corporation is Holy Name Housing Corporation. - MAR O '.I 1927 ARTICLE II R'' . . STATE OF NLIN .SKA i ss Duration SECRETARY'S OFFICE . Filkd and martial cc) film roll • The corporation shall have perpetual existuii e r pag' , c0 • agee„,i)j. liccit4...e....4j ARTICLE I I I Soerecary of. By VLL • Purposes The corporation is organized and shall be operated exclusively as a nonprofit corporation for the following pur- poses: • ( 1 ) To promote and encourage the rehabilitation and maintenance of substandard housing in economically _ depressed areas of the City of Omaha; (2 ) To actively engage in the rehabilitation and maintenance of substandard housing in economically depressed areas of the City of Omaha; • (3 ) To participate ' in activities and other programs of public interest which relate to the establishment and maintenance of desirable housing and neighborhood rehabilitation and preservation; and (4 ) Such other charitable, benevolent, eleemosynary, educational , civic, religious and social activities as may be deemed appropriate by the Board of Directors . The corporation shall have the power to hold property of auy nature in trust for itself or for the carrying out of any of its authorized purposes . In furtherance of its foregoing purpose_;, the corporation shall have all the powers given to and possessed by a corporation under the Nebraska Nonprofit Corporation Act that are not inconsistent with such purposes , subject always, however, to the.-limitation that, notwithstanding any other 07/10/1997 13:56 4024517187 HOLYNAMEHOUSING PAGE 06 • provision of these Articles, only such powers shall be exercised as may be exercised by an organization exempt under Section 501(c) (3 ) of the Internal Revenue Code and its regulations as they now exist or as they may hereafter be amended. ARTICLE IV • • Registered Office and Registered Agent The address of the corporation' s registered office is 3014 North 45th Street, Omaha, Nebraska 68104, and the name of its registered agent at such office is Rev. Gerald Mullin, C. S .s .R. ARTICLE V Management of Affairs The affairs of the corporation shall be managed in accordance with the By-laws by a Board of Directors . The method of selection, the number of directors and the duration of their terms shall be as provided in the By-laws, provided that the number of directors shall not be less than three (3 ) . The directors constituting the first Board of Directors are as follows : 1 . Rev. Gerald Mullin, C. S . s .R. 3014 North 45th Street Omaha, Nebraska 68104 2 . Rev. Donald Neureuther, C.S.s .R. 30.14 North 45th Street Omaha, Nebraska 68104 3 . Edward Vaughan 2711 North 48th Avenue Omaha, Nebraska 68104 ARTICLE VI • By-laws • The By-laws of the corporation shall be adopted by the Directors at any regular meeting or at any special meeting called for that purpose so long as they are not inconsistent with the provisions of these Articles . The By-laws may be amended by the Board of Directors in the manner provided in the By-laws . . • ARTICLE VII • Membership; Capital. Stock The corporation shall have no members and the corpora- tion shall not have nor shall it issue any shares of stock in any form or denomination. 07/10/1997 13:56 4024517187 HOLYNAMEHOUSING PAGE 07 • • ARTICLE VIII Amendments The corporation reserves the right to amend, alter or repeal any provision contained in these Articles of Incorporation in the manner now or hereinafter prescribed or permitted by law. ARTICLE IX' Liability of Members, Board of Directors, Officers, etc. The private property of the incorporators and Directors of the corporation shall not be subject to the debts or obliga- tions of the corporation to any extent whatsoever. ARTICLE X Prohibitions; Dissolution • This corporation is organized exclusively for chari- table, religious, educational, and scientific purposes, includ- ing, to organiza- tions for such purposes, the making of distributions q tions that qualify as exempt organizations under Section 501 (c) (3 ) of the Internal Revenue Code of 1954 (or the corresponding provision of any future United States Internal Revenue Law) . No part of the net earnings of the corporation shall inure to the benefit of, or be distributable to its Directors, officers, or ocher private persons, except that the corporation shall be authorized and ,empowered to pay reasonable compensation for services rendered and to make payments and distributions in furtherance of the purposes set forth in the preceding sentence hereof. No substantial part of the activities of the corpora- tion 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. Notwithstanding any other provision of these Articles, the corporation shall not carry on activities not permitted to .be carried on (a) by a corporation exempt from Federal. . Income Tax under Section 501(c) (3 ) of the Internal Revenue Code of 1954 'Or the corresponding provision of any future United States Internal Revenue Law) or (b) by a corporation, contributions to which are deductible under Section 1'70(c) (2 ) of the Internal Revenue Code of 1954 (or the correspond- ing provisions of any future United States Internal Revenue • Law) . Notwithstanding anything herein to the contrary upon the dissolution of the corporation, the Board of Directors shall , after paying or making provision, for the payment of all of the liabilities of the corporation, dispose of all of the assets of the corporation in such manner, or to such organiza- • 0 07/10/1997 13:56 4024517187 HOLYNAMEHOUSING PAGE 08 titan or organizations organized and operated. exclusi."c•ly for charitable . educational , religious or scientific purposes as shall at the time Qualify as an exempt organization or organiza- tions under section 501 ( c ) (3 ) of the Internal Revenue Code of 1954 (or tte corresponding provision of any future United States Internal Revenue Law ) , as the Board of Directors shall deter- mine . Any such assets not so disposed of shall be disposed of • by the District Court of the county in which the principal. • office of the corporation is then located, exclusively for Eucfl • purposes or to such organizations , as said Court shall deter- mine , which. are organized and operated exclusively for such purposes . ARTICLE XI • The name and street address of each incorporator is as follows : Rev. Gerald Mullin, C. S . s .R. 3014 North 45th Street Omaha , Nebraska 66104 Rev. Donaid . Neureuther, C. S . s .R. 3011 North 45th Street _ Omaha, Nebraska 68104 DATED this 3rd day of March, 1982 . 1114(� I11 Incorporator t I p for Incorporator 06/30/1997 14:03 4024517187 HOLYNAMEHOUSING PAGE 02 HOLY NAME HOUSING / CORPORATION BOARD RESOLUTION BE IT RESOLVED that Br. William Cloughley, Vice President of Holy Name Housing Corporation (HNHC) , a Nebraska nonprofit corporation in good standing with the State of Nebraska, is given authority to sign any and all official documents, contracts, loan agreements, promissory notes, mortgages, trust deeds, or other legal instruments necessary to obtain financing for HNHC housing projects. g414) Fr. Robert Oelerich, Vice PresidentDatfiv/97 Holy Name Housing Corporation Board of Directors 3014 North 45th Street s i Omaha, Nebraska 68104 (402) 453-6100 07/10/1997 13:56 4024517187 HOLYNAMEHOUSING PAGE 02 HOLY NAME HOUSING CORPORATION BOARD OF DIRECTORS President: • Rev. Brian Johnson, Pastor Holy Name Church 3014 N. 45th Street Omaha, NE 68104 Vice President: * Rev. Robert Oelerioh, Associate (Same as above) Sec/Treasurer: • Rev. Stephan Benden, Associate (Same as above) Note: Holy Name Housing Corporation is not a religious organization nor does it serve persons of a particular faith. Because the founders of Holy Name Housing Corporation were concerned about the neighborhood and the Corporation's faithfulness to the mission of neighborhood, they made the Redemptorist Fathers of Nebraska the Board of Directors. The Redemptorists have been active in the Holy Name neighborhood for seventy-five years. The Board of Directors and Board of Advisors meet jointly four times a year. HOLY NAME HOUSING CORPORATION BOARD OF ADVISORS Gary R. Batenhorst Godfather's Pizza 9140 W. Dodge Rd. Omaha, NE 68114 (402) 391-1452 Fax 255-2699 Hike Hoyle Boyle & Associates, Attorneys at Law 1904 Farnam St. , Ste 615 Omaha, NE 68102 (402) 977-5555 Fax 342-9232 + Yolanda Brown 3519 Fowler Avenue Omaha, NE 68111 Home: (402) 453-3359 Work: (402) 595-3026 Norma Deeb, Director Girls Incorporated of Omaha 2811 North 45th Street Omaha, NE. 68104 (402) 457-4676 Fax 457-30131 Nike Fahey 1107 North 93rd Street, #157 Omaha, NE. 68114 (402) 398-9006 07/10/1997 13:56 4024517187 HOLYNAMEHOUSING PAGE 03 Richard Hays, Chairperson 5445 Hanover Plaza Omaha, NE 68152 (402) 572-6721 * Fr. Brian Johnson, Pastor Holy Name Church 3014 N. 45th Street Omaha, NE 68104 (402) 451-6622 Fax Ed Rentoh, operations Officer First National Bank of Omaha One First National Center Omaha, NE. 68102 (402) 341-0500 Ext. 7405 Fax 633-3885 * Jennie McCartney Clairmont Heights Neighborhood Assn. PO Box 4362 Omaha, NE 68104 Home: (402) 351-4949 Fax 351-2798 Ron Meredith, Owner Chubb's Finer Foods 2905 N. 16th Street Omaha, NE 68110 (402) 346-5011 Fax 346-4830 * Fr. Jim Michalski 4308 Grant St. Omaha, NE 68111 (402) 455-6439 Peggy Murphy 1816 S. 133rd Street Omaha, NE 68144 Home: (402) 334-1275 Work: 444-6573 Ext. 253 Fax: 444-7722 Janet Otepka 6474 Pierce Street Omaha, NE 68106 (402) 558-0937 Shawn Peterson, Owner Acrylicon, Inc. PO Box 11326 Omaha, NE 68111-0326 (402) 451-1365 Fax 451-1366 drrk 07/10/1997 13:56 4024517187 HOLYNAMEHOUSING PAGE 04 Betty P. Quinn HOME Real Estate 11213 Davenport Omaha, NE 68154 (402) 334-5500 Fax 334-7599 Home: 6300 Dodge Street 68154 * Terry Rogers 2125 Spencer Street Omaha, NE. 68110 (402) 451-6882 Work (402) 777-2331 Cynthia swoopes, Director Omaha 100, Inc. 2424 Cuming Street Omaha, NE 68131 (402) 342-3773 Fax 342-3277 Bruce Thomas Prairie Systems 7200 World Communication Drive Omaha, NE 68122 (402) 398-4100 Fax 398-4482 * Neighborhood Residents EXHIBIT. Community Development Block Grant Program Handbook 6500 Entitlement Grant Regulations September 1988 "Program income" means gross income received by the Recipient or a Subrecipient directly generated from the use of CDBG funds. When such income is generated by an activity that is only partially assisted with CDBG funds, the income shall be prorated to reflect the percentage of CDBG funds used. (1) Program income includes, but is not limited to the following: (i) Proceeds from the disposition by sale or long term lease of real property purchased or improved with CDBG funds; (ii) Proceeds from the disposition of equipment purchased with CDBG funds; (iii) Gross income from the use or rental of real or personal property acquired by the Recipient or. a Subrecipient with CDBG funds, less the costs incidental to the generation of such income; (iv) Gross income from the use or rental of real property owned by the Recipient or a Subrecipient that was constructed or improved with CDBG funds, less the costs incidental to the generation of such income; (v) Payments of principal and interest on loans made using CDBG funds; (vi) Proceeds from the sale of loans made with CDBG funds; (vii) Proceeds from the sale of obligations secured by loans made with CDBG funds; (viii) Interest earned on funds held in a revolving fund account; (ix) Interest earned on program income pending disposition of such income; and, (x) Funds collected through special assessments made against properties owned and occupied by households not of low and moderate income, where such assessments are used to recover all or part of the CDBG portion of a public improvement. (2) Program income does not include interest earned (except for interest described in § 570.513) on cash advances from the U.S. Treasury. Such interest shall be remitted to HUD for transmittal to the U.S. Treasury and will not be reallocated under section 106(c) or (d) of the Act. Examples of other receipts that are not considered program income are proceeds from fundraising activities carried out by Subrecipients receiving CDBG assistance; funds collected through special assessments used to recover the non-CDBG portion of a public improvement ; and proceeds from the disposition of real property acquired or improved with CDBG funds when such disposition occurs after the applicable time period specified in § 570.503(b)(8) for Subrecipient-controlled property or § 570.505 for Recipient-controlled property. , it C" FXh►bi-i' -I00 -4 -I0 ] 0D IU) M20C -IC) -I0KG) (/) O0 U) CJ) C '0 00 m O Oo cm) oV Ec m v o (n 00 00 via, °. mow m ^' q W = -Iy I I _ _ , m Z o Zm IrIN c) o - may m m mm m `�° D � a' D nv rn °' a' � r; 0 O D � D � � N CJ v) bD' � ,Oi 0 rc $ r rev, 'Tl1.173 � y v, O lT rco r2 ?cQ Z ac. 0 ors a rmm .- m ci m e mm o N m -- (D °) m (n C o o z y o ' o 6 m o m(a m.0 � Z —� � nz .. m z r < CD CC -a - 0. O00 'e c X : � N 0 0 Cnm = (Q Z .. CDD � .. C m m m a N' Z CDm m z o V 5 0 _, .., O 3 CD CD V W N ? Un O W A C. N -x m A A = c M O -I Vf OO QO01ONO o .0. CD ii0i - (DA rh a "comb N OD000000000 1= -4N - 000bo OC)1 O O O 000000000 O C r A (r O O W < DC) N 0 OOO OOO OOOOOO 0A0o00 .nm 0000 -P1 W O O O O O O b b 0 0 0 O L.I N N b b O 3 b b o O I V 01 ebb 000 000000 001001000 (D 0 00 (7 0 o G) 8 a 0) 0 V - 01 -1 N 0) 0 NN 0 = Oo W (J1 IVth0 (,3NW -+ 0 iniviin, AN Cl) 0 000 (DOA o0 (r000 000 -. 01 rO) -I 0N'0 ip 000 000000000 O IN -l000) OOwm I ) m 000 000000000 O .IN (J� 00 ,I 000 ' ry 000 OOOOOOOOO 0AO - 00 (T1 0 000 .V 0 0 n IC) IW 000 -10 IW p (/) Cl) IC) p Cl) emIL 0 = Z,C330 0= z,C3m 0 0,7 3 0 -1 2mmmC -•t ImD) m C I v c mfa' mo 0 0 , �. O O , O O. 3, rnn3 0 00m 03 O 0n m m o < ? * oo0 Ow * oCD 00 3 a 0 CD 13 mgl, 0CD a CD C n) a � � am C I � as C � m CIN 0 CD cm�imN 00 m@oo 0 p 0m0 N m0 r o Z0I b° .. 00 -1 .. 0-0 d mm0 3 z � 0 .n3 O I m I cm -s 81 Zm D r 00c D r O 0. vai r- G) to voi r 00 O Cl) m -t • m 7 ,. 0 3 . - . = N -4 clo w w W w A o ? N W ONo W Oo of m- (A0001 (0 00 tach01 (DO 000 -' 6DOOo0o0 +A0 OD OODOoa) . . N OOO N C O a.O O O O O o 0 a 0 0 0 0 O O O O O o 0 0 0 0 0 o a 0 0 0 o c o a. o oobbobo bbb0003. boo 0 0 0 0 0 0 0 o a 0 0 0 0 y 000 ,-'N0 W CO -• -L ? N O v ' -a-A 0) -P. N �t .I iv cD iri .3 b- 100.3 il) a cn (D c0 (D0D NO (DO (D (D0Nm 000D a 00000 000000 "'f 000 (D O O O b O b o 0 o 0 0 0 c 606 O 0 0 0 0 0 O o a a 0 0 0 0 0 0 ) f'.„ 410 General Decision Number NE970001 'Xhibid' 111) " `'"Superseded General Decision No. NE960001 -t6t4244. State: Nebraska cQa�, Construction Type: 4eJ HEAVY w/Z/9 7 County(ies) :DOUGLAS SAUNDERS SARPY WASHINGTON HEAVY CONSTRUCTION PROJECTS (does not include water well drilling) SAUNDERS COUNTY (EAST OF HWY. #109 EXTENDED NORTE AND SOUTH TO THE COUNTY LINE) Modification 0Number Publi1ation7Date 01 03/07/1997 2 03/28/1997 3 05/09/1997 4 05/16/1997 NE970001 Page: 1 h. 7 ZO'd ST:II uric 8S8S-TSS-�i6:Xp� HONHal 9NIlaki N0O 0>1/ `� COUNTY(ies) : SAUNDERS '. ' .DOUGLAS SARPY WASHINGTON - Cp,Rp0444B 10/01/1996 Rates Fringes CARPENTER; PILEDRIVER 17 .43 3.56 ELEC0022B 06/01/1996 Rates Fringes DOUGLAS AND SARPY COUNTIES; SAUNDERS COUNTY (east of Hwy. #109 and north of U.S. Alternate Highway No. 30 (Route 92) ) ; AND WASHINGTON COUNTY: 20.00 3.5% + 5.89 ELECTRICIAN EI,gCO265A 12/01/1996 Rates Fringes SAUNDERS COUNTY (east of Hwy. #109 and south of U.S. Alternate Hwy. No. 30 (Route 92) ) : ELECTRICIAN: Electrical subcontracts $2,000,000 and over: 17 .16 4 .5% +3.42 2Zone 1 17 .46 4.5% +3.42 Zone 3 17.76 4.5% +3.42 4 Zone 18.16 4.5% +3.42 Zone 4 Electrical subcontracts under 16.82 4,5$ +3.42 $2,000,000 ZONE DEFINITIONS: E Zone 1: 0 to 35 miles from the themain Post Office Post Office lin Lincoln, N� Zone 2: 36 to 50 miles fromice in Lincoln, Zone 3: 51 to 75 miles from the maiminosPostfOffice in Lincoln, Zone 4: 76 miles and over from the a NE ELEC1525A 09/01/1996 Rates Fringes LINE CONSTRUCTION: LINE TECHNICIANS: 22.25$+2.04 Cable splicer; Certified line 20.69 welder 19.25 22.25%+2.00 Line technician 1? _28 22.25%+2.00 Line equipment operator 13.82 22.25$+2.00 Truck driver 12.45 22.25%+2.00 Ground person POLE TREATING CLASSIFICATIONS: Page: 2 NE970001 20'd ST:I I z6, ZZ �f 8S8S-ISS-�T6 XPd HONd21S 9NIlJtf211NOJ J�I� Pole treating inspector 19.25 22.25%+2 .00 -Pole treating truck driver 13.82 22.25%+2.00 Pole treating ground person 12.45 22.25%+2.00 * ENGI0571C 04/01/1997 Rates Fringes POWER EQUIPMENT OPERATORS: Oiler, greaser, air compressor, welding machine, pump, roller, forklift, hydrohammer, pug mill, concrete pump, cure and tyne machine, rubber-tired farm 3.20 tractor 11.28 Off-road heavy hauler, Rough Roller dozer, rough blade, Ferguson-type tractors (Workbull with high 3 .20 tecco) , asphalt roller 14 .69 One and two drum hoists, tugger, trencher, concrete spreader & finishing machine, dozer loader, spread oiler, bantam-type tamper, rubber-tired tractor backhoe, oil 3.20 distributor-finish roller dozer 16.13 3.20 Scraper, finish blade 16.59 Trimmer, crane, backhoe, mechanic, slip form paver, asphalt plant- concrete plant, laydown machine, 16.80 3.20 concrete pump truck FOOTNOTES: SCOPE OF WORK: Does not cover projects concerned with hazardous material as that term is defined by EPA regulations. PREMIUM PAY: When two (2) scraper units or two push cat units capable of operating separately are hooked together in tandem for single. operation, the operator shall receive twenty-five cents ($0.25) over the classification worked. When air compressors are used for operating the hammer when pulling or driving pile and the compressor operator is required to operate the air valve for such hammer, such compressor operator shall receive the top wage rate. UNDERGROUND WORK: Operators w1forty tunnels centsand aS0a40)nabove under theircompressed or free air shall receive classification. IRON0021C 01/01/1997 Rates Fringes IRONWORKER 17.42 4.59 NE970001 Page: 3 tr0 'd 9I:II 2.6, ZZ unr 8S8S-ISS-MI6:XPJ HJNd21H 9NI1Jd211N0J JN ..,3 LAB01140D 01/01/1997 Rates Fringes LABORERS: 12.35 2.75 General laborer _ Mortar mixer; Concrete saw operator; Pipelayer and chain 12.64 2.75 saw operator Form setter; Pre-cast manhole 13.08 2.75 setter; Inlet builder PAIN0109D 06/01/1995 Rates Fringes PAINTER (brush; spray; swing stage & 2.70 sandblasting; steel) 14 .47 SUNE2001A 12/20/1988 Rates Fringes CEMENT MASON 13.62 3.00 SUNE2005A 08/05/1993 Rates Fringes SPRINKLER INSTALLER (LAWN) 4.75 TEAM0554D 01/01/1996 Rates Fringes TRUCK DRIVERS 11.05 2.75 WELDERS Receive rateprescribed rescribed for craft performing operation to which welding is incidental. Unlisted classifications needed for work not in loded added after within the scope of the classifications listed may b award only as provided in the labor standards contract clauses (29 CFR 5.5(a) (1) (v) ) . In the listing above, the "SU" designation means that rates listed under that identifier do not reflect collectively bargained wage and fringe benefit rates. Other designations indicate unions whose rates have been determined to be prevailing. WAGE DETERMINATION APPEALS PROCESS 1. ) Has there been an initial decision in the matter? This can be: * an existing published wage determination * a survey underlying a wage determination * a Wage and Hour Division letter setting forth a NE970001 Page: 4 SO'd 9I:TT unt 8S8S-ISS-2I6:X2d HJNd21g 9NIlJd211N00 0N position on a wage determination matter * a conformance (additional classification and rate) ruling On survey related matters; initial contact, including requests for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis-Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2. ) and 3. ) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U. S. Department of Labor 200 Constitution Avenue, N. W. Washington, D. C. 20210 2. ) If the answer to the question in 1. ) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7 ) . Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N. W. Washington, D. C. 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc. ) that the requestor considers relevant to the issue. 3 . ) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board) . Write to: Administrative Review Board U. S. Department of Labor 200 Constitution Avenue, N. W. Washington, D. C. 20210 4. ) All decisions by the Administrative DECISION ivw Board are final. F NE970001 Page: 5 110 90 d Zt:TT unf 8S8S-ISS-MI6 Xpd H3Nd21S JNIlJFi21IN00 0JI Federal Labor Standards Provisions U.S. Department of Housing /N and Urban Developmentair Applicability The Project or Program to which the construction work covered by this HUD or its designee shall refer the questions,including the views of all contract pertains is being assisted by the United States of America and the interested parties and the recommendation of HUD or its designee.to the following Federal Labor Standards Provisions are included in this Contract Administrator for determination.The Administrator,or an authorized repre- pursuant to the provisions applicable to such Federal assistance. sentative,will issue a determination within 30 days of receipt and so advise A.1.(I)Minimum Wages.All laborers and mechanics employed or work- HUD or its designee or will notify HUD or its designee within the 30-day ing upon the site of the work(or under the United States Housing Act of period that additional time is necessary.(Approved by the Office of Man- 1937 or under the Housing Act of 1949 in the construction or development agement and Budget under OMB Control Number 1215-0140.) of the project).will be paid unconditionally and not less often than once a (d)The wage rate(including fringe benefits where appropriate) week,and without subsequent deduction or rebate on any account(except determined pursuant to subparagraphs(1Xb)or(c)of this paragraph,shall such payroll deductions as are permitted by regulations issued by the be paid to all workers performing work in the classification under this con- Secretary of Labor under the Copeland Act(29 CFR Part 3),the full amount tract from the first day on which work is performed in the classification. of wages and bona fide fringe benefits(or cash equivalents thereof)due at (ill)Whenever the minimum wage rate prescribed in the contract for a time of payment computed at rates not less than those contained in the class of laborers or mechanics includes a fringe benefit which is not wage determination of the Secretary of Labor which is attached hereto and expressed as an hourly rate,the contractor shall either pay the benefit as made a part hereof,regardless of any contractural relationship which may stated in the wage determination or shall pay another bona fide fringe be alleged to exist between the contractor and such laborers and benefit or an hourly cash equivalent thereof. mechanics.Contributions made or costs reasonably anticipated for bona (iv)If the contractor does not make payments to a trustee or other third fide fringe benefits under Section 1(b)(2)of the Davis-Bacon Act on behalf person,the contractor may consider as part of the wages of any laborer or of laborers or mechanics are considered wages paid to such laborers or mechanic the amount of any costs reasonably anticipated in providing mechanics,subject to the provisions of 29 CFR-5.5(a1(1Xiv):also,regular bona fide fringe benefits under a plan or program,Provided,That the contributions made or costs incurred for more than.a weekly period(but Secretary of Labor has found,upon the written request of the contractor. not less often than quarterly)under plans,funds,or programs,which cover that the applicable standards of the Davis-Bacon Act have been met The the particular weekly period,are deemed to be constructively made or Secretary of Labor may require the contractor to set aside in a separate incurred during such weekly period. account assets for the meeting of obligations under the plan or program. Such laborers and mechanics shall be paid the appropriate wage rate (Approved by the Office of Management and Budget under OMB Control and fringe benefits on the wage determination for the classification of work Number 1215-0140.) actually performed,without regard to skill,except as provided in 29 CFR 2.Withholding.HUD or its designee shall upon its own action or upon Part 5.5(aX4).Laborers or mechanics performing work in more than one. written request of an authorized representative of the Department of Labor classification may be compensated at the rate specified for each classifica- . withhold or cause to be withheld from the contractor under this contract or tion for the time actually worked therein:Provided.That the employer's pay- any other Federal contract with the same prime contractor,or any other roll records accurately set forth the time spent in each classification in Federally-assisted contract subject to Davis-Bacon prevailing wage which work is performed.The wage determination(including any additional requirements,which is held by the same prime contractor so much of the classification and wage rates conformed under 29 CFR Part 5.5(a)(1)(ii)and accrued payments or advances as may be considered necessary to pay the Davis-Bacon poster(WH-1321)shall be posted at all times by the con- laborers and mechanics,including apprentices.trainees and helpers. tractor and its subcontractors at the site of the work in a prominent and employed by the contractor or any subcontractor the full amount of wages accessible place where it can be easily seen by the workers. required by the contract.In the event of failure to pay any laborer or (ii)(a)Any class of laborers or mechanics which is not listed in the mechanic,including any apprentice,trainee or helper,employed or working wage determination and which is to be employed under the contract shall on the site of the work(or under the United States Housing Act of 1937 or be classified in conformance with the wage determination.HUD shall under the Housing Act of 1949 in the construction or development of the approve an additional classification and wage rate and fringe benefits project),all or part of the wages required by the contract HUD or its desig- therefore only when the following criteria have been met nee may,after written notice to the contractor,sponsor,applicant or owner. (1)The work to be performed by the classification requested is not take such action as may be necessary to cause the suspension of any performed by a classification in the wage determination;and further payment advance,or guarantee of funds until such violations have (2)The classification is utilized in the area by the construction ceased.HUD or its designee may,after written notice to the contractor.dis- industry;and burse such amounts withheld for and on account of the contractor or sub- (3)The proposed wage rate,including any bona fide fringe bane- contractor to the respective employees to whom they are due.The Comp- fits,bears a reasonable relationship to the wage rates contained in the troller General shall make such disbursements in the case of direct wage determination. Davis-Bacon Act contracts. (b)If the contractor and the laborers and mechanics to be employed 3.(I)Payrolls and basic records.Payrolls and basic records relating in the classification(if known),or their representatives,and HUD or its thereto shall be maintained by the contractor during the course of the work designee agree on the classification and wage rate(including the amount preserved for a period of three years thereafter for all laborers and designated for fringe benefits where appropriate),a report of the action mechanics working at the site of the work(or under the United States taken shall be sent by HUD or its designee to the Administrator of the Wage Housing Act of 1937,or under the Housing Act of 1949,in the construction and Hour Division,Employment Standards Administration.U.S.Department or development of the project).Such records shall contain the name. of Labor,Washington.D.C.20210.The Administrator,or an authorized address,and social security number of each such worker,his or her cor- representative.will approve,modify,or disapprove every additional classifi- rect classification,hourly rates of wages paid(including rates of contribu- cation action within 30 days of receipt and so advise HUD or its designee tions or costs anticipated for bona fide fringe benefits or cash equivalents or will notify HUD or its designee within the 30-day period that additional thereof of the types described in Section 1(b)(2)(B)of the Davis-anon Act). time is necessary.(Approved by the Office of Management and Budget daily and weekly number of hours worked,deductions made and actual under OMB control number 1215-0140.) wages paid.Whenever the Secretary of Labor has found under 29 CFR 5.5 (c)In the event the contractor,the laborers or mechanics to be • (a)(1)(iv)that the wages of any laborer or mechanic include the amount of employed in the classification or their representatives,and HUD or its any costs reasonably anticipated in providing benefits under a plan or pro • - designee do not agree on the proposed classification and wage rate gram described in Section 1(b)(2XB)of the Davis-Bacon Act,the contractor (includingthe amount designated for fringe benefits.where appropriate), y u g g shall maintain records which show that the commitment to provide such r� Previous Edition is Obsolete HUD-40,10(2.84)7 (HB 1344.1) benefits is enforceable,that the plan or program is financially responsible, apprentice.The allowable ratio of apprentices to journeymen on the job site and that the plan or program has been communicated in writing to the in any craft classification shall not be greater than the ratio permitted to the laborers or mechanics affected,and records which show the costs antici- contractor as to the entire work force under the registered program.Any pated or the actual cost incurred in providing such benefits.Contractors worker listed on a payroll at an apprentice wage rate,who is not registered employing apprentices or trainees under approved programs shall maintain or otherwise employed as stated above.shall be paid not less than the written evidence of the registration of apprenticeship programs and certifi- .applicable wage rate on the wage determination for the classification of cation of trainee programs,the registration of the apprentices and trainees, work actually performed.In addition•any apprentice performing work on and the ratios and wage rates prescribed in the applicable programs. the job site in excess of the ratio permitted under the registered.program (Approved by the Office of Management and Budget under OMB Control shall be paid not less than the applicable wage rate on•the wage determi- Numbers 1215-0140 and 1215-0017.) .nation for the work actually performed.Where a contractor is performing (ii)(a)The contractor shall submit weekly for each week in which any •construction on a'project in a locality other than that in which its program is contract work is performed a copy of all payrolls to HUD or its designee if registered,the ratios and wage rates(expressed in percentages of the jour- the agency is a party to the contract but if the agency is not such a party, -neyman's hourly rate)specified in the contractor's or subcontractor's regis- the contractor will submit the payrolls to the applicant sponsor,or owner. tered program shall be observed.Every apprenctice must be paid at not as the case may be.for transmission to HUD or its designee.The payrolls less than the rate specified in the registered program for the apprentice's submitted shall set out accurately and completely all of the information level of progress.expressed as a percentage of the journeymen hourly rate required to be maintained under 29 CFR Part 5.5(a)(3Xi).This information• specified in the applicable wage determination.Apprentices shall be paid may be submitted in any form desired.Optional Form WH-347 is available fringe benefits in accordance with the provisions of the apprenticeship for this purpose and may be purchased from the Superintendent of Docu- program.If the apprenticeship program does not specify fringe benefits. merits(Federal Stock Number 029-005-00014-1),U.S.Government Printing apprentices must be paid the full amount of fringe benefits listed on the Office.Washington.DC.20402.The prime contractor is responsible for the wage determination for the applicable classification.If the Administrator submission of copies of payrolls by all subcontractors.(Approved by the determines that a different practice prevails for the applicable apprentice Office of Management and Budget under OMB Control Number • ._.. classification;fringes shall be paid in accordance with that determination.In 1215-0149.) • the event the Bureau of Apprenticeship and Training,or a State Appren- (b)Each payroll submitted shall be accompanied by a"Statement of ticeship Agency recognized by the Bureau,withdraws approval of an Compliance,"signed by the contractor or subcontractor or his or her agent apprenticeship program,the contractor will no longer be permitted to utilize who pays or supervises the payment of the persons employed under/he... apprentices at less than the applicable predetermined rate for the work ontract and shall certify the following: performed until an acceptable program is approved. • (1)That the payroll for the payroll period contains the information (ii)Trainees.Except as provided in 29 CFR 5.16.trainees will not be --wired to be maintained under 29 CFR Part 5.5(a)(3)(i)and that such permitted to work at less than the predetermined rate for the work per- •formation is correct and complete: formed.unless they are employed pursuant to and individually registered in (2)That each laborer or mechanic(including each helper. . a program which has received prior approval;evidenced by formal certifi- :pprentice.and trainee)employed on the contract during the payroll period cation by the U.S.Department of labor,Employment and Training Admini- tas been paid the full weekly wages earned,without rebate,either directly stration.The ratio of trainees to journeymen on the lob site shall not be or indirectly,and that no deductions have been made either directly or indi- greater than permitted under the plan approved'by the Employment and redly from the full wages earned,other than permissable deductions as set Training Administration.Every traineemust be paid at not less than the rate forth in 29 CFR Part 3; • specified in the approved program for the trainee's level of progress. (3)That each laborer or mechanic has been paid not less than the • expressed as a percentage of the joumeymar'rhourly rate specified in the applicable wage rates and fringe benefits or cash equivalents for the class applicable wage determination.Trainees shall 6e paid fringe benefits in sication of work performed,as specified in the applicable wage determina- accordance with the provisions of the trainee program.If the trainee pro- tion incorporated into the contract gram does not mention fringe benefits,trainees shall be paid the full (c)The weekly submission of a properly executed certification set amount of fringe benefits listed on the wage determination unless the forth on the reverse side of Optional Form WH-347 shall satisfy the Administrator of the Wage and Hour Division determines that there is an requirement for submission of the"Statement of Compliance"required by apprenticeship program associated with the corresponding journeyman paragraph A.3(ii)(b)of this section. wage rate on the wage determination which provides for less than full (d)The falsification of any of the above certifications may subject the fringe benefits for apprentices.'Any employee listed on the payroll at a contractor or subcontractor to civil or criminal prosecution under Section . trainee rate who is not registered and participating in a training plan 1001 of Title 18 and Section 231 of Title 31 of the United States Code. approved by the Employment'and Training Administration shall be paid not (iii)The contractor or subcontractor shall make the records required less than the applicable wage rate on the wage determination for the'work under paragraph A.3.(i)of this section available for inspection,copying,or actually performed.In addition,any trainee performing work on the job site transcription by authorized representatives of HUD or its designee or the in excess of the ratio permitted under the registered program shall be paid Department of Labor,and shall permit such representatives to interview not less than the applicable wage rate on the wage determination for the employees during working hours on the job.If the contractor or subcon- work actually performed.In the event the Employment and Training Admin- tractor fails to submit the required records or to make them available.HUD istration withdraws approval of a training program,the contractor will no or its designee may,after written notice to the contractor.sponsor,appli- longer be permitted to utilize trainees at less than the applicable predeter- ;ant.or owner,take such action as may be necessary to causethe sus- • mined rate for the work performed until an acceptable program is tension of any further payment advance.or guarantee of funds..Further- approved. :pore,failure to submit the required records upon request or to make such (iii)Equal'empioym+ent opportunity.The utilization of apprentices, records available may be grounds for debarment action pursuant to 29 ' trainees and journeymen under this part shall be in conformity with the CFR Part 5.12. equal•employment opportunity requirements of Executive Order 11246,as 4.(i)Apprentices and Trainees.Apprentices.Apprentices will be per- amended.and 29 CFR Part 30. ' • miffed to work at less than the predetermined rate for the work they per- 5.Compliance with Copeland Act requirements.The contractor shall 'ormed when they are employed pursuant to and individually•registered in a comply with the requirements of29 CFR Part 3 which are incorporated by bona fide apprenticeship program registered with the U.S.Department of reference in this contract abor,Employment and Training Administration.Bureau of Apprenticeship 6.Subcontracts.The contractor of subcontractor will insert in any sub- and Training,or with a State Apprenticeship Agency recognized by the contracts the•clauses contained in 29 CFR 5.5(a)(1)through(10)and such c3ureau,or if a person is employed in his or her first 90 days of probationary other clauses as HUD or its designee may by appropriate instructions employment as an apprentice in such an apprenticeship program,who is• require.and also a clause requiring the subcontractors to include these lot individually registered in the program,but who has been certified by the clauses in any lower tier subcontracts.The prime contractor shall be 3ureau of Apprenticeship and Training or a State Apprenticeship Agency responsible for the compliance by any subcontractor or lower tier subcon- where appropriate)to be eligible for probationary employment as an • tractor with all the contract clauses in 29 CFR Part 5.5. HUD-4010(2-84) • 7.Contracte termination;debarment.A breach of the contract clauses in compensation at a rate not less than one and one-half times the 29 CFR 5.5 may be grounds for termination of the contract and for debar- basic rate of pay for all hours worked in excess of forty hours in such workweek. Ynent as a contractor and a subcontractor as provided in 29 CFR 5.12. 8.Compliance with Davis-Bacon and Related Act Requirements.All rul- (2)Violation;liability for unpaid wages;liquidated damages.In tre ings and interpretations of the Davis-Bacon and Related Acts contained in event of any violation of the clause set forth in subparagraph(1)of th s 29 CFR Parts 1.3,and 5 are herein incorporated by reference in this paragraph.the contractor and any subcontractor responsible therefor shall contract be liable for the unpaid wages.In addition,such contractor and subcon- 9.Disputes concerning labor standards.Disputes arising out of the labor tractor shall be liable to the United States(in the case of work done uncle' standards provisions of this contract shall not be subject to the general contract for the District of Columbia or a territory,to such District or to such disputes clause of this contract Such disputes shall be resolved in actor- territory),for liquidated damages.Such liquidated damages shall be con-- dance with the procedures of the Department of Labor set forth in 29 CFR puted with respect to each individual laborer or mechanic.including Parts 5.6,and 7.Disputes within the meaning of this clause include dis- watchmen and guards.employed in violation of the clause set forth in sun- pules between the contractor(or any of its subcontractors)and HUD or its paragraph(1)of this paragraph,in the sum of$10 for each calendar day on designee,the U.S.Department of labor,or the employees or their which such individual was required or permitted to work in excess cf representatives. the standard workweek of forty hours without payment of the 10.(i)Certification of Eligibility.By entering into this contract the con- overtime wages requi red by the clause set forth in subpara- tractor certifies that neither it(nor he or she)nor any person or firm who graph (1) of this paragraph. has an interest in the contractor's firm is a person or firm ineligible to be (3)Withholding for unpaid wages and liquidated damages. HUD or is awarded Government contracts by virtue of Section 3(a)of the Davis- designee shall upon its own action or upon written request of an autro- Bacon Act or 29 CFR 5.12(a)(1)or to be awarded HUD contracts or partici- rized representative of the Department of Labor withhold or cause to be pate in HUD programs pursuant to 24 CFR Part 24. withheld.from any moneys payable on account of work performed by the (ii)No part of this contract shall be subcontracted to any person or firm contractor or subcontractor under any such contract or any other Feder_i ineligible for award of a Government contract by virtue of Section 3(a)of contract with the same prime contract or any other Federally-assisted ccr.- the Davis-Bacon Act or 29 CFR 5.12(a)(1)or to be awarded HUD contracts tract subject to the Contract Work Hours and Safety Standards Act whic- or participate in HUD programs pursuant to 24 CFR Part 24. is held by the same prime contractor such sums as may be determined to (iii)The penalty for making false statements is prescribed in the U.S. be necessary to satisfy any liabilities of such contractor or subcontracts• Criminal Code.18 U.S.C. 1001.Additionally.U.S.Crimnal Code,Section for unpaid wages and liquidated damages as provided in the clause se! 1010,Title 18,U.S.C.,"Federal Housing Administration transactions".pro- forth in subparagraph(2)of this paragraph. vides in part:"Whoever,for the purpose of. . .influencing in any way the (4)Subcontracts.The contractor or subcontractor shall insert -ar action of such Administration. . . makes,utters or publishes any statement subcontracts the clauses set forth in subparagraph(1)through i4) knowing the same to be false. . . shall be fined not more than$5,000 or paragraph and also a clause requiring the subcontractors to include!nese imprisoned not more than two years.or both." clauses in any lower tier subcontracts.The prime contractor shall be 11.Complaints, Proceedings,or Testimony by Employees.No laborer or responsible for compliance by any subcontractor or lower tier subccetra=- mechanic to whom the wage,salary,or other labor standards provisions of tor with the clauses set forth in subparagraphs(1)through(4)cf this this Contract are applicable shall be discharged or in any other manner paragraph. discriminated against by the Contractor or any subcontractor because such C.Health and Safety employee has filed any complaint or instituted or caused to be instituted (1)No laborer or mechanic shall be required to work in surroundings any proceeding or has testified or is about to testify in any proceeding or under working conditions which are unsanitary,hazardous,or darger- under or relating to the labor standards applicable under this Contract to ous to his health and safety as determined under construction safety arts his employer. health standards promulgated by the Secretary of Labor by regulator. B Contract Work Hours and Safety Standards Act.As used in this para- (2)The Contractor shall comply with all regulations issued by the graph.the terms"laborers"and"mechanics"include watchmen and Secretary of Labor pursuant to Title 29 Part 1926(formerly part 1518)arc guards. failure to comply may result in imposition of sanctions pursuant to the Ccn- (1) Overtime requirements. No contractor or subcontractor tract Work Hours and Safety Standards Act(Public Law 91-54,83 Sat 96). contracting for any part of the contract work which may require (3)The Contractor shall include the provisions of this Article in everi or involve the employment of laborers or mechanics shall require or permi t any such laborer or mechanic in any workweek in which subcontract so that such provisions will be binding on each subcontractor. he or she is employed on such work to work in excess of forty The Contractor shall take such action with respect to any subcontract as hours in such workweek unless such laborer or mechanic receives the Secretary of Housing and Urban Development or the Secretary cf laoor shall direct as a means of enforcing such provisions. • HUD-401012.84) ACKNOWLEDGEMENT OF COVENANT , RUNNING WITH LAND Xh b' .��� WHEREAS, on , 19 ,by Resolution No. , the City Council of the City of Omaha authorized the execution of an Agreement between the City of Omaha and Holy Name Housing Corporation, (HNHC), a Nebraska Non-profit Corporation, wherein the City would provide a grant from Community Development Block Grant Program funds in the amount of $80,000.00, for the tree trimming and the installation of utilities by OPPD and MUD for development of a deteriorated, vacant site at 51 st and Nebraska Avenue for future construction of single-family housing, legally described as: Lots 8 - 17 (inclusive),Block 1, and Lots 1 - 10 (inclusive), Block 2, Fred Gordon's Addition, City of Omaha, Douglas County,Nebraska. WHEREAS,HNHC,hereby acknowledges as follows: HNHC, for itself, its successors and assigns, agrees that the restrictions and covenants in the above-referenced 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 HNHC, 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 the said property. HNHC, 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 five (5) years, after the date of the completion of the 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. Holy Name Housing Corporation, a Nebraska Non-profit Corporation By: Name: Title: Date STATE OF NEBRASKA ) ) SS COUNTY OF DOUGLAS ) On this day of , 19 , before me, the undersigned, a Notary Public duly commissioned and qualified in and for said County,personally came , Holy Name Housing Corporation, a Nebraska Non-profit Corporation,personally to me known to be the identical person whose name is affixed to the above and foregoing instrument as Acknowledgement of Covenant Running With Land, on behalf of the Corporation. In testimony whereof, I have hereunto set my hand and affixed my notarial seal at Omaha, Nebraska, on the day and date last above written. NOTARY PUBLIC My commission expires P:\PLN2\4110.MAF iglylk& Exi`I;bd- "F" SECTION 3 CLAUSE All Section 3 covered contracts shall include the following clause (referred to as the Section 3 clause): A. The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3). The purpose of Section 3 is to ensure that employment and other economic opportunities - generated by HUD assistance or HUD-assisted projects covered by Section 3 shall, to the greatest extent feasible,be directed to low-and very low-income persons, particularly persons who are recipients of HUD assistance for housing. B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 135 regulations. C. The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference,shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. D. The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR.part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 135. E. The contractor will certify that any vacant employment positions, including training positions, that are filled(1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR part 135. F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD- assisted contracts. Effective August 1, 1994 41110 G. With respect to work performed in connection with Section 3 covered Indian housing assistance, Section 7(b) of the Indian Self-Determination and Education Assistance Act (25. U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this contract that are subject to the provisions of Section 3 and Section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with Section 7(b). Providing Other Economic Opportunities. (a) General. In accordance with the findings of the Congress, as stated in Section 3, that other economic opportunities offer an effective means of empowering low-income persons, a recipient is encouraged to undertake efforts to provide to low-income persons economic opportunities other than training, employment, and contract awards, in connection with Section 3 covered assistance. (b) Other training and employment-related opportunities. Other economic opportunities to train and employ Section 3 residents include, but need not be limited to, use of "upward mobility", "bridge" and trainee positions to fill vacancies; hiring Section 3 residents in management and maintenance positions within other housing developments; and hiring Section 3 residents in part-time positions. (c) Other business-related economic opportunities. (1) A recipient or contractor may provide economic opportunities to establish, stabilize or expand Section 3 business concerns, including micro-enterprises. Such opportunities include„ but are not limited to the formation of Section 3 joint ventures, financial support for affiliating with franchise development, use of labor only contracts for building trades, purchase of supplies and materials from housing authority resident-owned businesses, purchase of materials and supplies from PHA resident- owned businesses and use of procedures under 24 CFR part 963 regarding HA contracts to HA resident-owned businesses. A recipient or contractor may employ these methods directly or may provide incentives to non-Section 3 businesses to utilize such methods to provide other economic opportunities to low-income persons. (2) A Section 3 joint venture means an association of business concerns; one of which qualifies as a Section 3 business concern, formed by written joint venture agreement to engage in and carry out a specific business venture for which purpose the business concerns combine their efforts, resources, and skills for joint profit, but not necessarily on a continuing or permanent basis for conducting business generally, and for which the Section 3 business concern: (i) Is responsible for a clearly defined portion of the work to be performed and holds management responsibilities in the joint venture;and (ii) Performs at least 25 percent of the work and is contractually entitled to compensation proportionate to its work. Effective August 1, 1994 F,clib4 "G MINORITY BUSINESS & WOMEN BUSINESS ENTERPRISE PLAN CITY OF OMAHA PLANNING DEPARTMENT MAY, 1996 • • PLANNING DEPARTMENT • CITY OF OMAHA MINORITY BUSINESS/WOMEN BUSINESS ENTERPRISE PLAN • • INTRODUCTION Minority and women business sectors play an important part in Omaha's overall plans for future growth, progress, and prosperity. It is vital to the City's economic condition and well-being that minority and women businesses expand, thrive and prosper, generating economic stability and increased job • opportunities. Towards the fulfillment and accomplishment of these important objectives, the City of Omaha remains-committed to minority and women business development. The City of Omaha's approach to minority/women business development is embedded in its policy of non- discrimination in.the conduct of City business including the procurement of goods, materials and services, construction and community and economic development projects. The City recognizes its obligations to each segment of the various communities it serves. It is in recognition of these responsibilities that the City established the City's Contract Compliance Ordinance. The Ordinance commits the City to: I. Require contractors and/or vendors to provide employment opportunities without regard to race, creed, color, sex religion, or national origin; 2. Monitor contractor and vendor equal opportunity performance; and 3. Increase the total number and total dollar volume of City contracts awarded to minority-owned and women-owned firms. • GOALS AND OBJECTIVES The following represents a summary,of the goals and objectives of the Planning Department as they relate to minority and women-owned businesses: 1. Encourage, increase and promote business and procurement opportunities for women-owned businesses; 2. Increase and •expand the awareness and understanding regarding the concerns, obstacles, and • hindrances preventing increased MBE/WBE participation in Planning Department activities; 3. Assist:MBE's/WBE's through the revitalization of business districts; 4. • Assist minority and female entrepreneurs in the formation and growth of new small businesses; and 5. Provide technical assistance to neighborhood organizations, MBE's and WBE's to increase their participation in the Planning Department programs and activities at all levels. • • SCOPE OF WORK In order to accomplish these objectives,the Planning Department will: 1. Require that recipients of grant awards, consulting contracts, or loans to develop and provide a MBE/WBE Utilization Plan. 2. Ensure that.Requests for Proposals require the submission of MBE/WBE Utilization Plans. 3. Ensure that the programs of the Planning Department are advertised in the appropriate new media whose markets are targeted toward MBE/WBE. 4. Implement an outreach effort informing MBE and WBE firms and capture information on these firms doing business with the Planning Department. 5. Implement a system to identify MBE and WBE firms and capture information on these firms doing business with the Planning Department. 6. Require developers, corporations, partnerships and/or sole proprietors to register with the Human Relations Department and the Purchasing Department. In.addition,require these entities to: A. Complete CC-1 (Human Relations Department) B. Complete Bid List Registration(Finance Department, Purchasing Division C. Complete Business Certification (Human Relations Department) 7. Require developers, corporations,. partnerships and/or sole proprietors to provide registration information on all sub-contractors. • 8. Require loan agreements to include a statement that jobs created will be made available to low-to- moderate income persons. The following application package has been developed to assist you in complying with our request for information on your business and all sub-contractors providing goods and/or services on projects financed by and/or implemented through an agreement with the City of Omaha. If you have any questions or require further assistance in completing the application package, please contact Mr. Kenneth Johnson, Sr. at 1I41- • 5165. ..2tiK. • MBE/WBE FOR EMPLOYMENT The following list of organizations is provided to assist you in identifying low-to-moderate income persons for employment opportunities. You must make concerted efforts to hire low-to-moderate income persons and document specific actions taken to achieve these objectives. To help accomplish the above goals, the following agencies should be notified of initial employment opportunities for low to moderate income persons: Nebraska Department of Labor-Omaha Job Service Omaha Ser-Jobs for Progress, Inc. 5036 Ames Avenue 5002 South 33rd Street Omaha, NE 68111 Omaha, NE 68107 Jack Meyers, Office Supervisor Hector Mota, Executive Director 595-3123 734-1321 Job Training of Greater Omaha Native American Community Development. Blue Lion Centre Corporation 2421-23 North 24th Street 2451 St. Marys Avenue Omaha, NE 68110 Omaha, NE 68105 Diane Thomas, Director Vi Fickel,Executive Director 444-4700 341-8471 Urban League of Nebraska, Inc. Omaha Opportunities Industrialization Center 3022-24 North 24th Street 2724 North 24th Street Omaha, NE 68110 Omaha, NE 68110 George Dillard, President Dr. Bernice Dodd,Executive Director 453-9730 457-4222 YWCA Girls Incorporated of Omaha 222 South 29th Street 2811 North 45th Street Omaha, NE 68131 Omaha, NE 68104 Emily Kozlik,Executive Director Patricia Gains,Executive Director 345-6555 457-4676 • • • • 4 MBE/WBE FOR GOODS AND SERVICES Your company must make vendors aware of your policy to support equal opportunity utilization of minority, disabled and women-owned businesses. To accomplish this goal, you must provide a copy of the approved MBE/WBE Participation Plan to all businesses providing goods and/or services to the project. Your company must provide the opportunity for Minority Business Enterprises and Women Business Enterprises to provide goods and services through all phases of the project. A concerted effort must be . made to allow these businesses to actively compete for project contracts. This effort will include utilization of the following resources and documentation of your actions to achieve these objectives. Omaha Small Business Network,Inc. 2505 North 24th Street Omaha, NE 68110 Kevin Clingman,Executive Director 346-8262 Housing and Community Development Division City Planning 1819 Farnam Street, Room 1111 Omaha, NE 68183 Kenneth E. Johnson, Sr., Economic Development Manager • 444-5165 Nebraska Department of Economic Development Small Business (MBE/WBE/DBE) Assistance 301 Centennial Mall South Lincoln, NE 68509-4666 • Steve Williams, Business Assistance Manager 471-3778 Purchasing Department. 1819 Farnam Street, Room 1003 Omaha, NE 68183 Gary Tomberlin,Purchasing Agent 1111-5406 Human Relations Department George Davis, Acting Director('111-5050) Contract Compliance(MBE/WBE) • 1819 Farnam Street, Room 502 Omaha,NE 68183 Rita Vlademar, Contract Compliance Manager 11 1-5067 • 5 �' MBE/WBE FOR GOODS AND SERVICES Regional Minority Purchasing Council Greater Omaha Chamber of Commerce 1301 Harney Street Omaha, NE 68102 Terrie Miller,Director 345-5000 • Omaha Ser-Jobs for Progress, Inc. 5002 South 33rd Street Omaha, NE 68107 Hector Mota,Executive Director 734-1321 Native American Community Development Corporation 2451 St. Marys Avenue Omaha, NE 68105 Vi Fickel,Executive Director 341-8471 United Minority Contractors Association 2221 North 24th Street Omaha, NE 68110 Al Epps, Executive Director 341-2177 Don Walker, ADDMSB Capital Ownership Development Sinai! Business Administration 11145 Mill Valley Road Omaha, NE 68154 221-4691 Regina Yannayon, Deputy for Small Business U.S. Corps of Engineers 215 North 17th Street Omaha, NE 68102 221-4110 6 c II City of Omaha BUSINESS QUALIFICATION RESUME DATE: I. FIRM IDENTIFICATION: COMPANY NAME - _STREET ADDRESS. CITY STATE ZIP CODE BUSINESS PHONE HOME PHONE MONTH&YEAR ESTABLISHED II. OWNERSHIP OF FIRM: IS THE FIRM OWNED AND CONTROLLED BY MEMBER OF MINORITY OR OTHER DISADVANTAGED GROUP?: YES NO MINORITY_ WOMAN N/A TYPE OF OWNERSHIP: INDIVIDUAL_PARTNERSHIP CORPORATION IS 51% OWNED BY A MINORITY? YES NO NAME AND ADDRESS OF ALL STOCKHOLDERS AND/OR PARTNERS: NAME,TITLE,HOME ADDRESS %OF OWNERSHIP HI. MANAGEMENT(USE SAME FORMAT FOR ADDITIONAL MANAGEMENT PERSONNEL): NAME POSITION EDUCATION MANAGEMENT OR TECHNICAL TRAINING 6/22i90 7a.) • City of Omaha CONTRACTOR INFORMATION FORM: DATE: PROJECT ADDRESS: OWNER INFORMATION: (To be filled out by the City of Omaha) OWNER'S NAME OWNER'S ADDRESS CITY/STATE/ZIP CODE _-._ OWNER'S PHONE NUMBER OWNER'S FEDERAL TAX IDENTIFICATION NUMBER: MINORITY INFORMATION: The Owner meets the following criteria: MINOTY WOMAN N/A (If the company does not have a Federal Tax Identification Number,then provide the Owner's Social Security Number.) GENERAL CONTRACTOR INFORMATION: COMPANY'S NAME - - i COMPANY'S ADDRESS _ CITY/STATE/ZIP CODE __ COMPANY'S PHONE NUMBER COMPANY'S FEDERAL TAX IDENTIFICATION NUMBER: MINORITY INFORMATION: The Company meets the following criteria: MINORITY WOMAN N/A CONTRACT AMOUNT: SUBCONTRACTOR LIST: SUBCONTRACTOR TRADE FED. I.D.# TELEPHONE# MINORITY INFO.: MINORITY WOMAN CONTRACT AMOUNT: N/A SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.: MINORITY WOMAN CONTRACT AMOUNT: N/A SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.: MINORITY WOMAN CONTRACT AMOUNT: __ N/A 8 c City of Omaha SUBCONTRACTOR LIST (Continuation) DATE: _ PROJECT ADDRESS: SUBCONTRACTOR LIST: SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.: MINORITY WOMAN CONTRACT AMOUNT: N/A SUBCONTRACTOR TRADE FED. I.D.# TELEPHONE# MINORITY INFO.: MINORITY WOMAN CONTRACT AMOUNT: N/A SUBCONTRACTOR TRADE FED. I.D.# TELEPHONE# MINORITY INFO.: MINORITY WOMAN CONTRACT AMOUNT: N/A SUBCONTRACTOR TRADE FED. I.D.# I LEPHONE# MINORITY INFO.: - _ • MINORITY WOMAN CONTRACT AMOUNT: _ N/A SUBCONTRACTOR TRADE FED. I.D. # TELEPHONE# MINORITY INFO.: MINORITY WOMAN CONTRACT AMOUNT: N/A SUBCONTRACTOR TRADE FED. I.D.# TELEPHONE# MINORITY INFO.: MINORITY WOMAN • CONTRACT AMOUNT: N/A • +���' +r +a 24 CFR 85.43 ENFORCEMENT (a) Remedies for noncompliance. If a grantee or subgrantee materially fails to comply with any term of an award, whether stated in a Federal statute or regulation, an assurance, in a State plan or application, a notice of award, or elsewhere, the awarding agency may 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 grantee or subgrantee or more severe enforcement action by the awarding agency, (2) Disallow (that is, deny both use of funds and 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 for the grantee 's or subgrantee 's program, (4) Withhold further awards for the program, or (5) Take other remedies that may be legally available. (b) Hearings, appeals. In taking an enforcement action, the awarding agency will provide the grantee or subgrantee an opportunity for such hearing, appeal, or other administrative proceeding to which the grantee or subgrantee is entitled under any statute or regulation applicable to the action involved. (c) Effects of suspension and termination. Costs of grantee or subgrantee resulting from obligations incurred by the grantee or subgrantee 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 grantee or subgrantee costs during suspension or after termination which are necessary and not reasonably avoidable are allowable if: (1) The costs result from obligations which were properly incurred by the grantee or subgrantee before the effective date of suspension or termination, are not in anticipation of it, and, in the case of a termination, are noncancellable, and, (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 grantee or subgrantee from being subject to "Debarment and Suspension" under E.O. 12549 (see § 85.35). • • 24 CFR 85.44 TERMINATION FOR CONVENIENCE • Except as provided in § 85.43 awards may be terminated in whole or in. part . only as follows: • • (a) By the awarding agency with the consent of the grantee or subgrantee 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, or (b) By the grantee or subgrantee upon written notification to the awarding agency, setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. However, if, in the case of a partial termination, the awarding agency determines that the remaining portion of the award will not accomplish the purposes for which the award was made, the awarding agency may terminate the award in its entirety under either § 85.43 or paragraph (a) of this section. 9124u .l j. Thursday . . M _ November 3, 1983 • • • _ _. . . a • . ,1111(...7......... .. ......:. . 1 1. . MI �-T Part 111 mom Office of. Management and - a Budget = Department : of j - Defense General Services Administration • • Circular A-122: Cost Principles for . Nonprofit-Organizations; Lobbying and . Related Activities • • = - . .:mot.: wo•�._��a 4110 • Federal Register / Vol. 48. No. 214 / Thursday, November 3. 1983 / Notices 50861 expression: requiring grantees and fostered, or"prescribe[d] (as) orthodox" - 'pubtic.ity and'propaganda.'Thus,there cor.tractors to bear the costs of their a particular view on such issues. West appears to be no firm distinction between the own lobbying efforts does not infringe Virginia State Board of Education v. conduct which is premissible and that which upon their constitutional rights.Free . Barnette. 319 U.S.624.645(1943). is prohibited. speech does not mean subsidized OMB has received thousands of Moreover.in the absence of clear and speech.The Supreme Count emphasized letters from members of the public who fair guidelines enforceable across the this point in a recent unanimous opinion are understandably concerned when board.agency officials have been . when it stated that the federal they see their tax money involved in reluctant to make politically-sensitive • government "is not required by the First projects that involve political organizing determinations in particular cases.This Amendment to subsidize lobbying.. . . for causes they may not support. problem is especially serious where We again reject the notion that First Furthermore.numerous cases have been there is a natural conjunction of interest Amendment rights are somehow not cited and documented—by federal between agency officials and their fully realized unless they are subsidized agencies,the Comptroller General, contractors and grantees. as where by the State."Regan v. Taxation with Congress. and the general public—of grantees or contractorslobby for Representation of Washington. 103 S. federal grant and contract funds that additional appropriations to the agency Ct. 1997. 2001 (1983). were used for lobbying or related ii.vo(ved.The thousands of grantees and On the other hand, there are serious ar:te.ities. ^1evertheless, due to prior contractors who receive federal mono constitutional problems with a system insufficient regulatory restrictions and are a strong lobbying farce in y that permits tax money to be used for limited enforcement efforts. the true Washington.and can use grant and the political expression of private magnitude of these abuses has never contract funds to heip perpetuate their individuals or groups.Americans have been quantified.Many organizations programs,irrespective of the programs' the First Amendment right both to receiving federal grants engage in merit or effectiveness. engage freely in speech and political extensive lobbying and related political The improper use of federal funds for expression. and to refrain from activity, but in many instances the lobbying and related activities has been speaking, without interference or control financial and performance reports filed perceived as a problem for many years on the part of the government or its by the organizations are insufficiently In 1919.Congress passed legislation detailed to permit the federal agency to making certain uses of federal funds for agents. Wooley v. Maynard. 430 U.S. 7u5, 714(1977).The proposed revision is determine whether federal funds have lobbying purposes a criminal offense for intended to ensure that the use of been used for those purposes and, federal employees: as early as 1948,the Federal contracts and other therefore.misused.The problem has grants. been exacerbated bythe lack of an Ge^.era!Accounting Office began to agreements by private organizations clear definitions of lobbying. and,in unearth instances of federal grantees engaging in lobbying does not erode or y g using federal funds for lobbying infringe these constitutional rights,or particular.of exactly what activities are purposes.Over the past ten years, distort the political process by unallowable. Congress has attached over fifty riders encouraging or discouraging certain Bath criminal statutes-18 U.S.C. to appropriations bills addressing parts forms ofpoliticalor activity. Section 1913—and appropriations y restrictions—including Section 807(a)of of the problem.In the past few years. The activities of government in a pressure has increased for further steps. the Treasury.Postal Service, and democracy necessarily involve a degree General Government Appropriations As a result: of political advocacy,since government ,qct—currently:prohibit the use of • • On December 18,1981. the officials are expected to communicate federal funds for certain types of Department of Defense issued revisions with the people.explain their programs, lobbying,but there is no clear,uniform to its Defense Acquisition Regulations and provide leadership and direction to definition of prohibited activities to (DAR).addressing for the first time the the nation.Thus,Members of Congress which grantees,contractors. auditors, issue of lobbying costs, and making such, and their staffs, the President and his costs unallowable under DOD contracts. agency officials,or the public can refer. political appointees,necessarily • On April 27,1982 and October 22. participate in forms of political The clear signal from Congress through the appropriations laws and other 1982.DOD further toughened its rules advocacy. However• it is a distortion of t• disallowing lobbying costs. eliminating the marketplace of ideas for the actions has not been translated into, Peffective management controls. • certain exceptions from coverage. government to use its financial power to The vagueness of existing anti- • On May 28.1982.NASA issued a "tip the: electoral process."EI.-od v. new cost principle in the NASA lobbying restrictions has hampered the S;:ni;. 427 U S.3t 3.356(1975).by Procurement Regulations (NASAPR) ability of contractors and grantees to suhsibiizing the political advocacy making lobbying costs unallowable for comply voluntarily with the restrictions, ,activities of private organizations and and has made the job of auditors NASA contractors.This was revised corporations.This proposal will ensure. difficult. if not impossible. For example. August 16.1982. to the extent consistent with the in recent General Accounting Office • On November 2.1982. the General communications function of the Services Administration issued a new (CAO) investigations of improper government. that taxpayers are not lobbying expenditures. the contractors cost principle in the Federal required. directly or indirectly."to and grantees were able to urge that Procurement Regulations (FPR)making contribute to the support of an current rules did not ban the lobbying costs unallowable for civilian ideological cause(they) may oppose." expenditures.As the Investigations contracts with commercial .•hood v. Detroit Board of Education. Subcommittee of the House Armed organizations. 431 U.S. 209. 235-238(1977).The Services Committee recently concluded: These developments,however,affect proposal also seeks to avoid the only defense and civilian contracts with (Tlhere is a deficiency in the appearance that,by awarding Federalcommercial organizations.No generally- appropriations acts'prohibition of lobbying grants. contracts.or other agreements to with appropriated funds.A review of the applicable cost principle has been organizations engaged in political legislative history of the publicity- issued to control the federal funding of ueivncary on particular sides of public propaganda appropriations acts restrictions lobbying under contracts and grants to issues. the government has endorsed. pros idles no definition of the critical terms nonprofit organizations. ,, a • • . Federal Register / Vol. 48. No. 214 / Thursday. November 3. 1983 / Notices 50863 portion of its revenues,it is eligible for 7. The Comptroller General supports • Efforts to employ state or local tax exempt status.The Code lobbying the need forA-122 revision:As officials to lobby Congress or state provisions are only determinative, indicated elsewhere in the preamble,the legislatures: however. of wherther an organization is A-122 proposal was prepared in active • Legislative liaison activities,but sufficiently devoted to a public purpose consultation with the General only to the extent that they are directly to justify preferential tax treatment.The Accounting Office,which supports the related to unallowable lobbying provisions do not address the issue of initiative and believes that the proposal activities as otherwise defined by the whether federal grant monies should be satisfies the concerns which it had •used to subsidize lobbying—the sole expressed earlier. Circular. arell coveredlegielve liaisonR. • purpose of cost standards. Indeed.the activities are by DAR.) fact that the code lobbying And. as noted elsewhere. after a GAO The proposal will make unallowable y g provisions investigation of lobbying activities by only the portion of costs attributable to do not address the use of grant monies grantees under Title X of the Public lobbying and related activities—not.as for lobbying has been implicitly Health Services Act.the Comptroller in the January 24 proposal, entire cost recognized by Congress on numerous General stated in September 1982: items used in part for political advocacy. occasions through appropriation bill ures. Clear federal guidance is needed both to Further,and critically, the proposal riders prohibiting such expenditures.Fee. e.g.. Pub.L 97-377,section ore Pub. ensure that Title X program funds are not will provide relief from paperwork and used for lobbying and to preclude audit problems such as those L.96-74. section 607. unnecessary controversy over whether experienced under the current DAR. It is clear that because expenditures grantees are violating federal restrictions. - FPR.and NASAPR: for the purposes of by Code does nonprofits ot mean that federal grante thee move to revise and cost principles applicable Coaall specificee complyingraed with thisn revision.indirect employees monies should be spent for those grantees is the appropriate mechanism to not he red foe t am ain timei will o purposes. For example. the Code does achieve these ends.(Emphasis added.) not he required to maintain logs or not prohibit tax exempt organizations VI.Summary Description of Proposal similar records if they lobby less than ,Srt, from spending their revenues onw ore the time.The pod ai government or entertainment.Circular This proposal uses the term"lobbying certification ill rely upon their good faith advertising however.allows only certain and related activities" to describe • of lobbyingizat s time below 25%, advertising costs.and disallows all unallowable activities instead of the found for organizations that have been entertainment costs.Another example is expansive term"political advocacy" found to have materially misstated section 503 of the Code, which denies used in the January 24 proposal.This allowable or unallowable costs within tax exempt status in certain instances to reflects a significant tightening of the the preceding five-year period.Under organizations using their revenues for definition of unallowable activity in the the proposal,the absence of time logs or th• e private gain of controlling new proposal.Unlike the January 24 similar records not kept creti ant to individuals.The regulatory scheme proposal, this proposal will not coven grantee or contractor discretion will no embodied in section 503 does not imply. • • Lobbying at the local level(covered disallowing longllor serve claimsas a basisonforact contestingsor however, that the federal government under the current DAR and FPR): employees. for indirect cast should not have more stringent • Appearancesemployees. g before Congress or In order to provide even-handed restrictions on the use of federal grant state legislatures at their written request government-wide rules for paperwork monies for private gain.This point is (covered under the current DAR); - and audits.Defense. GSA. and NASA ' best understood by the fact that nothing • Contracts with Executive Branch are proposing parallel revisions in their in the Code would prevent many officials,other than in connection with procurement regulations. grantees from spending all of their grant the veto or signing of enrolled bills,or funds for Iobbying purposes. attempts to use state or local officials as VII.Variances With to Lobbying Correlatively, the fact that the Code conduits for unallowable lobbyingProvision of Defense Acquisition • and other provisions of law regulate the (covered under the January 24 osal); Regulations(DAR) business community in its lobbying • Litigation on behalf of others not A standardized lobbying provision activitit•s. e.g.. Section 162(e).MC: directly authorized by grant or contract that will govern grantees and • Federal Election Campaign Act.2 U.S.G. (covered under the January 24 proposal): contractors alike resulted from Sections 431-156. does not mean that • Lobbying at the state level that extensive negotiations among the four there shoulds be no provisions in the would affect the organization's ability or agencies which are responsible for the DAR. FPR or NASAPR regarding such cost of performing:a grant or contract • major sets of cost principles affecting activities. Some in the business (covered under the current DAR.FPR. grants and contracts: the Federal community have suggested that current and NASAPR); Procurement Regulations (FPR),which provisions regarding the unallcwability • The entire cost of membershipdues covers civilian contractors and which is of In►_ill ing expenditures should be administered by GSA: the NASA superseded definitions of should lobbying to trade associations or other y organizations which have lobbying as a Procurement Regulationsecontractors (NASAPR);the • set forth in the Federal Regulation ofDAR,which administered covers defense contractors Lobbying Act. Z U.S.C.sections 281-270. "substantial organizations!purpose" That ition has been properly (covered under ti:e January 24 proposal). and is administered by the Department p p p y Unallowable activities will consist of: of Defense:and Circular A-122,which rejected. and no Congressional intent or covers nonprofit organizations and is operative theory can seriously support • Federal,state or local electioneering imFiemented under the guidance of the n:t:gin that the Code.lobbyists and support of campaign organizations. OMB. registry:Lion laws or anyother like PACS, and the like; Although exact conformity was statutes permit the government to avoid • Direct lobbying of Congress and,to reached between the lobbying its responsibility to assure that federal the degree noted above.state provisions in the FPR. NASAPR,and the grant orad contract funds are spent for legislatures: A-122 proposal,four exempted activities authorized purposes and intended and • Crass roots lobbying concerning under these regulations are restricted best uses. state or federal legislatinn; under the DAR proposal.The activist?es Federal Register / Vol. 48. No. 214 / Thursday. November 3. 1983 / Notices 50865 _ grantee and contractor lobbying of Unallowable.Under the DAR.oll lobbying exempted from unallowability Congress or state legislatures. • legislative liaison activities are deemed under this section must be "directly The coverage of subparagraph b(3) unallowable. related"to lower costs or better has been limited to state and federal Subparagraph c sets forth five performance of grants or contracts. legislation in these proposals. unlike the exceptions to subparagraph b.The costs Lobbying in the case of secondary. prohibitions in the Internal Revenue of activities described in subparagraph c tangential or speculative links between Code. the DAR, the FPR. and the . are not unallowable under this proposal. proposed state laws and grant or NASAPR. because it is difficult to Note that this does not necessarily make contract costs or performance will distinguish between legislative and such costs ullo abli':allowahility or retrain unallowable. executive lobbying at the local level. unallowability of such costs will be • In recognition of the principles of Many of the comments received from determined by the terms of the grant. federalism.states which are subgrantnrs organizations critical of the January 24, contract, or other agreement involved. for federal grants may. through 1983. proposal gave examples of Circuiar A-122 does not authorize costs appropriate state processes, waive the contacts with local officials that are or expenditures:it exclusively limits the disallowance provision for state vital to carrying out grants or allowability of costs or expenditures. lobbying by state subgrantees. contracts—for example. obtaining Subparagraph c(1)exempts the The final exception. in subparagraph zoning changes. police protection.or provision of technical advice or c(S). is for any activity specifically permits. At the local level, there is no assistance to a legislature upon a authorized by statute to be undertaken rigorous separation between legislative specific written request.This includes pursuant to the federal grant,contract. and Executive Branches, and it would not merely testimony,but also or other agreement.The provisions of be difficult to construct or enforce a rule conferenr..es with legislators and staff this Circular do not override statutory regarding legislative lobbying at the when requested.The exemption is law. local level. meant to be permitted on a limited Paragraph 2 renumbers paragraphs As ir.dicated.however, in keeping basis. to fulfill the specific informational B21 through B50 of Circular A-122's with the intent of the revision.b(3) needs of legislatures.and members and Attachment B.Since the cost items includes a phrase clarifying that efforts staffs thereof. covered under Attachment B are expended to influence state and local Subparagraph c(2),patterned after 28 officials to accomplish the lobbying U.S.C.4911(d)(2)(E),makes clear that numbered in alphabetical order. activities defined in b(3) are likewise communications with Executive Branch "Lobbying and Related Activities"is unallowable.Under the proposal,the officials are not unallowable, with two •appropriately designated as paragraph government would not reimburse the exceptions: (1) to influence a decision to B21.necessitating the renumbering of cost of meeting with mayors or city sign or veto legislation or(2) to influence Paragraphs B21 through B50 as B22 council representatives if the purpose is state or local officials to serve as • through B51. to convince them to lobby the Congress conduits for unallowable lobbying Paragraph 3,like paragraph 2.is a for legislation that the grantee or activities, as defined by this revision. technical language change.It changes contractor favors. Subparagraph c(3)ensures that the the former term"lobbying"to the new Subparagraph b(4)deals with grass salary of an employee does not become term"lobbying and related activities," roots lobbying.and is applicable only to unallowable because of participation in as used in this revision. . grass roots campaigns concerning civic affairs as an elected or appointed IX.Legal Authority legislation.This provision is not meant official or member of a governmental The responsibility for implementing to disallow associations from informing advisory panel. P Y P g their membership about legislative Subparagraph c(4)exempts lobbying grant programs,including the power of developments or soliciting their or related activity at the state level administration,has been delegated by members' views as a basis for where it directly affects the ability of or Congress to the grant-and contract- developing the associations'own cost to the organization of performing making agencies.Those agencies have legislative positions. the grant or contract.Such lobbying can. the direct legal authority to establish • The proposal's definition of grass directly benefit the federal government. cost principles and,prior to the late roots lobbying is less inclusive than the The proposed exception does not permit • 1970's.did so in a piecemeal fashion Internal Revenue Code definition,in that the use of federal funds to lobby state . without coordinated government-wide the IRC includes local lobbying:and legislatures to promote the ideological standards.OMB's legal authority in this restricts "any attempt to influence any objectives of the organization.merely process derives from the President's legislation through an attempt to affect because those objectives are consonant constitutional authority to"Take Care the opinions of the general public or any with the purposes of the grant or that the Laws be Faithfully Executed." segment thereof."This subparagraph contract. A recipient of a grant for U.S.Constitution.Article IL Section 3,as restricts only efforts to obtain specified services to the elderly cannot thereby well as from general supervisory lobbying actions on the part of the engage in lobbying on behalf of the responsibilities vested by Congress in public. (See 26 U.S.C.4911(d)(1)(A)). concerns of the eldery.Rather,the the President and in OMB. I Subparagraph b(5) makes unallowable lobbying must relate to the Grants management responsibility the cost of legislative liaison activities organization's direct performance of the was placed in OMB by Executive Order • when they relate to unallowable grant or contract.Fur example,a grantee No.11541 (July 1.1970).pursuant to lobbying and related activities as in a drug rehabilitation program might Reorganization Plan No.2 of 1970.5 defined in paragraph b.This distinction be able to lobby a state legislature for U.S.C.App.Subsequently.grants recognizes that while the primary • laws permitting the prescription of management authority was transferred purpose of an organization's "legislative methadone to heroin addicts,or a to GSA by Executive Order No.11717 liaison" unit is ordinarily to direct and grantee distributing dairy products to (May 9,1973)and retransferred back to prepare for what has been defined in the needy might lobby against an OMB by Executive Order No.11893 this revision as unallowable lobbying. increased excise tax on milk that would (December 31,1975).Relevant statutory there are many other functions served increase its distribution costs.It should authorities include the Budget and that this revision does not make be understood.however. that state Accounting Act of 1921.ch.18.Section • Federal Register / Vol. 48. No. 214 / Thursday. November 3. 1983 / Notices 50867 reimbursement from the contractor or activities and 40%on federal grant On the other hand, considerable grantee of misspent funds.In more activities.40%of the salary may be • problems of definition and interpretation serious cases.contracts and grants can allocated to the grant.This approach is arise when terms such as "substantial" be suspended or terminated.or consistent with the DAR. FPR. and are used to define the point at which the contractors and grantees can be NASAPR lobbying cost treatment entire cost of a meeting or conference is debarred from further awards.The provisions. as well as the traditional to become wholly unallowable. availability of these sanctions for accounting method of prorating costs Given the inherent difficulties in using oniviolating the iaanti-lo bising restrictions between allowable and unallowable cost principles to attempt to deal with aP g activities. this roblem,it confirmed by the Office of Legal P appears that the better • Counsel of of Justice. An alternative method of allocating approach would be for agencies to adapt j 3.Advancelof the Department Oneo of themost costs of items used for both lobbying more stringent policies regarding the effective means of enforcing these actitvities and grant/contract purposes funding of meetings and conferences restrictions is to ensure that grants and that was considered and rejected was when they are likely to finance or contracts officers are aware of the ast the concept that no federal money can otherwise support clear lobbying performance of organizations seeking be used to pay for any portion of a cost activities.(See Office of Management new or continued funding. If an item that is used for lobbying activities and Budget Memorandum.M-82-4: organization has not devoted past (1) in any way. or(2) over 5% of the "Improper Uses of Federal Funds."April appropriations to the grant or contract time. 26. 1982.) purposes. and has materially diverted The OMB proposal published on 2.Definition ofLobbyin;Activities. them to lobbying(or other extraneous January 24. 1983 followed this approach. One of the weaknesses of current activities). questions can legitimately be Commenters argued that it would restrictions on tax-funded lobbying is raised as to whether additional grants or increase the cost of performing federal the lack of a clear and detailed contracts would be appropriate.Once grants and contracts because it would definition of exactly what is and what is uniform and understood cost principles effectively require them to separate their not covered.In constructing the are in place. it is expected that agencies lobbying activities from their grant or definition in this proposal. OMB has will take steps to ensure more thorough contracts activities.This could lead to drawn upon experience and language advance screening of grant and contract inefficient duplication of equipment and from Internal Revenue Code definitions. applications. facilities—with attendent increased statutory provisions.Defense.GSA.and • 4.Audits. Contractors and grantees costs to the taxpayer.They aiso argued NASA procurement regulations.and are currently subject to audit that it would burden the First similar sources.Care has been taken not requirements. and to the possibility of Amendment rights of contractors and to prohibit activities that are audit by agency Inspectors General or grantees because engaging in lobbying legitimately necessary to the fulfillment the Comptroller General;However,most activities could result in disallowance of . of the grant or contract. audits have not focused on compliance otherwise legitimate costs.The purpose The proposal addresses the various with anti-lobbying provisions.Audit of this proposal,however. is to enforce categories of lobbying (e.g..grass roots strategy and priority will continue to be governmental neutrality by preventing lobbying),and defines the unallowable established by the independent the use of federally appropriated funds activities.A separate section is devoted judgment of these enforcement bodies. for lobbying and related activities.To to activities which are exceptions to the After uniform cost principles are the extent that an approach would general restrictions. promulgated.it will become possible for significantly increase costs or burden The following alternative definitions • . more vigorous and effective audit - First Amendment expression. it is • of unallowable activities have been enforcement to take place.Stratified inappropriate. considered and rejected: audits and other strategies can be used Some commenters have urged that I to create an incentive for greater • nonprofit organizations shouts be a. The definitions used in be compliance among all grantees and January 24. 1983.proposal could be contractors.Alternatively.promulgation ineligible to receive any federal funding used:.This would result in disallowing. of a defined set of rules can and will if the engage in any lobbying activities. among others,the following categories Such an approach would be more serve as a protective barrier against restrictive then OMB's January 24.1983, of activity not covered in this proposed audit harassment. and will and should revision: make for fairer and simpler audits for proposal and would be strcn Il opposed • Lobbying on local concerns at the grantees and contractors.This should be try many affected groups. Furthernore,a local level. of particular benefit to smaller grantees wholesale preclusion of participation in an..1 contractors who lack the means and grants and contracts as a postal of even • Lobbying at the state level.even a modest amount of lobbying would when the lobbying is directly related to support staff to contend with audits raise difficult questions f lesality and the cost to or ability of the organization under .he vague.ambiguous. and efficiencyin a where the applicant to perform the grant or contract. case differential rules now in effect.With was otherwise the most quali ed • Attempts to influence"licensing, expanded Inspector General and agency audit staffs now in place. the protections applicant. grants.ratemaking.formal or informal afforded by the proposal are manifest. One variation from the allocation adjudications.guidelines.and policy principle considered by OMB related to statements:' Xl.Alternative Approaches to Major the costs of conducting meetings and • Contacts with Executive Branch Issues in The Revision conferences that are held in "substantial officials concerning any governmental 1. General Cost Treatment This part" to promote lobbying. decisions. proposal makes unallowable only the The practice of partisan meeting • Litigation on behalf of others not portion of a cost item that is actually sponsors scheduling large blocks of directly authorized by grant or contract. used in lobbying activities. as opposed "open time" to facilitate lobbying during • Encouragement of grass roots to the entire item.Thus,if an employee Washington meetings could make the lobbying to influence notice and spends 60%of his time on lobbying allocation approach impractical. comment rulemaking. f • .. Federal Register / Vol. 48. No. 214 / Thursday, November 3. 1983 / Notices 50869 course of business,frequently engage in the federal funds corporate M grant funds are used for the purposes only a small amount of lobbying.OMB organizational documents: audit reports: that were intended.and not to facilitate (along with Defense.GSA. and NASA) publications,newsletters.periodicals. lobbying campaigns.As noted above. therefore proposes to allow grantees etc.issued by the recipient organization: current financial control procedures do and contractors to certify in good faith and/or other information relating to a not permit an accurate estimate of the the amout of lobbying and related recipient organization's activities? amount of tax dollars now diverted to activities performed by indirect cost (3) Is the broad exclusion of local ' lobbying efforts by grantees and employees (i.e., those who do not level lobbying from coverage of these contractors:whether large or small. already have to account for their time provisions necessary or desirable? correction of this problem will produce a . spent directly on a grant or contract). (4)Are any additional exceptions net gain to the intended beneficiaries of Only if the employee is engaged necessary or desirable?Are any of the federal programs.The costs to be (according to the organization's own exceptions provided in this proposal considered are primarily accounting and estimate or outside evidence) in unnecessary or undesirable? recordkeeping costs for grantees and lobbying or related activities more than (5)Restrictions on the encouragement contractors,as well as federal agencies. 25%of his time could further of grass roots lobbying inherently These new costs.however. are minimal documentation be required. If a require an understanding of the in both absolute and relative amounts. contractor or grantee is determined to distinction between providing and in many instances the revisions - ha,ve materially misstated allowable or information and encouraging lobbying. should reduce audit and compliance unallowable costs within the preceding The ir.:ent of the section on grass roots costs.Furthermore.much of the • five-year period. more extensive lobbying (subparagraph b(4)) is that accounting work that the revision documentation could be required. internal communications between an requires is already mandated by other OMB also considered and rejected organization and its bona fide members sections of Circular A-122.or Circular more extensive "sunshine" provisions to provide legislative information is A-110.This proposal has nonetheless which would have called for full allowable.but the promotion of been prepared in accordance with the disclosure by recipient organizations of membership lobbying is not. In light of analytical requirements of Executive detailed information concerning their the above. is it desirable to add Order 12291. personnel. public policy positions. language to the Circular regarding such affiliations of officers and directors. internal communications: if so.what. XIV.Paperwork Reduction Act publications. and other such form should this language take? Requirements information. OMB believes such (6) Is the allocation method the proper In accordance with the requirements • reporting requirements would exceed accounting method for disallowing costs of the Paperwork Reduction Act of 1980. those necessary to achieve the purpose related to sponsoring meetings and 44 U.S.C.3501 et seq., and 5 CFR Part of these proposals.i.e., to ensure that conferences when these are used to 1320.the collection of information federally appropriated funds are not promote lobbying?Would it be possible requirements contained in this proposed used for lobbying or related activities by to disallow the entire cost of a meeting revision have been submitted for review grantees and contractors.However, or conference if a "substantial part"is to OMB's Office of Information and -OMB has explicitly sought comments on devoted to promoting lobbying?If so. Regulatory Affairs. • this issue.(See Issues for Comment, how should the term"substantial"be Comments about the appropriateness paragraph 2.) . defined? pPriateness P 4.Penalties:OMB considered and (7)Are there are any cases where the of collection of information rejected as too stringent a penalty explanatory comments in the proposal requirements in this proposal should be provision which would require the and the preamble are not sufficiently addressed to Edward C.Springer.Office return to the federal government of all clear or detailed to enable of Information and Regulatory Affairs, grant or contract funds received by a understanding of the proposal's Office of Management and Budget. nonprofit organization found to be meaning? Washington.D.C.20503.(202)395-4814. engaged in lobbying or related activities. XV.Comment Submittal and Further Instead. OMB has opted to follow the XIII.Designation as"Non-major Rule Information st.:.^.clard A-122 penalties of cost OMB has determined that the . recovery and. in certain cases. proposed revision to A-122 does not Comments should be submitted in suspension. termination, and debarment. qualify as a "major rule" under the duplicate to the Financial Management XII.Issues for Comment criteria as listed in Executive Order Division.Office of Management and 12291: Budget.Washington.D.C.29593.All In ar_'dition to any other comments. (h) "Major rule" means inc regulation comments should be received within 45 the public is specifically invited to that is likely to result in: days of this notice. 1 comment on the following issues: (t) An annual effect on the economy FOR FURTHER INFORMATION CONTACT. (1) Do the provisions of Subparagraph of 5100 million or more: John J.Lordan.Financial Management a(4) (concerning the maintenance of time (2) A major increase in costs or prices Branch,Office of Management and • logs and similar records) adequately for consumers.individual industries, Budget..Washington.D.C.20503(202) prutect against unreasonable federal.state.or local government 39 823. recnrdkeepicig burdens without agencies.or geographic regions:or Issued in Washington.D.C..November t. rendering these provisions (3)Significant adverse effects on $ unenforceable?What changes.if any. competition.. employment.investment. 19 ' ore recommended? productivity, innovation.or on the Darrell Johasoa:, (2) Should broader disclosure ability of United States-based Bud ' and Management Officer. requirements for recipient organizations enterprises to compete with foreign- (Circular A-122J he included to facilitate the monitoring based enterprises in domestic or export Cost Principles for Nonprofit 1 of their activities?For example.should markets. Organizations recipient organizations be required to The principal effect of the proposed g • provide the agency granting or awarding revisions will be to ensure that federal Circular A-122 is revised as follows: �• ./ • Federal Register / Vol. 48. No. 214 /Thursday. November 3. 1983 / Notices 501371 contractors under the current Federal enrolled bills,or attempts to use state and affects the ability of or cost to the grantee or Procurement Regulations(FPR).Section 1- local officials as conduits.for grantee and contractor of performing the grant or 15.205-52. contractor lobbying of Congress or!tate contract:'sr(II)when states choose to adopt • This subparagraph is narrower than the legislatures. DAR provisions,because it only makes rules waiving such restrictions for their legislative liaison costs unallowable if they (3)Any activity in connection with an federal grant subgrantees. relate to otherwise unallowable lobbying employee's service as an elected or (5)Any activity specifically activities. appointed official or member of a authorized by statute to be undertaken, C.Notwithstanding subparagraph b. governmental advisory panel: pursuant to the federal grant,contract. costs associated with the following (4)Any lobbying or related activity at or other agreement. activities are not unallowable under this the state level for the purpose of • paragraph: influencing legislation directly affecting Comment This circular does not,nor could (1)Providing technical advice or the ability of the organization or cost to• rt limit the ability of Congress subject to assistance to the Congress or a State the organization of performing the grant, constitutional constraints,to appropriate legislature or to a member,committee. contract.or other agreement:however, funds for the use by contractors or granters g fur lobbying or related activities. or other subdivision thereof, in response state governments acting as subgrantors to a specific written request by such may. through appropriate state 2.Renumber subsequent paragraphs. member.legislative body,or processes,waive the current practice of Attachment B. subdivision: under OMB Circular A-i02 making 3.Insert language in subparagraph Comment This tracks the exception at 26 Circular A-122 applicable to nonprofit 8.4.b of Attachment A.so that it reads U.S.C.Section 4911(d)(2)(B). subgrantees with regard to such as follows: (2)Any communication with an lobbying activities at the state level as b.Promotion.lobbying or related are deemed appropriate. activities(as defined by executive branch official or employee. Comment:The Internal Revenue Cade B21(b)of ttachment B). andpublic other than a communication made provisions defining influencing legislation" relations. P expressly unallowable by paragraph cover lobbying at he state and local level,us 1.h.(3) hereof. do the current Defense Acquistion Comments This is a technical language Comment:This is identical in substance to Regulations(DAR).Section 15-205.51 and the change.which amends the former term the exception at 28 U.S.C.Section 4911 current Federal Procurement Regulations "lobbying"to"lobbying and related (d)(2)(f:).Reud in conjunction with (FPR).Section 1-15.205-52.This activities."The added language is"or related subparagraph b(3).the effect is to make clear subparagraph is narrower than those activities(as defined by subparagraph 821rhi that the only contacts with executive branch provisions because(1)lobbying at the local of Attachment B)." officials made unallowable are those in level is not covered.and(2)lobbying at the pat nuc. -5nc9 FU.d st-a-sn i=3.�t connection with the signing or veto ar state level is not covered if it(a)directly ausaso coot:3110s1-11 • ••„~ 4% Mancwook 6500 * . t, % j U.S.Department of Housing and Urban Development S4a Divcw' Office of Community Planning and Development Pro ram Participants g p and Departmental 'Staff ' September 1988 � Se p community Development Block Grant Program Entitlement Grant Regulations 1 CCCE: Distribution:W-1,W3•1, fl•t, R•G, Special (CPD Field Directors) • • DEPARTMENT OF ROUSING AND URBAN DEVELOPMENT Office of the Assistant Secretary for Community Planning and Development 24 CFR Part 570 COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM FINAL RULE as published in the FEDERAL REGISTER 153 FR 34437; September 6, 1988] • (i) The subrecipient does not assume the recipient 's environmental responsibilities described at § 570.604; and (ii) The subrecip ient does not assume the recipient 's responsibility for initiating the review process under Executive Order 12372. 1 7. Subpart K of Part 570 is revised to read as follows : Subpart K -- Other Program Requirements. Sec. 570. 600 General. 570.601 Public Law 88-352 and Public Law 90-284 ; affirmatively furthering fair housing ; and Executive Order 11063 . 570.602 Section 109 of the Act. 570. 603 Labor standards. 570.604 Environmental standards. 570. 605 National Flood Insurance Program. 570.606 Relocation, displacement and acquisition. 570:607 Employment and contracting opportunities. 570. 608 Lead-based paint. 570. 609 Use of debarred , suspended, or ineligible contractors or subrecipients. 570. 610 . Uniform administrative requirements and cost principles. 570.611 Conflict of interest. 570.612 Executive Order 12372. Subpart K Other Program Requirements. S 570.600 General. (a) Section 104 (b) of the Act provides that any grant under section 106 of the Act shall be made only if the grantee certifies to the satisfaction of the Secretary, among other things, that the grant "will be conducted and administered in conformity with Public Law 88-352 and Public Law 90-284, " and, further, that the grantee "will comply with the other provisions of this title and with other applicable laws." Section 104 (e) (1) of the Act requires that the Secretary determine with respect to grants made pursuant to section 106 (b) (Entitlement Grants) and 106 (d) (2) (B) (HUD-administered Small Cities Grants) , at least on an annual basis, among other things, "whether the grantee has, carried out (its) certifications in compliance with the requirements and the primary objectives of this title and with other applicable laws. . . . " Certain other statutes are expressly made • applicable to activities assisted under the Act by the Act itself, while other laws not referred to in the Act may be applicable to such activities by their own terms. Certain statutes or Executive Orders which may be applicable to activities assisted under the Act by their own terms are administered or enforced by governmental departments . or agencies other than the Secretary or the Department. This Subpart K enumerates laws which the Secretary will treat as applicable to grants made under section 106 of the Act, other ( than grants to States made pursuant to section 106 (d) .of the • K-1 9/88 Act, for purposes of the determinations described above to be made by the Secretary under section 104 (e) (1) of the Act, including statutes expressly made applicable by the Act and certain other statutes and Executive Orders for which the Secretary has enforcement responsibility. The absence of mention herein of any other statute for which the Secretary does not have direct enforcement responsibility is not intended to be taken as an indication that, in the Secretary's opinion, such statute or Executive Order is not applicable to activities assisted under the Act. For laws which the Secretary will treat as applicable to grants made to States under section 106 (d) of the Act for purposes of the determination required to be made by the Secretary pursuant to section 104 (e) (2) of the Act, see § 570.496. (b) This subpart also sets forth certain additional program requirements which the Secretary has determined to be applicable to grants provided under the Act as a matter of administrative discretion . (c) In addition to grants made pursuant to section 106 (b) and 106 (d) (2) (8) of the Act (Subparts D and F, respectively) , the requirements of this Subpart K are applicable to grants made pursuant to sections 107 and 119 of the Act (Subparts E and G, respectively) , and to loans guaranteed pursuant to Subpart M. S 570.601 Public Law 88-352 and Public Law 90-284; affirmatively furthering fair housing; Executive Order 11063. Section 104 (b) of the Act provides that any grant under section 106 of the Act shall be made only if the grantee certifies to the satisfaction of the Secretary that the grant "will be conducted and administered in conformity with Public Law 88-352 and Public Law 90-284 and the grantee will affirmatively further fair housing. " Similarly, section 107 provides that no grant may be made under that section (Secretary's Discretionary Fund) or section 119 (UDAG) without -satisfactory assurances that the grantee 's program will be conducted and administered in conformity with Public Law 88-352 and Public Law 90-284. (a) "Public Law 88-352" refers to title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) , which provides that no person in the United States shall on the ground of race, color , or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving . Federal financial assistance. Section 602 of the Civil Rights Act of 1964 directs each Federal department and agency empowered to extend Federal financial assistance to any program or activity by way of grant to effectuate the foregoing prohibition by issuing rules, regulations, or orders of general applicability which K-2 9/88 shall he consistent with achievement of the statute authorizing the financial assistance . HUD regulations implementing the requirements of Title VI with respect to HUD programs are contained Ln 24 u R Part 1. (b) "Public Law 90-284" refers to title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601 et seq. ) , popularly known as the Fair Housing Act , which provides that it is the policy of the United States to provide , within constitutional limitations, for fair housing throughout the United States and prohibits any person from discriminating in the sale or rental of housing , the financing of housing , or the provision of brokerage services , including otherwise ;making unavailable or denying a dwelling to any person, because of race , color , religion , sex , or national origin. Title VIII further requires the Secretary to administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of Title VIII. Pursuant to this statutory direction, the Secretary requires that grantees administer all programs and activities related to housing and community development in a manner to affirmatively further the policies of Title VIII : furthermore, section 104 (b) (2) of the Act requires that each grantee receiving funds under section 106 of the Act (entitlement or small cities grantees) certify to the satisfaction of the Secretary that it will affirmatively further fair housing. - (L (c) Executive Order 11063, as amended by Executive Order 12259, directs the Department to take all action necessary and appropriate to prevent discrimination because of race, color , religion (creed) , sex,. or national origin, in the sale, leasing , rental, or other disposition of residential property and related facilities (including land to be developed for residential use) , or in the use or occupancy. thereof, if such property and related facilities are, among other things, provided in whole or in part with the aid of loans, advances, grants , or .contributions agreed to be made by the Federal Government. HUD regulations implementing Executive Order 11063 are contained in 24 CFR Part 107. S 570.602 Section 109 of the Act. (a) Section 109 of the Act requires that no person in the United States shall on the ground of race, color , national origin or sex, be excluded from participation in, be denied the benefits of , or be subjected to discrimination under , any program or activity funded in whole or in part with community development funds made available pursuant to the Act. For purposes of this section "program or activity" is defined as any function conducted by an identifiable administrative unit of the recipient, or by any unit of government, subrecipient, or K--3 9/88 • • 1110 private contractor receiving community development funds or loans from the recipient. "Funded in whole or in part with community development funds" means that community development ti funds in any amount in the form of grants or proceeds from HUD guaranteed loans have been transferred by the recipient or a subrecipient to an identifiable administrative unit and disbursed in a program or activity. In subsection (b) of this section, "recipient" means recipient as defined in 24 CFR 1.2 (f) . (b) Specific discriminatory actions prohibited and corrective actions. • (1) A recipient may not, under any program or activity to which the regulations of this part may apply, directly or through contractual or other arrangements, on the ground of race, color , national origin, or sex: (i) Deny any individual • any facilities, services, financial aid or other benefits provided under the program or activity. (ii) Provide any facilities, services, financial aid or other benefits which are different, or are provided in a different form, from that provided to others under the program or activity. (iii) Subject an individual to segregated or separate treatment in any facility in, or in any matter of process related to receipt of any service or benefit under the program or activity. (iv) Restrict an individual in any way in access to, or in the enjoyment of, any advantage or privilege enjoyed by others in connection with facilities, services, financial aid or other benefits under the program or activity. (v) Treat an individual differently from others in determining whether the individual satisfies any admission, enrollment, eligibility, membership, or other requirement or condition which the individual must meet in order to be provided any facilities, services or other benefit provided under the program or activity. (vi) Deny an individual an opportunity to participate in a program or activity as an employee. (2) A recipient may not use criteria or methods of administration which have the effect of subjecting persons to discrimination on the basis of race, color, national K-4 9/88 origin, or sex , or have the effect of defeating or substantially impairing accomplishment of the objectives of the program or activity with respect to persons oC a particular race, color , national origin, or sex . (3) A recipient, in determining the site or location of housing or facilities provided in whole or in part with funds under this part, may not make selections of such site or location which have the effect of excluding • persons from, denying them the benefits of , or subjecting them to discrimination on the ground of race , color , national origin, or sex; or which have the purpose or effect of defeating or substantially impairing the accomplishment of . the objectives of the Act and of this section. (4) • (i) In administering a program or activity funded in whole or in part with CDBG funds regarding which the recipient has previously discriminated against -persons on the ground of race , color , national origin or sex, or if there is sufficient evidence to conclude that such discrimination existed, the recipient . must take .remed-ial affirmative action to overcome the effects of prior discrimination. The word "previously" does not exclude current discriminatory oractices. (ii) In the absence of discrimination, a recipient, in administering a program or activity funded in whole or in part with funds made available under this part, may take any nondiscriminatory affirmative action necessary to ensure that the program or activity is open to all without regard to race , color , national origin or sex. (iii) After a t;nding of noncompliance or after a recipient has a firm basis to conclude that discrimination has occurred , a recipient shall not be prohibited by this section from taking any action eligible under Subpart . 0 to ameliorate an imbalance in services or facilities provided to any geographic area or specific group of persons within its jurisdiction, where the purpose of such action is to remedy prior discriminatory practice • or usage. (5) Notwithstanding anything to the contrary in this section, nothing contained herein shall be construed to prohibit any recipient from maintaining or constructing separate living facilities or rest room facilities for the different sexes. Furthermore , selectivity on the basis of sex is not prohibited when institutional or custodial 9/38 services can properly be performed only by a member of the same sex as the recipients of the services. ; (c) Section 109 of the Act further provides that any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101 et seq. ) or with respect to an otherwise qualified handicapped person as provided in section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) shall also apply to any program or activity funded in whole or in part with funds made available pursuant to the Act. HUD regulations implementing the Age Discrimination Act are Contained in 24 CFR Part 146 and the regulations implementing section 504 are contained in 24 CFR Part 8. S 570.603 Labor standards. Section 110 of the Act requires that all laborers and mechanics employed by contractors or subcontractors on construction work financed in whole or in part with assistance received under the Act shall be paid wages at rates not less than those prevailing on similar construction in the locality as determined by the Secretary of Labor in accordance with the Davis-Bacon Act, as amended (40 U.S.C. 276a - 276a-5) . By reason of the foregoing requirement, the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq. ) also applies. However, these requirements apply to the rehabilitation of residential property only if such property contains not less than 8 units. With respect to the labor 1% standards specified in this section, the Secretary of Labor has the authority and functions set forth in Reorganization Plan Number 14 of 1950 (5 U. S.C. 1332-15) and section 2 of the Act of June 13, 1934 , as amended (40 U.S.C. 276c) . S 570.604 Environmental standards. Section 104 (g) expresses the intent that "the policies of the National Environmental Policy Act of 1969 and other provisions of law which further the purposes of such Act (as specified in regulations issued by the Secretary) . . . (bej most effectively implemented in connection with the expenditure of funds under" the Act. Such other provisions of law which further the purposes of the National Environmental Policy Act of 1969 are specified in regulations issued pursuant to section 104 (g) of the Act and contained in 24 CFR Part 58 . Section 104 (g) also provides that, in lieu of the environmental protection procedures otherwise applicable, the Secretary may under regulations provide for the release of funds for particular projects to grantees who assume all of the responsibilities for environmental review, decisionmaking, and action pursuant to the National Environmental Policy Act of 1969 , and the other provisions of law specified by the Secretary as described above, that would apply to the Secretary were he/she to K-6 9/88 undertake such projects as Federal. projects. Grantees assume such environmental review, decisionmaking, and action responsibilities by execution of grant agreements with the Secretary. The procedures for carrying out such environmental responsibilities are contained in 24 CFR Part 56. S 570.605 National Flood Insurance Program. Section 202 (a) of the Flood Disaster Protection Act .of 1973 (42 U.S.C. 4106) provides that no Federal officer or agency shall approve any financial assistance for acquisition or construction purposes (as defined under • section 3 (a) of said Act (42 U.S.C. 400 (a) ) , one year after a community has been formally notified of its identification as a community containing an area of special flood hazard , for use in any area that has been identified by the Director of the Federal Emergency Management Agency as an a.ea having special flood hazards unless the community in which such area is situated is then participating in the National Flood Insurance Program. Notwithstanding the date of HUD approval of the recipient 's application (or , in the case of grants made ander Subpart D, the date of submission of the grantee ' s final statement pursuant to § 570. 302) ; funds provided under this part shall not he expended for acquisition or construction purposes in an area that has been identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards unless the community in which the area is situated is participating in the National Flood Insurance Program in accordance with 44 CFR Parts 59-79, or less than a year has passed since FEMA notification to the community regarding such hazards; and flood insurance is obtained in accordance with section 102 (a) of the Flood Disaster Protection Act 11 of 1973 (42 U.S.C. 4001) . • S 570.606 Relocation, displacement and acquisition. (a) Uniform Relocation Act. ( (1) The Uniform Relocation Assistance and Real Property • Acquisition Policies Act of 1970 (URA) (42 U.S.0 4601) and HUD implementing regulations. at 24 CFR Part 42 apply to the acquisition of real property by a State agency for an activity assisted under this part and to the displacement of any family, individual, business, nonprofit organization or farm .that results from such acquisition. The grantee ' s certification of compliance with the URA is required in the grant agreement. • (2). An acquisition and resulting displacement by a State agency is "for an assisted activity" if . it occurs on or after the date of the initial submission of a final statement under 24 CFR 570. 302 (a) (2) (Entitlement Grants) ; • 9/8 8 • the initial submission of an application to HUD by a unit of general local government under SS 570. 426, 570.430, or 570.435 (d) that is granted for the requested activity (HUD administered Small Cities Program) ; or the submission of an application to HUD by a city or urban county under S 570.458 that is granted for the requested activity (UDAG) . However , an acquisition or displacement that occurs on or after the described date is not subject to the URA if the grantee determines that the acquisition or displacement was not carried out for an assisted activity, and the HUD Field Office concurs in that determination. An acquisition or displacement that occurs before the described date is subject to the URA, if the grantee or the HUD Field Office determines that the acquisition or displacement was carried out for the assisted activity. The grantee may, at any time, request a HUD determination whether an acquisition or displacement will be considered to be for an assisted activity and thus subject to these regulations. To be eligible for relocation assistance, however , a person must also meet the eligibility criteria in 24 CFR Part 42. (b) Residential antidisplacement and relocation assistance plan. Under section 104 (d) of the Act, each grantee must adopt, make public and certify that it is following a residential antidisplacement and relocation assistance plan providing one- for-one replacement units (paragraph (b) (1) of this section) , and relocation assistance (paragraph (b) (2) of this section) . The plan must also indicate the steps that will be taken consistent with other goals and objectives of this part to minimize the displacement of persons from their homes as a result of any activities assisted under this part. (1) One-for-one replacement units. (i) All occupied and vacant occupiable low/moderate-income dwelling units that are demolished or converted to a use other than as low/moderate-income dwelling units as a direct result of an activity assisted under this part must be replaced by governmental agencies or private developers with low/moderate-income dwelling units. Replacement low/moderate-income dwelling units may include public housing, or existing housing receiving Section 8 project-based assistance under the United States Housing Act of 1937. The replacement low/moderate-income dwelling units must be provided within three years of the commencement of the demolition or rehabilitation related to the conversion, and must meet the following requirements: (A) The units must be located within the grantee 's jurisdiction. K-8 9/88 (B) The units must he sufficient in number and size to house at least the number of occupants that could have been housed in the units that are demolished or converted. The - number of occupants that may be housed in units shall be determined in accordance with local housing occupancy codes. (C) The units must be provided in standard condition. Replacement low/moderate-income dwelling units may include units that have been raised to standard from substandard condition. (0) The units must be designed to remain low/moderate- income dwelling units for at least 10 years from the date of initial occupancy. (ii) Before obligating or expending funds provided under this part for any activity that will directly result • in the demolition of low/moderate-income dwelling units or the conversion of low/moderate-income dwelling units to another use , the grantee must make public, and submit the following information in writing to HUD: (A) A description of the proposed assisted activity; ((. ( (B) The general location on a map and approximate number t� of dwelling units by size (number of bedrooms) that will be demolished or converted to a use other than for low/moderate-income dwelling units as a direct result of the assisted activity; (C) A time schedule for the c.,mmencement and completion of the demolition or conversion; (D) The general location on a map and approximate number of dwelling units by size (number of bedrooms) that will be provided as replacement dwelling units; (E) The source of funding and a time schedule for the provision of replacement dwelling units; (P) The basis ,for concluding that each replacement dwelling unit will remain a low/moderate-income dwelling unit for at least 10 years from the date of initial occupancy. (A) The requirements of paragraph (b) (1) of this section do not apply if • the HUD Field Office determines, based upon objective data, that there is an adequate . � supply of vacant low/moderate-income dwelling units K-9 9/88 1 in standard condition available on a nondiscriminatory basis within the grantee 's jurisdiction. In making this determination, the HUD + ' Field Office will consider the housing vacancy rate for the jurisdiction, the number of vacant low/moderate-income dwelling units in the jurisdiction (excluding units that will be demolished or converted) and the number of eligible families on waiting lists for housing assisted under the United States Housing Act of 1937 in the jurisdiction. (B) The HUD Field Office may consider the supply of vacant low/moderate-income dwelling units in standard condition available on a nondiscriminatory basis in an area that is larger than the grantee's jurisdiction. Such additional dwelling units shall be considered if the HUD Field Office determines that the units would be suitable to serve the needs of the low- and moderate income households that could be served by the low/moderate-income dwelling units that are to be demolished or converted to another use. The HUD Field Office must base this determination on geographic and demographic factors, such as location and access to places of employment and to other facilities. (C) The grantee must submit a request for a determination 1 under paragraph (b) (1) (iii) of this section, directly to the HUD Field Office. l (2) Relocation assistance. (i) Each low- or moderate-income household that is displaced by demolition or by the conversion of a low/moderate income dwelling unit to another use as a direct result of an activity assisted under this part shall be provided with relocation assistance. The low- or moderate-income household may elect to receive relocation assistance described at 24 CFR Part 42 • (HUD's regulations implementing the URA) , or may elect to receive the following relocation assistance: (A) The relocation assistance described at 24 . CFR Part 42, Subpart C (General Relocation Requirements) and Subpart D (Payment for Moving and Related Expenses) . Relocation notices must be issued consistent with, and in the manner prescribed under, 24 CFR 42.203. The definition of "comparable replacement dwelling" used in 24 CFR Part 42 is modified as described in paragraph (b) (3) (i) of this section. Displaced households provided with replacement housing assistance under paragraph K-10 9/88 (b) (2) ( i) (C) of this c.oc;. ion, in the form of a certificate or housing voucher under Section 8 of the • United States Housing Act of 1937 , must be provided referrals to comparable replacement dwelling units whose owners are willing to participate in the housing voucher or certificate program. The grantee. shall advise tenants of their rights under the Federal Fair Housing Law (Title VIII) and of replacement housing opportunities in such a manner that, whenever feasible , they will have a choice between relocating within their neighborhoods and other neighborhoods consistent with the grantee 's responsibility to affirmatively further fair housing ; (B) The reasonable and necessary cost of any security deposit required to rent the replacement dwelling unit, and credit checks required to rent or purchase the replacement dwelling unit ; and (C) . Replacement housing assistance. Households are eligible to receive one of the following forms of replacement housing assistance : (1) Each household must be offered compensation designed to ensure that, for a five-year period, the displaced household will not, bear, after i • relocation , a ratio of shelter costs to income that exceeds 30 percent. Such compensation shall be either : e (i) A certificate or housing voucher for rental assistance provided through the local Public Housing Agency under Section 8 of the United State Housing Act of 1937: or (ii) Cash rental assistance equal to 60 times the amount that is obtained by subtracting 30 percent of the displaced household 's monthly gross income (with such adjustments as the grantee may deem appropriate) from the lesser of : the monthly cost of rent and utilities at a • comparable replacement dwelling unit or the monthly cost oc rent and utilities at the decent, safe and sanitary replacement dwelling to which the household' relocates. The grantee may provide the cash payment in either a lump sum or in installments. The grantee may at its discretion offer the household a choice between the certificate/housing voucher or cash rental assistance. ( • K-li 9/88 2 (•"-i9 • • (2) If the household purchases an interest in a housing cooperative or mutual housing Mlh association and occupies a decent, safe and sanitary unit in the cooperative or association, the household may elect to receive a lump sum payment. This lump sum payment shall be equal to the capitalized value of 60 monthly installments of the amount that is obtained by subtracting 30 percent of the displaced household's monthly gross income (with such adjustments as the grantee may deem appropriate) from the monthly cost of rent and utilities at a comparable replacement dwelling unit. To compute the capitalized value, the installments shall be discounted at the rate of interest paid on passbook savings deposits by a federally- insured bank or savings and loan institution conducting business within the grantee 's jurisdiction. To the extent necessary to minimize hardship to the household, the grantee shall, subject to appropriate safeguards, issue a payment in advance of the purchase of the interest in the housing cooperative or mutual housing association. . (ii) Eligibility for relocation assistance. (A) A low- or moderate-income household that is required 4110 to move as a direct result of demolition or conversion of a low/moderate income dwelling unit to another use, is eligible for relocation assistance under paragraph (b) (2) of this section if: (1) The household is required to move from the dwelling unit on or after the date that the owner submits a request to the grantee for financial assistance that is later approved for the requested activity. (This applies to dwelling units owned by a person other than a • Federal or State agency, as defined under the URA) . (2) The household is required to move from the dwelling unit on or after the dat e of the initial submission of a final statement under 24 CFR 570.302 (a) (2) (Entitlement Grants) ; the initial submission of an application to HUD by a unit of- general local government under SS 570.426, 570.430, or 570.435(d) that is granted for the requested activity (HUD administered Small Cities Program) ; or the submission of an application to HUD by a city or urban county under § 570.458 that is granted for 411 K-12 9/88 ^ f the requested activity (UDAG) . (This applies to dwelling units owned by a Federal or State agency as defined under the URA. ) (B) If the displacement occurs on or after the appropriate date described in paragraph (b) (2) (ii) (A) of this section, the low- or moderate-income household is not eligible for relocation assistance if: (1) The household is evicted for cause ; (2) The household moved into the property on or after the date described in paragraph (b) (2) (ii) (A) of this section, after receiving { written notice of the expected displacement; or t (3) The grantee determines that the displacement was not a direct result of the assisted activity, and the HUD office concurs in that determination. (C) If the displacement occurs before the appropriate date described in paragraph (b) (2) (ii) (A) of this section, the low- or moderate-income household is eligible for relocation assistance if the grantee or HUD determines that the displacement was a direct result of an activity assisted under this part. (3) Definitions. For the purposes of paragraph (b) ,of this section : (i) 'Comparable replacement dwelling unit' means a dwelling unit that: (A) Meets the criteria of 24 CFR 42.2 (c) (1) through (4) ; and (B) Is available at a monthly cost for rent plus estimated average monthly utility costs that does not exceed 30 percent of the household's average gross monthly income (with such adjustments to income as the grantee may deem appropriate) after taking into account any rental assistance the household would receive. Where a certificate or housing voucher is provided to a household under paragraph (b) (2) (i) (C) (1) (i) of this section, the dwelling unit must •be available to the household at a monthly cost for rent and estimated average monthly utility cost that does not exceed the Fair Market Rent or the payment standard, respectively. K-13 9/88 -1) (ii) "Decent, safe and sanitary dwelling" means a decent, safe and sanitary dwelling as defined in 24 CFR 42. 2 (e) . (iii) "Low/moderate income dwelling unit" means a dwelling unit with a market rental ( including utility costs) that does not exceed the applicable Fair Market Rent (FMR) for existing housing and moderate rehabilitation established under 24 CFR Part 888. (iv) "Occupiable dwelling unit" means a dwelling unit that is in a standard condition , or is in a substandard • condition, but is suitable for rehabilitation. (v) "Standard condition" and "substandard condition suitable for rehabilitation. " If the grantee has a HUD-approved Housing Assistance Plan, the definitions of "standard condition" and "substandard condition suitable for rehabilitation" established in the plan will apply. If the grantee does not have a HUD- approved Housing Assistance Plan, the grantee must establish and make public its definition ,of these terms consistent with the requirements of S 570.306 (e) (1) . (4) Effective date. For all grants except those made under Subpart D of this part (Entitlement Grants), the �. J provisions of this paragraph (b) are applicable to grants made on or after October 1, 1988. For grants made under Subpart D, these provisions will govern all activities for which funds are first obligated by the grantee on or after the date the first grant is made after September 30, 1988, without regard to the source year of the funds used for the activity. fi (c) Section 104 (k) relocation requirements. Section 104 (k) of the Act requires that reasonable relocation assistance be provided to persons (families, individuals, businesses, nonprofit organizations, or farms) displaced (i .e. , moved permanently and involuntarily) as a result of the use of assistance received under this part to acquire or substantially rehabilitate property. If such displacement is , subject to paragraph (a) or (b) of this section, above, this paragraph does not apply.' The grantee must develop, adopt and provide to persons to •be displaced a written notice of the relocation assistance for which they are eligible. The minimum requirements for such assistance under the UDAG Program are described at S 570.457 (b) . Under CDBG programs, persons entitled to assistance under this paragraph must be provided relocation assistance, including at a minimum: (1) Reasonable moving expenses; K-14 9/88 • (2) Advisory services needed to help in relocating. The grantee shall advise tenants of their rights under the Federal Fair Housing Law (Title VIII) and of replacement housing opportunities in such a manner that, whenever feasible, they will have a choice between relocating within their neighborhoods and other neighborhoods consistent with the grantee 's responsibility to affirmatively further fair housing ; and (3) Financial assistance sufficient to enable any person displaced from his or her dwelling to lease and occupy a suitable, decent, safe and sanitary replacement dwelling where the cost of rent and utilities does not exceed 30 percent of the household 's gross income. (d) Optional relocation assistance. Under section 105 (a) (11) of the Act, the grantee may provide relocation payments and other relocation assistance for individuals, families, businesses, nonprofit organizations and farms displaced by an activity not subject to paragraphs (a) , (b) or (c) of this section ., The grantee may also provide relocation assistance to persons covered under paragraphs (a) , (b) or (c) of this section beyond that required. Unless such assistance is provided pursuant to State or local law, the grantee must provide the assistance only upon the basis of a written determination that the assistance is appropriate and must adopt a written policy available to the public that describes the relocation assistance that the grantee has elected to provide end that provides for equal relocation assistance within each class of displacees. (e) Appeals. If a person disagrees with the grantee 's determination concerning the person's eligibility for , or the amount of a relocation payment under this section, the person may file a written appeal of that determination with the grantee. The appeal procedures to be followed are described in 24 CFR 42. 10. A low- or moderate-income household that has been displaced from a dwelling may file a written request for review of the grantee decision, to the HUD Field Office. (f) Responsibility of grantee. (1) . The grantee is responsible for ensuring compliance with the requirements of this section, notwithstanding any third party's contractual obligation to the grantee to comply with the provisions of this part. (2) The cost of assistance required under this section may be paid from local public funds, funds provided under this part, or funds available from other sources. K-15 9/88 • (3) The grantee must maintain records in sufficient detail to demonstrate compliance with the provisions of this section. (g) Displacement. For the purposes of this section, a "displaced person" is a person that is required to move permanently and involuntarily and includes a residential tenant who moves from the real property if : (1) The tenant has not been provided with a reasonable opportunity to lease and occupy a suitable, decent, safe and sanitary dwelling in the same building or in a nearby • building on the real property following the completion of the assisted activity at a monthly rent and estimated average cost for utilities that does not exceed the greater of (i) . 30 percent of the tenant household 's average monthly gross income ; or (ii) The tenant 's monthly rent and average cost for utilities before (A) The date that the owner submits a request to the grantee for financial assistance that is later approved for the requested activity. (This applies to dwelling units owned by a person other than a Federal or State agency, as defined under the URA) ; or (B) The date of the initial submission of a final statement under S 570.302(a) (2) (Entitlement Grants) ; the initial submission of an application to HUD by a unit of general local government under S 570.426, 570.430, or 570.435 (d) that is granted for the requested activity (HUD administered Small Cities Program) ; or the submission of an application to HUD by a city or urban county under S 570.458 that is granted for • the requested activity (UDAG).. (This applies to dwelling units owned by a Federal or State agency as defined under the URA) ; or (2) The tenant is required to move to another dwelling in the real property but is not reimbursed for all actual reasonable out-of-pocket costs incurred in connection with the move; or (3) The tenant is required to relocate temporarily and: ( i) Is not reimbursed for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation, including moving costs and any increased rent and utility costs; or ' • K-16 9/88 (ii) Other conditions of the temporary relocation are not reasonable . S 570.607 Employment and contracting opportunities. (a) Grantees shall comply with Executive Order 11246, as amended by Executive Order 12086 , and the regulations issued pursuant thereto (41 CFR Chapter 60) which provide that no person shall be discriminated against on the basis of race , color , religion , sex , or national origin in all phases of employment during the performance of Federal or , federally assisted construction contracts. As specified in Executive Order 11246 and the implementing regulations, contractors and subcontractors on Federal or federally assisted construction contracts shall take affirmative action to ensure fair treatment in employment, upgrading , demotion or transfer , recruitment or recruitment advertising , layoff or termination, rates of pay, or other forms of compensation and selection for • training and apprenticeship. (b) Section 3 of the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) requires, in connection with the planning and carrying out of any project assisted under the Act, that to the greatest extent feasible opportunities for training and employment be given to low and moderate income persons ( residing within the unit of local government or the 1 ( metropolitan area (or nonmetropolitan county) as determined by the Secretary, in which the project is located , and that contracts for work in connection with the project be awarded to eligible business concerns which are located in , or owned I in substantial part by persons residing in the same metropolitan area (or nonmetropolitan county) as the project. Grantees shall adopt appropriate procedures and y requirements to assure good faith efforts toward compliance I with the statutory directive. HUD regulations at 24 CFR Part 135 are not applicable to activities assisted under this part 1 but may be referred to as guidance indicative of the Secretary's view of the statutory objectives in other y contexts. i f S 570.608 Lead-based paint. (a) Prohibition against the use of lead-based paint. Section 401(b) of the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4831 (b) ) directs the Secretary to prohibit the use of lead-based paint in residential structures constructed or rehabilitated with Federal assistance. Such prohibitions are contained in 24 CFR Part 35, Subpart 8, and are applicable to residential structures constructed or rehabilitated with i assistance provided under this part. K-17 9/88 (b) Notification of hazards of lead-based paint poisoning. (1) The Secretaryhas promulgated requirements regarding notification to purchasers and tenants of HUD-associated housing constructed prior to 1978 of the hazards of lead- based paint poisoning at 24 CFR Part 35, Subpart A. This paragraph is promulgated pursuant to the authorization granted in 24 CFR 35.5 (c) and supersedes , with respect to all housing to which it applies, the notification requirements prescribed by Subpart A of 24 CFR Part 35. • (2) For properties constructed prior to 1978 , applicants for rehabilitaion ' assistance provided under this part and tenants or purchasers of properties owned by the grantee or its subrecipient and acquired or rehabilitated with assistance provided under this part shall be notified : (i) That the property may contain lead-based paint; (ii) of the hazards of lead-based paint; (iii) of the symptoms and treatment of lead-based poisoning; (iv) of the precautions to be taken to avoid lead-based paint poisoning (including maintenance amd removal techniques for eliminating such hazards) ; (v) of the advisability and availability of blood lead level screening for children under seven years of age; and (vi) that in the event lead-based paint is found on the property, appropriate abatement procedures may be undertaken. (c) Elimination of lead-based paint hazards. The purpose of this paragraph is to implement the provisions of section 302 of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. 4822, by establishing procedures to eliminate as far as practicable the hazards due to the presence of paint which may contain lead and to which children under seven years of age may be exposed in existing housing which is rehabilitated with assistance provided under this part. The Secretary has promulgated requirements regarding the elimination of lead-based paint hazards in HUD-associated housing at 24 CFR Part 35, Subpart C. This paragraph is promulgated pursuant to the authorization granted in 24 CFR 35.24 (b) (4) and supersedes, with respect to all housing to which it applies, the requirements prescribed by Subpart C of 24 CFR Part 35. K-18 9/88 (1) Applicability. This paragraph applies to the rehabilitation of applicable surfaces in existing housing which is assisted under this part. The following activities assisted under the Community Development Block Grant program are not covered by this paragraph : (i) Emergency repairs (not including lead-based paint-- related emergency repairs) ; • (ii) weatherization; (iii) water or sewer hook-ups; (iv) installation of security devices; (v) facilitation of tax exempt bond issuances which provide funds for rehabilitation; (vi) other similar types of single-purpose programs that do not include physical repairs or remodeling of applicable surfaces (as defined in 24 CFR 35.22) of residential structures; and (vii) any non-single purpose rehabilitation that does not involve applicable surfaces (as defined in 24 CFR 35.22) that does not exceed $3,000 per unit. (2) Definitions. - Applicable surface. All intact and nonintact interior and exterior painted surfaces of a residential structure. Chewable surface. All chewable protruding painted surfaces up to five feet from the floor or ground, which are readily accessible to children under seven years of age, e.g . , protruding corners, windowsills and frames, doors and frames, and other protruding woodwork. Defective paint surface. Paint on applicable surfaces that is cracking , scaling, chipping, peeling or loose. Elevated blood lead level or EBL. Excessive absorption of • lead, that is, a confirmed concentration of lead in whole blood of 25 ug/dl (micrograms of lead per deciliter of whole blood) or greater. Lead-based paint surface. A paint surface, whether or not defective, identified a4 having a lead content greater than or equal to 1 mg/cm • (3) Inspection and Testing K-19 9/88 (i) Defective paint surfaces. The grantee shall inspect for defective paint surfaces in all units constructed prior to 1978 which are occupied by families with children under seven years of age and which are proposed for rehabilitation assistance. The inspection shall occur .at the same time the property is being inspected for rehabilitation. Defective paint conditions will be included in the work write-up for the remainder of the rehabilitation work. (ii) Chewable surfaces. The grantee to test the lead content of chewablel surfaces if required the family residing in a unit, constructed prior to 1978 and receiving rehabilitation assistance, includes a child under seven years of age with an identified EBL condition. Lead content shall be tested by using an X-ray fluorescence analyzer (XRF) or other method approved by HUD. Test readings of 1 mg/cm2 or higher using an XRF shall be considered positive for presence of lead-based paint. (iii) Abatement without testing. In lieu of the procedures set forth in paragraph (c) (3) (ii) of this section, in the case of a residential structure constructed prior to 1978, the grantee may forgo testing and abate all applicable surfaces in accordance with the methods set out in 24 CFR 35.24 (b) (2) (ii) . (4) Abatement Actions. (i) For inspections performed under § 570. 608 (c) (3) (i) and where defective paint surfaces are found, treatment shall be provided to defective areas. Treatment shall be performed before final inspection and approval of the work. (ii) For testing performed under 5 570. 608 (c) (3),(ii) and where interior chewable surfaces are found to contain lead-based paint, all interior chewable surfaces in any affected room shall be treated. Where exterior chewable surfaces are found to contain lead-based paint, the entire exterior chewable surface shall be treated. Treatment shall be performed before final inspection and approval of the work. (iii) When weather prohibits repainting exterior surfaces before final inspection, the grantee may permit the owner to abate the defective paint or chewable lead- based paint as required by section and agree to repaint by a specified date. t A s separate inspection is required. II • i K-20 9/88 methods. At minimum, treatment of the (5) Abatement a defective areas and chewable lead-based paint surfaces shall consist of covering or removal of the painted surface as described in 24 CFR 35 . 24 (b) (2) (ii) . (6) Funding for inspection, testing and abatement. Program requirements and local program design will determine whether the cost of inspection, testing or abatement is to be borne by the owner/developer, the grantee or a combination of the owner/developer and the grantee. (7) Tenant protection. The owner/developer shall take appropriate action to protect tenants from hazards associated with abatement procedures. Where necessary, these actions may include the temporary relocation of tenants during the abatement process. The owner/developer shall notify the grantee of all such actions taken. (8) Records. The grantee shall keep a copy of each inspection and/or test report for at least three years. (9) Monitoring and enforcement. HUD field office monitoring of rehabilitation programs includes reviews for compliance with applicable program requirements for lead-based paint. The CPD Field Monitoring Handbook which currently includes instructions for monitoring lead-based paint requirements will be amended as appropriate. In cases of noncompliance, HUD may impose conditions or sanctions on grantees to encourage prompt compliance. (10) Compliance with other program requirements, Federal, State and local laws. (i) Other program requirements. To the extent that assistance from any of the programs covered by this section is used in conjunction with other HUD program assistance which have lead-based paint requirements which may have more or less stringent requirements, the more stringent requirements will prevail. (ii) HUD responsibility. If HUD determines that a State or local law, ordinance, code or regulation provides for lead-based paint testing or hazard abatement in a manner which provides a level of protection from the hazards of lead-based paint poisoning at least comparable to that provided by the requirements of this section and that adherence to the requirements of this subpart would be duplicative or otherwise cause inefficiencies, HUD may modify or waive the requirements of this section in such manner as may be appropriate to promote efficiency while ensuring such comparable level of protection. J K-21 9/88 (iii) Grantee responsibility. Nothing in this section is intended to relieve any grantee in the programs covered by . this , section of any responsibility for compliance with State br local laws, ordinances, codes or regulations governing lead-based , paint testing or hazard abatement:• : aE (iv) Disposal of lead-based/ paint debris. Lead-basd paint and defective paint debris shall be disposed of in accordance ,.with'. applicable Federal, State or local requirements. .(See , #e.g . , 40 , CFR Parts 260 through 271. ) .6; Jr; w vh S 570.609 Use of debarred, suspended, or ineligible contractors or subrecipients. Assistance under this part shall not be used directly or indirectly to employ, award contracts to, or otherwise engage the services of , or fund any contractor or subrecipient during any period of debarment, suspension, or placement in ineligibility status under the provisions of 24 CFR Part 24. S 570.610 Uniform administrative requirements and cost principles. The recipient, its agencies or instrumentalities, and subrecipients shall comply with the policies, guidelines, and requirements of 24 CFR Part .85 and OMB Circulars A-87, A-110, A- 122, and A-128 (implemented at 24 CFR Part 44) , as applicable, as they relate to the acceptance and use of Federal funds under this part. The applicable sections of 24 CFR Part 85 and OMB Circular A-110 are set forth at S 570.502. S 570.611 Conflict of interest. (a) Applicability. (1) In the procurement of supplies, equipment, construction, and services by recipients, and by subrecipients (including those specified at S 570.204 (c) ) , the conflict of interest provisions in 24 CFR 85.36 and OMB Circular A- 110, respectively, shall apply. (2) In all cases not governed by 24 CFR 85.36 and OMB Circular A-110, the provisions of this section shall apply. Such cases include the acquisition and disposition of real property and the provision of assistance by the recipient, by its subrecipients, or to individuals, businesses and other private entities under eligible activities which authorize such assistance (e.g . , rehabilitation, K-22 9/88 preservation , and other improvements of private properties or facilities pursuant to S 570.202, or grants, loans and ' other assistance to businesses, individuals and other private entities pursuant to S 570.203, S 570.204 or S 570.455) . (b) Conflicts prohibited. Except for 'the use of CDBG funds to pay ( salaries and other related administrative or personnel costs, the general rule is that no persons described in paragraph (c) • of this section who exercise or have exercised any functions or responsibilities with respect to CDBG activities assisted under this part or who are in a position to participate in a decisionmaking process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from a CDBG assisted activity, or have an } interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. For the UDAG program, the above restrictions shall apply to all • activities that are a part of the UDAG project, and shall cover any such interest or benefit during, or at any time after , such person's tenure. (c) Persons covered. The conflict of interest provisions of paragraph (b) of this section apply to any person who is an employee, agent, consultant, officer, or elected official or appointed official of the recipient, or of any designated public agencies, or subrecipients which are receiving funds under this part. (d) Exceptions : threshold requirements. Upon the written request of the recipient, HUD may grant an exception to the provisions of paragraph (b) of this section on a case-by-case basis when it determines that such an exception will serve to further the purposes of the Act and the effective and efficient administration of the recipient's program or project. An . exception may be considered only after the recipient has provided the following: (1) A disclosure of the nature of the conflict, accompanied by an assurance that there has been public disclosure of the conflict and a description of how the public disclosure was made ; and (2) An opinion of the recipient's attorney that the interest for which the exception is sought would not violate State or local law. (e) Factors to be considered for exceptions. In determinir.g whether to grant a requested exception after the recipient has satisf3ctr:rily met the requirements of paragraph (d) of this K_13 9/83 71 lN, section, HUD shall consider the cumulative effect of the following factors , where applicable : , (1) Whether the exception would provide a significant cost benefit or an essential degree of expertise to the program or project which would otherwise not be available ; (2) Whether an opportunity was provided for open competitive bidding or negotiation; (3) Whether the person affected is a member of a group or class of low or moderate income persons intended to be the beneficiaries of the assisted activity, and the exception will permit such person to receive generally the same interests or benefits as are being made available or - provided to the group or class; (4) Whether the affected person has withdrawn from his or her functions or responsibilities, or the decisionmaking process with respect to the specific assisted activity in question; (5) Whether the interest or benefit was present before the affected person was in a position as described in paragraph (b) of this section; (6) Whether undue hardship will result either to the recipient or the person affected when weighed against the public j interest served by avoiding the prohibited conflict; and (7) Any other relevant considerations. S 570.612 Executive Order 12372. (a) General. Executive Order 12372, Intergovernmental Review of Federal Programs, and the Department 's implementing regulations at 24 CFR Part 52, allow each State to establish its own process for review and comment on proposed Federal , financial assistance programs. (b) Applicability. Executive Order 12372 applies to the CDBG Entitlement program and the UDAG program. The Executive Order applies to all activities proposed to be assisted under UDAG, but it applies to the Entitlement program only where a grantee proposes to use funds for the planning or construction (reconstruction or installation) of water or sewer facilities. Such facilities include storm sewers as well as all sanitary sewers, but do not include water and sewer lines connecting a structure to the lines in the public right-of-way or easement. It is the responsibility of the grantee to initiate the Executive Order review process if it proposes to use its CDBG or UDAG funds for activities subject to review. K-24 9/88 ATTACHMENT 0 Circular No . A- 102 • PROCUREMENT STANDARDS 1. Applicability a. This Attachment establishes standards and guidelines for the procurement of supplies, equipment, construction and services for Federal assistance programs. These. standards are furnished to ensure that such materials and services are obtained efficiently and economically and in compliance with the provisions of applicable Federal law and executive orders. b. No additional procurement ' requirements or subordinate regulations shall be imposed upon grantees by executive agencies unless specifically required by Federal law or executive orders or authorized by the Administrator for Federal Procurement Policy. This prohibition . is not applicable to payment conditions • issued in accordance with Treasury Circular 1075, individual grantee requirements pursuant to Section 10 of the basic circular or the provisions of this or other OMB circulars. c . Provisions of 'current subordinate requirments not conforming to this Attachment shall be rescinded by grantor agencies unless approved by the Office of Federal Procurement Policy (OFPP) . 2 . Grantee/Grantor Responsibility a. These standards do not relieve the grantee of any contractual responsibilities under its contracts. The grantee is responsible, in accordance with good administrative practice and sound business judgment, for the settlement of all contractual and administrative issues arising out of procurements entered in support of a grant. These include but are not limited to source evaluation, protests, disputes, and claims. Executive agencies shall not substitute their judgment for that of the grantee unless the matter is primarily a Federal concern. Violations of law are to be referred to the local, State, or Federal authority having proper jurisdiction. b. Grantees shall use their own procurement procedures which reflect applicable State and local laws and regulations, provided that procurements for Federal Assistance Programs 1 3/82 \ 7 • 1300.17 Attachment 0 conform to the standards set forth in this Attachment and applicable Federal law. 3 . Grantee Procurement Improvement Executive agencies awarding Federal grants or other assistance which require or allow for procurement by the • recipients are encouraged to assist recipients in improving their procurement capabilities by providng them with technical assistance training, publications, and other aid. 4. Procurement System Reviews a. Executive agencies are encouraged to perform reviews of their grantees' procurement systems if a continuing relationship with the grantee is anticipated or a substantial amount of the Federal assistance is to be used for procurement and review of individual contracts is anticipated. The purpose of the review shall be to determine: ( 1) whether a grantee' s procurement system meets the standards prescribed by this Attachment or other criteria acceptable to the OFPP, such provisions of the Model Procurement Code for State and local government; and (2 ) whether the grantee' s procurement system should be certified by the reviewing agency. Such a review will also give an agency an opportunity to give technical assistance to a grantee to remedy its procurement system if it does not fully comply. In addition, such a review may provide a basis for deciding whether the grantee' s contracts and related procurement documents should be subject to the grantor' s prior approval, as provided by Section 6. b. In conducting procurement system review, grantor agencies will evaluate a grantee' s procurement system in terms of whether it complies with the standards prescribed by this Attachment and represents a fair, efficient and effective procurement. system. To the maximum extent feasible, reviewers will rely upon State or local evaluations and analyses performed by agencies or organizations independent of the grantee contracting activity. C. When a Federal grantor agency completes a procurement review, it shall furnish a report to the grantee, with a copy to OFPP. d. All agencies should normally rely upon the resultant findings or certification for a period of 24 months before another review is performed. • l , • 1300.17 Attachment 0 • e. Reviews shall be conducted in accordance with standards and guidelines approved or issued by OFPP. f. The reviews authorized by Section 6 are waived if a grantee's procurement system is certified. 5. Protest Procedures • a. Grantor agencies may develop an administrative procedure to handle complaints or protests regarding grantee contractor selection actions. the procedure shall be limited as follows: a. No protest shall be accepted by the grantor agency until all administrative remedies at • the grantee level have been exhausted. b. Review is limited to: (i ) Violations of Federal law or regulations. Violations of State or local law shall be under the jurisdiction of State or • local authorities. (ii ) Violations of grantee' s protest procedures or failure to review a complaint or protest. 6. Grantor Review of .Proposed Contracts • Federal grantor pre-award review and approval of the grantee' s .proposed contracts and related procurement documents, . . such as requests for proposal and invitations for bids, is permitted only under the following circumstances: a. The procurement is expected to exceed S10, 000 and is to be awarded without competition or only one bid or offer is received in response to solicitation. b. The procurement expected to exceed $10, 000 specifies a "brand name" "product; or c. The grantee' s procurement procedures or operation fails to comply with one or more significant aspects of this Attachment. The grantor agency shall notify the grantee in writing; with a- copy of such notification to the OFPP . 7 . Code of Conduct • • • 3 3/82 41) 1300.17 Attachment 0 Grantees shall maintain a written code or standards of conduct which_ shall . govern the performance of their officers, employees or agents engaged in the award and administration of contracts supported by Federal funds. No employee, officer or agent of the grantee shall participate in selection, or in the award or administration of a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: a. The employee, officer or agent; b. Any member of his immediate family; c . His or her partner; or d. An organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. . The grantee' s officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary . value from contractors, potential contractors, or parties to subagreements. Grantees may set minimum rules where the financial interest is not substantial or -the gift is an unsolicited item of nominal intrinsic value. To the extent permitted by State or local law or regulations, such standards of conduct shall provide for penalties, sanctions, or other disciplinary actions for violations of such standards by the grantee' s officers, employees, or agents, or by contractors or their agents. 8 . Procurement Procedures The grantee shall establish procurement procedures which provide that proposed procurement actions shall be reviewed by grantee officials to avoid the purchase of unnecessary or duplicative items. Consideration should be given to consolidation or breaking out to obtain a more economical purchase. Where appropriate, an analysis shall be made of lease versus purchase alternatives, and any other appropriate analysis to determine which approach would be the most economical . To foster greater economy and efficiency, grantees are encouraged to enter into State and local intergovernmental agreements for procurement or tise of common goods and services. 3/82 4 1300.17 Attachment 0 9. Contractin with Small and Minority_Firms , Women' s Business Enterprise and Labor Surplus Area arms a. It is national policy to award a fair share of contracts to small and minority business firms . Accordingly, affirmative steps must be taken to assure that small and minority businesses are utilized when possible as sources of supplies , equipment , construction and services . Affirmative steps shall include the following: ( 1 ) Including qualified small and minority businesses on solicitation lists . ( 2 ) Assuring that small and minority businesses are solicited whenever they are potential sources . ( 3 ) When economically feasible, dividing total requirements into smaller tasks or quantities so as to permit maximum small and minority business participation. ( 4 ) Where the requirement permits,. establishing delivery schedules which will encourage participation by small and minority business . ( 5 ) Using the services and assistance of the Small Business Administration, the Office of Minority Business Enterprise of the Department of Commerce and the Community Services Administration as required. (6 ) If any subcontracts are to be let , requiring the prime contractor to take the affirmative steps in 1 through 5 above . b. Grantees shall take similar appropriate affirmative action in support of women' s business enterprises . c. Grantees are encouraged to procure goods and services from labor surplus areas . d. Grantor agencies may impose additional regulations and requirements in the foregoing areas only to the extent specifically mandated by statute or presidential direction. 10 . Selection procedures a. All procurement transactions , regardless of whether by sealed bids or by negotiation and without regard to dollar value, shall be conducted in a manner that provides maximum open and 5 3/8 2 --1 1300:17 i Attachment 0 free competition consistent with this Attachment. Procurement procedures shall not restrict or eliminate competition. Example of what is considered to be restrictive of competition include, but are not limited to: ( 1 ) placing unreasonable requirements on firms in order for them to qualify to do business; (2 ) noncompetitive practices between firms; (3 ) organizational conflicts of interest; and (4) unnecessary experience and bonding requirments. b. The grantee shall have written selection procedures which shall • provide, as a minimum, the following procedural requirements: ( 1) Solicitations of offers, whether by competitive sealed bids or competitive negotiation shall: ( a) Incorporate a clear and accurate description of the technical requirements for the material, product, or service to be procured. Such description shall not, in competitive procurements, contain features which unduly restrict competition. The description may include a statement of the qualitative nature of the material, product or service to be procured, and when necessary, shall set forth those minimum essential characteristics and standards to which it must conform if it is , to satisfy its intended use. Detailed product specifications should be avoided if at al], possible. When it is impractical or uneconomical to make a clear and accurate description of the technical requirements, a "brand name or equal" description may be used as a means to define the performance or other salient requirements of a procurement. The specific features of the named brand which must be met by offerors shall be clearly stated. (b) Clearly set forth all requirements which offerors must fulfill and all other factors to be used in evaluating bids or proposals . (2 ) Awards shall be made only to responsible contractors that possess the potential ability to perform successfully under the terms and conditions of a proposed procurement. Consideration shall be given to such matters as contractor integrity, compliance with public policy, record of - past performance, and financial and technical resources. 11 . Method Procurement 3/82 6 1 1300 .17 Attachment 0 • Procurement under grants shall be made by one of the following methods, as described herein: (a) small purchase procedures; (b) competitive sealed bids (formal advertising) ; (c) competitive negotiation; (d) noncompetitive negotiation. a. Small purchase procedures are those, relatively simple and informal procurement methods that are sound and appropriate for a procurement of services, supplies or other property, costing in the aggregate not more, than $10, 000. Grantees shall . comply with State or local small purchase dollar limits under $10, 000. If small purchase procedures are used for a procurement under a grant, price or rate quotations shall be obtained . from an adequate number of qualified sources. b. In competitive sealed bids (formal advertising) , sealed • bids are publicly solicited and a firm-fixed-price contract ( lump sum or unit price) is awarded to the responsible bidder whose . bid, conforming with all the material terms :and conditions of the invitation for bids, is lowest in price. (1) In order for formal advertising to be feasible, appropriate conditions must be present, including, as a minimum, the following: • (a) A complete, adequate and realistic specification or purchase description is available. (b) Two or more responsible suppliers are willing and able to compete effectively for the grantee' s business. (c) The procurement lends itself to a firm-fixed-price contract, and selection of the successful bidder can appropriately be made principally on the basis of price . ,(2) If formal advertising is used for a procurement under a grant the following requirements shall apply: ( a) A sufficient time prior to the date set for opening of bids, bids shall be solicited from an adequate number of known suppliers. In addition, the invitation shall be publicly advertised. (b) The invitation for bids, including specifications and pertinent attachments, shall clearly define the items or services needed in order for the bidders . to properly respond to the invitation. 7 3/82 , • 1300. 17 1 Attachment 0 (c) All bids shall be opened publicly at the time and place stated in the invitation for bids. (d) A firm-fix-price contract award shall be made by written notice to that responsible bidder whose bid, conforming to the invitation for bids, is lowest. Where specified in the bidding documents, factors such as discounts, transportation costs and life cycle costs shall be considered in determining which bid is lowest. Payment discounts may only be used to determine low bid when prior experience of ' the grantee indicates that such discounts are generally taken. (e) Any or all bids may be rejected when there are sound documented business reasons in the best interest of the program. c. In competitive negotiation, proposals are requested from a number of sources and the Request for Proposal is publicized, negotiations are normally conducted with more than one of the sources submitting offers, and either a fixed-price or cost-reimbursable type contract is awarded, as appropriate. Competitive , negotiation may be used if conditions are not appropriate for the use of formal advertising. If competitive negotiation is used for a procurement under a grant, the following requirements shall apply: • ( 1) Proposals shall -be solicited from an adequate number of cualified • sources to permit reasonable competition consistent with the nature and requirements of the procurement. The Recuest for Proposal shall be publicized and reasonable requests by other sources to compete shall be honored to the maximum extent practicable. (2 ) The Request for Proposal shall identify all significant evaluation factors, including price or cost where required and their relative importance. (3 ) The grantee shall provide mechanisms for technical evaluation of the proposals received, determinations of responsible offerors for the purpose of written or oral discussions, and selection for contract award. ( 4) Award may be made to the responsible offeror whose proposal will ce most adavantageous to the procuring party, price and other factors considered. Unsuccessful offerors should be notified promptly. 3i32 3 l 1300.17 Attachment 0 ( 5 ) Grantees may utilize competitive negotiation procedures for procurement of architectural /engineering professional services , whereby competitors' qualifications are evaluated and the most qualified competitors ' qualifications are evaluated and the most qualified competitor is selected, subject to negotiation of fair and reasonable compensation. d. Noncompetitive negotiation is procurement through solicitation of a proposal from only one source, or after . solicitation of a number of sources , competition is determined inadequate. Noncompetitive negotiation may be used when the award of a contract is infeasible under small purchase, competitive bidding ( formal advertising) or competitive negotiation procedures . Circumstances under which a contract may be awarded by noncompetitive negotiation are limited to the following: ( 1 ) The item is available only from a single source; ( 2 ) Public exigency or emergency when the urgency for the requirement will not permit a delay incident to competitive solicitation; ( 3 ) The Federal grantor agency authorizes noncompetitive negotiation; or • ( 4 ) After soliciation of a number of sources , competition is determined inadequate. e. Additional innovative procurement methods may be used by grantees with the approval of the grantor agency . A copy of such approval shall be sent to the OFPP. 12 . Contract Pricing The cost plus a percentage of cost and percentage of construction cost method of contracting shall not be used. Grantees shall perform some form of cost or price analysis in connection with every procurement action including contract modifications . Costs or prices based on estimated costs for contracts under grants shall be allowed only to the extent that costs incurred or cost estimates included in negotiated prices are consistent with Federal cost principles . 13 . Grantee Procurement Records Grantees shall maintain records sufficient to detail the significant history of a procurement . These records shall 9 3/82 :> . /I 1300. 17 Attachment 0 . . : ' include, but are not necessarily limited to information pertinent to the following: rationale for the method of procurement, selection of contract type, contractor selection or rejection, and the basis for the cost or price. 14. Contract Provision In addition to provisions defining a sound and complete procurement contract, any recipient of Federal grant funds shall include the following contract provisions or conditions in all fi procurement contracts and subcontracts as required by the provision, Federal law or the grantor agency. a. Contracts other than small purchases shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate . b. All contracts in excess of $10, 000 shall contain suitable provisions for termination by the grantee including the manner by which it will 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. All contracts awarded in excess of $10, 000 by grantees and their contractors or subgrantees shall contain a. provision requiring compliance with Executive Order 11246, entitled "Equal Employment Opportunity, " as amended by Executive Order 11375, and as supplemented in Department of Labor regulations (41 CFR Part 60) . d. All contracts and subgrants for construction or repair shall include a provision for compliance with the Copeland "Anti- Kickback" Act ( 18 USC 874) as supplemented in Department of Labor regulations (29 CFR, Part 3 ) . This Act provides that each • contractor or subgrantee 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 grantee shall report all suspected or reported violations to the grantor agency. e. When required by the Federal grant program legislation, all construction contracts in excess of $2, 000 awarded by grantees and subg=antees shall include a provision for compliance 3/82 . ro 1300.17 • • Attachment 0 with the Davis-Bacon Act (40 USC 276a to a-7) as supplemented by Department of Labor regulations (29 CFR, Part 5) . Under this Act contractors shall be required to pay wages to laborers and • mechanics at a rate not ]Tess 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 often than once a week. The grantee 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 grantee shall report all suspected or reported violations to the grantor agency. f. Where applicable, all contracts awarded by grantees and subgrantees in excess of $2 , 000 for construction contracts and in excess of $2 , 500 for other contracts which involve the employment of mechanics or laborers shall include a provision for compliance with Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 USC 327-330) as supplemented by Department of Labor regulations (29 CFR, Part 5 ) . Under Section 103 of the Act, each contractor shall be required to compute the wages of every mechanic and laborer on the basis of standard workday of 8 hours and a standard workweek of 40 hours. Work in excess of the standard workday or workweek 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 8 hours in any calendar day or 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 to his health and safety as determined under construction, safety and health standards promulgated by the Secretary of Labor. 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. g. The contract shall include notice of grantor agency requirements and regulations pertaining to reporting and patent rights under any contract involving research, developmental , experimental or demonstration work with respect to any discovery or invention which arises or is developed in the course of or under such contract, and of grantor agency requirements and regulations pertaining to copyrights and rights in data. h. All negotiated contracts ( except those awarded by small purchase procedures ) awarded by grantees shall include a 11 3/82 • 1300. 17 Attachment 0 provision to the effect that the grantee, the Federal grantor 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 that specific contract, for the purpose of making audit, examination, excerpts, and transcriptions. Grantees shall require contractors to maintain all required records for three years after grantees make final payments and all other pending matters are closed. i . Contracts, subcontracts, and subgrants of amounts in excess of $100, 000 shall contain a provision which requires compliance with all applicable standards, orders, or requirements issued under Section 306 of the Clean• Air Act ( 42 USC 1857(h) ) , Section 508 of the Clean Water Act (33 USC 1368) , Executive Order 11738, and Environmental Protection Agency regulations (40 CFR, Part 15 ) , which ' prohibit the use under non-exempt Federal contracts, grants or loans of facilities included on the EPA List of Violating Facilities. The provision shall require reporting of violations • to the grantor agency and to the USEPA Assistant Administrator for Enforcement (EN-329 ) . • j . Contracts shall recognize mandatory standards and policies relating to energy efficiency which are contained in the State energy conservation plan issued in compliance with the Energy Policy and Conservation Act (P. L. 94-163 ) . • Grantor agencies are permitted to require changes, remedies, changed conditions, access and record retention and suspension of work clauses approved by . the Office of Federal Procurement Policy. 15 . Contract Administration Grantees shall maintain a contract administration system ensuring that contractors perform in accordance with the terms, conditions, and specifications of their contracts or purchase orders . • 3/82 Z2 c5a CITY OF OMAHA 1 LEGISLATIVE CHAMBER Omaha,Nebr 19 RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: WHEREAS,the City annually received Community Development Block Grant funds under Title 1 of the Housing and Community Development Act of 1974, as amended,for the purpose of benefiting low and moderate income residents, eliminating slums and blight; and for other urgent community development needs; and, WHEREAS, the Mayor recommended various projects in the 1997 Consolidated Submission for Community Planning and Development Programs (Consolidated Plan) including the 51st and Nebraska Avenue Housing Development Program; and, WHEREAS,the City Council approved the 1997. Consolidated Plan on December 3, 1996,by Resolution No. 3195; and, WHEREAS, the City will provide funding in the amount of $80,000.00 for tree trimming and the installation of utilities by OPPD and MUD; and, WHEREAS, the 51st and Nebraska Avenue Redevelopment effort will result in the creation of a new residential subdivision of approximately 35 single family homes to be constructed by Holy Name Housing Corporation; and, WHEREAS,it is in the best interest of the citizens of Omaha to promote this project which will create new housing affordable to low and moderate income households in the North Omaha Community. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA: By Councilmember Adopted City Clerk '471' Approved Mayor r SA CITY OF OMAHA LEGISLATIVE CHAMBER Omaha,Nebr 19 PAGE 2 THAT,as recommended by the Mayor,the attached Agreement between the City of Omaha and Holy Name Housing Corporation, a Nebraska Non-profit Corporation, 3014 North 45th Street,Omaha,Nebraska 68104,in the amount of$80,000.00 in FY 97 Community Development Block Grant funds in the form of a grant for tree trimming and the installation of utilities by OPPD and MUD for residential development of a deteriorated,vacant site at 51st and Nebraska Avenue, is hereby approved. Funds shall be payable from the Community Development Block Grant Housing Development Program Fund No. 193, Organization No. 8324. APPROVED AS TO FORM: dila ASSISTANT CITY ATTORNEY DATE P:\PLN2\4104.MAF 1 By __ ouncilmember Adopte .... JUL 2 9 997 �- • rk Approve Mayo 11 9 r • N " � x • ff• W1 ` ::i.: cn O ' rOP a o' Z R � o , . Y CD CD = CD � Z- 0 :C.. i" 0 a a Cr ,-, " a co fiy Q., ry a: k. °w° o W�c a d o ' ,P. o 'N • CD va co o c v \ \ ti ,-, . , ;i•i.U• Hii. H ! i; � IL n o1; k4.) • \' ,(, * t , z —, c Tl m -A c, (73 c-) c rn i MI N rn ^-471 ,t i