RES 1997-2119 - Agmt with Holyu Name Housing Corporation for grant for tree trimming and utilities for OPPD and MUD , • • ., - : ' :
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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).
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
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= 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
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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
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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
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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
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• 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.
,
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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.
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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
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(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.
(
•
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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
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•
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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 ,
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1300.17
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•
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 •
•
•
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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
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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
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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
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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 ,
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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
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