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2001-410Additional File Exists Additional File Contains Records Not Public, According to the Public Records Act Other FILE(S) Date Inltialg First Amendment to Agreement - 09/18/2002 (Original Amendment is attached to Ordinance 2001-410) 09/18/2002 JR Second Amendment to Agreement - Ordinance No. 2003-291 09/16/2003 JR · S:\Our Documents\Ordinances\O 1 \City County Day School Ordinance.doc ORDINANCE NO. ~001-4/0 AN ORDINANCE OF THE CITY OF DENTON, TEXAS, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT BETWEEN THE CITY AND DENTON CITY COUNTY DAY SCHOOL TO PROVIDE FOR IMPROVEMENTS TO THE DAYCARE FACILITY AT 1603 PAISLEY STREET; AUTHORIZING THE EXPENDITURE OF FUNDS THEREFOR, NOT TO EXCEED $30,000; AND PROVIDING AN EFFECTIVE DATE· WHEREAS, the City Council has approved the 2001 Action Plan for Housing and Community Development which includes $30,000 for improvements to the Denton City County Day School daycare facility; NOW, THEREFORE, THE COUNCIL OF THE CITY OF DENTON HEREBY ORDAINS: SECTION 1. That the City Manager is hereby authorized to execute the attached agreement between the City of Denton and the Denton City County Day School to provide for improvements to the daycare facility noted therein, SECTION 2. that the City Council hereby authorized the expenditure of funds in the manner and amount specified in the agreement, not to exceed $30,000. SECTION 3. That this ordinance shall become effective immediately upon its passage and approval. PASSED AND APPROVED this the b~-~day of ~/~.2001. EULINE BROCK, MAYOR ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Documents'tOocfile\CCDS Contract ·., . , ,.~:~v,y 01 06.doe AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON CITY COUNTY DAY SCHOOL, INCORPORATED This Agreement is made and entered into by and between the City of Denton, Texas, a municipal corporation, acting by and through its City Manager, pursuant to ordinance, hereinafter referred to as CITY, and Denton City County Day School, Inc., 1603 Paisley, Denton, Texas, 76209, a not-for-profit corporation, hereinafter referred to as CONTRACTOR. WHEREAS, CITY has received certain funds from the U.S. Department of Housing and Urban Development under Title I of the Housing and Community Development Act of 1974, as amended; and WHEREAS, CITY has adopted a budget for such funds and included therein an authorized budget for expenditure of funds for improvements to the child care facility at 1603 Paisley Street; and WHEREAS, CITY has designated the Community Services Division of the Community Development Department as the division responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, CITY wishes to engage CONTRACTOR to carry out such project; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. This agreement shall commence on or as of November 6, 2001, and shall terminate on November 6, 2006 unless otherwise adjusted by CITY. Request for such an adjustment must be in writing and is to be submitted to the City's Community Services Division, 100 W. Oak, Suite 208, Denton, Texas, 76201. II. RESPONSIBILITIES CONTRACTOR hereby accepts responsibility for ensuring the proper completion of all construction and repair activities described in the Description of Improvements attached hereto as Attachment "A", in a satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider CONTRACTOR'S executive director to be the CONTRACTOR'S representative responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from CONTRACTOR, and, approved by CITY. CITY'S Community Development Administrator will be the CITY'S representative responsible for the administration of this Agreement. III. CITY'S OBLIGATION A. Limit of Liability. CITY will pay the the CONTRACTOR the expenses incurred pursuant and in accordance with the description of improvements attached hereto as Attachment "A" and incorporated herein by reference. Notwithstanding any other provision of the Agreement, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of $30,000. B. Measure of Liability. In consideration of full and satisfactory services, activities and reports hereunder by CONTRACTOR, CITY shall reimburse CONTRACTOR for expenses incurred, subject to the limitations and provisions set forth in this Section and Section VII of this Agreement. (1) The parties expressly understand and agree that CITY's obligations under this Section are contingent upon the actual receipt of adequate Community Development Block Grant (CDBG) funds to meet CITY's liabilities under this Agreement. If adequate funds are not available to make payments under this Agreement, CITY shall notify CONTRACTOR in writing within a reasonable time after such fact has been determined. CITY may, at its option, either reduce the amount of its liability, as specified in Subsection A of this Section or terminate the Agreement. If CDBG funds eligible for use for purposes of this Agreement are reduced, CITY shall not be liable for further payments under this Agreement. (2) It is expressly understood that this Agreement in no way obligates the General Fund or any other monies or credits of the City of Denton. (3) CITY shall not be liable for any cost or portion thereof which: (a) has been paid, reimbursed or is subject to payment or reimbursement, fi'om any other source; (b) was incurred prior to the beginning date, or after the ending date specified in Section I; (c) is not in strict accordance with the terms of this Agreement, including all exhibits attached hereto; (d) is not an allowable cost as defined by Section XI of this Agreement or the project budget. Page 2 (4) CITY shall not be liable for any cost or portion thereof which is incurred with respect to any activity of CONTRACTOR requiring prior written authorization from CITY, or after CITY has requested that CONTRACTOR fumish data concerning such action prior to proceeding further, unless and until CITY advises CONTRACTOR to proceed. (5) CITY shall not be obligated or liable under this Agreement if CONTRACTOR fails to follow appropriate procurement procedures and to retain the services of the contractors and suppliers who were the lowest reasonable bidders on each respective project and who were agreed upon by both the CITY and CONTRACTOR for payment of any monies or provision of any goods or services. C. CITY shall provide funds in an amount not to exceed $30,000 to assist CONTRACTOR in the improvements to the facility located at 1603 Paisley Street, Denton, Texas. D. CONTRACTOR agrees to hold and save harmless CITY from any and all loss, cost, or damage of every kind, nature or description arising under this Agreement or from any source whatsoever. E. CITY shall comply with the HUD Office of Management and Budget Circular A- 87. CITY shall be responsible for performing the environmental review and monitoring the project for compliance with federal wage and labor requirements. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS A. CONTRACTOR understands that funds provided to it pursuant to this Agreement are funds which have been made available to CITY by the Federal Government (U.S. Department of Housing and Urban Development) under the Housing and Community Development Act of 1974, as amended, in accordance with an approved Grant Application and specific assurances. Accordingly, CONTRACTOR assures and certifies that it will comply with the requirements of the Housing and Community Development Act of 1974 (P.L. 93-383) as amended and with regulations promulgated thereunder, and codified at 24 CFR 570. The foregoing is in no way meant to constitute a complete compilation of all duties imposed upon CONTRACTOR by law or administrative ruling, or to narrow the standards which CONTRACTOR must follow. CONTRACTOR further accrues and certifies that if the regulations and issuances promulgated pursuant to the Act are amended or revised, it shall comply with them, or notify CITY, as provided in Section XXIV of this Agreement. CONTRACTOR agrees to abide by the conditions of and comply with the requirements of the Office of Management and Budget Circulars Nos. A-110 and A-122. Page 3 B. CONTRACTOR shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton, and in particular provisions of attachments B - D which are attached hereto and incorporated herein for all purposes. REPRESENTATIONS A. CONTRACTOR assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into this Agreement. B. The person or persons signing and executing this Agreement on behalf of CONTRACTOR, do hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Agreement on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to all terms, performances and provisions herein set forth. C. CITY shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of either CONTRACTOR or the person signing the Agreement to enter into this Agreement. CONTRACTOR is liable to CITY for any money it has received from CITY for performance of the provisions of this Agreement if CITY has suspended or terminated this Agreement for the reasons enumerated in this Section. D. CONTRACTOR agrees that the funds and resources provided CONTRACTOR under the terms of this Agreement will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, CONTRACTOR had this Agreement not been executed. E. CONTRACTOR warrants that it is the legal owner of the property described in Article II and CONTRACTOR agrees to allow CITY access to this site for inspection purposes. CONTRACTOR further agrees to allow CITY to bid and execute agreements with the general contractor for the repairs to the Denton City County Day School, Inc. facility. F. CONTRACTOR shall continue to utilize the facility at 1603 Paisley Street, Denton, Texas for a minimum of five years after improvements are completed to provide affordable day care for low and moderate-income households. G. CITY is the only agent authorized to designate changes to the work to be performed. Any additional or changes to the work authorized by CITY can only he done in writing with the signature of CITY'S City Manager, Mayor, or Community Development Administrator, plus those of CONTRACTOR and its representatives. Page 4 WARRANTIES CONTRACTOR represents and warrants that: A. All information, reports and data heretofore or hereafter requested by CITY and furnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. B. Any supporting financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened against CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business or with the provisions of any exist'mg indenture or agreement of CONTRACTOR. CONTRACTOR has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by CONTRACTOR to CITY. Each of these representations and warranties shall be continffmg and shall be deemed to have been repeated by the approval of each request for payment fi.om the general construction contractor. COVENANTS A. During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, CONTRACTOR shall not, without the prior written consent of the Community Development Administrator or her authorized representative: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any pre-existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of CONTRACTOR which are allocated to the performance of this Agreement and with respect to which CITY has ownership hereunder. Page 5 (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to CONTRACTOR by CITY, unless CITY authorizes such transfer. B. Should CONTRACTOR use funds received under this Agreement to acquire or improve real property under CONTRACTOR's control, CONTRACTOR agrees and covenants: (1) That the property shall be used to meet one of the national objectives stated in 24 CFR 570 until August 31, 2006. (2) That should CONTRACTOR transfer or otherwise dispose of said property on or before August 31, 2006, CONTRACTOR shall reimburse CITY in the amount of the fair market value of this property less any portion of the value attributable to expenditures ofnon-CDBG funds for acquisition of, or improvement to, the property. C. CONTRACTOR agrees, upon written request by CITY, to require its employees to attend train/ng sessions sponsored by the Community Services Division. VIII. PROGRAM INCOME A. For purposes of this Agreement, program income means earnings of CONTRACTOR realized from activities resulting from this Agreement or from CONTRACTOR's management of fimding provided or received hereunder. Such earnings include, but are not limited to, income from interest, usage or rental or lease fees, income produced from contract-supported services of individuals or employees or from the use or sale of equipment or facilities of CONTRACTOR provided as a result of this Agreement, and payments from clients or third parties for services rendered by CONTRACTOR under this Agreement. B. CONTRACTOR shall maintain records of the receipt and disposition of program income in the same manner as required for other contract funds, and reported to CITY in the format prescribed by CITY. CITY and CONTRACTOR agree, based upon advice received from representatives of the U.S. Department of Housing and Urban Development (HUD), that any fees collected for services performed by CONTRACTOR shall be spent only for service provision. These fees or other program income will be deducted from the regular reimbursement request. Page 6 C. CONTRACTOR shall include this Section in its entirety in all of its sub-contracts which involve other income-producing services or activities. D. It is CONTRACTOR'S responsibility to obtain from CITY a prior determination as to whether or not income arising directly or indirectly from this Agreement, or the performance thereof, constitutes program income. CONTRACTOR is responsible to CITY for the repayment of any and all amounts determined by CITY to be program income, unless otherwise approved in writing by CITY. IX. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement and with any other applicable Federal and State regulations estabhshing standards for financial management. CONTRACTOR's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liability under any other provision of this Agreement or any applicable law. CONTRACTOR shall include the substance of this provision in all subcontracts. B. CONTRACTOR agrees to retain all books, records, documents, reports, and written accounting policies and procedures pertaining to the operation of programs and expenditures of funds under this Agreement for the period of time and under the conditions specified by CITY. C. Nothing in the above subsections shall be constmed to relieve CONTRACTOR of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Agreement. D. At any reasonable time and as often as CITY may deem necessary, CONTRACTOR shall make available to CITY, or any of its authorized representatives, all of its records and shall permit CITY, or any of its authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data relating to the program requested by said representatives. REPORTS AND INFORMATION At such times and in such form as CITY may require, CONTRACTOR shall furnish such statements, records, data and information as CITY may request and deem pertinent to matters covered by this Agreement. CONTRACTOR shall submit quarterly beneficiary and financial reports to CITY no less than once each three months. The beneficiary report shall detail client information, including Page 7 race, income, female head of household and other statistics required by CITY. The financial report shall include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section I of this Agreement. Unless a written exemption has been granted by the CITY, CONTRACTOR shall submit an audit conducted by independent examiners within ten (10) days after receipt of such. MONITORING AND EVALUATION A. CITY shall perform on-site monitoring of CONTRACTOR's performances under this Agreement. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement attached hereto as Attachment "A", as well as other provisions of this Agreement. C. CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of record~keeping systems and to provide data determined by CITY to be necessary for CITY to effectively fulfill its monitoring and evaluation responsibilities. D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY staff. E. After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring findings. F. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any of CONTRACTOR's funding or regulatory bodies to CITY within five (5) working days of receipt by CONTRACTOR. XII. DIRECTORS' MEETINGS During the terms of this Agreement, CONTRACTOR shall cause to be delivered to CITY copies of all notices of meetings of its Board of Directors, setting forth the time and place thereof. Such notice shall be delivered to CITY in a timely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to all of the Board of Directors' meetings. Minutes of all meetings of CONTRACTOR's governing body shall be available to CITY within ten (10) working days of approval. Page 8 XIII. INSURANCE A. CONTRACTOR shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Attachment "A" are conducted, and the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with CITY named as an additional insured. Upon request of CONTRACTOR, CITY may, at its sole discretion, approve alternate insurance coverage arrangements. C. CONTRACTOR will comply with applicable workers' compensation statues and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. D. CONTRACTOR will maintain adequate and continuous liability insurance on ail vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in CONTRACTOR's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall contain a clause which requires that City and Contractor be notified in writing of any cancellation of change in the policy at least thirty (30) days prior to such change or cancellation. EQUAL OPPORTUNITY A. CONTRACTOR shall submit for CITY's approval, a written plan for compliance with the Equal Employment and Affn'mative Action Federal provisions, within thirty (30) days of the effective date of this Agreement. B. CONTRACTOR shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. CONTRACTOR will furnish all information and reports requested by the CITY, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, state and Federal rules and regulations. Page 9 D. In the event of CONTRACTOR's non-compliance with the non-discrimination requirements, CITY may cancel or terminate the Agreement in whole or in part, and CONTRACTOR may be barred from further contracts with CITY. PERSONNEL POLICIES Personnel policies shall be established by CONTRACTOR and shall be available for examination. Such personnel policies shall: A. Be no more liberal than CITY's personnel policies, procedures, and practices, including policies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of CONTRACTOR and by CITY. XVI. CONFLICT OF INTEREST A. CONTRACTOR covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. CONTRACTOR further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. CONTRACTOR further covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of CITY and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or can3dng out of this Agreement shall (1) participate in any decision relating to the Agreement which affects is personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Agreement or the proceeds thereof. XVII. NEPOTISM CONTRACTOR shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by CONTRACTOR, or is a member of CONTRACTOR's governing board. The term "member of immediate family" Page 10 includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother and half-sister. XVIII. POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used, either directly or indirectly, for any political activity (including, but not limited to, an activity to further the election or defeat of any candidate for public office) or any activity undertaken to influence the passage, defeat or final content of legislation. B. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used for or applied directly or indirectly to the construction, operation, maintenance or administration, or be utilized so as to benefit in any manner any sectarian or religious facility or activity. XIX. PUBLICITY A. Where such action is appropriate, CONTRACTOR shall publicize the activities conducted by CONTRACTOR under this Agreement. In any news release, sign, brochure, or other advertising medium, disseminating information prepared or distributed by or for CONTRACTOR, the advertising medium shall state that the U.S. Department of Housing and Urban Development's Community Development Block Grant Program funding through the City of Denton has made the project possible. B. All published material and written reports submitted under this project must be originally developed material unless otherwise specifically provided in this Agreement. When material not originally developed is included in a report, the report shall identify the source in the body of the report or by footnote. This provision is applicable when the material is in a verbatim or extensive paraphrase format. All published material submitted under this project shall include the following reference on the front cover or title page: This document is prepared in accordance with the City of Denton's Community Development Block Grant Program, with funding received from the United States Department of Housing and Urban Development. C. All reports, documents, studies, charts, schedules, or other appended documentation to any proposal, content of basic proposal, or contracts and any responses, inquiries, correspondence and related material submitted by CONTRACTOR shall become the property of CITY upon receipt. Page 11 XX* FUNDING APPLICATIONS CONTRACTOR agrees to notify CITY each time CONTRACTOR is preparing or submitting any application for funding in accordance with the following procedures: A. When the application is in the planning stages, CONTRACTOR shall submit to CITY a description of the funds being applied for, and the proposed use of funds. B. Upon award of or notice of award, whichever is sooner, CONTRACTOR shall notify CITY of such award and the effect, if any, of such funding on the funds and program(s) contracted hereunder. Such notice shall be submitted to CITY, in writing, within ten (10) working days of receipt of the notice of award or flmding award by CONTRACTOR, together with copies of the budget, program description, and Agreement. C. CONTRACTOR shall not use funds provided hereunder, whether directly or indirectly, as a contribution, or to prepare applications to obtain any federal or private funds under any federal or private program without the prior written consent of CITY. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. CONTRACTOR shall request, in writing, budget revisions in a form prescribed by CITY, and such request for revision shall not increase thc total monetary obligation of CITY under this Agreement. In addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. C. CONTRACTOR will submit revised budget and program information, whenever the level of funding for CONTRACTOR or the program(s) described herein is altered according to the total levels contained in any portion of this agreement. D. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. E. CONTRACTOR shall notify CITY of any changes in personnel or governing board composition. Page 12 F. It is expressly understood that neither the performance of Attachment "A" for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. SUSPENSION OF FUNDING Upon determination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, withhold further payments to CONTRACTOR. Such notice may be given by mail to the Executive Officer and the Board of Directors of CONTRACTOR. The notice shall set forth the default or failure alleged, and the action required for cure. The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, CONTRACTOR may be restored to full compliance status and paid all eligible funds withheld or impounded during the suspension period. If however, CITY determines that CONTRACTOR has not come into compliance, the provisions of SECTION XXiII may be effectuated. XXIII. TERMINATION A. CITY may terminate this Agreement for cause under any of the following reasons or for other reasons not specifically enumerated in this paragraph: (1) CONTRACTOR's failure to attain compliance during any prescribed period of suspension as provided in Section XXII. (2) CONTRACTOR's violation of covenants, agreements or guarantees of this Agreement. (3) Termination or reduction of funding by the United States Department of Housing and Urban Development. (4) Finding by CITY that CONTRACTOR: (a) is in such unsatisfactory financial condition as to endanger performance under this Agreement; (b) has allocated inventory to this Agreement substantially exceeding reasonable requirements; (c) is delinquent in payment of taxes, or of costs of performance of this Agreement in the ordinary course of business. Page 13 (5) Appointment of a trustee, receiver or liquidator for all or substantial part of CONTRACTOR's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against CONTRACTOR. (6) CONTRACTOR's inability to conform to changes required by Federal, State and local laws or regulations as provided in Section IV, and Section XXI (D), of this Agreement. (7) The commission of an act of bankruptcy. (8) CONTRACTOR's violation of any law or regulation to which CONTRACTOR is bound or shall be bound under the terms of the Agreement. CITY shall promptly notify CONTRACTOR in writing of the decision to terminate and the effective date of termination. Simultaneous notice of pending termination maybe made to other funding source specified. B. CITY may terminate this Agreement for convenience at any time. If this Agreement is terminated by CITY for convenience, CONTRACTOR will be paid an amount not to exceed the total of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount which bears the same ratio to the total compensation as the services actually performed bears to the total services of CONTRACTOR covered by the Agreement, less payments previously made. C. CONTRACTOR may terminate this Agreement in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which CONTRACTOR depends for performance hereunder. CONTRACTOR may opt, within the limitations of this Agreement, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between CONTRACTOR and the funding source in question. CONTRACTOR may terminate this Agreement upon the dissolution of CONTRACTOR's organization not occasioned by a breach of this Agreement. D. Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw or otherwise terminate any outstanding orders or subcontracts which r~late to the performance of this Agreement. CITY shall not be liable to CONTRACTOR or CONTRACTOR's creditors for any expenses, encumbrances or obligations whatsoever incurred after the termination date listed on the notice to terminate referred to in this paragraph. E. Notwithstanding any exercise by CITY of its right of suspension or termination, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Agreement by CONTRACTOR, and CITY may withhold any Page 14 reimbursement to CONTRACTOR until such time as the exact mount of damages due to CITY fi:om CONTRACTOR is agreed upon or otherwise determined. XXIV. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm corporation or other entity against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY within two (2) working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notiftcation of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or t~eatened. Such written notice shall be dehvered either personally or by mail. INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent contractor and that as such, CONTRACTOR shall save and hold CITY, its officers, agents and employees harmless from all liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. XXVI. MISCELLANEOUS A. CONTRACTOR sha!l not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company or other financial institution without the prior written approval of CITY. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. Page 15 C. In no event shall any payment to CONTRACTOR hereunder, or any other act or failure of CITY to insist in any one or more instances upon the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by CITY of any breach of covenant or default which may then or subsequently be committed by CONTRACTOR. Neither shall such payment, act, or omission in any manner impair or prejudice any right, power, privilege, or remedy available to CITY to enforce its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of CITY may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understand'rog or other commitment antecedent to this Agreement, whether written or oral, shall have no force or effect whatsoever; nor shall an agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. In the event any disagreement or dispute should arise between the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing rules, codes, laws, ordinances or regulations, CITY as the party ultimately responsible to HUD for matters of compliance, will have the final authority to render or to secure an interpretation. F. For purposes of this Agreement, all official communications and notices among the parties shall be deemed made if sent postage paid to the parties and address set forth below: TO CITY: TO CONTRACTOR: City Manager City of Denton 215 E. McKirmey St. Denton, Texas 76201 Director Denton City County Day School 1603 Paisley Street Denton, Texas 76209 G. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court competent jurisdiction sitting in Denton County, Texas. ,/ OF WHICH this Agreement has been executed on this the ~ 1~/~ day of ,2001. CITY~~//~ BY: ( MICRAEr:A. eO qDU?Jr CITY MANAGER Page 16 ATTEST: JENNIFER WALTERS, CITY SECRETARY APP~vED Al TO LEGAL FORM: HERBERT L, PROUTY, CITY ATTORNEY BY: "-~c)ra ~ ..c,t,~,.6~o ATTEST: DENTON CITY COUNTY DAY SCHOOL, 1NC. BY: ~.. ~ "~X~C~DIRECTI~t~ ~) BOARD SECRETARY Page 17 ATTACHMENT "A" DESCRIPTION OF IMPROVEMENTS 1. Replace existing carpet in classrooms with commercial grade vinyl flooring. 2. Renovate five bathrooms, kitchen and entry hall flooring with new vinyl flooring. 3. Install adequate insulation. 4. Installation ora central air conditioning unit. Total Project Budget $30,000 WORK STATEMENT Denton City County Day School, Inc. Services Denton City County Day School is a nonprofit childcare facility for low-income families. DCCDS serves approximately 66 children daily ranging in age from 2 years to 5 ½ years. Parents must be working, going to school full time or doing a combination of both be eligible. DCCDS is open Monday through Friday from 6:30 a.m. to 5:30 p.m. The staff consists of 8 teachers, a cook, an assistant director and a director. The children are served breakfast, lunch and two snacks. DDCDS provides a safe and healthy environment for childcare, but a learning program for all age groups. The curriculum places emphasis on cognitive, affective and psychomotor learning skills, good health habits and physical development. The nursery staff receives 20 hours continuing education hours each year in child development and early childhood education. The most important element is the emphasis placed on enhancing the self-concept of each individual child, as this is very significant for his/her future success. Page 18 ATTACHMENT "B" 24 CFR § 570.505 The standards described in this section apply to real property within the recipient's control which was acquired or improved in whole or in part using CDBG funds in excess of $25,000. These standards shall apply from the date CDBG funds are first spent for the property until five years after closeout of an entitlement recipient's participation in the entitlement CDBG program or, with respect to other recipients, until five years after the closeout of the grant from which the assistance to the property was provided. (a) A recipient may not change the use or planned use of any such property (including the beneficiaries of such use) from that for which the acquisition or improvement was made unless the recipient provides affected citizens with reasonable notice of, and opportunity to comment on, any proposed change, and either: (1) The new use of such property qualifies as meeting one of the national objectives in Section 570.208 and is not a building for the general conduct of govermnent; or (2) The requirements in paragraph (b) of this section are met. (b) If the recipient determines, after consultation with affected citizens, that it is appropriate to change the use of the property to a use which does not qualify under paragraph (a)(1) of this section, it may retain or dispose of the property for the changed use if the recipient's CDBG program is reimbursed in the amount of the current fair market value of the property, less any portion of the value attributable to expenditures of non- CDBG funds for acquisition of, and improvements to, the property. (c) If the change of use occurs after closeout, the provisions governing income from the disposition of the real property in Section 570.504(b) (4) or (5), as applicable, shall apply to the use of funds reimbursed. (d) Following the reimbursement of the CDBG program in accordance with paragraph (b) of this section, the property no longer will be subject to any CDBG requirements. Page 19 ATTACHMENT "C" 24 CFR § 570.503 (a) Before disbursing any CDBG funds to a subrecipient, the recipient shall sign a written agreement with the subrecipient. The agreement shall remain in effect during any period that the subrecipient has control over CDBG funds, includ'mg program income. (b) At a minimum, the written agreement with the subrecipient ,shall include provisions concerning the following items: (1) Statement of Work. The agreement shall include a description of the work to be performed, a schedule for completing the work, and a budget. These items shall be in sufficient detail to provide a sound basis for the recipient effectively to monitor performance under the agreement. (2) Records and Reports. The recipient shall specify in the agreement the particular records the subrecipient must ma'mtain and the particular reports the subrecipient must submit in order to assist the recipient in meeting its recordkeeping and reporting requirements. (3) Program Income. The agreement shall include the program income requirements set forth in Section 570.504(c). (4) Uniform Administrative Requirements. The agreement shall require the subrecipient to comply with applicable uniform administrative requirements, as described in Section 570.502. (5) Other Program Requirements. The agreement shall require the subrecipient to carry out each activity in compliance with all Federal laws and regulations described in subpart K of these regulations, except that: (i) The subrecipient does not assume the recipient's environmental responsibilities described at Section 570. 604; and (ii) The subrecipient does not assume the recipient's responsibility for initiating the review process under the provisions of 24 CFR Part 52. (6) Conditions for Religious Organizations. Where applicable, the conditions prescribed by HUB for the use of CDBG funds by religious organizations shall be Included in the agreement. (7) Suspension and Termination. The agreement shall specify that, in accordance with 24 CFR 85.43, suspension or tennination may occur if the Page 20 subrecipient materially fails to comply with any term of the award, and that the award may be terminated for convenience in accordance with 24 CFR 85.44. (8) Reversion of Assets. The agreement shall specify that upon its expiration the subrecipient shall transfer to the recipient any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds. It shall also include provisions to the use of CDBG funds. It shall also include provisions designed to ensure that any real property under the subrecipient's control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000 is either: (i) Used to meet one of the national objectives in Section 570.208 until five years after expiration of the agreement, or for such longer period of time as determined to be appropriate by the recipient; or (ii) Disposed of in a manner that results in the recipient's being reimbursed in the mount of the current fair market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. (Reimbursement is not required after the pun/od of time specified in paragraph (b) (8) (1) of this section.) Page 21 ATTACHMENT "D" 24 CFR § 570.504 (a) Recording Program Income. The receipt and expenditure of program income as defined in Section 570.500(a) shall be recorded as part of the financial transactions of the grant program. Co) Disposition of Program Income Received by Recipients. (1) Program income received before grant closeout may be retained by the recipient if the income is treated as additional CDBG funds subject to all applicable requirements goveming the use of CDBG funds. (2) If the recipient chooses to retain program income, that income shall affect withdrawals of grant funds from the U.S. Treasury as follows: (i) Program income in the form of repayments to, or interest earned on, a revolving fund as defined in Section 570.500(b) shall be substantially disbursed fi.om the fund before additional cash withdrawals are made fi.om the U.S. Treasury for the same activity. (This rule does not prevent a lump sum disbursement to finance the rehabilitation of privately owned properties as provided for in Section 570.513.) (ii) Substantially all other program income shall be disbursed for eligible activities before additional cash withdrawals are made from the U.S. Treasury. (3) Program income on hand at the time of closeout shall cont'mue to be subject to the eligibility requirements in Subpart C and all other applicable provisions of this part until it is expended. (4) Unless otherwise provided in any grant closeout agreement, and subject to the requirements of paragraph (b) (5) of this section, income received after closeout shall not be governed by the provisions of this part, except that, if at the time of closeout the recipient has another ongoing CDBG grant received directly fi.om HUD, funds received after closeout shall be treated as program income of the ongoing grant program. (5) If the recipient does not have another ongoing grant received cFtrectly fi.om HUD at the time of closeout, income received after closeout fi.om the disposition of real property or fi.om loans outstanding at the time of closeout shall not be governed by the provisions of this part, except that such income shall be used for activities that meet one of the national objectives in Section 570.208 and the eligibility requirements described in Section 105 of the Act. Page 22 FIRST AMENDMENT TO AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON CITY COUNTY DAY SCHOOL, INCORPORATED This First Amendment to that certain Agreement between the City of Denton (hereinafter referred to as "Denton") and the Denton City County Day School, Incorporated (hereinafter referred to as "Contractor"), this Agreement hereinafter referred to as "Base Agreement", which is attached hereto as Exhibit 1. WHEREAS, by Ordinance No. 2001-410, Denton authorized its City Manager to execute an Agreement with the Contractor to provide physical improvements to the day care facility located at 1603 Paisley Street, Denton, Texas 76209 described in the Description of Improvements and Work Statement, Attachment A, attached to the Base Agreement; and WHEREAS, the City Council has approved additional funding for playground improvements at the facility in accordance with their approval of the 2002 Community Development Action Plan, and adequate flmding has been obtained from the U.S. Department of Housing and Urban Development; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. That Section 1. "Term" of the Base Agreement is amended to read as follows: This agreement shall commence on or as of November 6, 2001, and shall terminate on October l, 2007, unless otherwise adjusted by City. Request for such an adjustment must be in writing and is to be submitted to the City's Community Development Division, 100 W Oak, Suite 208, Denton, Texas, 76201. That Section 2. "Responsibilities" of the Base Agreement, subsection A is amended to read as follows: Contractor hereby accepts the responsibility for the completion of all improvements described in the amended Description of Improvements and Work Statement attached hereto as Attachment "A" and incorporated herein as if set forth at length, in accordance with the amended Total Project Budget amount, in as satisfactory and efficient manner as determined by City in accordance with the terms herein. That the Base Agreement is hereby amended by substituting amended Attachment "A", which is attached hereto and incorporated herein for all purposes for the original Attachment "A" of the Base Agreement. That save and except as amended hereby, the remaining sections, subsections, sentences and clauses of the Base Agreement dated November 6, 2001 shall remain in full force and effect. IN ~~ this First Amendment has been executed on this the /~ day of ,2002, by the duly authorized officials of the City and the Contractor. - w CITY OF DENTON ATTEST: JENNIFER WALTERS, CITY SECRETARY APPROVED AS TO LEGAL FORM: HERBERT L. PROUTY, CITY ATTORNEY Page 2 DENTON CITY COUNTY DAY SCHOOL, INC. ATTEST: BOARD SECRETARY Page 3 ATTACHMENT "A" DESCRIPTION OF IMPROVEMENTS 1. Replace existing carpet in classrooms with commercial grade vinyl flooring. 2. Renovate five bathrooms, kitchen and entry hall flooring with new vinyl flooring. 3. Install adequate insulation. 4. Installation of a central air conditioning unit. 5. Installation of a coated chain link fence around the existing playground. Total Project Budget $47,000 WORK STATEMENT Denton City County Day School, Inc. Services Denton City County Day School is a nonprofit childcare facility for low-income families. DCCDS serves approximately 66 children dally ranging in age fi.om 2 years to 5 ½ years. Parents must be working, going to school full time or doing a combination of both be eligible. DCCDS is open Monday through Friday from 6:30 a.m. to 5:30 p.m. The staffeonsists of 8 teachers, a cook, an assistant director and a director. The children are served breakfast, lunch and two snacks. DDCDS provides a safe and healthy environment for childcare, but a learning program for all age groups. The curriculum places emphasis on cognitive, affective and psychomotor learning skills, good health habits and physical development. The nursery staff receives 20 hours continuing education hours each year in child development and early childhood education. The most important element is the emphasis placed on enhancing the self-concept of each individual child, as this is very significant for his/her future success. Page 4 ..... ',' EXHIBIT 1 · C:\My Documents~Docfile\CCDS Repairl Contract 01 06.doc AGREEMENT BETWEEN THE CITY OF DENTON AND DENTON CITY COUNTY DAY SCHOOL, INCORPORATED This Agreement is made and entered into by and between the City of Denton, Texas, a municipal corporation, acting by and through its City Manager, pursuant to ordinance, hereinafter referred to as CITY, and Denton City County Day School, Inc., 1603 Paisley, Denton, Texas, 76209, a not-for-profit corporation, hereinafter referred to as CONTRACTOR. WHEREAS, CITY has received certain funds from the U.S. Department of Housing and Urban Development under Title I of the Housing and Community Development Act of 1974, as amended; and WHEREAS, CITY has adopted a budget for such funds and included therein an authorized budget for expenditure of funds for improvements to the child care facility at 1603 Paisley Street; and WHEREAS, CITY has designated the Community Services Division of the Community Development Department as the division responsible for the administration of this Agreement and all matters pertaining thereto; and WHEREAS, CITY wishes to engage CONTRACTOR to carry out such project; NOW, THEREFORE, the parties hereto agree, and by the execution hereof are bound to the mutual obligations and to the performance and accomplishment of the conditions hereinafter described. This agreement shall commence on or as of November 6, 2001, and shall terminate on November 6, 2006 unless otherwise adjusted by CITY. Request for such an adjustment must be in writing and is to be submitted to the City's Community Services Division, 100 W. Oak, Suite 208, Denton, Texas, 76201. II. RESPONSIBILITIES CONTRACTOR hereby accepts responsibility for ensuring the proper completion of all construction and repair activities described in the Description of Improvements attached hereto as Attachment "A", in a satisfactory and efficient manner as determined by CITY, in accordance with the terms herein. CITY will consider CONTRACTOR'S executive director to be the CONTRACTOR'S representative responsible for the management of all contractual matters pertaining hereto, unless written notification to the contrary is received from CONTRACTOR, and, approved by CITY. CITY'S Community Development Administrator will be the CITY'S representative responsible for the administration of tiffs Agreement. IH. CITY'S OBLIGATION A. Limit of Liability. CITY will pay the the CONTRACTOR the expenses incurred pursuant and in accordance with the description of improvements attached hereto as Attachment "A" and incorporated herein by reference. Notwithstanding any other provision of the Agreement, the total of all payments and other obligations made or incurred by CITY hereunder shall not exceed the sum of $30,000. B. Measure of Liability. In consideration of flail and satisfactory services, activities and reports hereunder by CONTRACTOR, CITY shall reimburse CONTRACTOR for expenses incurred, subject to the limitations and provisions set forth in this Section and Section VII of this Agreement. (1) The parties expressly understand and agree that CITY's obligations under this Section are contingent upon the actual receipt of adequate Community Development Block Grant (CDBG) funds to meet CITY's liabilities under this Agreement. If adequate funds are not available to make payments under this Agreement, CITY shall notify CONTRACTOR in writing within a reasonable time after such fact has been determined. CITY may, at its option, either reduce the amount of its liability, as specified in Subsection A of this Section or terminate the Agreement. If CDBG fimds eligible for use for purposes of this Agreement are reduced, CITY shall not be liable for further payments under this Agreement. (2) It is expressly understood that this Agreement in no way obligates the General Fund or any other monies or credits of the City of Denton. (3) CITY shall not be liable for any cost or portion thereof which: (a) has been paid, reimbursed or is subject to payment or reimbursement, from any other source; Co) was incurred prior to the beginning date, or after the ending date specified in Section I; (c) is not in strict accordance with the terms of this Agreement, including all exhibits attached hereto; (d) is not an allowable cost as defined by Section XI of this Agreement or the project budget. Page 2 (4) CITY shall not be liable for any cost or portion thereof which is incurred with respect to any activity of CONTRACTOR requiring prior written authorization from CITY, or after CITY has requested that CONTRACTOR furnish data concern'rog such action prior to proceed'rog further, unless and until CITY advises CONTRACTOR to proceed. (5) CITY shall not be obligated or liable under this Agreement if CONTRACTOR fails to follow appropriate procurement procedures and to retain the services of the contractors and suppliers who were the lowest reasonable bidders on each respective project and who were agreed upon by both the CITY and CONTRACTOR for payment of any monies or provision of any goods or services. C. CITY shall provide funds in an mount not to exceed $30,000 to assist CONTRACTOR in the improvements to the facility located at 1603 Paisley Street, Denton, Texas. D. CONTRACTOR agrees to hold and save harmless CITY from any and all loss, cost, or damage of every kind, nature or description arising under this Agreement or from any source whatsoever. E. CITY shall comply with the HUD Office of Management and Budget Circular A- 87. CITY shall be responsible for performing the environmental review and monitoring the project for compliance with federal wage and labor requirements. IV. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS A. CONTRACTOR understands that funds provided to it pursuant to this Agreement are funds which have been made available to CITY by the Federal Government (U.S. Department of Housing and Urban Development) under the Housing and Community Development Act of 1974, as amended, in accordance with an approved Grant Application and specific assurances. Accordingly, CONTRACTOR assures and certifies that it will comply with the requirements of the Housing and Community Development Act of 1974 (P.L. 93-383) as amended and with regulations promulgated thereunder, and codified at 24 CFR 570. The foregoing is in no way meant to constitute a complete compilation of all duties imposed upon CONTRACTOR by law or administrative ruling, or to narrow the standards which CONTRACTOR must follow. CONTRACTOR further accrues and certifies that if the regulations and issuances promulgated pursuant to the Act are amended or revised, it shall comply with them, or notify CITY, as provided in Section XXIV of this Agreement. CONTRACTOR agrees to abide by the conditions of and comply with the requirements of the Office of Management and Budget Circulars Nos. A-110 and A-122. Page 3 B. CONTRACTOR shall comply with all applicable federal laws, laws of the State of Texas and ordinances of the City of Denton, and in particular provisions of attachments B - D which are attached hereto and incorporated herein for all purposes. REPRESENTATIONS A. CONTRACTOR assures and guarantees that it possesses the legal authority, pursuant to any proper, appropriate and official motion, resolution or action passed or taken, to enter into tiffs Agreement. B. The person or 'persons signing and executing this Agreement on behalf of CONTRACTOR, do hereby warrant and guarantee that he, she, or they have been fully authorized by CONTRACTOR to execute this Agreement on behalf of CONTRACTOR and to validly and legally bind CONTRACTOR to all terms, performances and provisions herein set forth. C. CITY shall have the right, at its option, to either temporarily suspend or permanently terminate this Agreement if there is a dispute as to the legal authority of either CONTRACTOR or the person signing the Agreement to enter into this Agreement. CONTRACTOR is liable to CITY for any money it has received from CITY for performance of the provisions of this Agreement if CITY has suspended or terminated this Agreement for the reasons enumerated in this Section. D. CONTRACTOR agrees that the funds and resources provided CONTRACTOR under the terms of this Agreement will in no way be substituted for funds and resources from other sources, nor in any way serve to reduce the resources, services, or other benefits which would have been available to, or provided through, CONTRACTOR had this Agreement not been executed. E. CONTRACTOR warrants that it is the legal owner of the property described in Article II and CONTRACTOR agrees to allow CITY access to this site for inspection purposes. CONTRACTOR further agrees to allow CITY to bid and execute agreements with the general contractor for the repairs to the Denton City County Day School, Inc. facility. F. CONTRACTOR shall continue to utilize thc facility at 1603 Paisley Street, Denton, Texas for a minimum of five years after improvements are completed to provide affordable day care for low and moderate-income households. G. CITY is the only agent authorized to designate changes to the work to be performed. Any additional or changes to the work authorized by CITY can only be done in writing with the signature of CITY'S City Manager, Mayor, or Community Development Administrator, plus those of CONTRACTOR and its representatives. Page 4 VI. WARRANTIES CONTRACTOR represents and warrants that: A. All information, reports and data heretofore or hereafter requested by CITY and furnished to CITY, are complete and accurate as of the date shown on the information, data, or report, and, since that date, have not undergone any significant change without written notice to CITY. B. Any support'rog financial statements heretofore requested by CITY and furnished to CITY, are complete, accurate and fairly reflect the financial condition of CONTRACTOR on the date shown on said report, and the results of the operation for the period covered by the report, and that since said date, there has been no material change, adverse or otherwise, in the financial condition of CONTRACTOR. C. No litigation or legal proceedings are presently pending or threatened against CONTRACTOR. D. None of the provisions herein contravenes or is in conflict with the authority under which CONTRACTOR is doing business or with the provisions of any exist'rog indenture or agreement of CONTRACTOR. CONTRACTOR has the power to enter into this Agreement and accept payments hereunder, and has taken all necessary action to authorize such acceptance under the terms and conditions of this Agreement. F. None of the assets of CONTRACTOR is subject to any lien or encumbrance of any character, except for current taxes not delinquent, except as shown in the financial statements furnished by CONTRACTOR to CITY. Each of these representations and warranties shall be continuing and shall be deemed to have been repeated by the approval of each request for payment from the general construction contractor. VII. COVENANTS A. During the period of time that payment may be made hereunder and so long as any payments remain unliquidated, CONTRACTOR shall not, without the prior written consent of the Community Development Administrator or her authorized representative: (1) Mortgage, pledge, or otherwise encumber or suffer to be encumbered, any of the assets of CONTRACTOR now owned or hereafter acquired by it, or permit any pre-existing mortgages, liens, or other encumbrances to remain on, or attached to, any assets of CONTRACTOR which are allocated to the performance of this Agreement and with respect to which CITY has ownership hereunder. Page 5 (2) Sell, assign, pledge, transfer or otherwise dispose of accounts receivables, notes or claims for money due or to become due. (3) Sell, convey, or lease all or substantial part of its assets. (4) Make any advance or loan to, or incur any liability for any other firm, person, entity or corporation as guarantor, surety, or accommodation endorser. (5) Sell, donate, loan or transfer any equipment or item of personal property purchased with funds paid to CONTRACTOR by CITY, unless CITY authorizes such transfer. B. Should CONTRACTOR use funds received under this Agreement to acquire or amprove real property under CONTRACTOR's control, CONTRACTOR agrees and covenants: (1) That the property shall be used to meet one of the national objectives stated in 24 CFR 570 until August 31, 2006. (2) That should CONTRACTOR transfer or otherwise dispose of said property on or before August 31, 2006, CONTRACTOR shall reimburse CITY in the amount of the fair market value of this property less any portion of the value attributable to expenditures ofnon-CDBG funds for acquisition of, or improvement to, the property. C. CONTRACTOR agrees, upon written request by CITY, to require its employees to attend training sessions sponsored by the Community Services Division. PROGRAM~COME A. For purposes of this Agreement, program income means earnings of CONTRACTOR realized from activities resulting from this Agreement or from CONTRACTOR's management of funding provided or received hereunder. Such earnings include, but are not limited to, income from interest, usage or rental or lease fees, income produced from contract-supported services of individuals or employees or from the use or sale of equipment or facilities of CONTRACTOR provided as a result of this Agreement, and payments from clients or third parties for services rendered by CONTRACTOR under this Agreement. B. CONTRACTOR shall maintain records of the receipt and disposition of program income in the same manner as required for other contract funds, and reported to CITY in the format prescribed by CITY. CITY and CONTRACTOR agree, based upon advice received from representatives of the U.S. Department of Housing and Urban Development (HUD), that any fees collected for services performed by CONTRACTOR shall be spent only for service provision. These fees or other program income will be deducted from the regular reimbursement request. Page 6 C. CONTRACTOR shall include this Section in its entirety in all of its sub-contracts which involve other income-producing services or activities. D. It is CONTRACTOR'S responsibility to obtain from CITY a prior determination as to whether or not income arising directly or indirectly from this Agreement, or the performance thereof, constitutes program income. CONTRACTOR is responsible to CITY for the repayment of any and all mounts determined by CITY to be program income, unless otherwise approved in writing by CITY. MAINTENANCE OF RECORDS A. CONTRACTOR agrees to maintain records that will provide accurate, current, separate, and complete disclosure of the status of the funds received under this Agreement and with any other applicable Federal and State regulations establishing standards for financial management. CONTRACTOR's record system shall contain sufficient documentation to provide in detail full support and justification for each expenditure. Nothing in this Section shall be construed to relieve CONTRACTOR of fiscal accountability and liability under any other provision of this Agreement or any applicable law. CONTRACTOR shall include the substance of this provision in all subcontracts. · B. CO~CTOR agrees to retain all books, records, documents, reports, and written accounfmg policies and procedures pertaining to the operation of programs and expenditures of funds under this Agreement for the period of frrne and under the conditions specified by CITY. C. Nothing in the above subsections shall be construed to relieve CONTRACTOR of responsibility for retaining accurate and current records which clearly reflect the level and benefit of services provided under this Agreement. D. At any reasonable time and as often as CITY may deem necessary, CONTRACTOR shall make available to CITY, or any of its authorized representatives, all of its records and shall permit CITY, or any of its authorized representatives to audit, examine, make excerpts and copies of such records, and to conduct audits of all contracts, invoices, materials, payrolls, records of personnel, conditions or employment and all other data relating to the program requested by said representatives. REPORTS AND INFORMATION At such tunes and in such form as CITY may require, CONTRACTOR shall furnish such statements, records, data and information as CITY may request and deem pert'ment to matters covered by this Agreement. CONTRACTOR shall submit quarterly beneficiary and financial reports to CITY no less than once each three months. The beneficiary report shall detail client information, including Page 7 race, income, female head of household and other statistics required by CITY. The financial report shall include information and data relative to all programmatic and financial reporting as of the beginning date specified in Section I of this Agreement. Unless a written exemption has been granted by the CITY, CONTRACTOR shall submit an audit conducted by independent examiners within ten (10) days after receipt of such. MONITORING AND EVALUATION A. CITY shall perform on-site monitoring of CONTRACTOR's performances under this Agreement. B. CONTRACTOR agrees that CITY may carry out monitoring and evaluation activities to ensure adherence by CONTRACTOR to the Work Statement attached hereto as Attachment "A", as well as other provisions of this Agreement. C. CONTRACTOR agrees to cooperate fully with CITY in the development, implementation and maintenance of record-keeping systems and to provide data determined by CITY to be necessary for CITY to effectively fulfill its monitoring and evaluation responsibilities. D. CONTRACTOR agrees to cooperate in such a way so as not to obstruct or delay CITY in such monitoring and to designate one of its staff to coordinate the monitoring process as requested by CITY staff. E. After each official monitoring visit, CITY shall provide CONTRACTOR with a written report of monitoring find'mgs. F. CONTRACTOR shall submit copies of any fiscal, management, or audit reports by any of CONTRACTOR's funding or regulatory bodies to CITY within five (5) working days of receipt by CONTRACTOR. DIRECTORS' MEETINGS During the terms of this Agreement, CONTRACTOR shall cause to be delivered to CITY copies of all notices of meetings of its Board of Directors, setting forth the tune and place thereof. Such notice shall be delivered to CITY in a t'nnely manner to give adequate notice, and shall include an agenda and a brief description of the matters to be discussed. CONTRACTOR understands and agrees that CITY representatives shall be afforded access to all of the Board of Directors' meetings. Minutes of all meetings of CONTRACTOR's governing body shall be available to CITY within ten (10) working days of approval. Page 8 XIII. INSURANCE A. CONTRACTOR shall observe sound business practices with respect to providing such bonding and insurance as would provide adequate coverage for services offered under this Agreement. B. The premises on and in which the activities described in Attachment "A" are conducted, and the employees conducting these activities, shall be covered by premise liability insurance, commonly referred to as "Owner/Tenant" coverage with CITY named as an additional insured. Upon request of CONTRACTOR, CITY may, at its sole discretion, approve alternate insurance coverage arrangements. C. CONTRACTOR will comply with apphcable workers' compensation statues and will obtain employers' liability coverage where available and other appropriate liability coverage for program participants, if applicable. D. CONTRACTOR will ma'mta'm adequate and continuous liability iusurance on all vehicles owned, leased or operated by CONTRACTOR. All employees of CONTRACTOR who are required to drive a vehicle in the normal scope and course of their employment must possess a valid Texas driver's license and automobile liability insurance. Evidence of the employee's current possession of a valid license and insurance must be maintained on a current basis in CONTRACTOR's files. E. Actual losses not covered by insurance as required by this Section are not allowable costs under this Agreement, and remain the sole responsibility of CONTRACTOR. F. The policy or policies of insurance shall contain a clause which requires that City and Contractor be notified in writing of any cancellation of change in the policy at least thirty (30) days prior to such change or cancellation. EQUAL OPPORTUNITY A. CONTRACTOR shall submit for CITY's approval, a written plan for compliance with the Equal Employment and Affirmative Action Federal provisions, within thirty (30) days of the effective date of this Agreement. B. CONTRACTOR shall comply with all applicable equal employment opportunity and affirmative action laws or regulations. C. CONTRACTOR will furnish all information and reports requested by the CITY, and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with local, state and Federal rules and regulations. Page 9 D. In the event of CONTRACTOR's non-compliance with the non-discrimination requirements, CITY may cancel or terminate the Agreement in whole or in part, and CONTRACTOR may be barred from further contracts with CITY. XV. PERSONNEL POLICIES · Personnel policies, shall be established by CONTRACTOR and shall be available for examination. Such personnel policies shall: A. Be no more liberal than CITY's personnel policies, procedures, and practices, including policies with respect to employment, salary and wage rates, working hours and holidays, fringe benefits, vacation and sick leave privileges, and travel; and B. Be in writing and shall be approved by the governing body of CONTRACTOR and by CITY. CONFLICT OF INTEREST A. CONTRACTOR covenants that neither it nor any member of its governing body presently has any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. CONTRACTOR further covenants that in the performance of this Agreement, no person having such interest shall be employed or appointed as a member of its governing body. B. CONTRACTOR farther covenants that no member of its governing body or its staff, subcontractors or employees shall possess any interest in or use his position for a purpose that is or gives the appearance of being motivated by desire for private gain for himself, or others, particularly those with which he has family, business, or other ties. C. No officer, member, or employee of CITY and no member of its governing body who exercises any function or responsibilities in the review or approval of the undertaking or carrying out of this Agreement shall (1) participate in any decision relating to the Agreement which affects is personal interest or the interest in any corporation, partnership, or association in which he has direct or indirect interest; or (2) have any interest, direct or indirect, in this Agreement or the proceeds thereof. NEPOTISM CONTRACTOR shall not employ in any paid capacity any person who is a member of the immediate family of any person who is currently employed by CONTRACTOR, or is a member of CONTRACTOR's governing board. The term "member of immediate family" Page 10 includes: wife, husband, son, daughter, mother, father, brother, sister, in-laws, aunt, uncle, nephew, niece, step-parent, step-child, half-brother and half-sister. XVIII. POLITICAL OR SECTARIAN ACTIVITY A. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used, either directly or indirectly, for any political activity (including, but not limited to, an activity to further the election or defeat of any candidate for public office) or any activity undertaken to influence the passage, defeat or final content of legislation. B. None of the performance rendered hereunder shall involve, and no portion of the funds received by CONTRACTOR hereunder shall be used for or applied directly or indirectly to the construction, operation, maintenance or administration, or be utilized so as to benefit in any manner any sectarian or religious facility or activity. KIX. PUBLICITY A. Where such action is appropriate, CONTRACTOR shall publicize the activities conducted by CONTRACTOR under this Agreement. In any news release, sign, brochure, or other advertisIng medium, disseminating information prepared or distributed by or for CONTRACTOR, the advertising medium shall state that the U.S. Department of Housing and Urban Development's Community Development Block Grant Program funding through the City of Denton has made the project possible. B. All published material and written reports submitted under this project must be originally developed material unless otherwise specifically provided in this Agreement. When material not originally developed is included in a report, the report shall identify the source in the body of the report or by footnote. This provision is applicable when the material is In a verbatim or extensive paraphrase format. All published material submitted under this project shall include the following reference on the front cover or title page: This document is prepared in accordance with the City of Denton's Community Development Block Grant Program, with funding received from the United States Department of Housing and Urban Development. C. All reports, documents, studies, charts, schedules, or other appended documentation to any proposal, content of basic proposal, or contracts and any responses, inquiries, correspondence and related material submitted by CONTRACTOR shall become the property of CITY upon receipt. Page 11 FUNDING APPLICATIONS CONTRACTOR agrees to notify CITY each time CONTRACTOR is preparing or submitting any application for funding in accordance with the following procedures: A. When the application is in the planning stages, CONTRACTOR shall submit to CITY a description of the funds being applied for, and the proposed use of funds. B. Upon award of or notice of award, whichever is sooner, CONTRACTOR shall notify CITY of such award and the effect, if any, of such funding on the funds and program(s) contracted hereunder. Such notice shall be submitted to CITY, in writing, within ten (10) working days of receipt of the notice of award or funding award by CONTRACTOR, together with copies of the budget, program description, and Agreement. C. CONTRACTOR shall not use funds provided hereunder, whether directly or indirectly, as a contribution, or to prepare applications to obtain any federal or private funds under any federal or private program without the prior written consent of CITY. CHANGES AND AMENDMENTS A. Any alterations, additions, or deletions to the terms of this Agreement shall be by written amendment executed by both parties, except when the terms of this Agreement expressly provide that another method shall be used. B. CONTRACTOR shall request, in writing, budget revisions in a form prescribed by CITY, and such request for revision shall not increase the total monetary obligation of CITY under this Agreement. In addition, budget revisions cannot significantly change the nature, intent, or scope of the program funded under this Agreement. C. CONTRACTOR will submit revised budget and program information, whenever the level of funding for CONTRACTOR or the program(s) described herein is altered according to the total levels contained in any portion of this agreement. D. It is understood and agreed by the parties hereto that changes in the State, Federal or local laws or regulations pursuant hereto may occur during the term of this Agreement. Any such modifications are to be automatically incorporated into this Agreement without written amendment hereto, and shall become a part of the Agreement on the effective date specified by the law or regulation. E. CONTRACTOR shall notify CITY of any changes in personnel or governing board composition. Page 12 F. It is expressly understood that neither the performance of Attachment "A".for any program contracted hereunder nor the transfer of funds between or among said programs will be permitted. XXII. SUSPENSION OF FUNDING Upon determination by CITY of CONTRACTOR's failure to timely and properly perform each of the requirements, time conditions and duties provided herein, CITY, without limiting any rights it may otherwise have, may, at its discretion, and upon ten (10) working days written notice to CONTRACTOR, withhold further payments to CONTRACTOR. Such notice may be given by mail to the Executive Officer and the Board of Directors of CONTRACTOR. The notice shall set forth the default or failure alleged, and the action required for cure. The period of such suspension shall be of such duration as is appropriate to accomplish corrective action, but in no event shall it exceed thirty (30) calendar days. At the end of the suspension period, if CITY determines the default or deficiency has been satisfied, CONTRACTOR may be restored to full compliance status and paid all eligible funds withheld or impounded during the suspension period. If however, CITY determines that CONTRACTOR has not come into compliance, the provisions of SECTION XXIff may be effectuated. XXIH. TERMINATION A. CITY may terminate this Agreement for cause under any of the following reasons or for other reasons not specifically enumerated in this paragraph: (1) CONTRACTOR's failure to attain compliance during any prescribed p.eriod of suspension as provided in Section XXII. (2) CONTRACTOR's violation of covenants, agreements or guarantees of this Agreement. (3) Termination or reduction of funding by the United States Department of Housing and Urban Development. (4) Finding by CITY that CONTRACTOR: (a) is in such unsatisfactory financial condition as to endanger performance under this Agreement; Co) has altocated inventory to this Agreement substantially exceeding reasonable requirements; (c) is delinquent in payment of taxes, or of costs of performance of this Agreement in the ordinary course of business. Page 13 (5) Appointment of a trustee, receiver or liquidator for all or substantial part of CONTRACTOR's property, or institution of bankruptcy, reorganization, rearrangement of or liquidation proceedings by or against CONTRACTOR. (6) CONTRACTOR's inability to conform to changes required by Federal, State and local laws or regulations as provided in Section IV, and Section XXI (D), of this Agreement. (7) The commission of an act of banlcmptcy. (8) CONTRACTOR's violation of any law or regulation to which CONTRACTOR is bound or shall be bound under the terms of the Agreement. CITY shall promptly notify CONTRACTOR in writing of the decision to terminate and the effective date of termination. Simultaneous notice of pending termination maybe made to other funding source specified. B. CITY may terminate this Agreement for convenience at any time. If this Agreement is terminated by CITY for convenience, CONTRACTOR will be paid an amount not to exceed the total of accrued expenditures as of the effective date of termination. In no event will this compensation exceed an amount which bears the same ratio to the total compensation as the services actually performed bears to the total services of CONTRACTOR covered by the Agreement, less payments previously made. C. CONTRACTOR may terminate this Agreement in whole or in part by written notice to CITY, if a termination of outside funding occurs upon which CONTRACTOR depends for performance hereunder. CONTRACTOR may opt, within the limitations of this Agreement, to seek an alternative funding source, with the approval of CITY, provided the termination by the outside funding source was not occasioned by a breach of contract as defined herein or as defined in a contract between CONTRACTOR and the funding source in question. CONTRACTOR may terminate this Agreement upon the dissolution of CONTRACTOR's organization not occasioned by a breach of this Agreement. D. Upon receipt of notice to terminate, CONTRACTOR shall cancel, withdraw or otherwise terminate any outstanding orders or subcontracts which relate to the performance of this Agreement. CITY shall not be liable to CONTRACTOR or CONTRACTOR's creditors for any expenses, encumbrances or obligations whatsoever incurred after the term/nation date listed on the notice to terminate referred to in this paragraph. E. Notwithstanding any exercise by CITY of its fight of suspension or termination, CONTRACTOR shall not be relieved of liability to CITY for damages sustained by CITY by virtue of any breach of the Agreement by CONTRACTOR, and CITY may withhold any Page 14 reimbursement to CONTRACTOR until such time as the exact amount of damages due to CITY fi:om CONTRACTOR is agreed upon or other~vise determined. XXIV. NOTIFICATION OF ACTION BROUGHT In the event that any claim, demand, suit or other action is made or brought by any person(s), firm corporation or other entity against CONTRACTOR, CONTRACTOR shall give written notice thereof to CITY witlxin two (2) working days after being notified of such claim, demand, suit or other action. Such notice shall state the date and hour of notification of any such claim, demand, suit or other action; the names and addresses of the person(s), firm, corporation or other entity making such claim, or that instituted or threatened to institute any type of action or proceeding; the basis of such claim, action or proceeding; and the name of any person(s) against whom such claim is being made or threatened. Such written notice shall be delivered either personally or by mail. XXVe INDEMNIFICATION A. It is expressly understood and agreed by both parties hereto that CITY is contracting with CONTRACTOR as an independent contractor and that as such, CONTRACTOR shah save and hold CITY, its officers, agents and employees harmless from aH liability of any nature or kind, including costs and expenses for, or on account of, any claims, audit exceptions, demands, suits or damages of any character whatsoever resulting in whole or in part from the performance or omission of any employee, agent or representative of CONTRACTOR. B. CONTRACTOR agrees to provide the defense for, and to indemnify and hold harmless CITY its agents, employees, or contractors from any and all claims, suits, causes of action, demands, damages, losses, attorney fees, expenses, and liability arising out of the use of these contracted funds and program administration and implementation except to the extent caused by the willful act or omission of CITY, its agents, employees, or contractors. MISCELLANEOUS A. CONTRACTOR shall not transfer, pledge or otherwise assign this Agreement or any interest therein, or any claim arising thereunder, to any party or parties, bank, trust company or other financial institution without the prior written approval of CITY. B. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect and continue to conform to the original intent of both parties hereto. Page 15 C. In no event shall any payment to CONTRACTOR hereunder, or any other act or failure of CITY to insist in any one or more instances upon.the terms and conditions of this Agreement constitute or be construed in any way to be a waiver by CITY of any breach of covenant or default which may then or subsequently be committed by CONTRACTOR. Neither shall such payment, act, or omission in any manner impair or prejudice any fight, power, privilege, or remedy available to CITY to enfome its rights hereunder, which rights, powers, privileges, or remedies are always specifically preserved. No representative or agent of CITY may waive the effect of this provision. D. This Agreement, together with referenced exhibits and attachments, constitutes the entire agreement between the parties hereto, and any prior agreement, assertion, statement, understanding or other commitment antecedent to this Agreement, whether written or oral, shall have no force or effect whatsoever; nor shall an agreement, assertion, statement, understanding, or other commitment occurring during the term of this Agreement, or subsequent thereto, have any legal force or effect whatsoever, unless properly executed in writing, and if appropriate, recorded as an amendment of this Agreement. E. In thc event any disagreement or dispute should arise betwccn the parties hereto pertaining to the interpretation or meaning of any part of this Agreement or its governing roles, codes, laws, ordinances or regulations, CITY as the party ultimately responsible to HUD for matters of compliance, will have the final authority to render or to secure an interpretation. F. For purposes of this Agreement, all official communications and notices among the parties shall be deemed made if sent postage paid to the parties and address set forth below: TO CITY: TO CONTRACTOR: City Manager City of Denton 215 E. McKinney St. Denton, Texas 76201 Director Denton City County Day School 1603 Paisley Street Denton, Texas 76209 G. This Agreement shall be interpreted in accordance with the laws of the State of Texas and venue of any litigation concerning this Agreement shall be in a court competent jurisdiction sitting in Denton County, Texas. , ~X! WlTNflSS OF WHICH this Agreement has been executed on this the day of ~f[~tt~/T/a~lf2~ ,2001. CIIY~~/:~. BY: (/ ! CITY MANAGER Page 16 ATTEST: JENNIFER WALTERS, CITY SECRETARY HERBERT L. PROUTY, CITY ATTORNEY ATTEST: DENTON CITY COUNTY DAY SCHOOL, INC. BY: ~. ~ EXE~L~_~DIRECT~t~ ) BOARD SECRETARY Page 17 ATTACHMENT "A" DESCRIPTION OF IMPROVEMENTS 1. Replace existing carpet in classrooms with commercial grade vinyl flooring. 2. Renovate five bathrooms, kitchen and entry hall flooring with new vinyl flooring. 3. Install adequate insulation. 4. Installation ora central air conditioning unit. Total Project Budget $30,000 WORK STATEMENT Denton City County Day School, Inc. Services Denton City County Day School is a nonprofit childcare facility for low-income families. DCCDS serves approximately 66 children daily ranging in age fi.om 2 years to 5 ½ years. Parents must be working, going to school full time or doing a combination of both be eligible. DCCDS is open Monday through Friday fi.om 6:30 a.m. to 5:30 p.m. The staff consists of 8 teachers, a cook, an assistant director and a director. The children are served breakfast, lunch and two snacks. DDCDS provides a safe and healthy environment for childcare, but a learning program for all age groups. The cuniculum places emphasis on cognitive, affective and psychomotor learning skills, good health habits and physical development. The nursery staff receives 20 hours continuing education hours each year in child development and early childhood education. The most important element is the emphasis placed on enhancing the self-concept of each individual child, as this is very significant for his/her future success. Page 18 ATTACHMENT "B" 24 CFR § 570.505 The standards described in this section apply to real property within the recipient's control which was acquired or improved in whole or in part using CDBG funds in excess of $25,000. These standards shall apply tSom the date CDBG funds are first spent for the property until five years after close, out of an entitlement recipient's participation in the entitlement CDBG program or, with respect to other recipients, until five years after the closeout of the grant f~om which the assistance to the property was provided. (a) A recipient may not change the use or planned use of any such property (including the beneficiaries of such use) fi.om that for which the acquisition or improvement was made unless the recipient provides affected citizens with reasonable notice of, and opportunity to comment on, any proposed change, and either: (1) The new use of such property qualifies as meeting one of the national objectives in Section 570.208 and is not a building for the general conduct of government; or (2) The requirements in paragraph (b) of this section are met. (b) If the recipient determines, after consultation with affected citizens, that it is appropriate to change the use of the property to a use which does not qualify under paragraph (a)(1) of this section, it may retain or dispose of the property for the changed use if the recipient's CDBG program is reimbursed hi the amount of the current fair market value of the property, less any portion of the value attributable to expenditures of non- CDBG funds for acquisition of, and impro:¢ements to, the property. (c) If the change of nsc occurs after closeout, the provisions governing income fi.om the disposition of the real property in Section 570.504(b) (4) or (5), as applicable, shall apply to the use of funds reimbursed. (d) Following the reimbUrsement of the CDBG program in accordance with paragraph (b) of this section, the property no longer will be subject to any CDBG requirements. Page 19 ATTACHMENT "C" 24 CFR § 570.503 (a) Before disbursing any CDBG funds to a submcipient, the recipient shall sign a written agreement with the subrecipient. The agreement shall remain in effect during any period that the subrecipient has control over CDBG funds, includ'mg program income. (b) At a minimum, the written agreement with the subrecipient shall include provisions concerning the following items: (1) Statement of Work. The agreement shall include a description of the work to be performed, a schedule for completing the work, and a budget. These items shall be in sufficient detail to provide a sound basis for the recipient effectively to monitor performance under the agreement. (2) Records and Reports. The recipient shall specify in the agreement the particular records the subrecipient must maintain and the particular reports the subrecipient must submit in order to assist the recipient in meeting its recordkeeping and report'mg requirements. (3) Program Income. The agreement shall include the program income requirements set forth in Section 570.504(c). (4) Uniform Administrative Requirements. The agreement shall require the subrecipient to comply with applicable uniform administrative requirements, as described in Section 570.502. (5) Other Program Requirements. The agreement shall require the subrecipient to carry out each activity in compliance with all Federal laws and regulations described in subpart K of these regulations, except that: (i) The subrecipient does not assume the recipient's environmental responsibilities described at Section 570. 604; and (ii) The subrecipient does not assume the recipient's responsibility for initiating the review process under the provisions of 24 CFR Part 52. (6) Conditious for Religious Organizations. Where applicable, the conditions prescribed by HUB for the use of CDBG funds by religions orgarfizatious shall be included in the agreement. (7) Suspension and Termination. The agreement shall specify that, in accordance with 24 CFR 85.43, suspension or termination may occur if the Page 20 subrecipient materially fails to comply with any term of the award, and that the award may be terminated for convenience in accordance with 24 CFR 85.44. (8) Reversion of Assets. The agreement shall specify that upon its expiration the subrecipient shall transfer to the recipient any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG fimds. It shall also include provisions to the use of CDBG funds. It shall also include provisions designed to ensure that any real property under the subrecipient's control that was acquired or improved in whole or in part with CDBG funds in excess of $25,000 is either: (i) Used to meet one of the national objectives in Section 570.208 until five years after expiration of the agreement, or for such longer period of time as determined to be appropriate by the recipient; or (ii) Disposed of in a manner that results in the recipient's being reimbursed in the amount of the current fair market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. (Reimbursement is not required after the period of time specified in paragraph (b) (8) (1) of this section.) Page 21 ATTACHME~ "D" 24 CFR § 570.504 (a) Recording Program Income. The receipt and expenditure of program income as defined in Section 570.500(a) shall be recorded as part of the financial transactions of the grant program. (b) Disposition of Program Income Received by Recipients. (1) Program income received before grant closeout may be retained by the recipient if the income is treated as additional CDBG funds subject to all applicable requirements governing the use of CDBG funds. (2) If the recipient chooses to retain program income, that income shall affect withdrawals of grant funds fi:om the U.S. Treasury as follows: (i) Program income in the form of repayments to, or interest earned on, a revolving fund as defined in Section 570.50000) shall be substantially disbursed fi:om the fund before additional cash withdrawals are made fi:om the U.S. Treasury for the same activity. (This rule does not prevent a lump sum disbursement to finance the rehabilitation of privately owned properties as provided for in Section 570.513.) (ii) Substantially ali other program income shall be disbursed for eligible activities before additional cash withdrawals are made from the U.S. Treasury. (3) Program income on hand at the time of closeout shall continue to be subject to the eligibility requirements in Subpart C and all other applicable provisions of this part until it is expended. (4) Unless otherwise provided in any grant closeout agreement, and subject to the requirements of paragraph (b) (5) of this section, income received after closeout shall not be governed by the provisions of this part, except that, if at the time of closeout the recipient has another ongoing CDBG grant received directly fi:om HUD, funds received after closeout shall be treated as program income of the ongoing grant program. (5) If the recipient does not have another ongoing grant received directly from HUD at the time of closeout, income received after closeout from the disposition of real property or fi:om loans outstanding at the time of closeout shall not be governed by the provisions of this part, except that such income shall be used for activities that meet one of the national objectives in Section 570.208 and the eligibility requirements described in Section 105 of the Act. Page 22