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HomeMy WebLinkAbout25H - DAISY WHEEL NETWORKREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JUNE 2, 2008 TITLE: FEDERAL EMPOWERMENT ZONE DAISY WHEEL NETWORK PROGRAM CITY MANAGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 1" Reading ^ Ordinance on 2"d Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and Clerk of the Council to execute the attached amendment to the agreement with the Santa Ana Empowerment Corporation in the amount of $637,000 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. 2. Authorize the City Manager and Clerk of the Council to execute the attached agreement with the Mexican American Opportunity Foundation in the amount of $81,630 for a one-year term, subject to non- substantive changes approved by the City Manager and City Attorney. 3. Authorize the City Manager and Clerk of the Council to execute the attached agreement with Templo Calvario, Community Development Corporation in the amount of $81,000 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. 4. Authorize the City Manager and Clerk of the Council to execute the attached agreement with The Cambodian Family in the amount of $85,590 for a one-year term, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION In May 2002, the Santa Ana Empowerment Corporation Board approved a business plan that identified three specific goals and objectives that they wished to see achieved. One of the three goals concerned job development, training, and job placement for Empowerment Zone residents. In 2003 the Board sent out a Request for Proposal to over 50 entities 25H-1 FEZ Daisy Wheel Network Program June 2, 2008 Page 2 for the development and implementation of a Daisy Wheel component. The Daisy Wheel is comprised of four partners that provide employment services to Federal Empowerment Zone residents, such as employment listings, career advisement, training services, job search assistance, non-subsidized employment, retention services, skill upgrades, plus many others. The Santa Ana W/0/R/K Center was awarded the contract. In the past five years, the W/0/R/K Center developed and implemented a job training and placement program in conjunction with three partners. On March 26, 2008, the Santa Ana Empowerment Corporation Board awarded a contract for a sixth year to the Santa Ana W/0/R/K Center in an amount of $637,000. The agreement is to fund Phase VI of the Federal Empowerment Zone Daisy Wheel Network that will service 520 residents living within the Empowerment Zone. The Mexican American Opportunity Foundation, Templo Calvario, The Cambodian Family, and the W/0/R/K Center will continue to provide vocational/occupational training, employment strategies, education, and supportive services for the participants as partners of the Daisy Wheel Network. The Daisy Wheel Network will continue to provide vocational/occupational training, employment strategies, education, and supportive services for the participants. The Santa Ana W/0/R/K Center will receive $388,780 to provide oversight of the Daisy Wheel Network, cover administrative and operational costs, and provide direct services to 250 Empowerment Zone participants. The three ongoing partner contracts listed above will total $248,220 for July 1, 2008, to June 30, 2009, for a total amount of $637,000. FISCAL IMPACT Funds are available in the FEZ (account no. 129-035-various). Nancy T. dwards Assistant Director Community Development Agency Daisy Wheel Network Program account APPROVED AS TO FUNDS AND ACCOUNTS: Francisco Gutierrez ~~ Executive Director Finance & Management Service Agency NTE/BG/mlr 060208 FEZ Daisywheel (2) RFCA 25H-2 SIXTH AMENDMENT TO AGREEMENT BETWEEN THE SANTA ANA EMPOWERMENT CORPORATION AND THE SANTA ANA W/O/R/K CENTER FOR USE OF EMPOWERMENT ZONE FUNDS THIS SIXTH AMENDMENT TO AGREEMENT ("Amendment") is entered into this lst day of July 2008, by and between the Santa Ana Empowerment Corporation, a California non-profit public benefit corporation ("SAEC") and the City of Santa Ana, a charter city and municipal corporation of the State of California, on behalf of the Santa Ana W/O/R/K Center ("Subrecipient"). Recitals: A. The parties entered into an Agreement dated July 1, 2003, (hereinafter "said Agreement") by which SAEC granted to Subrecipient, Empowerment Zone ("FEZ") funds in the amount of $930,000.00, granted to SAEC from the United States Department of Housing and Urban Development. B. On Apri15, 2004, the parties entered into a first amendment to said Agreement, which added $12,000 in first year funds to the Subrecipient for marketing and outreach efforts. C. On or about June 23, 2004, the parties entered into a second amendment of said Agreement, which increased funding by $980,000.00 to provide for a second year of programs. D. On or about July 18, 2005, the parties entered into a third amendment of said Agreement, which increased funding by $980,000.00 to provide for a third year of programs. E. On or about January 2006, the parties entered into a fourth amendment of said Agreement, which increased funding by $980,000.00 to provide for a fourth year of programs. F. On or about May 2007, the parties entered into a fifth amendment of said Agreement, which decreased funding by $637,000 to provide for a fifth year of programs. G. The parties now wish to provide for a sixth year of programs (2008-2009), as specified in greater detail in Exhibit B to this Amendment, in an amount not to exceed $637,000. Wherefore, in consideration of the covenants contained in said Agreement, and subject to all the terms and conditions of said Agreement, as previously amended, except those amended in this Fourth Amendment to Agreement, the parties agree as follows: 25H-3 Section I. A., SUBRECIPIENT'S OBLIGATIONS, shall be deleted in its entirety and amended to add a new subparagraph A.3. which shall read as follows: "Subrecipient agrees to use all federal funds provided by SAEC during the 2008- 2009 fiscal year, in conformance with the Service Navigator Segment Work plan, "Scope of Work," and "Budget Form," all of which attached as Exhibit B hereto, to decrease the funds available to Subrecipient for carrying out the program for a maximum aggregate payment of Six Hundred and Thirty-Seven Thousand Dollars ($637,000.00) during fiscal year 2008-2009." 2. Section II, SAEC'S OBLIGATIONS, shall be deleted in its entirety and amended to read as follows: "Upon execution of this Agreement by SUBRECIPIENT, SAEC shall pay to SUBRECIPIENT from FEZ funds, when, is and to the extent received from HUD, for SAEC's 2007-2008 FEZ program year amounts expended by SUBRECIPIENT in carrying out said program fro fiscal year 2008- 2009 pursuant to this agreement up to a maximum aggregate payment of Six Hundred and Thirty-Seven Thousand Dollars ($637,000.00) in installments determined by the SAEC. Payments shall be made to SUBRECIPIENT through the submission of periodic invoices, in a form prescribed by SAEC, detailing such expenses. SAEC shall pay such invoices within thirty (30) days after receipt thereof provided SAEC is satisfied that such expenses have been incurred within the scope of this Agreement and that SUBRECIPIENT is in compliance with the terms and conditions of this Agreement." 3. Section I. E. paragraph three (3) is amended to extend the termination date of said Agreement from June 30, 2008, to June 30, 2009. 4. Except as hereinabove amended, all terms and conditions of said Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment to Agreement on the date and year first written above. ATTEST: PATRICIA E. HEALY Secretary SANTA ANA EMPOWERMENT CORPORATION STEPHEN G. HARDING Executive Director 25H-4 APPROVED AS TO FORM: JOSEPH W.FLETCHER General Counsel sy: Lisa Storck Assistant City Attorney ATTEST: SUBRECIPIENT PATRICIA E. HEALY DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W.FLETCHER City Attorney By: Lisa Storck Assistant City Attorney 25H-5 Federal Empowerment Zone Service Navigator Phase VI SCOPE OF WORK 2008 - 2009 The Service Navigator (Santa Ana WORK Center), under Phase VI of the Daisy Wheel Network Program will be responsible for delivering the following: 1. 520 new FEZ residents will be served and provided with initial eligibility assessment, case management, job development, access to workforce workshops, in addition to services mentioned below in #2 and #3. • adults, or • youth (ages 16-18)* 2. 30% (156) of the 520 residents served will be placed in unsubsidized jobs 3. 50% (260) of the 520 residents served will be provided with Additional Services (any other service not mentioned above, such as legal/medical/ translation services, etc.) * In addition to the above services, outcome measures for youth would be: 1. During the school, youth would be required to work 10 hrs/wk PLUS full-time classroom instruction; 2. During the summer, there would be two outcome options: 1) work 20 hrs/wk plus part-time classroom instruction; or 2) work 40 hrs/wk; 3. Year-round, youth will be expected to stay in school; participate in career preparation workshops, character development, job search, resume workshops, interviewing techniques, credit counseling & money management, financial aid assistance info, and/or life skills workshops; attend college or higher ed. informational workshops, scholarship information sessions, plus other workshops. Exhibit B 25H-6 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND MEXICAN AMERICAN OPPORTUNITY FOUNDATION FOR USE OF EMPOWERMENT ZONE FUNDS This Agreement, made and entered into this 1St day of July, 2008, by and between the City of Santa Ana a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("CITY"), and Mexican American Opportunity Foundation ("CONTRACTOR"). WITNESSETH Recitals: 1. The City of Santa Ana, through the Santa Ana Empowerment Corporation ("SAEC"), is the recipient of Federal Empowerment Zone ("FEZ") funds from the United States Department of Housing and Urban Development ("HUD"). 2. CITY desires to engage CONTRACTOR to provide the services at the cost set forth in Exhibit A and for the services set forth Exhibit B, hereinafter referred to as "said program" and CONTRACTOR represents that it is qualified and willing to operate said program. WHEREFORE, for and in consideration of the respective and mutual covenants hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereby agree as follows: I. CONTRACTOR'S OBLIGATIONS A. CONTRACTOR agrees to use all federal funds provided by CITY to CONTRACTOR pursuant to this Agreement to operate said program, as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. CONTRACTOR'S failure to perform as required may, in addition to other remedies set forth in this Agreement, result in readjustment of the amount of funds CITY is otherwise obligated to pay to CONTRACTOR under Paragraph II hereof. B. CONTRACTOR agrees to obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing operation of its program. CONTRACTOR shall ensure that its staff shall also obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing CONTRACTOR operations hereunder. Page 1 of 14 25H-7 C. CONTRACTOR agrees that any facility/property used in furtherance of said program shall be specifically zoned and permitted for such use(s) and activity(ies). Should CONTRACTOR fail to have the required land entitlement and/or permits, thus violating any local, state or federal rules and regulations relating thereto, CONTRACTOR shall immediately make good- faith efforts to gain compliance with local, state or federal rules and regulations following written notification of said violation(s) from the CITY or other authorized citing agency. CONTRACTOR shall notify CITY immediately of any pending violations. Failure to notify CITY of pending violations, or to remedy such known violation(s) shall result in termination of grant funding hereunder. CONTRACTOR must make all corrections required to bring the facility/property into compliance with the law within sixty (60) days of notification of the violation(s); failure to gain compliance within such time shall result in termination of grant funding hereunder. D. All funds received by CONTRACTOR from CITY pursuant to this Agreement shall be separately accounted for apart from any other funds of CONTRACTOR, or of any principal or member of CONTRACTOR. CONTRACTOR agrees that if CONTRACTOR receives $500,000 or more in any Federal funds, CONTRACTOR shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and published by the United States Office of Management and Budget Circular A-133. CONTRACTOR shall provide CITY with a copy of said audit 30 days after receipt of the auditor's report(s), or nine months after the end of the audit period following the program year in which this Agreement is executed. E. CONTRACTOR shall keep records of all funds received from CITY under the terms and conditions of this Agreement in accordance with the procedures set forth in the "Agreement Accounting and Administrative Handbook", a copy of which shall be provided to CONTRACTOR by CITY. CONTRACTOR agrees to keep monthly records of all ethnic and racial statistics of persons and families benefited by CONTRACTOR in the performance of its obligations under this Agreement, including, but not limited to, the number of low and moderate income persons and households assisted in accordance with federal income limits, number of female heads of households, and number of senior citizens assisted. CONTRACTOR agrees to provide CITY with written cumulative (year-to- date) reports of its activities on or before the 15th day of July, October, January and April for the period beginning October 1, 2008 and through and including the previous three-month reporting period setting forth the activities, program accomplishments, new program information and year-to- date program statistics on expenditures, caseload and activities. When appropriate, pictures should be included. This Agreement shall terminate on June 30, 2009, unless extended by mutual consent of the parties. Any Page 2 of 14 25H-8 extension shall be in writing, and executed by the Deputy City Manager for Development Services and the City Attorney on behalf of CITY. CITY, SAEC and the United States Government and/or their representatives shall have access for purposes of monitoring, auditing, and examining CONTRACTOR's activities and performance, to books, documents and papers, and the right to examine records of CONTRACTOR's subcontractors, bookkeepers and accountants, employees and participants in regard to said program. CITY, SAEC and the United States Government and/or their representatives shall also schedule on-site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder are conducted or in which any of the records of CONTRACTOR are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. In the event CONTRACTOR does not make the above-referenced documents available within the CITY of Santa Ana, California, CONTRACTOR agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. F. All accounting records and evidence pertaining to all costs of CONTRACTOR and all documents related to this Agreement shall be kept available at the location where CONTRACTOR conducted the program, as well as in the Orange County, California, for the duration of the Agreement and thereafter for five (5) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY or any other governmental agency takes exception, shall be retained beyond the five (5) years until resolution or disposition of such appeals, litigation, claims, or exceptions. G. CONTRACTOR agrees to comply fully with all federal, state and local laws and court orders applicable to its operation whether or not referred to in this Agreement. CONTRACTOR agrees that it has read, understood and shall adhere to the legal obligations referred in Exhibit C. H. CONTRACTOR shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in the corporate status or suspension of CONTRACTOR shall be reported immediately to CITY. I. Subreceipient acknowledges and warrants that it shall at all times comply with the laws, regulations and policies governing the use of FEZ funds, including but not limited to, the limitations on use of FEZ funds set Page 3 of 14 25H-9 forth in P.L. 106-74 (2000), 24 CFR section 598.215 and Federal Register, April 16, 1998. J. Without prejudice to any other provisions of this Agreement, CONTRACTOR shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. However, CONTRACTOR shall submit to CITY, SAEC and or HUD or its representatives, all records requested, including audit, examinations, monitoring and verifications of reports submitted by CONTRACTOR, costs incurred and services rendered hereunder. K. CONTRACTOR agrees that the performance of obligations hereunder are rendered in its capacity as an independent contractor and that it is in noway an agency of CITY. L. CONTRACTOR agrees that if CONTRACTOR violates any of the terms and conditions of this Agreement or any prior Agreement whereby FEZ funds were received by CONTRACTOR, or if CONTRACTOR reports inaccurately, or if on audit there is a disallowance of certain expenditures, CONTRACTOR agrees to remedy the acts or omissions causing the disallowance or repay CITY all amounts spent in violation thereof. M. CONTRACTOR agrees to maintain a record for each item of non- expendable personal property acquired under the terms of this Agreement. Said record shall be made available to CITY upon request. The term "non- expendable personal property" shall include leased and purchased equipment. N. CONTRACTOR hereby certifies and agrees that it will not use funds provided through this Agreement to pay for entertainment, meals or gifts. O. CONTRACTOR certifies that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. CONTRACTOR shall sign a certification to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference incorporated herein. CONTRACTOR shall submit said signed certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to CONTRACTOR under the terms and conditions of this Agreement. Page 4 of 14 25H-10 If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit a "Disclosure Form to Report Lobbying," in accordance with its instructions. P. CONTRACTOR agrees that except for the use of FEZ funds to pay salaries and other related administrative or personnel costs, no persons who exercise or have exercised any function with respect to FEZ activities assisted under the terms of this Agreement, or who are in a position to participate in adecision-making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from a FEZ-assisted activity of CONTRACTOR, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. This prohibition applies to any person who is an employee, agent, consultant, officer, or elected or appointed official of CITY, or of any designated public agencies, or the CONTRACTOR. Q. CONTRACTOR acknowledges and warrants that prior to having any contractor perform work paid for by FEZ funds, that it shall be responsible (i) for providing such contractor with a copy of this Agreement, and (ii) ensuring that any such contractor executes and provides to the Executive Director of the Community Development Agency a letter in substantially the form of Exhibit E hereto, agreeing to be bound by the terms of this Agreement. R. CONTRACTOR acknowledges and warrants that during the term of this Agreement it shall to the maximum extent feasible collaborate with other CONTRACTORS to ensure that duplication of services is avoided. Such collaboration shall include, but not be limited to, regular attendance (i.e., an attendance record exceeding 50%) and active participation in the appropriate committee or committees established pursuant to the Strategic Plan. S. CONTRACTOR agrees to provide adrug-free work place and to execute a certification as set forth in "Exhibit F" attached hereto and incorporated herein by this reference. T. CONTRACTOR shall comply with the general provisions, assurances, and certifications attached hereto as "Exhibit G" and incorporated herein. II. CITY'S OBLIGATIONS Upon execution of this Agreement by CONTRACTOR, CITY shall pay to CONTRACTOR from FEZ funds, when, if and to the extent received from HUD, for Page 5 of 14 25H-11 CITY's 2008-09 FEZ program year amounts expended by CONTRACTOR in carrying out said program for fiscal year 2008-09 pursuant to this Agreement up to a maximum aggregate payment of Eighty One Thousand Six Hundred Thirty Dollars ($81,630) for CONTRACTOR'S performance in accordance with the payment schedule attached hereto as "Exhibit A". Payments shall be made to CONTRACTOR through the submission of periodic invoices, in a form prescribed by CITY, detailing such expenses. CONTRACTOR agrees to submit the above- stated document to the FEZ Navigator Office, 1000 E. Santa Ana Blvd., Suite 200, Santa Ana, CA 92701. CITY shall pay such invoices within thirty (30) days after receipt thereof provided CITY is satisfied that such expenses have been incurred within the scope of this Agreement and that CONTRACTOR is in compliance with the terms and conditions of this Agreement. CITY has the right to de-obligate the funds hereunder and take such funding back from CONTRACTOR due to any of the following reasons: (a) lack of performance by CONTRACTOR; (b) lack of fiscal accountability of CONTRACTOR; or (c) decrease in available funding. III. PROGRAM INCOME A. For the purposes of this Article (III) "Program income," shall mean gross income received by the CONTRACTOR directly generated from the use of FEZ funds, except as provided below in Paragraph III.C. When such income is generated by an activity that is only partially assisted with FEZ funds, the income shall be prorated to reflect the percentage of FEZ funds used. B. Program income includes, but is not limited to each of the following: 1. Proceeds from the disposition by sale or long term lease of real property purchased or improved with FEZ funds; 2. Proceeds from the disposition of equipment purchased with FEZ funds. 3. Gross income from the use or rental of real or personal property acquired by the CONTRACTOR with FEZ funds, less the costs incidental to the generation of such income; 4. Gross income from the use or rental of real property owned by the CONTRACTOR that was constructed or improved with FEZ funds, less the costs incidental to the generation of such income; 5. Payments of principal and interest on loans made using FEZ funds; 6. Proceeds from the sale of loans made with FEZ funds; 7. Proceeds from the sale of obligations secured by loans made with FEZ funds; 8. Interest earned on funds held in a revolving fund account; 9. Funds collected through special assessments made against properties owned and occupied by households not of low and Page 6 of 14 25H-12 moderate income, where such assessments are used to recover all or part of the FEZ portion of a public improvement. C. Program income does not include income on grant advances from the U.S. Treasury. The following items of income earned on grant advances must be remitted to HUD for transmittal to the U.S. Treasury: 1. Interest earned from the investment of the initial proceeds of a grant advance by the U.S. Treasury; 2. Interest earned on loans or other forms of assistance provided with FEZ funds that are used for activities determined by HUD either to be ineligible or to fail to meet a national objective or other federal criteria. 3. Interest earned on the investment of amounts reimbursed to the FEZ program account prior to the use of the reimbursed funds for eligible purposes. D. The receipt of program income (as defined in Paragraph III.A. hereinabove) by CONTRACTOR in the operation of said program shall be recorded by CONTRACTOR and reported to CITY. E. Program income received by CONTRACTOR shall be returned to CITY unless otherwise provided for in this Agreement. IV. NONDISCRIMINATION CONTRACTOR agrees that no person on the ground of race, color, national origin, religion or sex will be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with FEZ funds. V. SPECIAL CERTIFICATION FOR RELIGIOUS ENTITIES If CONTRACTOR is a religious entity, CONTRACTOR hereby agrees that in connection with the provision of the services CONTRACTOR shall provide with FEZ funds: A. CONTRACTOR shall not discriminate against any employee or applicant for employment on the basis of religion and shall not limit employment or give preference in employment to persons on the basis of religion. B. CONTRACTOR shall not discriminate against any person applying for the services CONTRACTOR agrees to provide under the terms of this Agreement on the basis of religion and shall not limit such services or give preference to applicants for such services on the basis of religion. Page 7 of 14 25H-13 C. CONTRACTOR shall NOT provide religious instruction or counseling, conduct any religious worship or services, or engage in any religious proselytizing, or exert any religious influence in the provision of the services in said program. D. Where the services to be provided under said program are rendered on property owned by the primarily religious entity CONTRACTOR, FEZ funds may also be used for minor repairs to such property which are directly related to the cost of rendering the services under said program, where the cost constitutes in dollar terms only an incidental portion of the FEZ expenditure for rendering the services under said program. VI. PROHIBITION OF NEPOTISM CONTRACTOR agrees not to hire or permit the hiring of any person to fill a position funded through this Agreement if a member of that person's immediate family is employed in an administrative capacity by CONTRACTOR. For the purposes of this section, the term "immediate family" means spouse, child, mother, father, brother, sister, brother-in-law, sister-in-law, father-in-law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, step-parent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. VII. NOTICES Notices to the parties shall, unless otherwise requested in writing, be sent by U.S. Mail, postage prepaid, and addressed as follows: TO CITY: Santa Ana WORK Center WORK Center Director 1000 E. Santa Ana Blvd., Suite 200 Santa Ana, California 92701 Telefacsimile (714) 565-2602 TO CLERK: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 82702-1988 Telefacsimile (714) 647-6956 TO CONTRACTOR: Page 8 of 14 25H-14 VIII. ASSIGNABILITY CONTRACTOR shall not assign nor transfer any interest in this Agreement, whether by assignment or novation, without the prior written consent of CITY; provided, however, that claims for money due or to become due CONTRACTOR from CITY under this Agreement may be assigned to a bank, trust company or other financial institution, or to a trustee in bankruptcy, without such approval. Notice of any such assignment or transfer shall be promptly furnished to CITY. IX. HOLD HARMLESS CONTRACTOR shall indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all damages to or for loss of use of property and for injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers compensation claims and including attorney fees and reasonable expenses for litigation or settlement, resulting from or arising out of the negligent or wrongful acts, errors or omissions of CONTRACTOR, its officers, directors, employees, agents, subcontractors and suppliers arising out of CONTRACTOR's performance of this Agreement. X. INSURANCE CONTRACTOR shall obtain and maintain for the entire term of this Agreement comprehensive general public liability insurance, in companies acceptable to the City, authorized to issue such insurance in the State of California. Said insurance shall consist of the following: A. Commercial General Liability. CONTRACTOR agrees to obtain and keep in force during the term of this Agreement a policy of comprehensive commercial public liability insurance insuring the State of California, CITY, and CONTRACTOR against any liability for accident, injury or death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of comprehensive public liability insurance shall be endorsed to provide to CITY and to the State of California, Employment Development Department, at least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees, and volunteers, and the State of California, its officers, employees, and volunteers as additional insureds; and state that such coverage is primary to any other coverage or self-insurance of the State of California and CITY. Governmental entities may substitute a certificate of self-insurance. Page 9 of 14 25H-15 B. Automobile Liability Coverage. CONTRACTOR shall also obtain and maintain, during the effective period of this Agreement, broad form automobile liability coverage with a $1,000,000 limit unless reduced by CITY, which applies to both owned/leased and non-owned automobiles used by CONTRACTOR employees or participants in performance of this Agreement, or, in the event that CITY will not utilize such owned/leased automobiles but intends to require employees, participants or other agents to utilize their own automobiles in the performance of this Agreement, CONTRACTOR shall secure and maintain on file from all such employees, participants, or agents as self-certification of automobile insurance coverage. Governmental entities may substitute a certificate of self- insurance. C. Workers' Compensation. If CONTRACTOR is an "employer", as set forth in California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in California Labor Code Section 3350 et seq., CONTRACTOR shall obtain and keep in force during the term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of cancellation or modification. CONTRACTOR shall carry medical and accident insurance for those participants not qualifying as "employees" for Worker's Compensation Coverage, pursuant to California Labor Code Section 3350, et seq. D. Equipment Coverage. CONTRACTOR shall purchase a policy or policies of insurance covering loss or damage to any and all Equipment provided to or purchased by CONTRACTOR in accordance with this Agreement. Said insurance shall be in the amount of the full replacement value thereof, providing protection against the classification of fire, extended coverage, vandalism, malicious mischief, theft, and special extended perils. Governmental entities may substitute a certificate of self-insurance. E. Proof of Insurance. Certificates and endorsements (Exhibit H) must be submitted and approved by CITY prior to any work under this Agreement. CONTRACTOR understands that CITY will make no payments under this Agreement until the required certificates and endorsements have been approved by CITY. XI. REVERSION OF ASSETS A. Upon the expiration of this Agreement, CONTRACTOR shall transfer to CITY any FEZ funds on hand at the time of the expiration of this Agreement as well as any accounts receivable attributable to the use of FEZ funds. Page 10 of 14 25H-16 B. Any real property under CONTRACTOR's control that was acquired or improved in whole or in part with FEZ funds in excess of $25,000.00 must either be: 1. Used, where CITY has given written approval, to meet one of the national objectives stated under federal law until five (5) years after expiration of this Agreement, or for such longer period of time as determined to be appropriate by CITY; or 2. If not used in accordance with subparagraph A above, CONTRACTOR shall pay to CITY an amount equal to the current fair market value of the property less any portion of the value attributable to the expenditure of non-FEZ funds for acquisition of, or improvement to, the property. Such payment is program income to CITY. C. Subject to the obligations set forth herein, title to equipment acquired under the terms of this Agreement will vest upon acquisition in CONTRACTOR. When said equipment which has been acquired in accordance with this Agreement and all applicable regulations is no longer needed for said program, disposition of said equipment will be made as follows: 1. Items of equipment with a current per unit fair market value of less than $5,000.00 may be retained, sold or otherwise disposed of with no further obligation to CITY. 2. Items of equipment with a current fair market per unit value of $5,000.00 or more may be retained or sold and CITY shall have the right to an amount calculated by multiplying the current market value or proceeds from the sale by CITY's share of federal funds used to acquire the equipment. C. CONTRACTOR hereby agrees, upon the demand of CITY, to execute, acknowledge and deliver, or cause any person or entity who may have any claim to rights hereunder or under any document, instrument or agreement executed in furtherance of the services and activities to be performed hereunder, to execute, acknowledge and deliver, to CITY assignment(s), quit claim deed(s) or such other and further instruments, documents and agreements as may be necessary, in the sole and absolute discretion of CITY, to vest in CITY all of CONTRACTOR's right, title and interest (if any it may have) in and to CITY, SAEC, FEZ or other federal, state and/or local accounts or program funds or allocation of funds to which CITY is or may be entitled, either for its own account or as fiduciary or trustee for others, which were obtained for the purpose of the performance of this Agreement or any previous agreements relating to the same subject matter or activities as this Agreement, together with any instruments, loans, grants or advances by Page 11 of 14 25H-17 CONTRACTOR on behalf of CITY, in furtherance of the activities hereunder or thereof. CONTRACTOR's obligations and responsibilities set forth in this paragraph "XI. REVERSION OF ASSETS," and in paragraphs "XII. TERMINATION" and "III. PROGRAM INCOME" shall not be affected by the termination of this Agreement and shall survive the date of termination of this Agreement for such period of time as CITY and/or HUD deems necessary for the responsibilities, duties and obligations to be performed and completed to the satisfaction of CITY and HUD. XII. TERMINATION A. This Agreement may be terminated on thirty (30) days' written notice by either party. In the event of such termination, CONTRACTOR shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement may be suspended or terminated by CITY upon five (5) days' written notice for violation by CONTRACTOR of the terms and conditions of the this agreement or applicable State or Federal requirements. In the event of such suspension or termination, CONTRACTOR shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. In the event CONTRACTOR defaults by failing to fulfill all or any of its obligations hereunder, CITY may declare a default and termination of this Agreement by written notice to CONTRACTOR, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. D. The grant of funds by CITY to CONTRACTOR pursuant to this Agreement may be terminated for convenience upon two weeks written notice to CONTRACTOR. E. In the event this Agreement is terminated as set forth in subparagraphs XII.A. through XII.D., inclusive, CONTRACTOR agrees to immediately return to CITY upon CITY's demand and prior to any Page 12 o f 14 25H-18 adjudication of CONTRACTOR's rights, any and all funds not used, and to comply with paragraph "XI. REVERSION OF ASSETS" of this Agreement. XIII. LIMITATION OF FUNDS The United States of America, through HUD, may in the future place programmatic or fiscal limitations on the use of FEZ funds which limitations are not presently anticipated. Accordingly, CITY reserves the right to revise this Agreement in order to take account of actions affecting HUD program funding. In the event of funding reduction, CITY may, in its sole and absolute discretion, reduce the budget of this Agreement as a whole or as to costs category, may limit the rate of CONTRACTOR's authority to commit and spend funds, or may restrict CONTRACTOR's use of both its uncommitted and its unspent funds. Where HUD has directed or requested CITY to implement a reduction in funding, in whole or as to a cost category, with respect to funding for this Agreement, CITY's Executive Director or delegate is authorized to act for CITY in implementing and effecting such a reduction and in revising, modifying, or amending the Agreement for such purposes. Where CITY has reasonable grounds to question CONTRACTOR's fiscal accountability, financial soundness, or compliance with this Agreement, CITY may suspend the operation of this Agreement for up to sixty (60) days upon five (5) days written notice to CONTRACTOR of its intention to so act, pending an audit or other resolution of such questions. In no event, however, shall any revisions made by CITY affect expenditures and legally binding commitments made by CONTRACTOR before it received notice of such revision, provided that such amounts have been committed in good faith and are otherwise allowable and that such commitments are consistent with HUD cash withdrawal guidelines. XIV. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the use of CITY's FEZ funds by CONTRACTOR and contains all the covenants and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and CONTRACTOR. XV. LAWS GOVERNING THIS AGREEMENT This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal laws and regulations. XVI. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Page 13 of 14 25H-19 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year written hereinabove. ATTEST: CITY OF SANTA Ana, a municipal corporation of the State of California PATRICIA E. HEALY Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney CONTRACTOR: By: Lisa Storck Assistant City Attorney Name: Title: Federal Tax ID: RECOMMENDED FOR APPROVAL Stephen G. Harding, Deputy City Manager for Development Services Community Development Agency Page 14 of 14 25H-20 AGREEMENT BETWEEN THE CITY OF SANTA ANA AN D TEMPLO CALVARIO COMMUNITY DEVELOPMENT CORPORATION FOR USE OF EMPOWERMENT ZONE FUNDS This Agreement, made and entered into this 1st day of July, 2008, by and between the City of Santa Ana a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("CITY"), and Templo Calvario Community Development Corporation ("CONTRACTOR"). WITNESSETH Recitals: 1. The City of Santa Ana, through the Santa Ana Empowerment Corporation ("SAEC"), is the recipient of Federal Empowerment Zone ("FEZ") funds from the United States Department of Housing and Urban Development ("HUD"). 2. CITY desires to engage CONTRACTOR to provide the services at the cost set forth in Exhibit A and for the services set forth Exhibit B, hereinafter referred to as "said program" and CONTRACTOR represents that it is qualified and willing to operate said program. WHEREFORE, for and in consideration of the respective and mutual covenants hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereby agree as follows: I. CONTRACTOR'S OBLIGATIONS A. CONTRACTOR agrees to use all federal funds provided by CITY to CONTRACTOR pursuant to this Agreement to operate said program, as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. CONTRACTOR'S failure to perform as required may, in addition to other remedies set forth in this Agreement, result in readjustment of the amount of funds CITY is otherwise obligated to pay to CONTRACTOR under Paragraph II hereof. B. CONTRACTOR agrees to obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing operation of its program. CONTRACTOR shall ensure that its staff shall also obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing CONTRACTOR operations hereunder. Page 1 of 14 25H-21 C. CONTRACTOR agrees that any facility/property used in furtherance of said program shall be specifically zoned and permitted for such use(s) and activity(ies). Should CONTRACTOR fail to have the required land entitlement and/or permits, thus violating any local, state or federal rules and regulations relating thereto, CONTRACTOR shall immediately make good- faith efforts to gain compliance with local, state or federal rules and regulations following written notification of said violation(s) from the CITY or other authorized citing agency. CONTRACTOR shall notify CITY immediately of any pending violations. Failure to notify CITY of pending violations, or to remedy such known violation(s) shall result in termination of grant funding hereunder. CONTRACTOR must make all corrections required to bring the facility/property into compliance with the law within sixty (60) days of notification of the violation(s); failure to gain compliance within such time shall result in termination of grant funding hereunder. D. All funds received by CONTRACTOR from CITY pursuant to this Agreement shall be separately accounted for apart from any other funds of CONTRACTOR, or of any principal or member of CONTRACTOR. CONTRACTOR agrees that if CONTRACTOR receives $500,000 or more in any Federal funds, CONTRACTOR shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and published by the United States Office of Management and Budget Circular A-133. CONTRACTOR shall provide CITY with a copy of said audit 30 days after receipt of the auditor's report(s), or nine months after the end of the audit period following the program year in which this Agreement is executed. E. CONTRACTOR shall keep records of all funds received from CITY under the terms and conditions of this Agreement in accordance with the procedures set forth in the "Agreement Accounting and Administrative Handbook", a copy of which shall be provided to CONTRACTOR by CITY. CONTRACTOR agrees to keep monthly records of all ethnic and racial statistics of persons and families benefited by CONTRACTOR in the performance of its obligations under this Agreement, including, but not limited to, the number of low and moderate income persons and households assisted in accordance with federal income limits, number of female heads of households, and number of senior citizens assisted. CONTRACTOR agrees to provide CITY with written cumulative (year-to- date) reports of its activities on or before the 15th day of July, October, January and April for the period beginning October 1, 2008 and through and including the previous three-month reporting period setting forth the activities, program accomplishments, new program information and year-to- date program statistics on expenditures, caseload and activities. When appropriate, pictures should be included. This Agreement shall terminate on June 30, 2009, unless extended by mutual consent of the parties. Any Page 2 of 14 25H-22 extension shall be in writing, and executed by the Deputy City Manager for Development Services and the City Attorney on behalf of CITY. CITY, SAEC and the United States Government and/or their representatives shall have access for purposes of monitoring, auditing, and examining CONTRACTOR's activities and performance, to books, documents and papers, and the right to examine records of CONTRACTOR's subcontractors, bookkeepers and accountants, employees and participants in regard to said program. CITY, SAEC and the United States Government and/or their representatives shall also schedule on-site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder are conducted or in which any of the records of CONTRACTOR are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. In the event CONTRACTOR does not make the above-referenced documents available within the CITY of Santa Ana, California, CONTRACTOR agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. F. All accounting records and evidence pertaining to all costs of CONTRACTOR and all documents related to this Agreement shall be kept available at the location where CONTRACTOR conducted the program, as well as in the Orange County, California, for the duration of the Agreement and thereafter for five (5) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY or any other governmental agency takes exception, shall be retained beyond the five (5) years until resolution or disposition of such appeals, litigation, claims, or exceptions. G. CONTRACTOR agrees to comply fully with all federal, state and local laws and court orders applicable to its operation whether or not referred to in this Agreement. CONTRACTOR agrees that it has read, understood and shall adhere to the legal obligations referred in Exhibit C. H. CONTRACTOR shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in the corporate status or suspension of CONTRACTOR shall be reported immediately to CITY. Subreceipient acknowledges and warrants that it shall at all times comply with the laws, regulations and policies governing the use of FEZ funds, including but not limited to, the limitations on use of FEZ funds set forth in Page 3 of 14 25H-23 P.L. 106-74 (2000), 24 CFR section 598.215 and Federal Register, April 16, 1998. J. Without prejudice to any other provisions of this Agreement, CONTRACTOR shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. However, CONTRACTOR shall submit to CITY, SAEC and or HUD or its representatives, all records requested, including audit, examinations, monitoring and verifications of reports submitted by CONTRACTOR, costs incurred and services rendered hereunder. K. CONTRACTOR agrees that the performance of obligations hereunder are rendered in its capacity as an independent contractor and that it is in no way an agency of CITY. L. CONTRACTOR agrees that if CONTRACTOR violates any of the terms and conditions of this Agreement or any prior Agreement whereby FEZ funds were received by CONTRACTOR, or if CONTRACTOR reports inaccurately, or if on audit there is a disallowance of certain expenditures, CONTRACTOR agrees to remedy the acts or omissions causing the disallowance or repay CITY all amounts spent in violation thereof. M. CONTRACTOR agrees to maintain a record for each item of non- expendable personal property acquired under the terms of this Agreement. Said record shall be made available to CITY upon request. The term "non- expendable personal property" shall include leased and purchased equipment. N. CONTRACTOR hereby certifies and agrees that it will not use funds provided through this Agreement to pay for entertainment, meals or gifts. O. CONTRACTOR certifies that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. CONTRACTOR shall sign a certification to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference incorporated herein. CONTRACTOR shall submit said signed certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to CONTRACTOR under the terms and conditions of this Agreement. Page 4 of 14 25H-24 If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit a "Disclosure Form to Report Lobbying," in accordance with its instructions. P. CONTRACTOR agrees that except for the use of FEZ funds to pay salaries and other related administrative or personnel costs, no persons who exercise or have exercised any function with respect to FEZ activities assisted under the terms of this Agreement, or who are in a position to participate in adecision-making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from a FEZ-assisted activity of CONTRACTOR, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. This prohibition applies to any person who is an employee, agent, consultant, officer, or elected or appointed official of CITY, or of any designated public agencies, or the CONTRACTOR. Q. CONTRACTOR acknowledges and warrants that prior to having any contractor perform work paid for by FEZ funds, that it shall be responsible (i) for providing such contractor with a copy of this Agreement, and (ii) ensuring that any such contractor executes and provides to the Executive Director of the Community Development Agency a letter in substantially the form of Exhibit E hereto, agreeing to be bound by the terms of this Agreement. R. CONTRACTOR acknowledges and warrants that during the term of this Agreement it shall to the maximum extent feasible collaborate with other CONTRACTORS to ensure that duplication of services is avoided. Such collaboration shall include, but not be limited to, regular attendance (i.e., an attendance record exceeding 50%) and active participation in the appropriate committee or committees established pursuant to the Strategic Plan. S. CONTRACTOR agrees to provide adrug-free work place and to execute a certification as set forth in "Exhibit F" attached hereto and incorporated herein by this reference. T. CONTRACTOR shall comply with the general provisions, assurances, and certifications attached hereto as "Exhibit G" and incorporated herein. II. CITY'S OBLIGATIONS Upon execution of this Agreement by CONTRACTOR, CITY shall pay to CONTRACTOR from FEZ funds, when, if and to the extent received from HUD, for Page 5 of 14 25H-25 CITY's 2008-09 FEZ program year amounts expended by CONTRACTOR in carrying out said program for fiscal year 2008-09 pursuant to this Agreement up to a maximum aggregate payment of Eighty One Thousand Dollars ($81,000) for CONTRACTOR'S performance in accordance with the payment schedule attached hereto as "Exhibit A". Payments shall be made to CONTRACTOR through the submission of periodic invoices, in a form prescribed by CITY, detailing such expenses. CONTRACTOR agrees to submit the above-stated document to the FEZ Navigator Office, 1000 E. Santa Ana Blvd., Suite 200, Santa Ana, CA 92701. CITY shall pay such invoices within thirty (30) days after receipt thereof provided CITY is satisfied that such expenses have been incurred within the scope of this Agreement and that CONTRACTOR is in compliance with the terms and conditions of this Agreement. CITY has the right to de-obligate the funds hereunder and take such funding back from CONTRACTOR due to any of the following reasons: (a) lack of performance by CONTRACTOR; (b) lack of fiscal accountability of CONTRACTOR; or (c) decrease in available funding. III. PROGRAM INCOME A. For the purposes of this Article (III) "Program income," shall mean gross income received by the CONTRACTOR directly generated from the use of FEZ funds, except as provided below in Paragraph III.C. When such income is generated by an activity that is only partially assisted with FEZ funds, the income shall be prorated to reflect the percentage of FEZ funds used. B. Program income includes, but is not limited to each of the following: 1. Proceeds from the disposition by sale or long term lease of real property purchased or improved with FEZ funds; 2. Proceeds from the disposition of equipment purchased with FEZ funds. 3. Gross income from the use or rental of real or personal property acquired by the CONTRACTOR with FEZ funds, less the costs incidental to the generation of such income; 4. Gross income from the use or rental of real property owned by the CONTRACTOR that was constructed or improved with FEZ funds, less the costs incidental to the generation of such income; 5. Payments of principal and interest on loans made using FEZ funds; 6. Proceeds from the sale of loans made with FEZ funds; 7. Proceeds from the sale of obligations secured by loans made with FEZ funds; 8. Interest earned on funds held in a revolving fund account; 9. Funds collected through special assessments made against properties owned and occupied by households not of low and Page 6 of 14 25H-26 moderate income, where such assessments are used to recover all or part of the FEZ portion of a public improvement. C. Program income does not include income on grant advances from the U.S. Treasury. The following items of income earned on grant advances must be remitted to HUD for transmittal to the U.S. Treasury: 1. Interest earned from the investment of the initial proceeds of a grant advance by the U.S. Treasury; 2. Interest earned on loans or other forms of assistance provided with FEZ funds that are used for activities determined by HUD either to be ineligible or to fail to meet a national objective or other federal criteria. 3. Interest earned on the investment of amounts reimbursed to the FEZ program account prior to the use of the reimbursed funds for eligible purposes. D. The receipt of program income (as defined in Paragraph III.A. hereinabove) by CONTRACTOR in the operation of said program shall be recorded by CONTRACTOR and reported to CITY. E. Program income received by CONTRACTOR shall be returned to CITY unless otherwise provided for in this Agreement. IV. V. NONDISCRIMINATION CONTRACTOR agrees that no person on the ground of race, color, national origin, religion or sex will be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with FEZ funds. SPECIAL CERTIFICATION FOR RELIGIOUS ENTITIES If CONTRACTOR is a religious entity, CONTRACTOR hereby agrees that in connection with the provision of the services CONTRACTOR shall provide with FEZ funds: A. CONTRACTOR shall not discriminate against any employee or applicant for employment on the basis of religion and shall not limit employment or give preference in employment to persons on the basis of religion. B. CONTRACTOR shall not discriminate against any person applying for the services CONTRACTOR agrees to provide under the terms of this Agreement on the basis of religion and shall not limit such services or give preference to applicants for such services on the basis of religion. Page 7 of 14 25H-27 C. CONTRACTOR shall NOT provide religious instruction or counseling, conduct any religious worship or services, or engage in any religious proselytizing, or exert any religious influence in the provision of the services in said program. D. Where the services to be provided under said program are rendered on property owned by the primarily religious entity CONTRACTOR, FEZ funds may also be used for minor repairs to such property which are directly related to the cost of rendering the services under said program, where the cost constitutes in dollar terms only an incidental portion of the FEZ expenditure for rendering the services under said program. VI. PROHIBITION OF NEPOTISM CONTRACTOR agrees not to hire or permit the hiring of any person to fill a position funded through this Agreement if a member of that person's immediate family is employed in an administrative capacity by CONTRACTOR. For the purposes of this section, the term "immediate family" means spouse, child, mother, father, brother, sister, brother-in-law, sister-in-law, father-in-law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, step-parent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. VII. NOTICES Notices to the parties shall, unless otherwise requested in writing, be sent by U.S. Mail, postage prepaid, and addressed as follows: TO CITY: Santa Ana WORK Center WORK Center Director 1000 E. Santa Ana Blvd., Suite 200 Santa Ana, California 92701 Telefacsimile (714) 565-2602 TO CLERK: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 82702-1988 Telefacsimile (714) 647-6956 TO CONTRACTOR: Page 8 of 14 25H-28 VIII. ASSIGNABILITY CONTRACTOR shall not assign nor transfer any interest in this Agreement, whether by assignment or novation, without the prior written consent of CITY; provided, however, that claims for money due or to become due CONTRACTOR from CITY under this Agreement may be assigned to a bank, trust company or other financial institution, or to a trustee in bankruptcy, without such approval. Notice of any such assignment or transfer shall be promptly furnished to CITY. IX. HOLD HARMLESS CONTRACTOR shall indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all damages to or for loss of use of property and for injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers compensation claims and including attorney fees and reasonable expenses for litigation or settlement, resulting from or arising out of the negligent or wrongful acts, errors or omissions of CONTRACTOR, its officers, directors, employees, agents, subcontractors and suppliers arising out of CONTRACTOR's performance of this Agreement. X. INSURANCE CONTRACTOR shall obtain and maintain for the entire term of this Agreement comprehensive general public liability insurance, in companies acceptable to the City, authorized to issue such insurance in the State of California. Said insurance shall consist of the following: A. Commercial General Liability. CONTRACTOR agrees to obtain and keep in force during the term of this Agreement a policy of comprehensive commercial public liability insurance insuring the State of California, CITY, and CONTRACTOR against any liability for accident, injury or death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of comprehensive public liability insurance shall be endorsed to provide to CITY and to the State of California, Employment Development Department, at least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees, and volunteers, and the State of California, its officers, employees, and volunteers as additional insureds; and state that such coverage is primary to any other coverage or self-insurance of the State of California and CITY. Governmental entities may substitute a certificate of self-insurance. Page 9 of 14 25H-29 B. Automobile Liability Coverage. CONTRACTOR shall also obtain and maintain, during the effective period of this Agreement, broad form automobile liability coverage with a $1,000,000 limit unless reduced by CITY, which applies to both owned/leased and non-owned automobiles used by CONTRACTOR employees or participants in performance of this Agreement, or, in the event that CITY will not utilize such owned/leased automobiles but intends to require employees, participants or other agents to utilize their own automobiles in the performance of this Agreement, CONTRACTOR shall secure and maintain on file from all such employees, participants, or agents as self-certification of automobile insurance coverage. Governmental entities may substitute a certificate of self- insurance. C. Workers' Compensation. If CONTRACTOR is an "employer", as set forth in California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in California Labor Code Section 3350 et seq., CONTRACTOR shall obtain and keep in force during the term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of cancellation or modification. CONTRACTOR shall carry medical and accident insurance for those participants not qualifying as "employees" for Worker's Compensation Coverage, pursuant to California Labor Code Section 3350, et seq. D. Equipment Coverage. CONTRACTOR shall purchase a policy or policies of insurance covering loss or damage to any and all Equipment provided to or purchased by CONTRACTOR in accordance with this Agreement. Said insurance shall be in the amount of the full replacement value thereof, providing protection against the classification of fire, extended coverage, vandalism, malicious mischief, theft, and special extended perils. Governmental entities may substitute a certificate of self-insurance. E. Proof of Insurance. Certificates and endorsements (Exhibit H) must be submitted and approved by CITY prior to any work under this Agreement. CONTRACTOR understands that CITY will make no payments under this Agreement until the required certificates and endorsements have been approved by CITY. XI. REVERSION OF ASSETS A. Upon the expiration of this Agreement, CONTRACTOR shall transfer to CITY any FEZ funds on hand at the time of the expiration of this Agreement as well as any accounts receivable attributable to the use of FEZ funds. Page 10 of 14 25H-30 B. Any real property under CONTRACTOR's control that was acquired or improved in whole or in part with FEZ funds in excess of $25,000.00 must either be: 1. Used, where CITY has given written approval, to meet one of the national objectives stated under federal law until five (5) years after expiration of this Agreement, or for such longer period of time as determined to be appropriate by CITY; or 2. If not used in accordance with subparagraph A above, CONTRACTOR shall pay to CITY an amount equal to the current fair market value of the property less any portion of the value attributable to the expenditure of non-FEZ funds for acquisition of, or improvement to, the property. Such payment is program income to CITY. C. Subject to the obligations set forth herein, title to equipment acquired under the terms of this Agreement will vest upon acquisition in CONTRACTOR. When said equipment which has been acquired in accordance with this Agreement and all applicable regulations is no longer needed for said program, disposition of said equipment will be made as follows: 1. Items of equipment with a current per unit fair market value of less than $5,000.00 may be retained, sold or otherwise disposed of with no further obligation to CITY. 2. Items of equipment with a current fair market per unit value of $5,000.00 or more may be retained or sold and CITY shall have the right to an amount calculated by multiplying the current market value or proceeds from the sale by CITY's share of federal funds used to acquire the equipment. C. CONTRACTOR hereby agrees, upon the demand of CITY, to execute, acknowledge and deliver, or cause any person or entity who may have any claim to rights hereunder or under any document, instrument or agreement executed in furtherance of the services and activities to be performed hereunder, to execute, acknowledge and deliver, to CITY assignment(s), quit claim deed(s) or such other and further instruments, documents and agreements as may be necessary, in the sole and absolute discretion of CITY, to vest in CITY all of CONTRACTOR's right, title and interest (if any it may have) in and to CITY, SAEC, FEZ or other federal, state and/or local accounts or program funds or allocation of funds to which CITY is or may be entitled, either for its own account or as fiduciary or trustee for others, which were obtained for the purpose of the performance of this Agreement or any previous agreements relating to the same subject matter or activities as this Agreement, together with any instruments, loans, grants or advances by Page 11 of 14 25H-31 CONTRACTOR on behalf of CITY, in furtherance of the activities hereunder or thereof. CONTRACTOR's obligations and responsibilities set forth in this paragraph "XI. REVERSION OF ASSETS," and in paragraphs "XII. TERMINATION" and "III. PROGRAM INCOME" shall not be affected by the termination of this Agreement and shall survive the date of termination of this Agreement for such period of time as CITY and/or HUD deems necessary for the responsibilities, duties and obligations to be performed and completed to the satisfaction of CITY and HUD. XII. TERMINATION A. This Agreement may be terminated on thirty (30) days' written notice by either party. In the event of such termination, CONTRACTOR shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement may be suspended or terminated by CITY upon five (5) days' written notice for violation by CONTRACTOR of the terms and conditions of the this agreement or applicable State or Federal requirements. In the event of such suspension or termination, CONTRACTOR shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. In the event CONTRACTOR defaults by failing to fulfill all or any of its obligations hereunder, CITY may declare a default and termination of this Agreement by written notice to CONTRACTOR, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. D. The grant of funds by CITY to CONTRACTOR pursuant to this Agreement may be terminated for convenience upon two weeks written notice to CONTRACTOR. E. In the event this Agreement is terminated as set forth in subparagraphs XII.A. through XII.D., inclusive, CONTRACTOR agrees to immediately return to CITY upon CITY's demand and prior to any Page 12 of 14 25H-32 adjudication of CONTRACTOR's rights, any and all funds not used, and to comply with paragraph "XI. REVERSION OF ASSETS" of this Agreement. XIII. LIMITATION OF FUNDS The United States of America, through HUD, may in the future place programmatic or fiscal limitations on the use of FEZ funds which limitations are not presently anticipated. Accordingly, CITY reserves the right to revise this Agreement in order to take account of actions affecting HUD program funding. In the event of funding reduction, CITY may, in its sole and absolute discretion, reduce the budget of this Agreement as a whole or as to costs category, may limit the rate of CONTRACTOR's authority to commit and spend funds, or may restrict CONTRACTOR's use of both its uncommitted and its unspent funds. Where HUD has directed or requested CITY to implement a reduction in funding, in whole or as to a cost category, with respect to funding for this Agreement, CITY's Executive Director or delegate is authorized to act for CITY in implementing and effecting such a reduction and in revising, modifying, or amending the Agreement for such purposes. Where CITY has reasonable grounds to question CONTRACTOR's fiscal accountability, financial soundness, or compliance with this Agreement, CITY may suspend the operation of this Agreement for up to sixty (60) days upon five (5) days written notice to CONTRACTOR of its intention to so act, pending an audit or other resolution of such questions. In no event, however, shall any revisions made by CITY affect expenditures and legally binding commitments made by CONTRACTOR before it received notice of such revision, provided that such amounts have been committed in good faith and are otherwise allowable and that such commitments are consistent with HUD cash withdrawal guidelines. XIV. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the use of CITY's FEZ funds by CONTRACTOR and contains all the covenants and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and CONTRACTOR. XV. LAWS GOVERNING THIS AGREEMENT This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal laws and regulations. XVI. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Page 13 of 14 25H-33 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year written hereinabove. ATTEST: CITY OF SANTA ANA, a municipal corporation of the State of California PATRICIA E. HEALY Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney CONTRACTOR: By: Lisa Storck Assistant City Attorney Name: Title: Federal Tax ID: RECOMMENDED FOR APPROVAL Stephen G. Harding, Deputy City Manager for Development Services Community Development Agency Page 14 of 14 25H-34 AGREEMENT BETWEEN THE CITY OF SANTA ANA AND THE CAMBODIAN FAMILY FOR USE OF EMPOWERMENT ZONE FUNDS This Agreement, made and entered into this 1St day of July, 2008, by and between the City of Santa Ana a charter city and municipal corporation duly organized and existing under the Constitution and laws of the State of California ("CITY"), and The Cambodian Family ("CONTRACTOR"). WITNESSETH Recitals: 1. The City of Santa Ana, through the Santa Ana Empowerment Corporation ("SAEC"), is the recipient of Federal Empowerment Zone ("FEZ") funds from the United States Department of Housing and Urban Development ("HUD"). 2. CITY desires to engage CONTRACTOR to provide the services at the cost set forth in Exhibit A and for the services set forth Exhibit B, hereinafter referred to as "said program" and CONTRACTOR represents that it is qualified and willing to operate said program. WHEREFORE, for and in consideration of the respective and mutual covenants hereinafter contained and made, and subject to all the terms and conditions hereof, the parties hereby agree as follows: CONTRACTOR'S OBLIGATIONS A. CONTRACTOR agrees to use all federal funds provided by CITY to CONTRACTOR pursuant to this Agreement to operate said program, as set forth in "Exhibit B," attached hereto and by this reference incorporated herein. CONTRACTOR'S failure to perform as required may, in addition to other remedies set forth in this Agreement, result in readjustment of the amount of funds CITY is otherwise obligated to pay to CONTRACTOR under Paragraph II hereof. B. CONTRACTOR agrees to obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing operation of its program. CONTRACTOR shall ensure that its staff shall also obtain and maintain all required licenses, registrations, accreditation and inspections from all agencies governing CONTRACTOR operations hereunder. Page 1 of 14 25H-35 C. CONTRACTOR agrees that any facility/property used in furtherance of said program shall be specifically zoned and permitted for such use(s) and activity(ies). Should CONTRACTOR fail to have the required land entitlement and/or permits, thus violating any local, state or federal rules and regulations relating thereto, CONTRACTOR shall immediately make good- faith efforts to gain compliance with local, state or federal rules and regulations following written notification of said violation(s) from the CITY or other authorized citing agency. CONTRACTOR shall notify CITY immediately of any pending violations. Failure to notify CITY of pending violations, or to remedy such known violation(s) shall result in termination of grant funding hereunder. CONTRACTOR must make all corrections required to bring the facility/property into compliance with the law within sixty (60) days of notification of the violation(s); failure to gain compliance within such time shall result in termination of grant funding hereunder. D. All funds received by CONTRACTOR from CITY pursuant to this Agreement shall be separately accounted for apart from any other funds of CONTRACTOR, or of any principal or member of CONTRACTOR. CONTRACTOR agrees that if CONTRACTOR receives $500,000 or more in any Federal funds, CONTRACTOR shall have an annual audit conducted by a certified public accountant in accordance with the standards as set forth and published by the United States Office of Management and Budget Circular A-133. CONTRACTOR shall provide CITY with a copy of said audit 30 days after receipt of the auditor's report(s), or nine months after the end of the audit period following the program year in which this Agreement is executed. E. CONTRACTOR shall keep records of all funds received from CITY under the terms and conditions of this Agreement in accordance with the procedures set forth in the "Agreement Accounting and Administrative Handbook", a copy of which shall be provided to CONTRACTOR by CITY. CONTRACTOR agrees to keep monthly records of all ethnic and racial statistics of persons and families benefited by CONTRACTOR in the performance of its obligations under this Agreement, including, but not limited to, the number of low and moderate income persons and households assisted in accordance with federal income limits, number of female heads of households, and number of senior citizens assisted. CONTRACTOR agrees to provide CITY with written cumulative (year-to- date) reports of its activities on or before the 15th day of July, October, January and April for the period beginning October 1, 2008 and through and including the previous three-month reporting period setting forth the activities, program accomplishments, new program information and year-to- date program statistics on expenditures, caseload and activities. When appropriate, pictures should be included. This Agreement shall terminate on June 30, 2009, unless extended by mutual consent of the parties. Any Page 2 of 14 25H-36 extension shall be in writing, and executed by the Deputy City Manager for Development Services and the City Attorney on behalf of CITY. CITY, SAEC and the United States Government and/or their representatives shall have access for purposes of monitoring, auditing, and examining CONTRACTOR's activities and performance, to books, documents and papers, and the right to examine records of CONTRACTOR's subcontractors, bookkeepers and accountants, employees and participants in regard to said program. CITY, SAEC and the United States Government and/or their representatives shall also schedule on-site monitoring at their discretion. Monitoring activities may also include, but are not limited to, questioning employees and participants in said program and entering any premises or any site in which any of the services or activities funded hereunder are conducted or in which any of the records of CONTRACTOR are kept. Nothing herein shall be construed to require access to any privileged or confidential information as set forth in federal or state law. In the event CONTRACTOR does not make the above-referenced documents available within the CITY of Santa Ana, California, CONTRACTOR agrees to pay all necessary and reasonable expenses incurred by CITY in conducting any audit at the location where said records and books of account are maintained. F. All accounting records and evidence pertaining to all costs of CONTRACTOR and all documents related to this Agreement shall be kept available at the location where CONTRACTOR conducted the program, as well as in the Orange County, California, for the duration of the Agreement and thereafter for five (5) years after completion of an audit. Records which relate to (a) complaints, claims, administrative proceedings or litigation arising out of the performance of this Agreement, or (b) costs and expenses of this Agreement to which CITY or any other governmental agency takes exception, shall be retained beyond the five (5) years until resolution or disposition of such appeals, litigation, claims, or exceptions. G. CONTRACTOR agrees to comply fully with all federal, state and local laws and court orders applicable to its operation whether or not referred to in this Agreement. CONTRACTOR agrees that it has read, understood and shall adhere to the legal obligations referred in Exhibit C. H. CONTRACTOR shall be in good standing, without suspension by the California Secretary of State, Franchise Tax Board and Internal Revenue Service. Any change in the corporate status or suspension of CONTRACTOR shall be reported immediately to CITY. I. Subreceipient acknowledges and warrants that it shall at all times comply with the laws, regulations and policies governing the use of FEZ funds, including but not limited to, the limitations on use of FEZ funds set forth in Page 3 of 14 25H-37 P.L. 106-74 (2000), 24 CFR section 598.215 and Federal Register, April 16, 1998. J. Without prejudice to any other provisions of this Agreement, CONTRACTOR shall, where applicable, maintain the confidential nature of information provided to it concerning participants in accordance with the requirements of federal and state law. However, CONTRACTOR shall submit to CITY, SAEC and or HUD or its representatives, all records requested, including audit, examinations, monitoring and verifications of reports submitted by CONTRACTOR, costs incurred and services rendered hereunder. K. CONTRACTOR agrees that the performance of obligations hereunder are rendered in its capacity as an independent contractor and that it is in no way an agency of CITY. L. CONTRACTOR agrees that if CONTRACTOR violates any of the terms and conditions of this Agreement or any prior Agreement whereby FEZ funds were received by CONTRACTOR, or if CONTRACTOR reports inaccurately, or if on audit there is a disallowance of certain expenditures, CONTRACTOR agrees to remedy the acts or omissions causing the disallowance or repay CITY all amounts spent in violation thereof. M. CONTRACTOR agrees to maintain a record for each item of non- expendable personal property acquired under the terms of this Agreement. Said record shall be made available to CITY upon request. The term "non- expendable personal property" shall include leased and purchased equipment. N. CONTRACTOR hereby certifies and agrees that it will not use funds provided through this Agreement to pay for entertainment, meals or gifts. O. CONTRACTOR certifies that no appropriated funds may be expended by the recipient of a federal contract, grant, loan or cooperative agreement to pay any person for influencing or attempting to influence an officer or employee of any agency, Member of Congress, or an officer or employee of a Member of Congress in connection with awarding of any federal contract, the making of any federal grant or loan, entering into any cooperative agreement and the extension, renewal, amendment or modification of any federal contract, grant, loan or cooperative agreement. CONTRACTOR shall sign a certification to that effect in a form as set forth in "Exhibit D," attached hereto and by this reference incorporated herein. CONTRACTOR shall submit said signed certification to CITY prior to performing any of its obligations under this Agreement and prior to any obligation arising on the part of CITY to pay any sums to CONTRACTOR under the terms and conditions of this Agreement. Page 4 of 14 25H-38 If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit a "Disclosure Form to Report Lobbying," in accordance with its instructions. P. CONTRACTOR agrees that except for the use of FEZ funds to pay salaries and other related administrative or personnel costs, no persons who exercise or have exercised any function with respect to FEZ activities assisted under the terms of this Agreement, or who are in a position to participate in adecision-making process or gain inside information with regard to such activities, may obtain a financial interest or benefit from a FEZ-assisted activity of CONTRACTOR, either for themselves or those with whom they have family or business ties, during their tenure or for one year thereafter. This prohibition applies to any person who is an employee, agent, consultant, officer, or elected or appointed official of CITY, or of any designated public agencies, or the CONTRACTOR. Q. CONTRACTOR acknowledges and warrants that prior to having any contractor perform work paid for by FEZ funds, that it shall be responsible (i) for providing such contractor with a copy of this Agreement, and (ii) ensuring that any such contractor executes and provides to the Executive Director of the Community Development Agency a letter in substantially the form of Exhibit E hereto, agreeing to be bound by the terms of this Agreement. R. CONTRACTOR acknowledges and warrants that during the term of this Agreement it shall to the maximum extent feasible collaborate with other CONTRACTORS to ensure that duplication of services is avoided. Such collaboration shall include, but not be limited to, regular attendance (i.e., an attendance record exceeding 50%) and active participation in the appropriate committee or committees established pursuant to the Strategic Plan. S. CONTRACTOR agrees to provide adrug-free work place and to execute a certification as set forth in "Exhibit F" attached hereto and incorporated herein by this reference. T. CONTRACTOR shall comply with the general provisions, assurances, and certifications attached hereto as "Exhibit G"and incorporated herein. II. CITY'S OBLIGATIONS Upon execution of this Agreement by CONTRACTOR, CITY shall pay to CONTRACTOR from FEZ funds, when, if and to the extent received from HUD, for Page 5 of 14 25H-39 CITY's 2008-09 FEZ program year amounts expended by CONTRACTOR in carrying out said program for fiscal year 2008-09 pursuant to this Agreement up to a maximum aggregate payment of Eighty Five Thousand Five Hundred Ninety Dollars ($85,590) for CONTRACTOR'S performance in accordance with the payment schedule attached hereto as "Exhibit A". Payments shall be made to CONTRACTOR through the submission of periodic invoices, in a form prescribed by CITY, detailing such expenses. CONTRACTOR agrees to submit the above- stated document to the FEZ Navigator Office, 1000 E. Santa Ana Blvd., Suite 200, Santa Ana, CA 92701. CITY shall pay such invoices within thirty (30) days after receipt thereof provided CITY is satisfied that such expenses have been incurred within the scope of this Agreement and that CONTRACTOR is in compliance with the terms and conditions of this Agreement. CITY has the right to de-obligate the funds hereunder and take such funding back from CONTRACTOR due to any of the following reasons: (a) lack of performance by CONTRACTOR; (b) lack of fiscal accountability of CONTRACTOR; or (c) decrease in available funding. III. PROGRAM INCOME A. For the purposes of this Article (III) "Program income," shall mean gross income received by the CONTRACTOR directly generated from the use of FEZ funds, except as provided below in Paragraph III.C. When such income is generated by an activity that is only partially assisted with FEZ funds, the income shall be prorated to reflect the percentage of FEZ funds used. B. Program income includes, but is not limited to each of the following: 1. Proceeds from the disposition by sale or long term lease of real property purchased or improved with FEZ funds; 2. Proceeds from the disposition of equipment purchased with FEZ funds. 3. Gross income from the use or rental of real or personal property acquired by the CONTRACTOR with FEZ funds, less the costs incidental to the generation of such income; 4. Gross income from the use or rental of real property owned by the CONTRACTOR that was constructed or improved with FEZ funds, less the costs incidental to the generation of such income; 5. Payments of principal and interest on loans made using FEZ funds; 6. Proceeds from the sale of loans made with FEZ funds; 7. Proceeds from the sale of obligations secured by loans made with FEZ funds; 8. Interest earned on funds held in a revolving fund account; 9. Funds collected through special assessments made against properties owned and occupied by households not of low and Page 6 of 14 25H-40 moderate income, where such assessments are used to recover all or part of the FEZ portion of a public improvement. C. Program income does not include income on grant advances from the U.S. Treasury. The following items of income earned on grant advances must be remitted to HUD for transmittal to the U.S. Treasury: 1. Interest earned from the investment of the initial proceeds of a grant advance by the U.S. Treasury; 2. Interest earned on loans or other forms of assistance provided with FEZ funds that are used for activities determined by HUD either to be ineligible or to fail to meet a national objective or other federal criteria. 3. Interest earned on the investment of amounts reimbursed to the FEZ program account prior to the use of the reimbursed funds for eligible purposes. D. The receipt of program income (as defined in Paragraph III.A. hereinabove) by CONTRACTOR in the operation of said program shall be recorded by CONTRACTOR and reported to CITY. E. Program income received by CONTRACTOR shall be returned to CITY unless otherwise provided for in this Agreement. IV. NONDISCRIMINATION CONTRACTOR agrees that no person on the ground of race, color, national origin, religion or sex will be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with FEZ funds. V. SPECIAL CERTIFICATION FOR RELIGIOUS ENTITIES If CONTRACTOR is a religious entity, CONTRACTOR hereby agrees that in connection with the provision of the services CONTRACTOR shall provide with FEZ funds: A. CONTRACTOR shall not discriminate against any employee or applicant for employment on the basis of religion and shall not limit employment or give preference in employment to persons on the basis of religion. B. CONTRACTOR shall not discriminate against any person applying for the services CONTRACTOR agrees to provide under the terms of this Agreement on the basis of religion and shall not limit such services or give preference to applicants for such services on the basis of religion. Page 7 of 14 25H-41 C. CONTRACTOR shall NOT provide religious instruction or counseling, conduct any religious worship or services, or engage in any religious proselytizing, or exert any religious influence in the provision of the services in said program. D. Where the services to be provided under said program are rendered on property owned by the primarily religious entity CONTRACTOR, FEZ funds may also be used for minor repairs to such property which are directly related to the cost of rendering the services under said program, where the cost constitutes in dollar terms only an incidental portion of the FEZ expenditure for rendering the services under said program. VI. PROHIBITION OF NEPOTISM CONTRACTOR agrees not to hire or permit the hiring of any person to fill a position funded through this Agreement if a member of that person's immediate family is employed in an administrative capacity by CONTRACTOR. For the purposes of this section, the term "immediate family" means spouse, child, mother, father, brother, sister, brother-in-law, sister-in-law, father-in-law, mother-in-law, son-in-law, daughter-in-law, aunt, uncle, niece, nephew, step-parent and stepchild. The term "administrative capacity" means having selection, hiring, supervisor or management responsibilities. VII. NOTICES Notices to the parties shall, unless otherwise requested in writing, be sent by U.S. Mail, postage prepaid, and addressed as follows: TO CITY: Santa Ana WORK Center WORK Center Director 1000 E. Santa Ana Blvd., Suite 200 Santa Ana, California 92701 Telefacsimile (714) 565-2602 TO CLERK: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 82702-1988 Telefacsimile (714) 647-6956 TO CONTRACTOR: Page 8 of 14 25H-42 VIII. ASSIGNABILITY CONTRACTOR shall not assign nor transfer any interest in this Agreement, whether by assignment or novation, without the prior written consent of CITY; provided, however, that claims for money due or to become due CONTRACTOR from CITY under this Agreement may be assigned to a bank, trust company or other financial institution, or to a trustee in bankruptcy, without such approval. Notice of any such assignment or transfer shall be promptly furnished to CITY. IX. HOLD HARMLESS CONTRACTOR shall indemnify and save harmless CITY, its ofFcers, employees, agents, representatives and volunteers from and against any and all damages to or for loss of use of property and for injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, its officers, employees, agents, representatives and volunteers from and against any and all claims, demands, suits, actions or proceedings of any kind or nature, including, but not by way of limitation, workers compensation claims and including attorney fees and reasonable expenses for litigation or settlement, resulting from or arising out of the negligent or wrongful acts, errors or omissions of CONTRACTOR, its officers, directors, employees, agents, subcontractors and suppliers arising out of CONTRACTOR's performance of this Agreement. X. INSURANCE CONTRACTOR shall obtain and maintain for the entire term of this Agreement comprehensive general public liability insurance, in companies acceptable to the City, authorized to issue such insurance in the State of California. Said insurance shall consist of the following: A. Commercial General Liability. CONTRACTOR agrees to obtain and keep in force during the term of this Agreement a policy of comprehensive commercial public liability insurance insuring the State of California, CITY, and CONTRACTOR against any liability for accident, injury or death arising out of or in consequence of this Agreement. Such insurance shall be in an amount not less than One Million Dollars ($1,000,000.00) for any injury to or death of any person or persons in any single accident or occurrence. Said policy of comprehensive public liability insurance shall be endorsed to provide to CITY and to the State of California, Employment Development Department, at least thirty (30) days written notice prior to cancellation; name CITY, its officers, agents, employees, and volunteers, and the State of California, its officers, employees, and volunteers as additional insureds; and state that such coverage is primary to any other coverage or self-insurance of the State of California and CITY. Governmental entities may substitute a certificate of self-insurance. Page 9 of 14 25H-43 B. Automobile Liability Coverage. CONTRACTOR shall also obtain and maintain, during the effective period of this Agreement, broad form automobile liability coverage with a $1,000,000 limit unless reduced by CITY, which applies to both owned/leased and non-owned automobiles used by CONTRACTOR employees or participants in performance of this Agreement, or, in the event that CITY will not utilize such owned/leased automobiles but intends to require employees, participants or other agents to utilize their own automobiles in the performance of this Agreement, CONTRACTOR shall secure and maintain on file from all such employees, participants, or agents as self-certification of automobile insurance coverage. Governmental entities may substitute a certificate of self- insurance. C. Workers' Compensation. If CONTRACTOR is an "employer", as set forth in California Labor Code Section 3300 et seq., or utilizes participants as "employees," as set forth in California Labor Code Section 3350 et seq., CONTRACTOR shall obtain and keep in force during the term of this Agreement full Workers' Compensation insurance coverage for injuries suffered by participants. Said insurance policy shall guarantee CITY at least thirty (30) days written notice of cancellation or modification. CONTRACTOR shall carry medical and accident insurance for those participants not qualifying as "employees" for Worker's Compensation Coverage, pursuant to California Labor Code Section 3350, et seq. D. Equipment Coverage. CONTRACTOR shall purchase a policy or policies of insurance covering loss or damage to any and all Equipment provided to or purchased by CONTRACTOR in accordance with this Agreement. Said insurance shall be in the amount of the full replacement value thereof, providing protection against the classification of fire, extended coverage, vandalism, malicious mischief, theft, and special extended perils. Governmental entities may substitute a certificate of self-insurance. E. Proof of Insurance. Certificates and endorsements (Exhibit H) must be submitted and approved by CITY prior to any work under this Agreement. CONTRACTOR understands that CITY will make no payments under this Agreement until the required certificates and endorsements have been approved by CITY. XI. REVERSION OF ASSETS A. Upon the expiration of this Agreement, CONTRACTOR shall transfer to CITY any FEZ funds on hand at the time of the expiration of this Agreement as well as any accounts receivable attributable to the use of FEZ funds. Page 10 of 14 25H-44 B. Any real property under CONTRACTOR's control that was acquired or improved in whole or in part with FEZ funds in excess of $25,000.00 must either be: 1. Used, where CITY has given written approval, to meet one of the national objectives stated under federal law until five (5) years after expiration of this Agreement, or for such longer period of time as determined to be appropriate by CITY; or 2. If not used in accordance with subparagraph A above, CONTRACTOR shall pay to CITY an amount equal to the current fair market value of the property less any portion of the value attributable to the expenditure of non-FEZ funds for acquisition of, or improvement to, the property. Such payment is program income to CITY. C. Subject to the obligations set forth herein, title to equipment acquired under the terms of this Agreement will vest upon acquisition in CONTRACTOR. When said equipment which has been acquired in accordance with this Agreement and all applicable regulations is no longer needed for said program, disposition of said equipment will be made as follows: 1. Items of equipment with a current per unit fair market value of less than $5,000.00 may be retained, sold or otherwise disposed of with no further obligation to CITY. 2. Items of equipment with a current fair market per unit value of $5,000.00 or more may be retained or sold and CITY shall have the right to an amount calculated by multiplying the current market value or proceeds from the sale by CITY's share of federal funds used to acquire the equipment. C. CONTRACTOR hereby agrees, upon the demand of CITY, to execute, acknowledge and deliver, or cause any person or entity who may have any claim to rights hereunder or under any document, instrument or agreement executed in furtherance of the services and activities to be performed hereunder, to execute, acknowledge and deliver, to CITY assignment(s), quit claim deed(s) or such other and further instruments, documents and agreements as may be necessary, in the sole and absolute discretion of CITY, to vest in CITY all of CONTRACTOR's right, title and interest (if any it may have) in and to CITY, SAEC, FEZ or other federal, state and/or local accounts or program funds or allocation of funds to which CITY is or may be entitled, either for its own account or as fiduciary or trustee for others, which were obtained for the purpose of the performance of this Agreement or any previous agreements relating to the same subject matter or activities as this Agreement, together with any instruments, loans, grants or advances by Page 11 of 14 25H-45 CONTRACTOR on behalf of CITY, in furtherance of the activities hereunder or thereof. CONTRACTOR's obligations and responsibilities set forth in this paragraph "XI. REVERSION OF ASSETS." and in paragraphs "XII. TERMINATION" and "III. PROGRAM INCOME" shall not be affected by the termination of this Agreement and shall survive the date of termination of this Agreement for such period of time as CITY and/or HUD deems necessary for the responsibilities, duties and obligations to be performed and completed to the satisfaction of CITY and HUD. XII. TERMINATION A. This Agreement may be terminated on thirty (30) days' written notice by either party. In the event of such termination, CONTRACTOR shall only be entitled to reimbursement for approved expenses incurred to the effective date of termination. B. This Agreement may be suspended or terminated by CITY upon five (5) days' written notice for violation by CONTRACTOR of the terms and conditions of the this agreement or applicable State or Federal requirements. In the event of such suspension or termination, CONTRACTOR shall only be entitled to reimbursement for approved expenses incurred up to the effective date of suspension or termination. C. In the event CONTRACTOR defaults by failing to fulfill all or any of its obligations hereunder, CITY may declare a default and termination of this Agreement by written notice to CONTRACTOR, which default and termination shall be effective on a date stated in the notice which is to be not less than ten (10) days after certified mailing or personal service of such notice, unless such default is cured before the effective date of termination stated in such notice. If terminated for cause, CITY shall be relieved of further liability or responsibility under this Agreement, or as a result of the termination thereof, including the payment of money, except for payment for approved expenses incurred for services satisfactorily and timely performed prior to the mailing or service of the notice of termination, and except for reimbursement of (1) any payments made for services not subsequently performed in a timely and satisfactory manner, and (2) costs incurred by CITY in obtaining substitute performance. D. The grant of funds by CITY to CONTRACTOR pursuant to this Agreement may be terminated for convenience upon two weeks written notice to CONTRACTOR. E. In the event this Agreement is terminated as set forth in subparagraphs XII.A. through XII.D., inclusive, CONTRACTOR agrees to immediately return to CITY upon CITY's demand and prior to any Page 12 of 14 25H-46 adjudication of CONTRACTOR's rights, any and all funds not used, and to comply with paragraph "XI. REVERSION OF ASSETS" of this Agreement. XIII. LIMITATION OF FUNDS The United States of America, through HUD, may in the future place programmatic or fiscal limitations on the use of FEZ funds which limitations are not presently anticipated. Accordingly, CITY reserves the right to revise this Agreement in order to take account of actions affecting HUD program funding. In the event of funding reduction, CITY may, in its sole and absolute discretion, reduce the budget of this Agreement as a whole or as to costs category, may limit the rate of CONTRACTOR's authority to commit and spend funds, or may restrict CONTRACTOR's use of both its uncommitted and its unspent funds. Where HUD has directed or requested CITY to implement a reduction in funding, in whole or as to a cost category, with respect to funding for this Agreement, CITY's Executive Director or delegate is authorized to act for CITY in implementing and effecting such a reduction and in revising, modifying, or amending the Agreement for such purposes. Where CITY has reasonable grounds to question CONTRACTOR's fiscal accountability, financial soundness, or compliance with this Agreement, CITY may suspend the operation of this Agreement for up to sixty (60) days upon five (5) days written notice to CONTRACTOR of its intention to so act, pending an audit or other resolution of such questions. In no event, however, shall any revisions made by CITY affect expenditures and legally binding commitments made by CONTRACTOR before it received notice of such revision, provided that such amounts have been committed in good faith and are otherwise allowable and that such commitments are consistent with HUD cash withdrawal guidelines. XIV. EXCLUSIVITY AND AMENDMENT OF AGREEMENT This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the use of CITY's FEZ funds by CONTRACTOR and contains all the covenants and agreements between the parties with respect to such employment in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement or amendment hereto shall be effective unless executed in writing and signed by both CITY and CONTRACTOR. XV. LAWS GOVERNING THIS AGREEMENT This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal laws and regulations. XVI. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. Page 13 of 14 25H-47 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year written hereinabove. ATTEST: CITY OF SANTA Ana, a municipal corporation of the State of California PATRICIA E. HEALY Clerk of the Council DAVID N. REAM City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney CONTRACTOR: By: Lisa Storck Assistant City Attorney RECOMMENDED FOR APPROVAL Stephen G. Harding, Deputy City Manager for Development Services Community Development Agency Name: Title: Federal Tax ID: Page 14 of 14 25H-48