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HomeMy Public PortalAbout004-2011 - Metro - Donna Spears - NSP realtorContract for Realtor Services Governing an Indiana Housing and Community Development Authority Neighborhood Stabilization Program Funded Project By and Between the CITY OF RICHMOND, INDIANA and DONNA SPEARS THIS CONTRACT, entered into as of the _13th day of _January_, 2011, referred to as Contract Number 4-2011, by and between the City of Richmond, Indiana, acting by and through its Board of Public Works and Safety (hereinafter referred to as Richmond) and Donna Spears, Realtor, 801 North A Street, Richmond, Indiana, 47374 (hereinafter referred to as Realtor). WHEREAS, Richmond has been awarded a Community Development Block Grant (CDBG) through the Indiana Housing and Community Development Authority (IHCDA) under provisions of the Housing and Community Development Act of 1974, as amended, (the Act), specifically through the Neighborhood Stabilization Program (NSP) grant; WHEREAS, the geographic area covered by the grant, commonly known as the Valle Neighborhood ("project area"), situated in Richmond, Indiana, consists of approximately twenty (20) properties that have been or will be rehabilitated or constructed, which properties are currently owned by the City of Richmond, Indiana, and upon completion of the construction or rehabilitation, Richmond will be conveying said properties located in the project area to qualified buyers as set forth by the NSP guidelines; WHEREAS, as of the date of this contract, approximately five (5) new constructions and five (5) rehabilitated properties within the project area are in the initial stages of being marketed for sale to qualified buyers pursuant to NSP guidelines; WHEREAS, in the event any income is derived from the sale of said properties, additional properties may be rehabilitated or newly constructed using the "program income" derived from the proceeds of such sales, for subsequent conveyance to qualified buyers as set forth by the NSP guidelines; WHEREAS, a certain Request for Qualifications dated October 31, 2010, has been made available for inspection by Richmond, is on file in the office of Department of Metropolitan Development of the City, and is hereby incorporated by reference and made a part of this Agreement. Realtor agrees to abide by the same; WHEREAS, the response of Realtor to said Request for Qualifications dated November 18, 2010, has been made available for inspection by Richmond, is on file in the Office of the Department of Metropolitan Development of the City, and is hereby incorporated by reference and made a part of this Agreement. Realtor agrees to abide by the same; and Contract 4-2011 Page 1 of 22 WHEREAS, Richmond desires to engage Realtor to provide services and render certain assistance in connection with marketing, sales, and conveyances of the project area real estate to be transferred by Richmond to the qualified buyers pursuant to the NSP guidelines. NOW, THEREFORE, the parties hereto do mutually agree as follows: 1. Scope of Services. Realtor shall perform for the City of Richmond all necessary real estate specialist services under this contract in connection with the NSP project and shall do, perform, and carry out, in a satisfactory and proper manner, pursuant to all NSP and IHCDA guidelines the following: A. Prepare marketing agreements for the properties within specific criteria as set forth by the City of Richmond. B. Photograph the properties for marketing and for NSP program records. C. Meet with all key persons involved with the NSP program. Work closely with the City of Richmond and affiliated staff D. Create a series of NSP educational and marketing power point and paper presentations to focus on and present to specific markets; local lenders, prospective clients, local real estate agents, community boards, service groups, local media, Valle School, neighborhood organization representatives and the local media. E. Place signs and key lock entry systems on properties. F. Place all properties on appropriate internet and automated voice systems. G. Place properties on the Richmond Management System (MLS). H. Utilize the special features on Realtor.com to market the properties which include multiple photos, captions and detailed descriptions of the properties. I. Create marketing materials to distribute throughout the community: fliers, brochures, email messages and public service announcements. J. Assist the builder with the selection of materials and colors. K. Invite real estate professionals, lenders, and all interested parties to tour the completed homes and promote the NSP program. L. Provide any additional administrative services as necessary to complete the conveyance of the Valle Neighborhood Stabilization Program properties to the eligible purchasers. Page 2 of 22 M. Comply with all IHCDA guidelines, all NSP guidelines, all federal requirements as referenced in or attached to this contract, and all other attachments to this Agreement, provided however that should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, any inconsistencies shall be resolved by giving precedence in the order in which the documents are listed below: i. NSP and IHCDA Guidelines, including "Section 3 Clause" which is attached hereto as Exhibit A and incorporated by reference, and including all Federal Contract Provisions for Community Development Block Grant/Authority Neighborhood Stabilization Program (CDBG) funds which is attached hereto as Exhibit B and incorporated by reference. ii. Request for Qualifications dated October 31, 2010. In. This Agreement iv. Realtor's Response to Request dated November 18, 2010. 2. Time of Performance. The services shall be undertaken and completed in such sequence as to assure the expeditious completion of the project; but in any event all of the services required hereunder shall be completed in a timely manner as required by Indiana Housing and Community Development Authority or as required by the City of Richmond. This agreement shall expire on June 30, 2013, or shall expire once all closeout processes are completed. Compensation. The compensation under this contract shall be paid through grant funds provided by Indiana Housing and Community Development Authority. Accordingly, Realtor shall receive the greater of Six Thousand Dollars ($6,000.00) or seven (7%) percent of the sales price for each property sold by Realtor under the terms of this Agreement. 4. Modification. Richmond may, from time to time, request changes in the Scope of Services, Section 1 of this contract with Realtor to be performed hereunder. Such changes, including any increase or decrease in the amount of Realtor's compensation, which are mutually agreed upon by and between Richmond and Realtor, shall be incorporated in written addenda to this Contract. Realtor may request a change in the maximum amount payable by Richmond in the event that said maximum amount does not provide just compensation for services provided hereunder, however, Richmond shall be under no obligation to agree to a request in the change in the maximum amount payable. Any changes in the maximum amount payable by Richmond which are mutually agreed upon by and between Richmond and Realtor shall be incorporated in written addenda to this Contract. Page 3 of 22 5. Personnel and Status of Realtor. Realtor represents that it has, or will secure all personnel required in the performance and execution of services under this contract. All services required hereunder will be performed by Realtor and all personnel engaged in the work shall be fully qualified and shall be authorized or permitted under State and Local Law to perform such services. Realtor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. Realtor shall provide, at its own expense, competent supervision of the work. 6. Assignability. _ Realtor shall not assign any interest of this Contract, nor transfer any interest in the same (whether by assignment or notation), without prior written consent of Richmond thereto and any such assignment without prior written consent shall be void; provided however, that claims for money by Realtor from Richmond under this Contract may be assigned to a bank, trust company, or other financial institutions without such approval from Richmond. 7. Confidentiality and Access to Records. All of the reports, information, data, etc. prepared or assembled by Realtor under the Contract, are confidential and Realtor agrees that they shall not be made available to any individual or organization without prior written approval of Richmond, provided, however, that parties understand, acknowledge, and agree that any information received by the Owner may be considered public record under the Indiana Access to Public Record Act (if applicable) and may be treated as such. Realtor understands, acknowledges, and agrees that the State of Indiana, the City as grant recipient, HUD, the Comptroller General of the United States, or any of their duly authorized representatives shall have access to any books, documents, papers and records of Realtor or Realtor's subcontractors which are pertinent to this project as an NSP program for the purpose of making audits, examinations, excerpts, and transcriptions. 8. Copyright. No report, maps, or other documents produced in whole or in part under this Contract shall be the subject of an application for copyright by or on behalf of Realtor. 9. Compliance with Local Laws. Realtor shall comply with all applicable laws, ordinances and code of the State and Local governments. Page 4 of 22 10. Term of Agreement. This Agreement shall become effective when signed by all parties and shall continue in effect until completion of the project which shall be on or before June 30, 2013, or until all closeout processes are completed. 11. Termination. Notwithstanding the term of this Agreement, Richmond may terminate this Agreement in whole or in part, for cause, at any time by giving at least five (5) working days written notice specifying the effective date and the reasons for termination which shall include but not be limited to the following: a. failure, for any reason of Realtor to fulfill in a timely and proper manner its obligations under this Agreement; b. submission by Realtor to the City of reports that are incorrect or incomplete in any material respect; c. ineffective or improper use of funds provided under this Agreement; or d. suspension or termination of the grant funding to the City under which this Agreement is made; In the event of such termination, Richmond shall be required to make payment for all work performed prior to the effective date by Contractor, but shall be relieved of any other responsibility herein. In the event of a termination of this contract by either Realtor or Richmond, Realtor shall turn over to Richmond, in a timely manner, all records and documents relating to this Contract. In the event Realtor violates or breaches the terms of this contract, the City may pursue any and all administrative, contractual, or legal remedies it deems appropriate. This Agreement may also be terminated by either Richmond or Realtor, in whole or in part, by mutual Agreement setting forth the reasons for such termination, the effective date, and in the case of partial termination, the portion to be terminated. 12. Indemnification and Insurance. Realtor agrees to obtain insurance and to indemnify Richmond for any damage or injury to person or property or any other claims which may arise from Realtor's conduct or performance of this Agreement, either intentionally or negligently; provided, however, that nothing contained in this Agreement shall be construed as rendering Realtor liable for acts of Richmond, its officers, agents, or employees. Realtor shall as a prerequisite to this Agreement, purchase and thereafter maintain such insurance as will protect it from the claims set forth below which may arise out of or result from Realtor's operations under this Agreement, whether such operations by Realtor or by any sub -contractors or by anyone directly or indirectly employed by any of them, or by anyone for whose acts Realtor may be held responsible. Page 5 of 22 a I: C 7 E. 13 14 Coverage Limits Worker's Compensation & Statutory Disability Requirements Employer's Liability $100,000 Comprehensive General Liability Section 1. Bodily Injury $1,000,000 each occurrence $2,000,000 aggregate Section 2. Property Damage $1,000,000 each occurrence Comprehensive Auto Liability Section 1. Bodily Injury $1,000,000 each person $1,000,000 each occurrence Section 2. Property Damage $1,000,000 each occurrence Comprehensive Umbrella Liability $1,000,000 each occurrence $1,000,000 each aggregate Compliance With Worker's Compensation Law. Realtor agrees and acknowledges that it is an independent contractor and will not seek Worker's Compensation coverage from Richmond in the event that Realtor or one of Realtor's agents, employees or contractors is injured while performing the terms of this Agreement. Realtor further acknowledges that it will comply with Indiana Worker's Compensation law. If Realtor is an out of state employer and therefore subject to another state's worker's compensation law, Realtor may choose to comply with all provisions of their home state's worker's compensation law. Prohibition Against Discrimination. 1. That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Realtor, any subcontractor, or any person acting on behalf of Realtor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Realtor, any sub -contractor, or any person action on behalf of Realtor or any sub -contractor shall in no manner discriminate against or intimidate any Page 6 of 22 employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; 3. That there may be deducted from the amount payable to Realtor by Richmond under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and 4. That this Agreement may be canceled or terminated by Richmond and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. 5. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. 15. Release of Liability. Realtor hereby agrees to release and hold harmless Richmond and all officers, employees, or agents of the same from all liability for negligence which may arise in the course of Realtor's performance of its obligations pursuant to this Agreement. 16. Choice of Law and Venue. This Agreement shall be controlled by Indiana law and shall be binding upon the parties, their successors and assigns. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to venue and jurisdiction of the courts of Wayne County, Indiana, and suit arising under this Contract, if any, must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. 17. Any person executing this Contract in a representative capacity hereby warrants that he or she has been duly authorized by his or her principal to execute this Contract. 18. In the event of any breach of this Agreement by Realtor, and in addition to any other damages or remedies, Realtor shall be liable for all costs incurred by Richmond due to the enforcement of this Agreement, including but not limited to Richmond's reasonable attorney's fees, whether or not suit is filed. 19. In the event that an ambiguity or question of intent or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Page 7 of 22 20. Equal Opportunity Clause, Executive Order 11246. During the performances of this Contract, Realtor agrees as follows: a) Realtor will not discriminate against any employee or applicant for employment because of race, creed, sex, color, or national origin. Realtor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to race, creed, sex, color, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rate of pay or other forms of compensation; and selection for training, including apprenticeship. Realtor agrees to post in conspicuous places information to be available as set forth in the below provisions of this nondiscrimination clause. b) Realtor will, in all solicitations or advertisements for employees placed by or on behalf of Realtor, state that all qualified applicants will receive considerations for employment without regard to race, religion, color, sex, national origin or handicap. c) Realtor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representative of Realtor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. d) Realtor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations and relevant orders of the Secretary of Labor. e) Realtor will furnish all information and reports required by Executive Order 11246 of September 24, 1965 and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders. f) In the event of Realtor's non-compliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations or orders, this contract may be canceled, terminated or suspended in whole or in part and Realtor may be declared ineligible for further government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulations, or order of the Secretary of Labor, or as otherwise provided by law. g) Realtor will include the portion of the sentence immediately preceding paragraph `a' and the provisions of paragraphs `a' through `g' in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. Realtor will Page 8 of 22 take such action with respect to any subcontract or purchase order as the administering agency may direct a means of enforcing such provisions, including sanctions for non-compliance: Provided, however, that in the event Realtor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such Realtor may request the United States to enter into such litigation to protect the interests of the United States. Richmond further agrees that it will be bound by the above equal opportunity clause with respect to its own employment practices when it participates in federally assisted construction work: provided, that if Richmond so participating is a state or local government, the above equal opportunity clause not applicable to any agency, instrument or subdivisions of such government which does not participate in work on or under contract. Richmond agrees that it will assist and cooperate actively with the administering agency and the Secretary of Labor in obtaining the compliance of contractors and subcontractors with the equal opportunity clause and the rules, regulations, and relevant orders of the Secretary of Labor, that it will furnish the administering agency and the Secretary of Labor such information as they may require for the supervision of such compliance, and that it will otherwise assist the administering agency in the discharge of the agency's primary responsibility for securing compliance. Richmond further agrees that it will refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with a contractor debarred from, or who has not demonstrated eligibility for, government contract and federally assisted construction contracts pursuant to the executive order and will carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors and subcontractors by the administering agency or the Secretary of Labor pursuant to Part II, Subpart D of the executive order. In addition, Richmond agrees that if it fails or refuses to comply with these undertakings, the administering agency may take any or all of the following actions; cancel, terminate or extending any further assistance to the applicant under the program with respect to which the failure or refund occurred until satisfactory assurance of future compliance has been received from such applicant; and refer the case to the Department of Justice for appropriate proceedings. Standard Federal Equal Employment Opportunity Construction Contract Specifications (Executive Order 11246) (A) As used in these specifications: a. "Covered area" means the geographical area described in the solicitation from which this contract resulted; b. "Director" means Director, Office of Federal Contract Compliance Programs, U.S. Department of Labor, or any person to whom the Director delegates authority; Page 9 of 22 C. "Employer identification number" means the federal Social Security number used on the employer's quarterly federal tax return, U.S. Treasury Department Form-941. d. "Minority" includes: i. Black (all persons having origins in any of the black African racial groups not of Hispanic origin); ii. Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish culture or origin, regardless of race); In. Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia the Indian subcontinent, or the Pacific Islands); and iv. American Indian or Alaskan Native (all persons having origins in any of the original peoples of North American and maintaining identifiable trivial affiliations through membership and participation or community identification). (B) Whenever Realtor or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000.00 the provisions of these specifications and the notice which is set forth in the solicitations from which this contract resulted. (C) If Realtor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the plan area (including goals and timetables) shall be in accordance with that plan for those trades which have unions participating in the plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved plan is individually required to comply with its obligations under the EEO clause, and to make a good faith effort to achieve each goal under the plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved plan does not excuse any covered contractor's or subcontractor's failure to take good faith efforts to achieve the plan goals and timetables. (D) Realtor shall implement the specific affirmative action standards provided in paragraphs G 1 through 17 of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the contractor should reasonably be able to achieve in each construction trade in which it has employees in the covered area. Realtor is expected to make substantially uniform progress toward its goals in each craft during the period specified. Page 10 of 22 (E) Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom Realtor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor's obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereof. (F) In order for the non -working training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by Realtor during the training period. Realtor must also have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be pursuant to training programs approved by the U.S. Department of Labor. (G) Realtor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of Realtor's compliance with these specifications shall be based upon its effort to achieve maximum results from its actions. Realtor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following: Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites and in all facilities where employees are assigned to work. Realtor where possible, will assign two or more women to each construction project. Realtor shall specifically ensure that all foremen, superintendents and other on -site supervisor personnel are aware of and carry out Realtor's obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. 2. Establish and maintain a current list of minority and female recruitment sources. Provide written notification to minority and female recruitment sources and to community organizations when Realtor or its unions have employment opportunities available and maintain a record of the organization's responses. Maintain a current file of the names, addresses and telephone numbers of each minority and female off -the -street applicant and minority or female referral from a union, a recruitment source or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to Realtor by the union, or if referred, not employed by Realtor, this shall be documented in the file with the reason therefore; along with whatever additional actions Realtor may have taken. Page 11 of 22 4. Provide immediate written notification to the director when the union or unions with which Realtor has a collective bargaining agreement has not referred to Realtor a minority person or woman sent by Realtor or when Realtor has other information that the union referral process has impeded Realtor's efforts to meet its obligations. 5. Develop on-the-job training opportunities and/or participate in training programs for the area which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to Realtor's employment needs, especially those programs funded or approved by the Department of Labor. Realtor shall provide notice of these programs to the sources complied under G 2 above. 6. Disseminate Realtor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting Realtor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each locations where construction work is performed. 7. Review, at least annually, the Realtor's EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with on - site supervisory personnel such as superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed and disposition of the subject matter. 8. Disseminate the Realtor's EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media and providing written notification to and discussing Realtor's EEO policy with other contractors and subcontractors with whom Realtor does or anticipates doing business. 9. Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving Realtor's recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment source, Realtor shall send written notification to organizations such as Page 12 of 22 the above, describing the openings, screening procedures and tests to be used in the selection process. 10. Encourage present minority and female employees to recruit other minority persons and women, and where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of the Realtor's work force. 11. Validate all test and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3. 12. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriated training, etc., such opportunities and encourage these employees to see or the prepare for, through appropriate training, etc., such opportunities. 13. Ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and Realtor's obligations under these specifications are being met. 14. Ensure that all facilities and company activities are non -segregated except that separate or single -user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. 15. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations. 16. Conduct a review, at least annually, of all supervisors' adherence to and performance under the Realtor's EEO policies and affirmative action obligations. 17. *Covered construction contractors performing contract in geographical areas where they do not have a federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the contract is being performed. Goals are published periodically in the Federal Register in notice form and such notices may be obtained from any office of Federal Contractor Compliance Programs Office or from federal procurement contracting officers. * Proposed Rule Page 13 of 22 (H) Contractors are encouraged to participate in voluntary associations, which assist in fulfilling one or more of their affirmative action obligations (G 1 through 17). The efforts of contractor associations, joint contractor -union, contractor - community, or other similar group of which the contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under G 1 through 17 of these specifications provided that the contractor actively participates in the group, makes every effort to assure that the group has a positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the contractor's minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the contractor. The obligation shall not be a defense for the contractor's non- compliance. (I) A single goal for minorities and a separate single goal for women have been established. Realtor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female and all women, both minority and non -minority. Consequently, Realtor may be in violation of the executive order if a particular group is employed in a substantially disparate manner. (For example, even though Realtor has achieved its goals for women generally, Realtor may be in violation of the executive order if a specific minority group of women is underutilized.) (J) Realtor shall not use the goals and timetables or affirmative action standards to discriminate against any person because of race, color, religion, sex, national origin or handicap. (K) Realtor shall not enter into any subcontract with any person or firm debarred from government contracts pursuant to Executive Order 11246. (L) Realtor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension termination and cancellation of existing subcontracts as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contact Compliance Programs. Any contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended. (M) Realtor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph seven of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If Realtor fails to comply with the requirements of the executive order, the implementing regulations, or these specifications, the director shall proceed in accordance with 41 CFR 60-4.8. Page 14 of 22 (N) Realtor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the government and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned Social Security number, race, sex, status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records. (0) Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program). 21. Title VI of the Civil Risihts act of 1964. Under Title VI of the Civil Rights Act of 1964, no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. Title VI of such Act is incorporated herein by reference. 22. Section 109 of the Housing and Community Development Act of 1974. No person in the United States shall on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity funded in whole or in part with funds made available under this title. 23. "Section 3" Compliance in the Provision of Training, Employment and Business Opportunities. A) The work to be performed under this contract is on a project assisted under a program providing direct Federal financial assistance from the Dept. of Housing and Urban Development Act of 1968, as amended 12 U.S.C. 1701(u). Section 3 requires that to the greatest extent feasible, opportunities for training and employment be given to lower income residents of the project area and contract for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in the area of the project. B) The parties to this contract will comply with the provisions of said Section 3 and the regulations issued pursuant thereto by Secretary of Housing and Urban development set for in 24 CFR 135, and all applicable rules and orders of the Page 15 of 22 Department issued thereunder prior to the executive of this contract. The parties to this contract certify and agree that they are under no contractual of other disability, which would prevent them from complying with these requirements. C) Realtor will send to each labor organization or representative of workers with which it has a collective bargaining agreement or other contract or understanding, if any, a notice advising the said labor organization of workers' representative of its commitments under this Section 3 clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment or training. D) Realtor will include this Section 3 clause in every subcontract for work in connection with the project and will, at the direction of the applicant for or recipient of Federal financial assistance, take appropriate action pursuant to the subcontract upon finding that the subcontractor is in violation of regulations issued by the Secretary of Housing and Urban Development, 24 CFR Part 135. Realtor will not subcontract with any subcontractors where it has notice or knowledge that the latter has been found in violation of regulations under 24 CFR Part 135, unless the subcontractor has first provided it with a preliminary statement of ability to comply with the requirements of these regulations. E) Compliance with the provisions of Section 3, the regulations set forth in 24 CFR Part 135, and all applicable rule and order of the Department issued hereunder prior to the execution of the contract, shall be a condition of the Federal financial assistance provided to the project, binding upon the applicant or recipient, for such assistance, its successors and assigns. Failure to fulfill these requirements shall subject the applicant or recipient, its contractors and subcontractors, its successors and assigns to those sanctions specified by the grant or loan agreement or contract through which Federal assistance is provided, and to such sanctions as are specified by 24 CFR Part 135. 24. Certification of Non -segregated Facilities (Over $10,000.00) By the submission of this bid, the bidder, offeror, applicant or subcontractor certifies that he/she does not maintain or provide for his/her employees any segregated facilities at any of his/her establishments, and that under his/her control, where segregated facilities are maintained. He/she certifies further that he/she will not maintain or provide for employment any segregated facilities at any of his/her establishments, and he/she will not permit employees to perform their services at any location under his/her control where segregated facilities are maintained. The bidder, offeror, applicant or subcontractor agrees that a breach of this certification is a violation of the Equal Opportunity Clause of this contract. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, rest rooms and wash rooms, restaurants and other eating areas, time clocks, locker rooms and other storage or dressing areas, *transportation and housing facilities provided for employees which are segregated by explicit directive or are in fact segregated on the basis of race, color, religion or national origin, because of habit, local custom, or otherwise. He/she further agrees that (except specific time periods) Page 16 of 22 he/she will obtain identical certification from proposed subcontractors prior to the award of subcontracts exceeding $10,000.00 which are not exempt from the provisions of the Equal Opportunity Clause; that he/she will retain such certifications in his/her files; and that he/she will forward the following notice to such proposed subcontractors (except where proposed subcontractors have submitted identical certifications for specific time periods). Parking Lots, drinking fountains, recreation or entertainment areas. 25. NSP Funded Contract Provisions Richmond and Realtor shall include the following contract provisions or conditions in all procurement contracts and subcontracts as required by NSP guidelines, IHCDA guidelines, federal law or the State of Indiana: (A) Effective date of contract. (B) Names and addresses of award recipient or sub recipient and contractor. (C) Names of representatives of award recipient or sub recipient and contractor who will act as liaison for administration of the contract. (D) A citation of the authority of the award recipient under which the contract is entered into and the source of funds. (E) Contractual provisions or conditions that allow for administrative, contractual, or legal remedies in instances in which a contractor violates or breaches the contract terms, and provided for such remedial actions as may be appropriate. (F) Provisions for termination by the award recipient, including the manner by which termination shall be effected and the basis for settlement. In addition, such contracts shall describe conditions under which the contract may be terminated for default as well as conditions where the contract may be terminated because of circumstances beyond the control of the contractor. (G) Scope of Services: i. Detailed description of extent and character of the work to be performed. ii. Time for performance and completion of contract services, including project milestones, if any. iii. Specification of materials or other services to be provided by both parties (e.g., maps, reports, printing, etc.) iv. An access to records clause including a provision that all negotiated contracts awarded by recipients shall include a provision to the effect that the state, the recipient, HUD, the Comptroller General of the United States, or any of their duly authorized representatives shall have access to any books, documents, papers and records of the contractor which are pertinent to a specific program for the purpose of making audits, examinations, excerpts, and transcriptions. V. A Conflict of Interest Clause. vi. Provisions for compensation of services, including the basis for submission of billings as the work progresses and specification of the total contract amount. Page 17 of 22 (H) Bonding and Insurance Requirements, if applicable. (I) Federal Standards Provisions i. Equal Employment Opportunity — Executive Order 11246; Equal Opportunity Clause, goals for female and minority participation and implementing regulations. ii. Rights to Inventions Made Under a Contract or Agreement.. In. Clean Air Act (42 U.S.C. 7401 et seq.) and the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), as amended. iv. Byrd Anti -Lobbying Amendment (31 U.S. C. 13 52). V. Debarment and Suspension (Executive Orders 12549 and 12689).. Provision 14a. Contracts other than small purchases shall contain provisions or conditions which will allow for administrative, contractual, or legal remedies in instances where contractors violate or breach contract terms, and provide for such sanctions and penalties as may be appropriate. Provision 14b. All contracts in excess of $10,000.00 shall contain suitable provisions for termination by the grantee including the manner by which it will be effected and the basis for settlement. In addition such contract shall describe conditions under which the contract maybe terminated because of circumstances beyond the control of the contractor. Provision 141. Contracts, subcontracts, and sub -grants of amounts in excess of $100,000.00 shall contain a provision which requires compliance with all applicable standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 USC 1857 (h), Section 508 of the Clean Water Act (3 3 USC 13 68), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR, Part 152), which prohibit the use under non-exempt Federal Contracts, grants or loans of facilities included on the EPA List of Violating Facilities. The provisions all require reporting of violations to the grantor agency and to the USEPA Assistant Administrator for Enforcement (EN-329). 26. Title VI of the Civil Rights Act of 1975. Provision: 24 CFR 1.5a provides that in cases of transfer of real or personal property, the acquisition of which was assisted with federal funds, the transferor must assure that the transferee will be bound by the provisions of Title VI for a certain period of time. Provision: 24 CFR 1.5b requires that the instrument effecting any disposition of real property, acquired through a program of federal financial assistance contain a covenant running with the land assuring non- discrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or Page 18 of 22 for another purpose involving the provision of similar services or benefits. 27. Age Discrimination Act of 1975 (42 U.S.C. 6101, et sec.). No person shall on the basis of age, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. 28. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 1794). Handicapped individuals may not be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. 29. Executive Order 12138: Women Business Enterprise Policy. For purposes of this Order, affirmative action may include, but is not limited to, creating or supporting new programs responsive to the special needs of women's business enterprise, establishing incentives to promote business or business -related opportunities for women's business enterprise, collecting and disseminating information in support of women's business enterprise and ensuring to women's business enterprise knowledge of any ready access to business -related services and resources. In implementing this Order an agency undertakes to use or to require compliance with numerical set -asides or similar measures. It shall state the purpose of such measures and the measure shall be designed on the basis of pertinent factual findings of discrimination against women's business enterprise and the need for such measure. 30. Conflict of Interest — 24 CFR Part 570 Realtor shall comply with 24 CFR Part 570 in its entirety which regulation is incorporated herein by reference. Richmond and Realtor shall maintain a written code or standards of conduct, which shall govern the performance of their officers, employees or agents engaged in the award and administration of contracts supported by federal funds. No employee, officer or agent of the grantee shall participate in selection, or in the award or administration of a contract supported by federal funds if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: a. The employee, officer or agent; b. Any member of his/her immediate family; C. His or her partner; or d. An organization which employs, or is about to employ, any of the above, has a financial or other interest in the firm selected for award. Page 19 of 22 31 Mp 33 ks7 Richmond and Realtor officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors, potential contractors, or parties to sub -agreements. To the extent permitted by state or local law or regulations, such standards of conduct shall provide for penalties, sanctions, or other disciplinary agents or by contractors or their agents. Retention and Custodial Reauirements — 24 CFR 85.42 A. Realtor shall comply with 24 CFR 85.42 (Housing and Urban Development, Post Award Requirements, Retention and access requirements for records) which requirements are attached hereto as Exhibit "C" and incorporated herein by reference. Interest of Other Local Public Officials No member of the governing body of Richmond and no other public official of such locality, who exercises any functions c planning and carrying out of the project, direct or indirect, in this Contract. Interest of Realtor and Employees. responsibilities in connection with the shall have any personal financial interest, Realtor convents that it presently has no interest and shall not acquire interest direct or indirect, in this project which should conflict in any manner or degree with the performance of its service hereunder. Realtor further covenants that in the performance of this Contract, no person having such interest shall be employed. HUD Reform Act of 1989 Disclosure Reports. If Richmond receives $200,000.00 or more in federal funds during a fiscal year (10/1 — 9/30), that Realtor shall see that a disclosure report be completed for each contract executed under that CDBG project that exceeds either $50,000.00 or 10% of the total grant funds. A copy of said disclosure shall be submitted by Realtor or on behalf of Richmond within 10 days after contract execution. Americans with Disabilities Act of 1990. Realtor shall assist Richmond in complying with Title III, Americans with Disabilities Act of 1990 which prohibits discrimination based on "disability" by private entities and places of public accommodation and commercial facilities be design and constructed so as to be readily accessible to and usable by persons with disabilities; and requires that examinations or courses related to licensing or certification for professional trade purposes be accessible to persons with disabilities. Page 20 of 22 36. HUD Administrative Requirements for Grants and Cooperative Agreements Realtor shall comply with 24 CFR 85.36 (Housing and Urban Development, Post - Award Requirements, procurement standards) which standards are attached hereto as Exhibit "D" and incorporated herein by reference. 37. Architectural Barriers Act of 1968 Realtor shall comply with the Architectural Barriers Act (ABA) of 1968 which requires buildings and facilities that are constructed or financed, in whole or in part, by a grant or loan made by the United States to be accessible to persons with mobility impairments, which Act is codified at 42 U.S.C. 4151, et seq. and 24 CFR Parts 40 and 41 and is incorporated by reference. 38. Equal Opportunity in Housing Realtor shall comply with Executive Order 11063 (Equal Opportunity in Housing) which Order is attached hereto as Exhibit "E" and incorporated herein by reference. 39. Affirmative Action Program/Plan Realtor shall comply with all Federal requirements, rules, and statutes to develop and implement an Affirmative Action plan during all stages of this NSP project. 40. Davis -Bacon and Related Acts Realtor shall comply with the Davis -Bacon Act and any related acts that will allow Realtor and City to achieve the Grant Services ten (10%) percent MBE/WBE goal for this NSP project and all such Acts shall be and are incorporated herein by reference. 41. IHCDA Regulation Compliance Realtor shall comply with any and all IHCDA rules and regulations that are applicable to this NSP project and not specifically mentioned in or incorporated into this Contract. 42. Realtor agrees to hold Richmond harmless, and to indemnify Richmond for any expenses incurred, including costs and attorney's fees, in the event that the Indiana Housing and Community Development Authority determines any provisions of the grant agreement entered into between Richmond and the Indiana Housing and Community Development Authority has been breached, or that Richmond shall repay the grant to the Indiana Housing and Community Development Authority. 43. This writing constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. Any previous Page 21 of 22 discussion, negotiation or dialogue relating to the subject matter contained herein is superseded by this Agreement. Furthermore, both parties agree that no discussion, representation or negotiation, other than that contained herein, has transpired relating to the subject matter of this agreement and that neither party is relying upon any negotiation or discussion that took place prior to this agreement. IN WITNESS WHEREOF, Richmond and Realtor have executed this Contract as of the date first written above. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Public Works and Safety By:_S/S Vicki Robinson Vicki Robinson, President By:_S/S Dian Lawson Dian Lawson, Member By:_S/S Mary Jo Flood Mary Jo Flood, Member Date January 13, 2011 APPROVED S/S Sarah L. Hutton Sarah L. Hutton, Mayor Date January 14, 2011 "REALTOR" DONNA SPEARS By_S/S Donna Spears Donna Spears Date: —January 20, 2011 Page 22 of 22