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Resolution No. 2022-23 re HRB ARPA Grant FundingPage 1 of 2 RESOLUTION NO. 2022-23 A RESOLUTION of the City of Bainbridge Island, Washington, approving an agreement for the grant of Two Million Dollars ($2 Million) of American Rescue Plan Act Funds to Housing Resources Bainbridge to provide thirteen (13) Affordable Housing Units. WHEREAS, the City has received funds from the United States Department of the Treasury pursuant to Section 602 and 603 of the Social Security Act, which implements Section 9901 of the American Rescue Plan Act (“ARPA”), Subtitle M of Pub. L. 117-2; and WHEREAS, one of the purposes for which ARPA funds may be used is the development, repair, and operations of affordable housing and services or programs to increase long-term housing security for low-income and moderate-income households; and WHEREAS, Housing Resources Bainbridge (“HRB”) is a Washington nonprofit corporation that is partnering with Madison Avenue Development, Inc., a Washington for profit corporation to develop residential property at 550 Madison Avenue North in the City of Bainbridge Island, and this project will include thirteen (13) affordable housing units; and WHEREAS, the City has determined that the provision of the affordable housing units is eligible for funding under ARPA and that the units will serve those Bainbridge Island residents who have been impacted by COVID-19 by increasing long-term housing stability; and WHEREAS, the City and HRB wish to set forth the terms and conditions under which the City will pass-through ARPA funds to HRB as a grant in the form of the “Agreement for Grant of American Rescue Plan (ARPA) Funds to Provide Affordable Housing” (“Grant Agreement”), which is included as Exhibit A to this resolution and is by reference made a part hereof. NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City of Bainbridge Island that it approves the Grant Agreement included as Exhibit A to this resolution, and authorizes the City Manager to execute that Agreement on behalf of the City of Bainbridge Island. PASSED by the City Council this 14th day of June, 2022. APPROVED by the Mayor this 14th day of June, 2022. Joe Deets, Mayor Page 2 of 2 ATTEST/AUTHENTICATE: By: ____________________________ Christine Brown, MMC, City Clerk FILED WITH THE CITY CLERK: June 10, 2022 PASSED BY THE CITY COUNCIL: June 14, 2022 RESOLUTION NO. 2022-23 Exhibit A: Agreement for Grant of American Rescue Plan Act (ARPA) Funds to Provide Affordable Housing Exhibit A AGREEMENT FOR GRANT OF AMERICAN RESCUE PLAN ACT (ARP A) FUNDS TO PROVIDE AFFORDABLE HOUSING Federal Award Assistance Listing No. 21.027 -Coronavirus State and Local Fiscal Recovery Funds THIS AGREEMENT ("Agreement") is entered into between the City of Bainbridge Island, a Washington municipal corporation ("City"), and Housing Resources Bainbridge, a Washington-nonprofit corporation ('-'HRB~'), for the purposes set forth-hereinafter. _ RECITALS WHEREAS, the City has received funds from the United States Department of the Treasury pursuant to Sections 602 and 603 of the Social Security Act, which implements Section 9901 of the American Rescue Plan Act ("ARP A"), Subtitle M of Pub. L. 117-2; and WHEREAS, one of the purposes for which ARP A funds may be used is the development, repair, and operation of affordable housing and services or programs to increase long-term housing security for low-income households; and WHEREAS, HRB is a Washington nonprofit corporation that is partnering with Madison Avenue Development, Inc., a Washington for profit corporation to develop approximately 82 residential units on land located at 550 Madison Avenue North in the City of Bainbridge Island (the "Project"). Upon completion of the Project, HRB has proposed to operate 13 units as affordable housing for low-income households. HRB has requested a grant from the City to subsidize HRB' s provision of the affordable housing units and to ensure that the units remain affordable to low-income families for the life of the Project; and WHEREAS, the City has determined that the provision of the affordable units is eligible for funding under ARP A and that the units will serve those Bainbridge Island residents who have been impacted by the public health emergency caused by COVID-19 by increasing long-term housing stability; and WHEREAS, the City and HRB wish to set forth the terms and conditions under which the City will pass-through ARP A funds to HRB as a grant to provide the affordable housing units. NOW, THEREFORE, the City and HRB agree as follows: 1. HRB to Provide Affordable Rental Housing Units. A. As a condition of receiving grant funds from the City, HRB agrees to provide, own, operate, and maintain no fewer than 13 affordable housing units in the Project. As used in this Agreement, an "affordable housing unit" means a residential unit that is reserved for rent or lease to a household whose gross income is equal to or less than sixty percent (60%) of Page 1 of 19 the Kitsap County Area Median Income ("AMI"), adjusted for household size, as published by the United States Department of Housing and Urban Development ("HUD") from time-to-time. If HUD ceases to publish AMI for Kitsap County or has not updated the same for a period of at least eighteen (18) months, the City may use or develop such other reasonable method as it may choose to determine AMI for Kitsap County. HRB agrees that all affordable housing units shall be rented to households that meet the income criteria set forth in this Section at a monthly rental rate set by HUO's HOME program. If the tenant pays for utilities (water, sewer, stormwater, solid waste, electricity, gas, or heat, but excluding telephone, internet, and television services) separately from rent, the maximum rental amount shall be reduced by a utility allowance to be determined as provided in the Affordable Housing Covenant established pursuant to Section 3 of this Agreement. B. The affordable housing units shall be of similar construction and quality as other units in the Project and shall contain facilities for living, sleeping, eating, cooking, and sanitation for a single person or household which are complete, separate, and distinct from other dwelling units in the Project and will include a sleeping area, a separate bathroom and bathing area, and a kitchen or cooking area with a range, refrigerator, and sink. C. The developer of the Project is encouraged to consider constructing the Project such that affordable housing is available to a variety of low-income households, including very low-income households, and, to that end, to construct a diversity of affordable housing unit sizes. The affordable housing units should consist of a mixture of one-bedroom, two-bedroom, and potentially three-bedroom units, similar to the mixture of units that existed most recently in the previous housing structure that existed on the Project site. HRB shall inform the City of the number of one-bedroom, two-bedroom, and three-bedroom units (as applicable) and the area of each unit in square footage prior to construction of the affordable housing units. D. The affordable housing units shall meet the occupancy limitations set forth in Section 404 of the International Property Maintenance Code ("IPMC"), as adopted by the City, as the same now exists or as the same is hereafter amended. In renting the affordable housing units to households that meet the income criteria set forth above, HRB shall ensure that the number of occupants does not exceed the occupancy limits in Table 404.5 of the IPMC. E. HRB shall manage the affordable housing units in a professional manner, which shall require, at a minimum, providing for the ability of tenants to communicate with a property manager, screening new tenants, conducting credit checks for new tenants, if any, and confirming income eligibility. F. HRB shall maintain all affordable housing units in good repair and in a safe, sanitary, and decent condition similar to other rental units in the Project. As used in this subsection, "good repair" means that no maintenance is deferred, that preventive maintenance schedules are established and followed, that life safety systems are adequate and functioning properly, that building systems, including water, electrical, lighting, fire protection, HVAC, and sanitary systems are functionally adequate and operable, and that all buildings are and remain structurally sound, secure, and habitable, including roofs, walls, doors, and windows. Page 2 of 19 G. HRB shall not allow mechanic's or materialmen's liens to be placed against any of the affordable units at any time. H. The affordable housing units shall be owned by HRB or its successors in interest or assigns and the City shall have no ownership interest in the affordable housing units and no responsibility for constructing, operating, managing, maintaining, or repairing the units. The City's contribution to affordability shall be solely limited to the funds provided in this Agreement. I. The City has no interest in the underlying land on which the Project and the affordable -housing units will be con structed. 2. Time of Performance by HRB. HRB agrees to complete construction of the affordable housing units no later than December 31, 2025, and to make the 13 affordable units available for rental no later than December 31, 2025. 3. Disbursement of Grant Funds by City. A. The City agrees to provide $2,000,000 in grant funding to HRB from the City's allotment of ARPA funds to assist HRB in timely providing the affordable housing units and to ensure that the affordable units will be rented to eligible households at the maximum rental amounts determined under Section 1 of this Agreement, in a timely manner, and for the duration specified in this Section. B. The City's agreement to provide grant funding is expressly conditioned upon there being no material change in the Project or the condition of the property located at 550 Madison Avenue North between the date of this Agreement and the date grant funds are to be disbursed, other than Project construction. As used in this subsection, a "material change" is one that affects the number, quality, or affordability of the affordable housing units or the financial viability of the Project, including, but not limited to, a change in ownership, bankruptcy or receivership of HRB or any of its partners in the development of the Project, failure to develop the Project in a timely manner, failure to comply with state, federal, or City regulations, or the discovery or release of hazardous waste or environmental contamination on the property at 550 Madison A venue North. C. Disbursement of grant funds to HRB by the City shall be made upon the issuance of a Certificate of Occupancy for all 13 affordable units in the Project and the recording of the Affordable Housing Covenant required by this Section. If a separate Certificate of Occupancy is issued for one or more of the 13 individual affordable housing units, the City may, in its discretion, provide a prorated amount of the overall grant funding amount as each Certificate of Occupancy is issued. D. Nothing in this Agreement obligates the City to make any funding available to HRB except as expressly provided herein. HRB expressly acknowledges and agrees that the City is not obligated to provide any funding for maintenance or ongoing operation of the Page 3 of 19 affordable housing units and has made no representations as to the availability of any such funding. E. As a condition of the City providing the grant funds described above, HRB and the City will execute and record an Affordable Housing Covenant against the title to the land located at 550 Madison Avenue North in a form acceptable to the City that ensures the affordable units will remain available for rent or lease to households meeting the income qualifications established by Section 1 for the life of the Project or 50 years, whichever is greater. The Affordable Housing Covenant shall include, but not be limited to, provisions: i. -Requiring-periodic reporting to the -City orits designee demonstrating that the 13 affordable units are rented to households meeting the income requirements set forth in Section 1. ii. Requiring periodic recertification of household eligibility for those households renting the 13 affordable housing units. 111. Prohibiting discrimination against Section 8 certificate holders. iv. Prohibiting discrimination in the rental of the affordable housing units as required by the Washington State Law Against Discrimination and the Fair Housing Act. v. Providing for the covenant to run with the land and/or the units and to be binding on all subsequent owners of the units for the life of the Project or 50 years, whichever is greater. vi. Providing that eligible prospective tenants who were displaced as a result of the demolition of the previous affordable housing structure that most recently existed on the Project site shall be given preference by HRB regarding who is selected to rent the affordable housing units that will be constructed as part of the Project. vii. Providing the City with a right of first refusal to purchase the affordable housing units if HRB decides to sell or otherwise transfer any of the affordable housing units to any third party. v111. Providing that five years prior to the end of the life of the Project, or during year 45 of the 50 year term of the Affordable Housing Covenant (see above), whichever is later, the City shall be provided with a right of first refusal to purchase any of the affordable housing units that HRB decides to convert to a market rate unit or units. ix. Imposing such other and further requirements as are necessary to ensure that the affordable housing units remain available for rental to households meeting the income qualifications established by Section 1 for the duration set forth above . F. As a condition ofreceiving City grant funding, HRB shall also: Page 4 of 19 i. Register and maintain an updated profile on, and an active registration with, the federal System for Award Management ("SAM") (https://www.sam.gov) pursuant to 2 CFR Part 25. lfHRB has not previously registered with SAM.gov, HRB may do so after execution of this Agreement, but before the submission of mandatory reporting. ii. Maintain an effective system of internal fiscal control and accountability for all ARP A funds and all property, services, and equipment procured with ARP A funds, and ensure that the same are used solely for the purposes authorized by this Agreement. m. Keep -a continuing record of all disbursements by date, check number, amount, vendor, description of items purchased and line item(s) from which the money was expended, as reflected in HRB's accounting records. iv. Maintain payroll, financial, and expense reimbursement records for a period of six ( 6) years after receipt of final payment under this Agreement. v. Permit inspection and audit of its records with respect to all matters authorized by this Agreement by representatives of the City, the Washington State Auditor's Office, and the U.S. Department of Treasury at any time during normal business hours and as often as deemed necessary by such agencies. vi. Inform the City if HRB anticipates that it will not be able to complete the Project and obtain Certificates of Occupancy for the affordable units by the deadlines set forth in Section 2 and otherwise in this Agreement so that the City can reassign its ARP A funds to others in accord with ARP A. v11. Maintain complete records concerning the receipt and use of all ARPA funds. G. If any of the grant funds will be used to reimburse HRB' s expenses, then as required by 2 C.F.R. §200.415(a), any request for reimbursement must include a certification, signed by an official who is authorized to legally bind the Subrecipient, which reads as follows: "By signing this report, I certify to the best of my knowledge and belief that the report is true, complete, and accurate, and that the expenditures, disbursements and cash receipts are for the purposes and objectives set forth in the terms and conditions of the Federal award. I am aware that any false, fictitious, or fraudulent information, or the omission of any material fact, may subject me to criminal, civil or administrative penalties for fraud, false claims or otherwise. (U.S. Code Title 18, Sections 1001 and Title 31, Sections 3729-3730 and 3801-3812)." No reimbursement will be made until the certification is provided. H. If the City or the U.S. Department of the Treasury determines that any grant funds provided to HRB were used for unauthorized or ineligible purposes or that the expenditures constitute disallowed costs in any other way, the City may order HRB to repay the same. HRB shall remit the disallowed amount to the City within thirty (30) days after written notice of the disallowance ." Page 5 of 19 4. Reports. A. Consistent with 2 C.F.R. §200.328, HRB shall provide the City with quarterly reports and a close-out report. These reports shall be in a form acceptable to the City and shall include the current status and progress of HRB in providing the affordable housing units described Section 1. B. Quarterly reports are due to the City no later than fifteen (15) days after the end of each calendar quarter during which this Agreement is effective. Quarterly reports shall be submitted each quarter until submission-of the close-out report. The ending dates for each quarter of the program year are March 31, June 30, September 30, and December 31. C. The close-out report is due fifteen (15) days after the last Certificate of Occupancy is issued for the 13 affordable housing units and the Affordable Housing Covenant is executed and recorded. The close-out report shall provide a narrative describing the affordable housing units and detailing HRB's compliance with all terms and conditions set forth in this Agreement, including but not limited to, the conditions set forth in Section 3. 5. Compliance with Laws. HRB shall comply with all local, state, and federal laws, rules, regulations, and requirements and all provisions of this Agreement, which includes, but is not limited to, compliance with the provisions of ARPA, the U.S. Treasury's Final Rule on the "Coronavirus State and Local Fiscal Recovery Funds," 31 C.F.R. Part 35 and any amendments thereto; the Uniform Administrative Requirements, Cost Principles, and Audit Requirements to Federal Awards, 2 CFR Part 200, including additions and exceptions made by Treasury and including Subpart F -Audit Requirement of the Uniform Guidance, implementing the Single Audit Act; Universal Identifier and System for Award Management ("SAM"), 2 C.F.R. Part 25, pursuant to which the award term set forth in Appendix A to 2 C.F.R. Part 25 is hereby incorporated by reference; Reporting Subaward and Executive Compensation Information, 2 C.F.R. Part 170, pursuant to which the award term set forth in Appendix A to 2 C.F .R. Part 170 is hereby incorporated by reference; 0MB Guidelines to Agencies on Government-wide Debarment and Suspension (Nonprocurement), 2 C.F.R. 180; Recipient Integrity and Performance Matters, pursuant to which the award term set forth in 2 C.F.R. Part 200, Appendix XII to Part 200 is hereby incorporated by reference; Government-wide Requirements for Drug-Free Workplace, 31 C.F.R. Part 20; New Restrictions on Lobbying, 31 C.F.R. Part 21; Uniform Relocation Assistance and Real Property Acquisitions Act of 1970 (42 U.S.C. §§ 4601-4655) and implementing regulations; and all rules, regulations, guidelines, and circulars promulgated by the various federal departments, agencies, administrations, and commissions related to the ARP A program. 6. Single Audit Requirements. HRB, as the subrecipient of the ARPA funds being utilized as part of this Agreement, is subject to an audit under the Single Audit Act and its implementing regulation at 2 CFR Part 200, Subpart F, regarding audit requirements. For additional information regarding this requirement, see, for example, "Compliance and Reporting Guidance, State and Local Fiscal Recovery Funds" (February 28, 2022-Version 3.0), as Page 6 of 19 published by the U.S. Department of the Treasury. HRB shall be responsible for paying for any and all expenses associated with HRB's compliance with such Single Audit Requirements. 7. Debarment and Suspension. As required by Executive Order 12549 and implemented at 2 CFR Parts 180 and 3185, HRB and its undersigned signatory certifies, to the best of its knowledge and belief, that neither HRB, nor any of its principals or officers: A. are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any federal department or agency; B. have within a three-year period preceding entry into this Agreement, been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (federal, state or local) transaction or contract under a public transaction, or in connection with a violation of federal or state antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification, or destruction of records, making false statements, or receiving stolen property; C. are presently indicted for or otherwise criminally or civilly charged by a government entity (federal, state, or local) with commission of any of the offenses enumerated in subsection (B) of this Section; or D. have within a three-year period preceding entry into the Agreement had one or more public transactions (federal, state, or local) terminated for cause or default. HRB further agrees that it will not enter into any contract with any contractor for the Project who is ineligible to enter into government contracts for any of the reasons described above and will require all contractors retained by HRB to provide a certification equal to that of HRB above. HRB agrees that HRB and all contractors retained by HRB will execute a Debarment Statement in a form provided by the City. 8. Lobbying. HRB and its undersigned signatory certify, to the best of their knowledge and belief, that: A. No federal appropriated funds have been paid or will be paid, by or on behalf of HRB or its undersigned signatory, to any person for influencing or attempting to influence an officer of 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 the awarding of a federal contract, the making of a federal grant, the making of a federal loan, the entering into of a cooperative agreement, or the extension, continuation, renewal, amendment, or modification of a federal contract, grant, loan, or cooperative agreement. B. If any funds other than appropriated federal funds have been paid or will be paid to any person ( other than a regularly employed officer or employee of the Service Provider or its undersigned signatory) 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 Page 7 of 19 cooperative agreement, HRB or its undersigned signatory shall request, complete, and submit U.S. Small Business Administration Standard Form LLL: "Disclosure of Lobbying Activities," in accordance with its instructions. C. HRB shall require that the following certification be included in the award documents of all subawards of all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and HRB and all recipients of subawards certify and disclose accordingly: 9. This certification is a material representation of fact upon which reliance was placed-when this transaction was entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by Section 13 52, Title 31, U.S.C. Any person who fails to file the required certification shall be subject to s civil penalty of not less than $10,000 and not more than $100,000 for each such failure. Compliance with Nondiscrimination Laws. A. During the performance of the Agreement, HRB, for itself, its subcontractors, subgrantees, assignees, and successors in interest, assures that it currently complies and will in the future comply with the following laws and regulations: • Title VI of the Civil Rights Act of 1964 (42 U.S.C. Chapter 21, Subchapter V § 2000d through 2000d-4a) and the U.S. Treasury's implementing regulations at 31 C.F.R. Part 22, which prohibit exclusion from participation, denial of benefits of, or subject to discrimination under programs and activities receiving federal financial assistance, of any person in the United States on the ground of race, color, or national origin. • Civil Rights Restoration Act of 1987 (Public L. 100-259), which specifies that recipients of federal funds must comply with civil rights laws in all areas, not just in the particular program or activity receiving federal funding. • Federal-Aid Highway Act of 1973 (23 U.S.C. Chapter 3 § 324), which prohibits discrimination on the basis of sex (if work performed by HRB relates to a "federal-aid highway" as defined in 23 U.S.C. § 101). • Fair Housing Act, Title VIII of the Civil Rights Act of 1964 (42 U.S.C. § 3601 et seq.), which protects people from discrimination when they are renting or buying a home, getting a mortgage, seeking housing assistance, or engaging in other housing-related activities. • Americans with Disabilities Act of 1990 (42 U.S.C. Chapter 126 § 12101, et seq.), which prohibits discrimination on the basis of disability. Page 8 of 19 • Rehabilitation Act of 1973 (29 U.S.C. Chapter 16 Subchapter V § 794), which prohibits discrimination on the basis of disability. • Age Discrimination Act of 1975 (42 U.S.C Chapter 76 § 6101, et seq.), which prohibits discrimination on the basis of age. • 23 CFR Part 200, implementing regulations for Title VI of the Civil Rights Act of 1964. • 49 CFR Part 21, implementing regulations for nondiscrimination in federally- assisted transportation programs, if applicable. • 49 CFR Part 26, which provides for participation of disadvantaged businesses in U.S. Department of Transportation financial assistance programs, if applicable. • Chapter 49.60 RCW, the Washington Law Against Discrimination, which prohibits discrimination on the basis of race, color, creed, religion, sex, honorably discharged veteran or military status, sexual orientation, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability, or national origin, citizenship or immigration status, or lawful business relationship. • Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. • Executive Order 13166, Improving Access to Services for Persons with Limited English Proficiency ("LEP"). HRB agrees to consider the need for language services for LEP persons when conducting programs, services, and activities. • Title IX of the Education Amendments of 1972 (20 U.S.C. § 681, et seq.) if the work performed by HRB constitutes an education program or activity. B. HRB also makes the following additional assurances of compliance with Title VI of the Civil Rights Act of 1964: i. HRB ensures its current and future compliance with Title VI of the Civil Rights Act of 1964, as amended, which prohibits exclusion from participation, denial of the benefits of, or subjection to discrimination under programs and activities receiving federal financial assistance, of any person in the United States on the ground of race, color, or national origin (42 U.S.C. § 2000d et seq.), as implemented by the Department of the Treasury Title VI regulations at 31 CFR Part 22 and other pertinent executive orders such as Executive Order 13166, directives, circulars, policies, memoranda, and/or guidance documents. ii. HRB acknowledges that Executive Order 13166, "Improving Access to Services for Persons with Limited English Proficiency," seeks to improve access to federally assisted programs and activities for individuals who, because of national origin, have Page 9 of 19 Limited English proficiency ("LEP"). HRB understands that denying a person access to its programs, services, and activities because of LEP is a form of national origin discrimination prohibited under Title VI of the Civil Rights Act of 1964 and the Department of the Treasury's implementing regulations. Accordingly, HRB shall initiate reasonable steps, or comply with the Department of the Treasury's directives, to ensure that LEP persons have meaningful access to its programs, services, and activities. HRB understands and agrees that meaningful access may entail providing language assistance services, including oral interpretation and written translation where necessary, to ensure effective communication in the Subrecipient's programs, services, and activities. 111. HRB agrees to consider the need for language services for LEP persons when HRB develops applicable budgets and conducts programs, services, and activities. As a resource, the Department of the Treasury has published its LEP guidance at 70 FR 6067. iv. HRB acknowledges and agrees that compliance with the assurances constitutes a condition of continued receipt of federal financial assistance and is binding upon HRB and HRB' s successors, transferees, and assignees for the period in which such assistance is provided. v. HRB acknowledges and agrees that it must require any sub- grantees, contractors, subcontractors, successors, transferees, and assignees to comply with assurances 9.B.i through 9.B.iv above. The following provision is expressly included in this Agreement because it is required by ARP A, and HRB agrees to incorporate the following text in every contract or agreement subject to Title VI and its regulations between HRB and HRB's sub- grantees, contractors, subcontractors, successors, transferees, and assignees: The sub-grantee, contractor, subcontractor, successor, transferee, and assignee shall comply with Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal financial assistance from excluding from a program or activity, denying benefits of, or otherwise discriminating against a person on the basis of race, color, or national origin ( 42 U.S .C. § 2000d et seq.), as implemented by the Department of the Treasury's Title VI regulations, 31 CFR Part 22, which are herein incorporated by reference and made a part of this contract (or agreement). Title VI also includes protection to persons with "Limited English Proficiency" in any program or activity receiving federal financial assistance, 42 U.S.C. § 2000d et seq., as implemented by the Department of the Treasury's Title VI regulations, 31 CFR Part 22, and herein incorporated by reference and made a part of this contract or agreement. vi. Because this grant involves the provision of housing units with the aid of federal financial assistance by the Department of Treasury, the assurances herein also obligate HRB, or in the case of a subsequent approved transfer, the transferee, for a period during which the affordable housing units are used for the purposes for which the federal Page 10 of 19 financial assistance is extended or for another purpose involving the provision of similar services or benefits. If any personal property is provided, the assurances herein obligate HRB for the period during which it retains ownership or possession of the property. vii. HRB shall cooperate in any enforcement or compliance review activities by City or by the Department of the Treasury of the aforementioned obligations. Enforcement may include investigation, arbitration, mediation, litigation, and monitoring of any settlement agreements that may result from these actions. HRB shall comply with information requests, on-site compliance reviews, and reporting requirements. v111. HRB shall maintain a complaint log and inform the City and, as appropriate, the Department of the Treasury of any complaints of discrimination on the grounds ofrace, color, or national origin, and limited English proficiency covered by Title VI of the Civil Rights Act of 1964 and implementing regulations and provide, upon request, a list of all such reviews or proceedings based on the complaint, pending or completed, including outcome. HRB also must inform the City and, as appropriate, the Department of the Treasury, if HRB has received no complaints under Title VI. ix. HRB must provide documentation of an administrative agency's or court's findings of noncompliance of Title VI and efforts to address the noncompliance, including any voluntary compliance or other agreements between HRB and the administrative agency that made the finding. If HRB settles a case or matter alleging such discrimination, HRB must provide documentation of the settlement. If HRB has not been the subject of any court or administrative agency finding of discrimination, HRB shall disclose the same to the City at the time this Agreement is signed. x. If HRB makes sub-awards to other agencies or other entities, HRB is responsible for ensuring that subrecipients also comply with Title VI and other applicable authorities covered in this document, and that state agencies that make sub-awards must have in place standard grant assurances and review procedures to demonstrate that they are effectively monitoring the civil rights compliance of subrecipients. xi. HRB understands that the United States of America has the right to seek judicial enforcement of the terms of this assurances document and nothing in this document alters or limits the federal enforcement measures that the United States may take in order to address violations of this document or applicable federal law. 10. Increasing Seat Belt U e. Pursuant to Executive Order 13403, 62 FR 19217 (Apr. 17, 1997), HRB should adopt and enforce, and should encourage its subcontractors and subgrantees to adopt and enforce, on-the-job seat belt policies and programs for employees when operating company-owned, rented, or personally owned vehicles. 11. Reducing Text Messaging While Driving. Pursuant to Executive Order 13513, 74 FR 51225 (Oct. 1, 2009), HRB should adopt and enforce policies that encourage its employees and subcontractors to ban text messaging while driving, and HRB should establish workplace safety policies to decrease accidents caused by distracted drivers. Page 11 of 19 12. Drug-Free Workplace. HRB agrees to comply with the drug-free workplace requirements in subpart B of 2 CFR Part 3186, which adopts the Government-wide Implementation (2 CFR Part 182) of Sections 5152-5158 of the Drug-Free Workplace Act of 1988 (Pub. L . 100-690, Title V, Subtitle D; 41 U.S.C. 701, et seq.). HRB and its undersigned signatory certify that HRB will or will continue to provide a drug-free workplace by taking actions such as, but not limited to, making a good faith effort, on a continuing basis, to maintain a drug-free workplace; publishing a drug-free workplace statement; taking actions concerning employees who are convicted of violating drug statutes in the workplace; and identifying all known workplaces under the Agreement. 13. Copeland "Anti-Kickback" Act of 1934. Unless exempt under federal law, all contracts for construction or repair entered into by HRB for the Project shall include a provision for compliance with the Copeland "Anti-Kickback" Act (18 U.S.C. § 874) and the Department of Labor regulations implementing the same (29 C.F.R, Part 3). The Act and implementing regulations provide that each grantee, subcontractor, or subgrantee shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of a public work, to give up any part of the compensation to which they are otherwise entitled. 14. Political Activities. HRB agrees that no grant funds provided under this Agreement, nor any personnel while employed in providing programs and activities under this Agreement, shall in any way or to any extent engage in the conduct of political activities. 15. Conflict of Interest. A. No personnel of HRB shall, prior to the completion of the programs and activities funded by this Agreement, voluntarily or involuntarily acquire any personal interest, direct or indirect, which is incompatible or in conflict with the discharge or fulfillment of their functions or responsibilities with respect to the completion of the work contemplated under this Agreement. Any person who, prior to or after the execution of this Agreement, acquires any personal interest, involuntarily or voluntarily, shall immediately disclose their interest to the City in writing. Thereafter, they shall not participate in any action affecting the work under this Agreement unless the City determines that, in light of the personal interest disclosed, their participation in any such action would not be contrary to the public interest. B. To the best ofHRB's knowledge and belief, and to the best knowledge and belief of HRB' s officers and directors, there are no conflicts of interest in accepting the award of funds under this Agreement. HRB further warrants that to the best of its knowledge and belief, and to the best knowledge and belief of its officers and director, none of its officers, directors, agents, or employees is now engaged in litigation against the City or retained by, providing services for, or otherwise assisting any person engaged in litigation against the City. C. HRB understands and agrees it must maintain a conflict of interest policy consistent with 2 C.F .R. § 200.318( c) and that such conflict of interest policy is applicable to each activity funded under this award. HRB must disclose in writing to the U.S. Department of Page 12 of 19 the Treasury or the City, as appropriate, any potential conflict of interest affecting the awarded funds in accordance with 2 C.F.R. § 200.112. 16. Separate Written Assurances and Certifications. HRB agrees to execute separate written assurances or certifications regarding compliance with Sections 7 -15 of this Agreement, if required to do so by the City to secure reimbursement from ARP A funds. 17. Protection for Whistleblowers. A. In accordance with 41 U.S.C. § 4712, HRB may not discharge, demote, or ---------otherwise discriminate-against an employeein-reprisaLfor disclosing to anr of-the . list.of persons or entities provided in subsection (B) below, information that the employee reasonably believes is evidence of a gross mismanagement of a federal contract or grant, a gross waste of federal funds, an abuse of authority relating to a federal contract or grant, a substantial and specific danger to public health or safety, or a violation oflaw, rule, or regulation related to a federal contract (including competition for or negotiation of a contract) or grant. B. The list of persons or entities referenced in subsection (A) above includes the following: 1. A member of Congress or a representative of a committee of Congress; ii. An Inspector General; 111. The Government Accountability Office; lV. oversight or management; A U.S. Treasury employee responsible for contract or grant V. law enforcement agency; Vl. An authorized official of the U.S. Department of Justice or other A court or grand jury; or vii. A management official or other employee of HRB, the City, a contractor, or subcontractor, who has the responsibility to investigate, discover, or address misconduct. C. HRB shall inform its employees of the rights and responsibilities provided by this Section, in the predominant language of the workforce. D. HRB shall immediately report any information provided by an employee of HRB pursuant to subsection (A) to the City's Finance Director. Page 13 of 19 18. Public Records Disclosure. A. HRB acknowledges that the City is an agency governed by the public disclosure requirements set forth in Washington's Public Records Act, Chapter 42.56 RCW. HRB shall fully cooperate with and assist the City with respect to any request for public records received by the City for any public records generated, produced, created, and/or possessed by HRB and related to the provision of the affordable housing units by HRB under this Agreement. Upon written demand by the City, HRB shall furnish the City with full and complete copies of any such records within five (5) business days. HRB shall provide copies of the requested records at no cost to the City. B. HRB's failure to timely provide such records upon demand shall be deemed a material breach of this Agreement. To the extent that the City incurs any monetary penalties, attorney's fees, and/or other expenses as a result of such breach, HRB shall fully indemnify and hold the City harmless from such penalties, fees, and/or expenses. 19. Independent Contractor. The City and HRB intend that an independent contractor relationship will be created by this Agreement. The City is interested primarily in the results to be achieved and the provision of the affordable housing units that are the subject of this Agreement are the sole responsibility and authority of HRB, subject to compliance with the terms set forth in this Agreement. HRB shall not be deemed to be an employee, servant, or representative of the City for any purpose, and officers, directors, and employees pf HRB are not entitled to any of the benefits the City provides for its employees. HRB, as an independent contractor, is solely responsible for its acts, errors, and omissions and those of its officers, employees, servants, subcontractors, or representatives during the performance of this Agreement. 20. Hold Harmless and Indemnification. A. HRB shall defend, indemnify, and hold the City, its officers, officials, employees, and volunteers harmless from any and all claims, injuries, damages, losses, or suits including attorney fees, arising out of or resulting from the negligent or alleged negligent acts, errors, or omissions of HRB in performance of this Agreement, except for injuries and damages caused by the sole negligence of the City. B. However, should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence ofHRB and the City, its officers, officials, employees, and volunteers, HRB's liability, including the duty and cost to defend hereunder, shall be only to the extent of HRB's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes HRB' s waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this Section shall survive the expiration or termination of this Agreement. Page 14 of 19 21. Insurance. HRB shall maintain the insurance described in Attachment A. 22. Recognition of City and Federal Government. HRB shall ensure recognition of the role of the City and the U.S. Department of Treasury in providing the ARPA grant funds pursuant this Agreement. All marketing materials for the affordable housing units shall be prominently labeled as related to the ARP A funding source. In addition, HRB will include the following text in any publications made possible with funds made available under this Agreement in order to recognize the contribution of the City and the U.S. Department of Treasury: This project [is being] [was] supported, in whole or in part, by federal award number [enter project FAIN] awarded to the City of Bainbridge Island by the U.S. Department of the Treasury. HRB will also include a sign for the Project that will be located prominently at the Project site. The Project sign must be made of durable materials, resistant to weather and graffiti, and must include the City of Bainbridge Island logo and the following text: This Affordable Housing Project is being supported by federal award [ enter project number] awarded to the City of Bainbridge Island by the U.S. Department of the Treasury. 23. Copyright. If this Agreement results in any copyrightable material or inventions, the City and the U.S. Department of Treasury are granted a right to a royalty-free, non-exclusive, and irrevocable license to reproduce, publish, or otherwise use, and to authorize others to use, the work or materials for governmental purposes. 24. Prevailing Wages (if applicable). To the extent that federal or state law prevailing wage requirements apply to the Project, including Subchapter IV of Chapter 31 of Title 40, United States Code (commonly known as the "Davis-Bacon Act"), HRB shall comply with such requirements. 25. Termination. A. The City may immediately terminate this Agreement by giving reasonable written notice of termination to HRB for any of the following reasons: 1. timely and proper manner. 11 . 111. this Agreement. Failure of HRB to fulfill its obligations under this Agreement in a Failure of HRB to submit reports that are complete and accurate. Failure ofHRB to use the ARPA funds for the stated purposes in Page 15 of 19 1v. Termination of the ARPA funding by the U.S . government. v. HRB' s material breach of any of the terms of this Agreement. vi. Insolvency , bankruptcy, receivership, or any assignment for the benefit of creditors of HRB or any of its partners in the Project. B. After receiving written notice of termination, HRB shall refund all ARPA funds to the City. 26. Notices. Notices to be provided under this Agreement shall be in writing and sent to the parties at the following addresses: TO THE CITY: City Manager Blair King City of Bainbridge Island 280 Madison Avenue North Bainbridge Island, WA 98110 Email: citymanacrer@ bainbridgewa .gov TOHRB Housing Resources Bainbridge 730 Ericksen Ave. NE Bainbridge Island, WA 98110-2819 Email: Notice may be given by email or by U.S. mail. If given by email, notice shall be effective upon transmission with a correct email address. If given by U.S. mail , notice shall be effective three (3) days after deposit of the notice in the U.S. mail, postage prepaid, properly addressed to a party as provided in this Section. 27. Waiver. No act of forbearance of failure to insist on HRB's prompt and complete performance of its obligations, either express or implied, shall be construed as a waiver by the City of any of its rights hereunder. No waiver of the right to insist on strict performance by HRB of any specific term of this Agreement shall constitute a waiver of any other specific term. 28. Binding on Successors and Assigns. This Agreement shall be binding on the parties, their successors in interest, and assigns. 29. No Third-Party B~neficiaries. This Agreement is intended to be solely for the benefit of the parties and shall not be deemed to confer upon or give to any other person or third party any right, remedy, claim, cause , or action. 30. No Assignment by HRB. HRB shall not assign any part of this Agreement without the express written consent of the City of Bainbridge Island, which may be withheld in the City 's sole and absolute discretion. 31. Governing Law and Jurisdiction. This Agreement shall be governed by the laws of the State of Washington. In the event of any dispute over the terms and conditions or this Agreement or any alleged breach thereof, the exclusive venue and jurisdiction for any litigation Page 16 of 19 arising hereunder shall be the Superior Court of the State of Washington in and for Kitsap County, located in Port Orchard, Washington. 32. Attorney' Fees and Costs. If litigation is instituted by either party over the terms of this Agreement or to redress any breach thereof, the prevailing party in any such litigation shall be entitled to recover its costs and reasonable attorney's fees from the non- prevailing party. 33. Severability. If any Section or provision of this Agreement is held to be invalid or unconstitutional by a court of competent jurisdiction, the Section or provision shall be deemed several and shall not -affect the validity or constitutionality of any other provision or Section. 34. Entire Agreement -Amendment. This Agreement and any exhibits thereto constitute the complete understanding of the parties and supersedes all prior discussions, negotiations, proposals, and understandings, written or oral, with respect to the subject matter of this Agreement. This Agreement may be amended only by written instrument executed by both parties. 35. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and with the same effect as if the parties to this Agreement had signed the same document. All such counterparts shall be construed together and shall constitute one instrument, but, in making proof of this Agreement, it shall only be necessary to produce one such counterpart. The signature pages from such counterparts may be assembled together to form a single instrument comprised of all pages of this Agreement and a complete set of all signature pages. Executed and effective as of the last date set forth below. CITY OF BAINBRIDGE ISLAND HOUSING RESOURCES BAINBRIDGE City Manager, Blair King (Type or print name) Title: a..eCA-th Ve_ D\W:c.-,tcL Date: __ f,__._/_2 _~__,_(_2._0_2--_'L __ Page 17 of 19 A. Insurance Term ATTACHMENT A INSURANCE REQUIREMENTS HRB shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by HRB, its agents, representatives, or employees. B. No Limitation HRB's maintenance of insurance as required by the Agreement shall not be construed to limit the liability of HRB to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. C. Minimum Scope of Insurance HRB shall obtain insurance of the types and coverage described below: 1. Automobile Liability insurance covering all owned, non-owned, hired, and leased vehicles. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. 2. Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop-gap liability, independent contractors, and personal injury and advertising injury. The City shall be named as an additional insured under HRB's Commercial General Liability insurance policy with respect to the work performed for the City using an additional insured endorsement at least as broad as ISO CG 20 26. 3. Workers ' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 4. Professional Liability insurance appropriate to HRB's profession. D. Minimum Amounts of Insurance HRB shall maintain the following insurance limits: 1. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $1,000,000 per accident. 2. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate. 3. Professional Liability insurance shall be written with limits no less than $1,000,000 per Page 18 of 19 claim and $1,000,000 policy aggregate limit, as applicable. E. Other Insurance Provision HRB's Automobile Liability and Commercial General Liability insurance policies are to contain, or be endorsed to contain, that they shall be primary insurance as respect to the City. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be excess of HRB' s insurance and shall not contribute with it. F. Acceptability oflnsurers Insurance is to be placed with insurers with a current AM. Best rating of not less than A:VII. G. Verification of Coverage Before commencing work and services, HRB shall provide to the person identified in Section 26 of the Agreement a Certificate of Insurance evidencing the required insurance. HRB shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of HRB before commencement of the work. The City reserves the right to request and receive a certified copy of all required insurance policies. H. Notice of Cancellation HRB shall provide the City with written notice of any policy cancellation within two business days of their receipt of such notice. I. Failure to Maintain Insurance Failure on the part of HRB to maintain the insurance as required shall constitute a material breach of contract, upon which the City may, after giving five (5) business days' notice to HRB to correct the breach, immediately terminate this Agreement or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand, or at the sole discretion of the City, offset against funds due HRB from the City. J. City Full Availability of HRB's Limits If HRB maintains higher insurance limits than the minimums shown above, the City shall be insured for the full available limits of Commercial General and Excess or Umbrella liability maintained by HRB, irrespective of whether such limits maintained by HRB are greater than those required by this Agreement or whether any certificate of insurance furnished to the City evidences limits of liability lower than those maintained by HRB. Page 19 of 19