Ordinance No. 10,229ORDINANCE NO. 10,229
• AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF BAYTOWN,
TEXAS, AUTHORIZING AND DIRECTING THE CITY MANAGER AND THE
FNTER1M CITY CLERK OF THE CITY OF BAYTOWN TO EXECUTE AND
ATTEST TO A FEMA SUB - RECIPIENT AGREEMENT WITH UNITED WAY OF
BAYTOWN AREA; AND PROVIDING FOR THE EFFECTIVE DATE THEREOF.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BAYTOWN, TEXAS:
Section 1: That the City Council of the City of Baytown, Texas, hereby authorizes and
directs the City Manager and the Interim City Clerk of the City of Baytown to execute and attest to a
FEMA Sub - recipient Agreement with United Way of Baytown Area for services provided to eligible,
displaced victims of Hurricanes Katrina and Rita utilizing FEMA and Texas Division of Emergency
Management policies, practices and procedures. A copy of said agreement is attached hereto,
marked Exhibit "A," and made a part hereof for all intents and purposes.
Section 2: This ordinance shall take effect immediately from and after its passage by the
City Council of the City of Baytown.
INTRODUCED, READ and PASSED by the affirmative vote of the City Council of the City
of Baytown this the 81h day of December, 2005.
CALVIN MUNDINGER, Ma
ib-
ATTEST:
/K4EL'V'JRKKN , Interim Clerk
APPROVED AS TO FORM:
e-21NACIO RAMIREZ, SRUity Attorney
• R:Ueanene \My Documents \Council \05 -06 \December Ist\ AuthorizeFEMASubrccipicntAgreement .doc
FEMA
SUB-RECIPIENT AGREEMENT
This FEMA Sub-Recipient Agreement (the "Agreement") entered into this 12th day of
December , 2005, by and between the United Way of Baytown Area, a non-profit agency
hereinafter called the "Authority" and the City of Baytown, Texas, a municipal corporation,
hereinafter called the "City."
WITNESSETH:
WHEREAS, the City and the Authority desire to render a public service hereinafter
described to provide certain relief to eligible, displaced victims of Hurricanes Katrina and/or Rita
utilizing Federal Emergency Management Agency ("FEMA") and the Texas Division of
Emergency Management policies, practices and procedures; and
WHEREAS, the activities covered by this contract under"Scope of Services,"detailed in
Exhibit A, ("Scope of Services") may be eligible for reimbursement by FEMA to the City;
NOW, THEREFORE, BE IT AGREED BY ALL PARTIES THAT:
f ARTICLE I .
1.1 The term of this agreement shall commence on the date the City Manager signs this
Agreement and shall expire one year thereafter, unless terminated earlier. The
agreement may be extended for an additional period under the same or similar terms
and conditions if agreed to by the parties in writing.
f
ARTICLE II
. .. . Services
2.1 For the consideration specified herein, the Authority shall perform all work and shall take
all actions and incur all costs necessary for adequate implementation of the project as
outlined in the Scope of Services. The Scope of Services cannot be modified without
the prior written concurrence of the City Manager or his designee (the "Director").
ARTICLE III
�.. Obligation of City
3.1 The Authority understands and agrees that the City's obligation hereunder for payment
of expense reimbursements, if any, is limited to federal funds received from FEMA, and
that unless and until adequate funds have been received by the City from FEMA for the
Authority's services, the City shall have no obligation to the Authority. To this end, the
Authority hereby releases, relinquishes and discharges the City, its officers, agents, and
employees from all claims, demands, causes of action and liability of every kind and
character that are caused by or alleged to be caused by, arising out of, or in connection
with this Agreement. This release shall apply regardless of any promise of payment of
FEMA Sub-Recipient Agreements Page 1
compensation or expense reimbursement by the City, its officers, agents and/or
employees.
The protections afforded to the City, its officers, agents and employees in this article
3.1 shall control and supersede any apportionment of liability or release of liability
contained elsewhere in this Agreement.
3.2 The City shall process the receipts and reports tendered by the Authority and shall
forward the same to FEMA for reimbursement.
ti, ARTICLE IV
Obligation of Authority
4.1 Program. The Authority shall perform the services referenced in Section 2.1
4.2 Program Activity Reports. The Authority will submit written monthly reports to the
Director regarding program activities for the preceding month outlining project goals,
accomplishments and other FEMA-reimbursement activities under the FEMA
Intermediate Housing Program. Reports are due on or before the 15th of each month for
the duration of the Agreement period.
4.3 Financial Reports. The Authority will provide the Director with written monthly
expenditure reports and all supporting documentation (i.e., invoices, receipts, etc.)
regarding purchases and/or services rendered for the preceding month. Reports are due
on or before the 15th of each month. Such reports shall be in a form acceptable to the
City and shall contain all necessary information required by FEMA for reimbursement.
4.4 Other Reports. The Authority, in addition to the reports required under Subsections 4.2
and 4.3 shall file any other reports requested in writing by the Director. Such reports may
include, but not be limited to, periodic self-evaluation and needs assessment studies.
Such reports shall be provided on or before the date specified in the City Manager's
request for the same.
4.5 Request for Funds. The Authority will submit a request for reimbursement of funds no
more than once a month, unless otherwise specified by the Director. After
reimbursement is received from FEMA for the services performed by the Authority under
this Agreement, disbursement of funds will take approximately 10-15 workdays after
receipt of funds from FEMA.
4.6 Administrative Fee. The Authority agrees that one hundred percent (100%) of any
administrative fees received as reimbursement from FEMA shall remain the property of
the City to partially defray the City's costs and expenses in administering this Agreement.
ARTICLE V 4
Indemnity _ ,..
5.1 Indemnity.
THE AUTHORITY AGREES TO INDEMNIFY AND HOLD
FEMA Sub-Recipient Agreement,Page 2
HARMLESS AND DEFEND THE CITY, IT OFFICERS, AGENTS,
AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED
TO AS THE "CITY'S PARTIES") FROM AND AGAINST ALL
LIABILITY FOR CLAIMS, LIENS, SUITS, DEMANDS, AND/OR
ACTIONS FOR DAMAGES, INJURIES TO PERSON (INCLUDING
DEATH), PROPERTY DAMAGE (INCLUDING LOSS OF USE),
AND EXPENSES INCLUDING COURT COSTS AND
ATTORNEY'S FEES, AND REASONABLE COSTS ARISING OUT
OF OR RESULTING FROM THE AUTHORITY'S ACTIVITIES
UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO,
THE MISUSE, MISAPPLICATION, OR MISAPPROPRIATION OF
ALL OR ANY PART OF THE FUNDS DESCRIBED HEREIN, AND
ARISING OUT OF OR RESULTING FROM (I) THE SOLE OR
CONCURRENT NEGLIGENT OR INTENTIONAL ACTS OR
OMISSIONS OF THE AUTHORITY, ITS OFFICERS, AGENTS,
EMPLOYEES, INVITEES, ORGANIZATIONS SERVED OR OF
PROGRAM PARTICIPANTS ("HEREINAFTER COLLECTIVELY
REFERRED TO AS THE "AUTHORITY'S PARTIES") OR (II) THE
CONCURRENT NEGLIGENT ACTS OR OMISSIONS OF THE
CITY'S PARTIES, INCLUDING ALL SUCH CAUSES OF ACTION
BASED IN WHOLE OR IN PART ON COMMON,
CONSTITUTIONAL, OR STATUTORY LAW. IT IS THE
EXPRESSED INTENTION OF THE PARTIES HERETO, BOTH
THE AUTHORITY AND THE CITY, THAT THE INDEMNITY
PROVIDED FOR IN THIS PARAGRAPH IS INDEMNITY BY THE
AUTHORITY TO INDEMNIFY AND PROTECT THE CITY FROM
THE CONSEQUENCES OF (I) THE CITY'S PARTIES' OWN
NEGLIGENCE, WHERE THAT NEGLIGENCE IS A CONCURRING
CAUSE OF THE RESULTING INJURY, DEATH, OR DAMAGE
WITH THAT OF ANY OTHER PERSON OR ENTITY AND/OR (II)
THE AUTHORITY'S PARTIES' JOINT AND/OR SOLE
NEGLIGENCE. SUCH INDEMNITY SHALL NOT APPLY,
HOWEVER, TO LIABILITY ARISING FROM THE PERSONAL
INJURY, DEATH, OR PROPERTY DAMAGE OF PERSONS
CAUSED BY OR RESULTS FROM THE SOLE NEGLIGENCE OF
THE OWNER'S PARTIES. IN THE EVENT THAT ANY ACTION
OR PROCEEDING IS BROUGHT AGAINST THE CITY BY
REASON OF ANY OF THE ABOVE, THE AUTHORITY FURTHER
AGREES AND COVENANTS TO DEFEND THE ACTION OR
PROCEEDING BY LEGAL COUNSEL ACCEPTABLE TO THE
FEMA Sub-Recipient Agreement,Page 3
CITY. THE AUTHORITY AGREES TO WAIVE ANY AND ALL
CLAIMS IT MAY HAVE AGAINST THE CITY BY REASON OF
THIS INDEMNIFICATION AGREEMENT AND AGREES THAT
ANY INSURANCE CARRIER SHALL NOT BE ENTITLED TO
SUBROGATION UNDER ANY CIRCUMSTANCE AGAINST THE
CITY'S PARTIES.
The indemnity provided hereinabove shall not expire upon expiration or termination of
this Agreement.
The Authority further agrees that it shall at all times exercise reasonable precautions on
behalf of, and be responsible for the safety of its officers, agents, employees, customers,
visitors, and other persons, as well as their property, while performing the tasks required
under this Agreement.
It is further agreed with respect to the above indemnity, that the City and the Authority
will provide the other prompt and timely notice of any event covered which in any way,
directly or indirectly, contingently or otherwise affects or might affect the Authority or the
City.
The Authority further agrees that this indemnity provision shall be considered as an
additional remedy for the City and not an exclusive remedy.
5.2 Liability to Third Persons. The City does not assume any liability to third persons, nor will
the City reimburse the Authority for any liability to third persons, with the respect to
including, but not limited to, loss due to death, bodily injury or damage to property
resulting in any way from the performance of this Agreement by the City or the Authority.
The Authority shall give the City or its representative immediate notice of any suit or
action filed, or prompt notice of any claim made, against the Authority arising out of the
performance of this Agreement. The Authority shall furnish immediately to the City
copies of all pertinent papers received by the Authority in connection with any such suit,
actions or claims.
5.3 Release. By this Agreement, the City does not consent to litigation and expressly
revokes any consent to litigation that it may have granted by the terms of this
Agreement, any charter, or applicable state law. Nothing herein shall be construed to
waive the sovereign immunity of the City. The Authority assumes full responsibility for
the work to be performed and releases, relinquishes, and discharges the City, its
officers, agents and employees from all claims, demands and causes of action of every
kind and character for any injury to, including, but not limited to, death of any person
(whether third persons,the Authority, or employees of either of the parties). This release
includes the cost of defense of any claim and any loss of or damage to property
(whether property of the parties or of third parties) that is caused by or alleged to be
caused by, arising out of, or in connection with the Authority's work to be performed
under this Agreement whether or not said claims, demands, and causes of action are
covered in whole or in part by insurance.
FEMA Sub-Recipient Agreement,Page 4
ARTICLE VI ;
Termination
6.1 Termination. This Agreement may be terminated by the City (i) in the event of default,
inability, or failure to perform on the part of the Authority, (ii) in the event of a material or
non-material breach as described hereinbelow or (iii) whenever such termination is
determined by the City to be in the City's best interest. Likewise, the Agreement may be
terminated by the Authority if the City does not provide funds pursuant to this
Agreement. The Agreement may also be terminated by mutual agreement between the
Authority and the City.
6.2 Events of Default. The following are hereby defined as events of default:
(a) Failure of the Authority to perform or observe any of the obligations, covenants,
agreements, and conditions required to be performed or observed under this
Agreement; or
(b) To the extent allowed by law, the dissolution or liquidation of the Authority; the
filing of a voluntary petition in bankruptcy by the Authority; the adjudication of the
Authority as Bankrupt; an assignment for the benefit of creditors by the Authority;
the entry into an agreement for the benefit of creditors by the Authority; the
approval by a court of competent jurisdiction of any petition or other pleading in
any action seeking reorganization, arrangement, adjustment, or composition of or
in respect of the Authority under the Federal Bankruptcy Act; or appointment of a
receiver or other similar official for the Authority or for its property unless within
sixty (60) days after such appointment the Authority causes such appointment to
be stayed or discharged.
6.3 Material Breach. The Authority agrees that if it materially breaches any of the terms of
the Agreement (as determined by the City Manager), the City shall have the right to
declare this Agreement immediately terminated, and the City shall have no further
responsibility or liability hereunder. A material breach shall consist of:
(a) Failure to operate the program for the benefit of eligible, displaced victims of
Hurricanes Katrina and/or Rita as defined by FEMA.
(b) Failure to comply with the Reporting Requirements of Sections 4.3, 4.4, and/or
4.5 of the Agreement. If any of the above material breaches is committed by the
Authority, it shall constitute grounds for automatic termination of this Agreement.
(c) Failure by the Authority to indemnify the City as required in this Agreement.
6.4 Non-Material Breach. The City shall notify the Authority in writing of any non-material
breach of this Agreement, and specify a reasonable time within which to cure the
particular breach, as stated below. After being notified of such non-material breach, if the
Authority fails to cure the non-material breach within the time stated in the notice, this
Agreement shall automatically terminate at the expiration of the stated time allowed for
cure.
6.5 Additional Remedies. In addition to, or in lieu of, foregoing termination procedure, the
Director may withhold all or any part of any sums which may be otherwise due to the
FEMA Sub-Recipient Agreement,Page 5
Authority but which relate to default, either (i) until such time as such default is cured; or
(ii) if such default cannot be cured, forever.
x ` - ARTICLE VII
, ry,; Independent Contractor •
7.1 Relationship. In performing the obligations under this Agreement, the Authority shall act
as an independent contractor solely for its own account and not as an agent,
representative or employee of the City.
7.2 No Right to Obligate City. In performing the obligations under this Agreement, the
Authority shall not and shall have no ability or right to obligate the City to any contract or
agreement.
ARTICLE VIIIr
Special Provisions to the Agreement •.
8.1 Audit. The City shall have the right at any time to review and/or audit the books and
records of the Authority and impose such regulations and/or procedures as deemed
necessary in the sole discretion of either the Director of Finance, Director, the City
Manager, or City Council of the City of Baytown.
8.2 Withholding Funds. The City shall have the unqualified right, at its sole discretion, to
withhold any funds from the Authority, whether such funds are in the possession of the
City or the Authority, for any violation of any provision of this Agreement, the City
meaning either the City Manager or the majority members of the City Council of the City
of Baytown.
8.3 FEMA and CDBG Block Grant Requirements. The Authority shall adhere to all other
applicable Community Development Block Grant Program requirements as outlined in
24 C.F.R. Part 570 Subpart K as well as all FEMA rules and regulations, including, but
not limited to:
A. Equal Opportunity Provisions,which entails, in part,the following:
(1) Executive Order 11246 (Contracts/Subcontracts above $10,000);
(2) Section 3 Compliance in the Provision of Training, Employment, and
Business Opportunities;
(3) Certification of Nonsegregated Facilities(Over$10,000);
(4) Title VII of the Civil Rights Act of 1964;
(5) Title VIII of the Civil Rights Act of 1968 and Executive Order 11063;
(6) Section 109 of the Housing and Community Development Act of 1974;
(7) Age Discrimination Act of 1974;
(8) Section 504 Affirmative Action for Handicapped Workers; and
(9) Minority and Female Authority Associations;
B. Architectural Barriers Act;
FEMA Sub-Recipient Agreement,Page 6
C. Americans with Disabilities Act;
D. Lead-Based Paint Poisoning Prevention Act:
E. Fair Labor Standards:
F. Environmental Standards:
M. Conflict of Interest.
8.4 Benefit to eligible persons displaced by Hurricanes Katrina and/or Rita. The Authority
understands that the Program must benefit eligible persons displaced by Hurricanes
Katrina and/or Rita. The Authority shall take all necessary steps to ensure that the
Project benefits such person and understands and agrees that the City shall have no
obligation with respect to any person who does not meet the qualifications established
by FEMA.
8.5 Incorporation of Provisions Required by Law. Each provision and clause required by law
to be inserted into the Agreement shall be deemed to be enacted herein and the
Agreement shall be read and enforced as though each was included herein. If through
mistake or otherwise any such provision is not inserted or is not correctly inserted, the
Agreement shall be amended to make such insertions or application by either party.
8.6 Personnel. The Authority shall furnish all necessary personnel with professional
classification, qualification, skill and expertise to perform the Scope of Services to be
rendered pursuant to Article II hereof. The Authority shall be responsible for completion
of the services to be rendered and will provide all necessary supervision and
coordination of activities that may be required to complete such services. The Authority
shall not subcontract work to be performed without prior written consent of the City.
8.7 Records and Audits. Without limitation to any other provisions of this Agreement, the
Authority shall maintain all records concerning the program for three years from the
expiration date of the Agreement unless a longer period is required by law. The Authority
will give the City, HUD, the Comptroller General of the United States, the General
Accounting Office, or any of their authorized representatives access to and the right to
examine, copy or reproduce all records pertaining to the acquisition and construction of
the project and the operation of the program or project. The right to access shall
continue as long as the records are to be maintained.
8.8 Assignments. This Agreement and the rights and obligations contained herein shall not
be assigned, in whole or in part, by either party without the express written consent of
the other part.
8.9 Notice. Any notice required to be given pursuant to this Agreement shall, until due notice
has been given of a change of address, be sent by certified mail, postage prepaid to the
following address:
FEMA Sub-Recipient Agreement,Page 7
City of Baytown United Way of Baytown Area
Attn. City Manager Attn. President
P.O. Box 424 P.O. Box 425
Baytown, Texas 77522 Baytown, Texas 77522
If mailed, notice shall be conclusively deemed effective on the third day after it is
deposited in the United States mail; otherwise notice shall be effective on the date
received.
8.10 Severability. In any one or more of the articles, sections, divisions, clauses, or words of
this Agreement shall for any reason be held to be invalid, such invalidity shall not effect
any other article, section, provision, clause, or word of this Agreement, and the parties
hereto agree that they would have entered into this Agreement regardless of such
invalidity.
: _ ARTICLE IX , r r
Applicable Law
9.1 Governing Laws. This Agreement is subject to all laws of the United States of America,
the State of Texas, the City Charter and ordinances of the City of Baytown, and all rules
and regulations of any regulatory body or officer having jurisdiction.
9.2 Contract Documents. This Agreement includes Exhibit "A," which is attached hereto and
made a part hereof for all purposes. This Agreement and Exhibit "A" embody the entire
agreement between the City and the Authority and there are no other effective
agreements, representations or warranties between the City and Authority in connection
with this Agreement. If the wording in this Agreement should conflict with the wording of
the Exhibit made part of this Agreement, the wording of this Agreement shall prevail.
9.3 Venue. Should any action, whether real or assented, at law or in equity, arise out of the
execution, performance, attempted performance or non-performance of this Agreement,
venue for said action shall be in the City of Baytown, Harris County, Texas.
9.4 Authorized Agreement. This Agreement and all its provisions have been executed by the
Authority by virtue of action taken by its Board of Directors pursuant to law and has been
executed by its Executive Director, upon and by authority of motion and/or resolution
passed at a meeting of its Board of Directors. This Agreement and all of its provisions
have been executed by the City of Baytown by virtue of action taken by the City Council
pursuant to law and has been executed by the City Manager and attested by the City
Clerk, upon and by authority of an ordinance passed at a meeting of the City Council.
This Agreement supersedes and replaces any previous agreement or contract between
the parties relating to the subject matter contained herein, and any other such
agreement or contract shall be void and in no further force or effect upon execution of
this Agreement by both parties. The Authority shall adhere to the aforementioned
provisions and any addenda made part of this Agreement by the City.
FEMA Sub-Recipient Agreement,Page 8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first written above.
UNITED WAY OF BAYTOWN AREA:
BY: / ,�/'�
GARY I4XLIFF, Presi-'=
CITY OF BAYT WN•
BY:
GARY JACK O , City Manager
ATT T:
LVIN KN , Interim Clerk
APPROVED AS TO FORM:
ACIO RAMIREZ, SR., Attorney
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, D �vt 1 t`��1 , the undersigned notary public, on
this day personally appeared GARY RATLIFF, t President of the United Way of Baytown
Area, known to me to be the person whose name i subscribed to the foregoing instrument and
acknowledged to me that he executed the same for the purposes and consideration therein
expressed.
SUBSCRIBED AND SWORN before me this day of , 2005.
JEANENE R.YOUNG
Nagy Pubic,State of Texas
L:c::. ' I 200e ota ublic i nd for the State o Texas
R\Karen\Files\Contracts\Xatrina RelieflUnitedWayFEMA Public Assistance-doc
FEMA Sub-Recipient Agreement,Page 9
Exhibit "A"
Scope of Services
Hurricane Katrina Assistance
From August 15, 2005 to November 30, 2005, the Authority shall provide screening and
coordinate the following for eligible, displaced victims of Hurricane Katrina utilizing FEMA and
Texas Division of Emergency Management policies, practices and procedures:
1. food and meals,
2. temporary housing,
3. clothing distribution center,
4. shower facilities, including transportation, towels, water, etc., and
5. replacement ID (e.g. reproduction of birth certificates or similar items).
Under this agreement, the Authority shall be able to request reimbursement for monies it
expended for the following assistance it provided for victims of Hurricane Katrina:
1. food and meals,
2. temporary housing,
3. clothing distribution center,
4. shower facilities, including transportation, towels, water, etc.,
5. replacement ID (e.g. reproduction of birth certificates or similar items),
6. compensation to employees performing services pursuant to this Agreement, including
both straight-time and overtime, and
7. employment of additional temporary staffing.
Hurricane Rita Assistance
From August 15, 2005 to November 30, 2005, the Authority shall provide screening and
coordinate the following for eligible, displaced victims of Hurricane Rita utilizing FEMA and
Texas Division of Emergency Management policies, practices and procedures:
1. prescriptions,
2. diapers,
3. gasoline vouchers, and
4. replacement ID (e.g. reproduction of birth certificates or similar items).
Under this agreement, the Authority shall be able to request reimbursement for monies it
expended for the following assistance it provided for victims of Hurricane Rita:
1. prescriptions,
2. diapers,
3. gasoline vouchers,
4. replacement ID (e.g. reproduction of birth certificates or similar items),
5. compensation to employees performing services pursuant to this Agreement, including
both straight-time and overtime, and
6. employment of additional temporary staffing.
Exhibit"As"Page Solo