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HomeMy WebLinkAboutMO #2686MUNICIPAL ORDER NO. 2686 A MUNICIPAL ORDER AUTHORIZING THE CITY OF PADUCAH TO ACCEPT COST OVERRUNS AS IT RELATES TO THE PADUCAH-MCCRACKEN COUNTY SENIOR CENTER PROJECT AS REQUIRED BY THE COMMUNITY DEVELOPMENT BLOCK GRANT, AUTHORIZING A SUBRECIPIENT AGREEMENT FOR THE ADMINISTRATION AND DISBURSEMENT OF GRANT FUNDS AND TO MAKE THE PADUCAH- MCCRACKEN COUNTY SENIOR CENTER RESPONSIBLE FOR ALL COST OVERRUNS, AND AUTHORIZING THE MAYOR TO EXECUTE ALL DOCUMENTS RELATED TO SAME WHEREAS, the City of Paducah applied for and received a Community Development Block Grant in the amount of $1,000,000 on behalf of the Paducah -McCracken County Senior Center to assist with the purchase of a lot at 1600 Kentucky Avenue and the building of a new 7,000 square foot facility; and WHEREAS, the Grant Agreement between the Commonwealth of Kentucky and City of Paducah requires a formal statement that the City will be responsible for all cost overruns associated with the project; and WHEREAS, to initiate the grant, the City and the Paducah -McCracken County Senior Center must enter into a Subrecipient Agreement which addresses the administration and disbursement of the grant funds, and the ownership, use and maintenance of the Project Facilities; and WHEREAS, said Subrecipient Agreement shall make the Paducah -McCracken County Senior Center responsible for all cost overruns related to the project. NOW, THEREFORE, BE IT ORDERED BY BOARD OF COMMISSIONERS OF THE CITY OF PADUCAH, KENTUCKY: SECTION 1. That the City Commission hereby accepts cost overruns related to the Paducah -McCracken County Senior Center Project as required under the requirements of the Community Development Block Grant. SECTION 2. That the Mayor is hereby authorized and directed to execute the Subrecipient Agreement in substantially the form attached hereto and made part hereof (Exhibit A), with the Paducah -McCracken County Senior Citizens, Inc. and all documents related to same. Further, the Paducah -McCracken County Senior Citizens, Inc. shall be responsible for all cost overruns related to the Project. SECTION 3. That this Order shl force and effect from and after the date of its adoption. // � �i/jh ge tsray, fviay TTEST: I� Lindsay Paris , City Clerk Adopted by the Board of Commissioners December 15, 2022 Recorded by Lindsay Parish, City Clerk December 15, 2022 \mo\Subrecipient Agreement Senior Citizens Center 2022 — Cost Overruns SUBRECIPIENT AGREEMENT THIS SUBRECIPEINT AGREEMENT ("Agreement") is made this day of December, 2022, by and between the CITY OF PADUCAH, KENTUCKY, hereinafter referred to as the "City," and PADUCAH-MCCRACKEN COUNTY SENIOR CITIZENS, INC. hereinafter referred to as "Subrecipient." WITNESSETH: WHEREAS, the Department for Local Government of the Commonwealth of Kentucky (the "Commonwealth") has approved a $1,000,000.00 Community Development Block Grant for the construction of anew senior citizens center (the "Project"); and WHEREAS, the Commonwealth and the City have entered into a Grant Agreement which authorizes the City to administer the grant in accordance with the terms and directives under that agreement; and WHEREAS, to initiate the grant, the City and the Subrecipient must enter into a legally binding agreement which addresses the administration and disbursement of the grant funds, and the ownership, use and maintenance of the Project Facilities. NOW, THEREFORE, in consideration of the foregoing premises, and for other valuable consideration, the receipt of which is hereby acknowledged by the parties, the parties do hereby agree to enter into this legally binding Agreement, and to be legally bound to all of the terms that are contained under this Agreement. A. TERMS AND CONDITIONS OF GRANT This Agreement shall incorporate all of the terms, restrictions, conditions, limitations, and reservations that are contained under the Grant Agreement between the City and the Commonwealth of Kentucky including all attached Exhibits, the Memorandum of Agreement Standard Terms and Conditions, the Application, all State and Federal Requirements to which the Grant Agreement and Application refer or apply, any applicable administrative regulations, and any amendments or modifications to any of the above referenced requirements. Unless specifically provided otherwise or the context otherwise requires, when used in this Agreement, capitalized terms shall have the meaning ascribed to them in the Grant Agreement. Subrecipient agrees to comply with all terms of the Grant Agreement including the following: (1) The Grant Funds shall only be used for the specific purposes and in the budgeted amounts that are described in the Exhibits to the Grant Agreement, all of which Exhibits are incorporated into this Agreement. (2) The Commonwealth has the right to reduce the amount of the Grant (i) to conform to any revision that the Commonwealth makes to the Exhibits, (ii) if the actual costs for the Subrecipient's Activities are lower than the amounts reflected in the Exhibits, or (iii) if the investment by the Subrecipient is less than the amount reflected in the Exhibits. (3) The Commonwealth has the right to terminate the Grant in accordance with the terms of the Grant Agreement without incurring any liability to the City or Subrecipient. (4) In the event the Commonwealth and the City approve the payment of an improper or unauthorized disbursement of Grant Funds, such approval shall not preclude the Commonwealth or the City from challenging the validity of the disbursement, or from enforcing their respective rights and remedies under the Grant Agreement and this Agreement, or from taking any corrective or remedial administrative action on the disbursement, which may include the suspension or termination of the disbursement. (5) The City must administer the Grant in strict accordance with the terms of this Agreement and the Grant Agreement, and may only make disbursements for the costs that are permitted under those agreements and approved by the Commonwealth. (6) No Grant Funds may be disbursed under the Grant Agreement until all of the following conditions for disbursement, including those contained in Paragraph 3 of the Grant Agreement and accompanying Exhibits, have been fully satisfied: (a) The Commonwealth has issued the environmental clearance required by 24 CFR Part 58; (b) The Commonwealth has approved the required evidentiary materials specified in Exhibit "D" to the Grant Agreement; (c) The Commonwealth has authorized, per the executed Notice of Approval of Evidentiary Materials and Release of Funds, the City's ability to draw grant funds; (d) All certifications and materials that are required under the Grant Agreement and Exhibit D have been submitted to and approved by the Commonwealth; (f) The City and the Subrecipient have complied with all of the terms, conditions and requirements that are contained under the Grant Agreement; (g) The Subrecipient has actually incurred the costs that are budgeted in Exhibit C to the Grant Agreement, unless otherwise approved by the Commonwealth in writing; (h) The Subrecipient must be in full compliance with all of its representations, warranties, covenants, obligations and undertakings under this Agreement. (7) The disposition of any surplus grant funds that remain following completion of the Project, or the termination of the Grant Agreement or this Agreement, or termination of the Project for any cause, shall be distributed in accordance with closeout procedures then in effect or established by the Commonwealth including provisions of OMB Omni Circular B. DISBURSEMENT PROCEDURE The Subrecipient shall have the right to apply for monthly disbursements of Grant Funds to cover the budgeted costs that Subrecipient has actually incurred in the construction of the Project. These disbursements shall be subject to and governed by the following terms and conditions: (1) To obtain a disbursement of Grant Funds, that Subrecipient must satisfy all of the following conditions: (a) The Subrecipient must submit a written request for each disbursement. Each written request shall contain the following information: (i) The amount of the disbursement that is being requested; (ii) An itemization of the costs that are a part of the requested disbursement, and the invoices that evidence those costs; (iii) A statement of the total cost of construction that the Subrecipient has incurred through the date of the written request; (iv) A statement of the total cost of construction that the Subrecipient has paid through the date of the written request; (v) A certification that the itemized costs are a part of the budgeted costs that are contained in Exhibit "C" to the Grant Agreement; and (vi) Such other information as the City may request. (b) The Subrecipient must provide the City with interim mechanics' or materialmen lien waivers duly executed by each contractor, subcontractor and material provider that contains (i) a statement of the total amount that was paid to each party, and (ii) a release of that party's lien interest against the Project Facilities to the extent of the amount paid; (c) The Subrecipient must provide the City with (i) a copy of the invoices that evidence the costs, (ii) all of the other documents and certifications that are required under this Agreement and the Grant Agreement, and (iii) any other document and certification that the City may request during its evaluation of the Subrecipient's request; (d) The Subrecipient must be in full compliance with all of its representations, warranties, covenants, obligations and undertakings under this Agreement; (e) All of the conditions outlined under the Grant Agreement have been fully satisfied in accordance with the terms of that agreement; and (2) The City shall have the right to consult with any person or review any record or document to verify the information that is contained in the Subrecipient's written request. The City shall also have the right to inspect the Project site to ensure that the Subrecipient is in compliance with the terms of this Agreement. (3) In the event the City determines that the Subrecipient has complied with all of the conditions precedent under this Section, the City shall approve the Subrecipient's request, and thereafter provide the Subrecipient with a disbursement of Grant Funds in the amount of the written request. The City shall make the disbursement within five (5) days following its receipt of the Grant Funds. The Subrecipient shall use the Grant Funds to pay the costs that were itemized in the Subrecipient's request, and for no other purpose. The Subrecipient shall provide the City with a written itemization of all of the payments that were made from the Grant Funds, and a copy of the checks and written receipts that were issued from those payments. (4) In the event the City determines that the Subrecipient has not complied with all of the conditions precedent under this Section, the City shall provide the Subrecipient with a written notice of its determination, and the specific reasons for that determination. In such event, the City shall have the right, in its absolute discretion, to (i) refuse the Subrecipient's request for a disbursement until such time that all conditions precedent have been satisfied to the City's satisfaction, or (ii) approve such portion of the Subrecipient's request that the City deems appropriate. (5) The City shall have the right to pay any part of an approved disbursement directly to the contractors, subcontractors, and material providers on the Project. All such payments shall be deemed a part of the Grant Funds that are disbursed under this Agreement. (6) No disbursement of Grant Funds to the Subrecipient shall be deemed to be an assignment of those funds. It is understood and agreed that Subrecipient shall not succeed to any rights, benefits or advantages of the City under the Grant Agreement, nor attain the City's rights, benefits and advantages under that agreement. C. CONSTRUCTION OF PROJECT The Subrecipient shall ensure that the Project is constructed in accordance with the following provisions: (1) The Subrecipient shall perform all of the construction work that is required for construction of an approximately 7,000 square foot senior center addition, including a new full- service kitchen, social distancing space for congregate gatherings, open-air concept interior, and improved ventilation system (the "Project Facilities"). (2) The Subrecipient shall obtain competitive bids for the construction work that is required for the Project, and award contracts for that work based on the "lowest and best" standard as reasonably determined by the Subrecipient after consultation with the City. The Subrecipient shall advertise for bids within three (3) months following the date of the Grant Agreement, and shall award the contract(s) within four (4) months of the date of the Grant Agreement. The Subrecipient will include in the bid document a requirement that the contractor erect a project sign according to CDBG specifications. The City shall have the right, but not the duty, to supervise and reasonably control all aspects of the bid and award process to ensure that the bids and awards incorporate all of the prevailing wages and other matters that are required under this Agreement and the Grant Agreement, and to ensure that the advertisement and award process is carried out in accordance with all applicable legal requirements. In the event the Subrecipient is unable or fails to carry out the advertisement and awards within the time periods provided under this Section, the Subrecipient shall notify the Commonwealth of its failure, and shall thereafter reapply for the Grant when the project is ready to bid. (3) The Subrecipient shall provide the City with the name and address of each contractor and subcontractor that it intends to engage for the construction of the Project, and a copy of the proposed construction agreement that defines the terms of the engagement. All construction agreements must be approved by the City and the Commonwealth to ensure that the contractors and subcontractors have not been debarred or suspended by any federal or state agency, and to insure the City and the Commonwealth are informed of the contractual arrangements for the work that is to be performed. The Subrecipient shall ensure that Davis -Bacon wage rates will be incorporated into all construction contracts where applicable, and will further ensure that all construction contracts comply with applicable federal and state laws and the contract requirements as stated in the Grant Agreement and Exhibits. (4) The Subrecipient shall ensure that all permits, licenses, and approvals that are required for the Project have been timely procured, and that all fees, taxes, charges, and other costs relating thereto are timely paid. The Subrecipient shall also ensure that all of its contractors and subcontractors are fully qualified and properly licensed for the work they are to perform, and are bonded and insured in accordance with the terms of this Agreement, and all applicable state and federal requirements. (5) The Subrecipient will be responsible for all cost overruns related to the Project and will adopt a resolution to such effect. In no event will the City be responsible for such overruns, and, in the event that any cost overruns are incurred by the City, the Subrecipient agrees to reimburse the City therefor. (6) The Subrecipient shall ensure that the construction work is performed in a timely and workmanlike manner that is in accordance with generally accepted construction practices. The Subrecipient shall also ensure that the construction work is performed in accordance with the approved plans and specifications of the Project. (7) The Subrecipient shall ensure that all material and equipment is installed in accordance with the approved plans and specifications. The Commonwealth must be notified prior to all appliance and equipment purchases. The Subrecipient will ensure that appliances and equipment installed in the Project Facilities are permanently fixed to the facility and unable to be removed. The Subrecipient shall not provide any substitute material or equipment without the prior written approval of the City and the Commonwealth. In the event any substitute material or equipment is approved, the Subrecipient shall ensure that the substituted material is procured and installed in a timely and proper manner. (8) The Subrecipient shall ensure that all of the construction work is performed in accordance with all applicable building codes, and in compliance with all applicable federal, state, and local law, including all ADA and UFAS requirements. The Subrecipient shall also ensure that all contractors and subcontractors comply with all of the legal and contractual requirements that are referenced in this Agreement and the Grant Agreement, including all Exhibits that attached thereto. (9) The Subrecipient shall ensure that all of its contractors and subcontractors comply with all applicable federal and state OSHA requirements and procedures, and with all of the safety policies and procedures that are required under this Agreement and the Grant Agreement. The Subrecipient shall supervise the performance of the construction work to ensure that the contractors and subcontractors, and their employees and agents, are causing the work to be performed in a safe and reasonable manner. (10) The Subrecipient shall ensure that all costs and expenses of the construction work are paid as the work is being performed. The Subrecipient shall also ensure that all its contractors and subcontractors have paid all of the prevailing wages that are required for the Project, and all of the other costs and expenses that they incurred during the performance of their work. In the event a lien is filed against the Project Facilities as a result of an unpaid account, the Subrecipient shall cause the lien to be released by providing sufficient bond within seven (7) business days following the date of filing. The Subrecipient shall provide the City with interim lien waivers to evidence the Subrecipient's compliance with its obligations under this paragraph. (11) The Subrecipient shall ensure that all of its employees who are engaged in the Project are provided workers compensation coverage in accordance with Kentucky law. The Subrecipient shall also ensure that all of its contractors and subcontractors provide the same workers compensation coverage for their employees. (12) The Subrecipient shall obtain all of the City business licenses that are required for the Project, and submit all of the returns and taxes that are associated therewith. The Subrecipient shall also ensure that its contractors and subcontractors comply with the same requirements. (13) The City shall have the right, but not the duty, to inspect the construction work at any time to ensure that the work is being performed in compliance with the approved plans and specifications. In the event the City determines that any part of the work is noncompliant as determined by a licensed professional with expertise in the noncompliant matter, the City shall provide the Subrecipient with written notice of its determination, and a description of the noncompliance. Upon receipt of that written notice, the Subrecipient and its contractor shall have the right to protest the non-compliance, and present evidence that supports its position. In the event the parties cannot resolve the matter, the parties shall submit the matter to the Commonwealth for resolution. The determination of the Commonwealth shall be final and binding. In the event the Commonwealth finds in favor of the City, the Subrecipient shall cure and remedy the nonconforming work to the satisfaction of the City as soon as reasonably practicable. (14) The Commonwealth may consider program amendments that are initiated by the City, the Subrecipient, or by the Commonwealth. A program amendment shall mean a change in an approved program which (i) is a new activity in the program, (ii) significantly alters the scope, location, or objective of the approved activities or beneficiaries, and/or (iii) results in a change or cumulative changes of the approved budget. Any amendments will be made in accordance with the procedures set forth in the Kentucky Community Development Block Grant Handbook established by the Commonwealth. D. REPRESENTATIONS, WARRANTIES AND COVENANTS This Agreement, and the Subrecipient's eligibility to receive the disbursements of Grant Funds under this Agreement, is based on the Subrecipient's compliance with all of the representations, warranties and covenants under this Section. The Subrecipient certifies that all of the representations and warranties made under this Section are true, accurate and complete. (1) The Subrecipient is duly organized and validly existing under the laws of the Commonwealth, and has all the requisite power and authority to enter into this Agreement and to assume the responsibilities for compliance with the Federal and State laws and regulations that are referenced in this Agreement. (2) The Subrecipient's board of directors has enacted a resolution which authorizes the execution and delivery of this Agreement. (3) There is no action, proceeding, or investigation now pending or threatened which (i) questions the validity of this Agreement, or any action taken or to be taken under this Agreement, or (ii) is likely to result in any material adverse changes in the authorities, properties, assets, liabilities, or conditions (financial or otherwise) of the Subrecipient which would impair the Subrecipient's ability to perform any of its obligations and undertakings under this Agreement. (4) The representations, statements, and other matters contained in the Application are true and complete in all material respects. The Subrecipient is not aware of any event which would make such representations, statements, and other matters misleading in any material respect. (5) The Subrecipient has obtained all Federal, State and local government approvals and reviews that are required for the Project. (6) The Recipient is not in material violation of its Articles or Bylaws, or any mortgage, indenture, agreement, instrument, judgment, decree, order, statute, rule or regulation. (7) No Federal appropriated funds have been paid or will be paid by or on behalf of the Subrecipient to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan or cooperative agreement. (8) The Subrecipient shall fully comply with all of the "Local Development Authority Activities" contained in Exhibit B-2 and other contractual and legal requirements that are contained in the Grant Agreement. (9) The Subrecipient shall fully comply with the terms of the Grant Agreement, including the Memorandum of Agreement Standard Terms and Conditions, and with all of the federal and state laws and legal requirements applicable to this Agreement. (10) The Subrecipient shall comply with all of the Project financial activities. (11) The Subrecipient shall use its best efforts to ensure the completion of the Project prior to expiration of the Grant Agreement. (12) The representations, warranties and covenants under this Section shall remain in full force and effect until such time that the representations, warranties and covenants are barred by applicable law. E. PRESERVATION OF PROJECT FACILITIES The Subrecipient shall maintain the Project Facilities in accordance with the provisions under this Section: (1) The Subrecipient shall ensure that the Project Facilities are used to provide services to senior citizens, a clientele presumed to benefit 100 percent low and moderate -income persons for a minimum period of five (5) years following the Close Out Date of the Project. The Project Facilities shall not be used for the general conduct of government. (2) The Subrecipient shall maintain the Project Facilities in a continuous state of good condition and repair, and shall assume and pay all costs and expenses of maintaining, repairing, and replacing any component that is a part of the Project Facilities. The Subrecipient shall also pay any charges that are due under any service contract with respect to the maintenance and repair of the Project Facilities. -� (3) The Subrecipient shall maintain fire and casualty insurance on the Project Facilities of not less than the replacement value of the Project Facilities as determined by the City, which coverage shall name the City as the primary named insured. The Subrecipient shall also maintain comprehensive general liability coverage on the Project Facilities under which the City will be held harmless and named as a loss payee, stipulating limits of liability of not less than Two Million Dollars ($2,000,000.00) in accidents affecting any one person, and not less than One Million Dollars ($1,000,000.00) for property damage. The coverages provided under this paragraph shall be in such form and amounts as are acceptable to the City, and with such insurers as may be satisfactory to the City. All policies shall contain a provision whereby the policy cannot be cancelled except upon ten (10) days prior written notice. The Subrecipient shall provide the City with certificates that evidence the coverages to be provided under this Section, and all of the declaration sheets that are a part thereof. (4) The Subrecipient shall pay all taxes, assessments, and other governmental charges that are levied or imposed on the Project Facilities. The Subrecipient shall furnish the City with satisfactory proof that such payment has been made before such taxes, assessments, or fees become delinquent. (5) The Subrecipient shall provide the City written notice of any damage or destruction to the Project Facilities. If all or any part of the Project Facilities shall be damaged or destroyed by a casualty covered by insurance, the City shall be authorized and empowered to make and file any proof of loss that is required for reimbursement for such damage or destruction. The Subrecipient hereby authorizes and empowers the City as its true and lawful attorney-in-fact with full power of attorney to act for and in behalf of the Subrecipient to compromise and settle any claim relating to any damage or destruction to the Project Facilities, and to collect any insurance proceeds which are paid on the account of such damage or destruction. The Subrecipient shall have the right to use the insurance proceeds for the repair or reconstruction of the Project Facilities, provided the Subrecipient agrees to pay any additional costs that may be required to complete the repair and restoration. (6) The City and Subrecipient will comply with all provisions of CFR 570.489(e)(1)(iv) with regard to Program Income and Miscellaneous Receipts. F. LIMITATIONS OF LIABILITY AND INDEMNITY The City shall be entitled to all of the limitations of liability and indemnities that are provided under this Section. The Subrecipient herby agrees to accept these limitations and indemnities, and to be fully bound to same. (1) The City shall not be liable to the Subrecipient or any other parry for any cost or expense of the Project. The Subrecipient shall assume and pay all of the costs and expenses that are directly or indirectly related to the Project, including but not limited to the costs of constructing the Project (including amounts owed to contractor, subcontractors and material providers); professional fees; site preparation costs; permit and inspection fees and other governmental charges; shipment, delivery and storage charges; administrative and overtime costs; employee wages; worker compensation and unemployment charges; property and liability insurance premiums; federal and state income, sales and property taxes; cost overruns and shortages, etc. The Subrecipient shall indemnify the City and save it harmless from all of the costs and expenses of the Project, including the costs and expenses that are referenced under this Section; excepting, however, any costs and expenses that arise from the City's gross negligence or willful misconduct. In the event the City is required to pay any cost or expense of the Project that is not excepted hereunder, or voluntarily agrees to pay any of those costs and expenses, the Subrecipient shall reimburse the City for such cost and expense immediately upon the City's written demand; excepting, however, any costs and expenses that result from the City's gross negligence or willful misconduct. Any unpaid costs and expense shall accrue interest at the rate of eight percent per annum. (2) The City shall not be liable to the Subrecipient or any other person for any good faith act or omission taken by its officers and employees during the administration of the Grant, notwithstanding that such act or omission may constitute negligence or malfeasance. The Subrecipient hereby waives and releases any and all claims, demands, and causes of action that the Subrecipient may have against the City (and its officers, employees and insurers) for any act or omission that is taken in the administration of the Grant, excepting acts or omissions that constitute gross negligence or willful misconduct. In addition thereto, the Subrecipient also expressly waives and relinquishes any claim for consequential and incidental damages, including compensatory damages and loss of profits. (3) The City shall not be liable to the Subrecipient or any other party for the construction of the Project, or for any liability that may arise therefrom, including liability for any injuries, losses, damages that are sustained by the Subrecipient or the Subrecipient's officers and employees, or by any third parties, including but not limited to the Subrecipient's contractors and subcontractors, and their officers and employees, and other persons who are unrelated to the Project. (4) The Subrecipient hereby releases and discharges City from and shall fully protect, indemnify, and keep and save City harmless from any and all claims, liabilities, costs, damages, and expenses, incident to injury (including injury resulting in death) of persons or damages to or destruction of property, arising out of or in any way connected with the Project, and the construction, use and operation of the Project Facilities. This indemnity shall apply to any liability that arises from any act or omission of the Subrecipient, or its officers, employees, agents, invitees and licensees, or its contractors and sub -subcontractors, to the extent not caused by the City's gross negligence or willful misconduct. (5) The indemnities under this Section shall remain in full force and effect until all indemnified claims, demands and causes of actions are finally adjudicated, or are barred by applicable law. G. RECORDS AND INSPECTION (1) The Subrecipient shall keep and maintain all of the following records and documents at its principal place of business for a period of five (5) years following the Close Out Date of the Project (a) All books, records, and other documents that reflect the amount and disposition of the Grant Funds, the total cost of the activities paid for in whole or in part with Grant Funds, and the amount and nature of all investments relative to such activities which are supplied or to be supplied by other sources; (b) All financial records and documents relative to the disbursement of the Grant Funds or other funds identified in or required by the Grant agreement, including all ledgers, bank statements, contracts, invoices and reports; (c) All other books, records and other documents that are required to be maintained under rules and regulations now or hereafter applicable to grants made under the CDGB Program. (2) The Subrecipient shall make all of its books, records and other documents available for inspection copying, audit, and examination at all reasonable times by a duly authorized representative of the City, Commonwealth, the United States Department of Housing and Urban Development ("HUD"), the General Accounting Office and the Inspector General of the United States. (3) Any duly authorized representative of the City, the Commonwealth, or HUD shall, at all reasonable times, have access to all portions of the Project until completion of all closeout procedures and final settlement and conclusion of all issues arising from the grant. (4) The Subrecipient shall promptly furnish the City with all the records and reports that are required to be filed in accordance with any directives of the Commonwealth, or any statute, rule or regulation of HUD. (5) In selecting the Subrecipient for the Grant, the Commonwealth and the City have relied, in material part, upon the representations of the Subrecipient that the Subrecipient (i) will carry out certain activities connected with the Project; (ii) will complete those activities; (iii) have, or will have, the financial capability to assure the carrying out of the activities to the completion; and (iv) will invest, or cause to be invested, a specific value amount in the Project. Evidentiary materials submitted by the Subrecipient as Exhibit D to the Grant Agreement which have been submitted to and approved by the Commonwealth shall not be amended in any material respect without prior written approval of the Commonwealth. All documentary evidence of commitments submitted to the City and the Commonwealth for approval shall be in the form of either (i) a duplicate original, or (ii) a photographic copy of the fully executed original, of the documents. I. DEFAULT AND REMEDIES The Subrecipient's eligibility to receive the disbursements of Grant Funds under this Agreement is predicated on the Subrecipient's continued compliance with all of its obligations, undertakings, representations, warranties and covenants under the Application, the Grant Agreement and all Exhibits thereto, and this Agreement. Should the Subrecipient default in the performance of any of its obligations, undertakings, representations, warranties and covenants as are hereinafter defined, the City shall have all of the rights and remedies that are provided to the City under this Section. (1) The Subrecipient shall be deemed to be in default under this Agreement upon the occurrence of any of the following events: (a) The Subrecipient intentionally uses any of the Grant Funds for an unauthorized purpose, or fails to remedy an unauthorized expenditure that was made in good faith within five (5) days following written notice from the City; (b) The Subrecipient fails to comply with or perform any of its obligations, undertakings, representations, warranties, and covenants under the Application, the Grant Agreement, this Agreement, or any other agreement or document that is part of the Grant, within ten (10) days following written notice from the City; provided, however, that if, during that period of time, the Subrecipient takes immediate steps to cure its failure, but is unable to accomplish the cure within that period of time through no fault of its own, the Subrecipient shall be accorded an additional period not to exceed thirty (30) days within which to perform the cure, provided Subrecipient acts diligently in effectuating the cure. (c) The Subrecipient contests the validity or enforceability of this Agreement or the Grant Agreement. (d) The Subrecipient assigns this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the City and Commonwealth. (e) A foreclosure or repossession action is taken against the Project Facilities, or a judgment creditor obtains possession of any of the Project Facilities by any means, including, without limitation, levy, distraint, replevin or self-help. (f) The Subrecipient has provided the City or the Commonwealth with any financial statement, representation, warranty or certificate that is materially false, incorrect, or incomplete. (g) The Subrecipient files any type of bankruptcy proceeding, including a proceeding for reorganization and readjustment of its debts, or a receiver or trustee is appointed to take control of the Subrecipient business or its assets. (h) The Subrecipient fails to maintain sufficient funds to cover the costs of the Project and the Project Facilities, or the Subrecipient is otherwise financially unable to pay the costs relating thereto. (2) Upon the occurrence of an event of default, the City shall have the absolute and unconditional right to exercise each and every of the following remedies: (a) The City shall have the right to terminate this Agreement, and to refuse any further requests for disbursements of Grant Funds. (b) The City shall have the right to require the Subrecipient to specifically perform its obligations and undertakings under this Agreement. (c) The City shall have the right to recover all of the Grant Funds that were provided to the Subrecipient under this Agreement, and all of its costs and expenses in enforcing its rights and remedies under this Agreement. (d) The City shall have the right to take immediate control and possession of the Project Facilities. (e) The City shall have the right, at its sole option, to perform the Subrecipient's obligations and undertakings in behalf of the Subrecipient, and to thereafter recover the costs and expenses of its performance from the Subrecipient. All expenditures made by the City under this paragraph shall be payable upon demand, and shall accrue interest at the rate of eight percent (8%). (f) The City shall have all other rights and remedies that are provided under this Agreement and by law. (g) The City's rights and remedies under this Section shall be deemed to be cumulative and shall be in addition to all the rights and remedies that are provided by law or equity. Any election of any right or remedy shall not be deemed to be an election of that right or remedy to the exclusion of any other right or remedy. I TERMINATION OF AGREEMENT The following provisions shall govern the termination of this Agreement, and the parties' rights and liabilities with respect thereto: (1) The term of this Agreement shall coincide with the Grant Agreement, taking effect December 15, 2022 and expiring July 30, 2023. Any extension of the Grant Agreement shall apply to this Agreement. (2) This Agreement shall automatically terminate upon the completion of all closeout procedures that pertain to the Grant, including the close out procedures under the Single Audit Act, OMB Omni Circular, and the final settlement and conclusion of all of the issues arising out of the grant. (3) Each party to the Grant, including the Commonwealth, shall have the right to terminate this Agreement for any reason. In the event a party elects to terminate this Agreement, the Subrecipient shall have no further right to receive any additional Grant Funds under this Agreement. In addition thereto, in the event the Subrecipient elects to terminate this Agreement, the City may declare this Agreement void from the beginning without further obligation to the Subrecipient. In such event, the Commonwealth shall have the right to recover all of the Grant Funds that were disbursed to the Subrecipient under this Agreement. (4) The provisions under this Section shall not impair or otherwise affect the rights and remedies that are accorded to the City under Section I of this Agreement. K. MISCELLANEOUS PROVISIONS (1) Notices. All notices to the parties or to the Commonwealth shall be in writing and sent to each party at the address set forth on Exhibit A to the Grant Agreement, or such other address as may be furnished by the party. (2) Assignment. No right, benefit, or advantage inuring to the Subrecipient under this Agreement and no burden imposed on the Subrecipient hereunder may be assigned without the prior written approval of the City and the Commonwealth. (3) Successors Bounds. This Agreement shall bind, and the rights, benefits and advantages shall inure to, the Subrecipient's successors. (4) Remedies Not Impaired. No delay or omission of the City in exercising any right or remedy available under this Agreement shall impair any such right or remedy or constitute a waiver of any default, or an acquiescence therein. All rights and remedies of the City under this Agreement shall be cumulative. (5) Severability. If any article, subsection, clause or provision of this Agreement is held by any court to be unenforceable or prohibited by any law applicable to this Agreement, the rights and obligations of the parties shall be construed and enforced with that part, term or provision limited so as to make it enforceable to the greatest extent allowed by law, or, if it is totally unenforceable, as if this Agreement did not contain that particular part, term or provision. (6) Entire Agreement. This Agreement, the Grant Agreement and other grant documents referenced herein constitute the entire agreement between the City and the Subrecipient and supersedes all prior oral and written agreements between the parties hereto with respect to the subject grant. All amendments, notices, requests, objections, waivers, rejections, agreements, approvals, disclosures and consents of any kind made pursuant to this Agreement shall be in writing. (7) Governing Law. This Agreement shall be construed and governed in accordance with Kentucky law, and any applicable federal law. (8) Waiver by the City. No act by or on behalf of the City shall be, or be deemed or construed to be, any waiver of any such requirement or provision, unless the same be in writing, signed by the City, and expressly stated to constitute such waiver. (9) Legal Relationship. Nothing is this Agreement or the Grant Agreement, or any act taken under those agreements, shall be deemed or construed as creating any type of legal relationship between the parties, such as a limited or general partnership, joint venture or association, or any type of legal relationship with a third -party beneficiary. (10) Construction of Agreement. This Agreement shall be construed in accordance with Kentucky law. All time periods under this Agreement shall be deemed of the essence. IN WITNESS WHEREOF, the parties have executed this Agreement on the date above written. CITY OF PADUCAH, KENTUCKY PADUCAH-MCCRACKEN COUNTY SENIOR CITIZENS, INC. George Bray, Mayor STATE OF KENTUCKY COUNTY OF MCCRACKEN David Troutman, President The foregoing instrument was acknowledged before me on this the day of December, 2022, by George Bray, Mayor of the City of Paducah, Kentucky, on behalf of the City. My commission expires: Notary Public, State at Large, Kentucky STATE OF KENTUCKY COUNTY OF MCCRACKEN The foregoing instrument was acknowledged before me on this the _ day of December, 2022, by David Troutman, President of the Paducah McCracken County Senior Citizens, Inc. on behalf of said corporation. My commission expires: Notary Public, State at Large, Kentucky