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HomeMy WebLinkAbout13622 ORD - 02/16/1977• e:2/15/77 • . AN ORDINANCE AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH THE TEXAS DEPARTMENT OF COMMUNITY AFFAIRS AND THE UNITED WAY OF THE COASTAL BEND FOR OPERATION OF A DAY HOME SYSTEM, AS SET OUT IN SAID CONTRACT, A COPY OF WHICH, MARKED EXHIBIT "A ", IS ATTACHED HERETO AND MADE A PART HEREOF FOR ALL PERTINENT PURPOSES; AND DECLARING AN EMERGENCY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF CORPUS CHRISTI, TEXAS: SECTION 1. That the City Manager be and he is hereby authorized to execute a contract with the Texas Department of Community Affairs and the United Way of the Coastal Bend for operation of a day home system, as set out in said contract, a copy of which, marked Exhibit "A ", is attached hereto and made a part hereof for all pertinent purposes. SECTION 2. That the necessity to authorize the execution of the aforesaid contract at the earliest practicable date creates a public emergency and an imperative public necessity requiring the suspension of the Charter rule that no ordinance or resolution shall be passed finally on the date of its introduction but that such ordinance or resolution shall be read at three several meetings of the City Council, and the Mayor having declared such emergency and necessity to exist, having requested the sus- pension of the Charter rule and that this ordinance take effect and be in full force and effect from and after its passage, IT IS ACCORDINGLY SO ORDAINED this 16th day of February, 1977. ATTEST: C i tf- Secreta -f<y APPROVED: 15TH DAY OF FEBRUARY, 1977: J. BRUCE AYCOCK, City Attorney AssisMt City At4Pbrney MAYORPro em THE CITY OF CORPUS LISTI, TEXAS 13622 MICROFILMED AUL 01 1980 iJUL - - - • TEXAS DEPARTMENT OF COMMUNITY AFFAIRS EARLY CHILDHOOD DEVELOPMENT DIVISION and UNITED WAY OF THE COASTAL BEND poZ % and CITY OF CORPUS CHRISTI THE STATE OF TEXAS COUNTY OF TRAVIS SECTION I. Parties to Contract Witness this agreement between Texas Department of Community Affairs, an agency of the State of Texas, as 'Department'; United Way of the Coastal Bend, hereinafter referred to as 'Contractor'; and, for the limited purposes and extent specified by Section II, below, the local government of the City of Corpus Christi, as 'Local Government'. SECTION II. Local Government Relationship to Other Parties A. Determination of Parties All parties recite and agree: 1. that the services specified hereunder constitute a legitimate area of governmental function and /or concern; 2. that the performance of such governmental function is within the scope of authority conferred by law or custom upon Local Government and Local Government has requested Department to furnish such community assistance as herein described; 3. that Department has a statutory responsibility to assist local governments in providing essential public services for their citi- zens and overcoming financial, social, and environmental problems; 4. that Department recognizes that Local Government has the primary prerogative of determining priority of service programs to be con- ducted within its jurisdiction and of reviewing programmatic activities therein on a continuing basis to assure effective and efficient delivery of services to its citizens; 5. that Local Government and Department have mutually determined that the services herein described are such as will assist the community and help -meet objectives as set out in Paragraph 3 above; 6. that Department has requested Local Government to perform the services described in this contract, or, at the option of Local Government, to designate an approved third party to serve as 'Contractor' for such program; 7. that Local Government, pursuant to such request, has determined that the most practicable arrangement for operation of the described program is for Contractor to carry out the responsibilities for operation thereof on behalf of Local Government and at the instance of Department. B. Multiple Entities As Local Governments 1. This Subsection B of Section II shall be operative only in the event that two or more entities of local government are enumerated in Section I of this contract as constituting Local Government. 2. Any change, addition, deletion, amendment and /or modification of, from and /or to the terms of this contract not authorized to be made through the agreement of Department and Contractor, exclusive of Local Government, as provided by Subsection D of this Section II, page 1 of 8 shall be'made' only with the concurrence of each and every entity of local government named in Section I of this contract to con- stitute Local Government. In the case of regional planning council (COG) as created under Article 1011m V.A.C.S. or in the instance of a consortium organized as a single entity, the decision of the duly elected board of directors or trustees thereof shall be sufficient to change, alter or otherwise modify. Excepting the making of changes to this contract as provided in Paragraph 2 of this Subsection B and Subsection D of this Section II, the exercise and /or performance of any right, duty and /or other action whatsoever pursuant,to this contract on the part of Local Government shall be made only after a concurrence (in such exercise and /or performance), by at least a simple majority of the entities of local government enumerated in Section I of this contract to constitute Local Government, has been evidenced in a single writing executed by each and every such entity so concurring. C. Local Government Designation of Contractor Local Government, by the execution hereof, does hereby designate Contractor to perform as generally specified herein on behalf of.Local Government. D. Local Government Authorization for Subsequent Two -Party Changes Local Government hereby authorizes the Department and Contractor to change, and to, delete from, amend and /or modify the terms of this contract in any manner provided herein without the necessity of further notifying Local Government of same, or of making Local Government a party to such changes, additions, deletions, amendments and /or modifications provided same do not alter the basic purposes hereof and do not increase or decrease the maximum obligation of Department as specified in Section IV, Subsection D, of this contract by an amount exceeding twenty per centum (20 %) of such maximum obligation of Department. E. Contractor /Department Cooperation With Local Government Contractor agrees to keep Local Government fully informed as to Contractor's performance hereunder and to make good faith efforts to incorporate sug- gestions and advice from Local Government into program operations consistent with other provisions of this contract. Local Government shall have the _ right and duty to confer directly and privately with Department concerning Contractor's actions hereunder. Although Local Government does not have the duty of specific performance hereunder unless and only as specifically detailed herein, nevertheless Local Government will exercise good faith in reporting to and advising with the Department as to the performance hereunder and results obtained. Local Government shall advise the Department of any failure of performance or mal- performance that comes to its attention. Local Government will suggest means of strengthening and improving the contract should ways and means thereof become apparent to Local Government in the conducting of its ordinary government business. F. Local Government Option to Assume Program Performance Contingent upon Local Government and Department reaching an agreement in the form of a finally executed contract between Department and Local Government under the terms of which Local Government assumes responsibility for the continued performance contemplated herein of Contractor, this contract shall terminate through exercise by Department of Department's right to early termination in accordance with Section X of this contract. G. Local Government Right to Request Termination Local Government shall have the right to request that Department terminate this contract in accordance with Section X of this contract. In the event that Local Government so requests, Department shall first make reasonable effort to alter performance hereunder so as to rectify the problem and make same satisfactory to all parties. Department shall then terminate this page 2 of 8 contract in accordance with Section X hereof if unsuccessful , as soon as practicable considering the interests of the citizens receiving services as a result hereof and considering the protection of the investment then made hereunder. H. Effect of Invalidity as to Local Government The ultimate and principal purpose of this contract is the provision of the public services specified by this contract to the communities and citizens of the State of Texas. In the event that it is finally and authoritatively determined, through final judgement of a court of compe- tent jurisdiction or through issuance of a formal opinion of the Attorney General of Texas, that this contract does not create legally enforceable rights and obligations as it pertains to Local Government, then this contract shall be construed as a valid contract between Department and Contractor in order that its ultimate and principal purpose may be accomplished. I. Disclaimer of Surety or Agency Relationship No provision of this contract shall be construed as creating the legal relationship of surety or agency between any party or parties hereto and any other party or parties whatsoever. It iS the intent of each party hereto to contract with all other parties hereto as an 'Independent Contractor', as such term is defined by law. J. Limitation of Liability as to Local Governments The rights and obligations of Local Government under this contract are limited exclusively to those rights and obligations specifically and expressly provided in this Section II (and, in such instances as this Section II refers to other provisions of this contract, such other provisions to the limited extent necessary to give effect to the provi- sions of this Section II so referenced), and all parties hereto agree that Local Government shall accrue no liability under provisions of this contract (except as provided in this Section II) whatsoever to either Department or Contractor, and neither Department nor Contractor shall accrue any liability under provisions of this contract (except as to Section II) to Local Government; provided that nothing in this Sub- section J shall be construed as affecting the rights and obligations between Department and Contractor hereunder in relation to each other. Any and all references to the terms 'party' and /or 'parties' contained in the provisions of this contract subsequent to this Section II shall be deemed not to refer to Local Government. Notwithstanding the foregoing provisions or any other provisions hereof, should Local Government and Department agree that Local Government shall act or perform any specific act or acts in connection with this contract or in furtherance hereof, Local Government will be responsible for per- formance of such agreed acts as may be reasonably and prudently required and accountable to Department for same. SECTION M. Performance of Contractor It is expressly understood and agreed by all. parties that the execution of this contract contemplates an arrangement whereby the Contractor or an entity under contract with the Contractor, such entity having been approved by the Department, being hereinafter referred to as 'Subcontrac- tor', will design, implement, and operate for the period of this contract a Family Day Home System. It is further expressly understood and agreed that certain costs incurred by the Contractor or Subcontractor in the operation of the Family Day Home System are contemplated to be reimbursed partially by the Texas State Department of Public Welfare, hereinafter referred to as 'DPW', under the terms of a contract between the Contractor or Subcontractor and DPW which contract will require that a certain por- tion of the costs to be incurred in the operation of the Family Day Home System are to be borne by the Contractor or Subcontractor out of funds available to the Contractor or Subcontractor. Such required portion to be hereinafter referred to as the 'Donor's Share'. It is further expressly understood and agreed that such Family Day Home System in its entirety page 3 of 8 shall in all respects represent activities in accordance with the Depart- ment's • statutorily authorized purposes, functions, and duties and shll in all respects be acceptable to, and approved by the Department. The Contractor agrees to operate or cause to be operated the Family Day Home System in strict accordance with a contract for such Family Day Home System between the Contractor or Subcontractor and DPW under the terms of which DPW shall have agreed to reimburse the Contractor or Subcontractor for a portion of the costs incurred in the operation of such Family Day Home System up to a maximum reimbursement of not less than Sixty -Six Thousand, Six Hundred and Sixty -Six Dollars ($66,666). The Contractor agrees that it shall obtain the Department's written approval of such contract between DPW and Contractor or Sub- contractor as representing performances authorized and approved by the Department. The Contractor agrees that it will obtain the Department's written approval of any amendments or other changes whatsoever to such contract between DPW and the Contractor or Subcontractor. It is expressly agreed by the parties hereto that all obligations of the Contractor under this contract are contingent upon final execution of a contract between DPW and the Contractor or Subcontractor in the manner, and subject to the conditions, aforedescribed. SECTION IV. Department Obligations A. Measure of Liability In consideration of the Contractor's full and satisfactory per- formance hereunder, the Department shall be liable to the Contractor for that portion of its or Subcontractor's total costs incurred in the operation of the aforedescribed Family Day Home System within the period of this contract as represents the Donor's Share required pursuant to the aforedescribed con- tract between the Contractor or Subcontractor and DPW, provided in no event shall the Department's liability to the Contractor exceed thirty per centum (30Z) of such total costs incurred by the Contractor or Subcontractor. Total liability of the Depart- ment to the Contractor under provisions of this Section IV(A) shall not exceed Fifteen Thousand Dollars ($15,000). 2. The Department shall be liable to the Contractor upon its approval of the Management Report described in Section V of this contract in accordance with and subject to other provisions of this contract in the amount of Five Thousand Dollars ($5,000). B. Method of Payment 1. Within a reasonable time following execution of this contract, the Department shall pay to the Contractor the sum of Two Thousand Dollars ($2,000) for liabilities accrued or to be ac- crued pursuant to.Section IV(A)(l)..of this contract. The Department shall make payments to the Contractor in satis- faction of its obligations as provided in Section IV(A)(1) of this contract within a reasonable time following the Contractor's billing of the Department for amounts due not more often than once per month together with such documentation of costs incurred, performances rendered and requirements for the Donor's Share from DPW as the Department may require. The Department shall not be liable for making payments for performances not strictly in accordance with this contract and may suspend payments hereunder until the Contractor has corrected any breach of this contract. 3. The Department shall pay to the Contractor for the Department's liability accrued pursuant to Section IV(A)(2) of this contract following the Department's approval of a satisfactory Management Report described in Section V of this Contract. C. Excess Payments Upon termination of this contract and in the event that the Department has made payments to the Contractor in excess of the Department's liabilities page 4 of 8 • hereunder (as measured in accordance with Section IV(a)(2) of this • contract), the Contractor shall promptly repay to the Department the amount of such excess payments. D. Maximum Obligation In no event shall the total obligation of the Department under the terms of this contract exceed the sum of Twenty Thousand Dollars ($20,000). SECTION V. Records Maintenance The Contractor shall submit such records, information, and reports in such form and at such times as may be required by the Department. Such reports will include but not be limited to a Management Evaluation Report which shall include but not be limited to a con- sumer opinion survey in such format as may be designated by the Department; a complete written narrative of activities; a final cost summary; and such additional data as requested by the Department. SECTION VI. Period of Performance All performances to be rendered by Contractor shall commence January 1, 1977 and shall terminate August 31, 1977, such period referred to herein as contract period, unless expressly excepted from this contract by some other provision herein. SECTION VII. Equal Opportunity A. Nondiscrimination: The Contractor assures that no person shall, on the ground of race, creed, color,.handicap, national origin, sex, political affiliation or beliefs, be excluded from, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part under this agreement or otherwise under the Contractor's control. B. Nonsegregated Facilities: The Contractor certifies that all employee facilities under its control are provided in such a manner that segrega- tion, whether by habit, local custom, or otherwise, on the basis of race, religion, color or national origin, cannot result. Further, the Contrac- tor will not assign or permit employees to perform services at any location under its control where facilities are segregated. Identical certifications from any proposed subcontractors will be obtained by the Contractor as a condition of subcontract award. C. Employment: Race, Religion, Color, Sex or National Origin The Contractor will not discriminate against any employee or applicant for employment because of race, religion, color, sex or national origin. The Contractor will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, religion, color, sex or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post, in conspicuous places available to employees and applicants for employment, notices setting forth the requirements of these nondiscrimination provisions. 2. The Contractor will state in all solicitations or advertisements for employees placed by or on behalf of the Contractor that all qualified applicants will receive consideration for employment without regard to race, religion, color, sex or national origin. 3. The Contractor will send to each labor union representative of workers with which it has a collective bargaining agreement or other contract or understanding a• notice, advising the labor union or workers' representative of the Contractor's commitments to equal employment opportunity and affirmative action and shall post copies of the notice in conspicuous places available td employees and applicants for employment. page 5 of 8 4. The Conthac'toe will comply with all applicable equal opportunity laws, rules, regulations, and orders. 0 5. The Contractor will furnish all information and reports and will permit access to its books, records, and accounts for purposes of investigation to ascertain compliance with equal opportunity and affirmative action. 6. In the event of the Contractor's noncompliance with the equal opportunity conditions of this contract, this contract may be cancelled, terminated or suspended in whole or in part, the Contractor may be declared ineligible for further contracts and such other sanctions may be imposed and remedies invoked as otherwise provided by law. 7. The Contractor will include all clauses "1" to "7" inclusive in every eligible subcontract or purchase order so that such provi- sions will be binding upon each subcontractor or vendor. Physical or Mental Handicap 8. The Contractor will not discriminate against any employee or applicant for employment because of physical or mental handicap in regard to any position for which the employee or applicant for employment is qualified. The Contractor agrees to take affirmative action to employ, advance in employment and otherwise treat qualified handicapped individuals without discrimination based upon their physical or mental handicap in all employment practices such as the following: employment upgrading, demotion or transfer, recruitment or re- cruitment advertising; layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. 9. The Contractor agrees to institute a complaint procedure to test implementation under this part and otherwise comply with all laws and regulations applicable to the employment of the handicapped which are hereby incor orated by reference. Without limitation, this will include: (1� establishment of an affirmative action .program; (2) appropriate promulgation, internally and externally; (3) annual program review and monitors; and, (4) designation of program responsibility. Age 10. The Contractor will not discriminate in employment against any person because of their age or specify, in solicitations or advertisements, a maximum age limit except and unless it is based upon a bona fide occupational qualification, retirement plan, or statutory requirement. D. Real and Personal Property: The Contractor agrees that, as owner, lessee, assignee or managing agent of real or personal property, it will not refuse to rent, lease, sell or otherwise deny such property to any person(s) be- cause of race, color, religion, sex or national origin; nor will the Contractor discriminate in the terms or privileges of the rental, lease or sale or in the furnishing of services in connection therewith. Advertise- ments, solicitations, notices, statements, or circulations pertaining thereto will not limit, prefer, or discriminate on the basis of race, color, religion, sex or national origin. E. Minority and Female Entrepreneurship: Consonant with and in furtherance of equal opportunity under law, the Contractor agrees to consider and make reasonable use of minority -owned and female -owned businesses in the procure- ment of goods and services, in the use of real or personal property, and in contracting for construction. In all instances, affirmative emphasis will be given minority -owned and female -owned businesses offering comparable quality and value. The Contractor will similarly promote equal opportunity/ affirmative action on behalf of minority -owned and female -owned businesses in its financial agreements. page 6 of 8 OTION VIII. Department Monitoring • The Contractor shall permit Department to inspect and shall make available to Depart- ment for inspection any or all pertinent records, files, information or other written materials maintained by Contractor or any person or other entity with whom any portion of the performance has been subcontracted. The Contractor shall permit Department free access to all premises under its control and under the control of any person or other entity with whom any portion of the performance has been subcontracted. SECTION IX. Amendments This instrument constitutes the entire agreement of the parties hereto for purposes contemplated herein and any alteration, addition or deletion to terms of this contract shall be by amendment hereto in writing and executed by both parties hereto. SECTION. X. Early Termination Either of the parties hereto shall have the right in such party's sole discretion and at such party's sole option, to terminate and bring to an end all performances to be rendered under terms hereof by notifying the other party hereto in writing of such termi- nation at least thirty (30) days prior to effective date of such termination. Should neither party exercise their right to terminate, this contract.shall terminate in actor= dance with provisions of Section VI. SECTION XI. Maintenance of Efforts The Contractor agrees that the funds and resources provided the Contractor under the terms of this contract will be used solely for expenditures in payment of the performance required of Contractor by this contract and that such funds and resources will in no way be substituted for funds and resources from other sources nor in any way serve to reduce the resources, services or other benefits which would have been available to, or provided through, the Contractor had this contract not been executed. SECTION XII. Independent Contractor It is expressly understood and agreed by both parties hereto that Department is con- tracting with Contractor as an Independent Contractor, and that Contractor, as such agrees to hold the Department harmless and indemnify it from and against any.and all claims, demands, and causes of action of every kind and character which may be asserted by any third party occurring or in any way incident to, arising out of, or in connection with, the services to be performed by Contractor under this contract. SECTION XIII. Copyrights The Contractor will not assert any rights at common law or in equity or establish any claim to statutory copyright in any material or information developed under this contract, but Department shall have the right to use, reproduce or publish any or all such informa- tion or other materials without the necessity of obtaining any permission from Contractor and without expense or charge. SECTION XIV. Compliance with Law Contractor shall comply with all applicable laws, ordinances, codes and regulations of local, state, and federal governments. SECTION XV. Conflict of Interest No officer or employee of Department and no member of Department's Advisory Council and no employee of Contractor and no member of Contractor's governing board or body and no person who exercises any functions or responsibilities in the review or approval of the undertaking or carrying out of this contract shall participate in any decision rela- ting to this contract which affects their personal pecuniary interest. Contractor convenants that they presently have no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the per - formance of services required to be performed under this contract. Contractor further convenants that in the performance of this contract no person having such interest shall be employed. SECTION XVI. Legal Authority A. The Contractor assures and guarantees that it possesses the legal authority, pursuant to currently valid and effective articles of incorporation, bylaws, page 7 of 8 '• and action taken by Contractor's governing board or body giving the Contract • legal authority, to enter this contract, receive the funds authorized by this contract, and to perform the services the Contractor has obligated itself to perform under this contract. B. The person or persons signing and executing this contract on behalf of the Contractor, or representing themselves as signing and executing this Contract on behalf of the Contractor, do hereby warrant and guarantee that he or they have been duly authorized by the Contractor to execute this contract on behalf of the Contractor to all the terms, performances and provisions herein set forth. C. The Department shall have the right, at its option, to either temporarily suspend or permanently terminate this contract, if there is a dispute as to the legal authority of either the Contractor or the person signing the contract to enter into this contract. The Contractor is liable to the Department for any money it has received from the Department for the performance of the pro- visions of this contract, if the Department has suspended or terminated this contract for the reasons enumerated in this Section. SECTION XVII. Subcontracting Contractor shall subcontract for the performances specified herein only where such sub- contracts and subcontractors are expressly specified herein or with the prior written approval of such subcontracts and subcontractors by the Department. Contractor, in subcon- tracting any of the performances hereunder, shall legally bind subcontractors to perform subject to all duties, requirements, and obligations specified of Contractor herein with respect to such performance or any portion thereof. WITNESS OUR HANDS EFFECTIVE this 1st day of January, 1977. Executed by Local Government for the Executed by Contractor. limited purposes specified herein. Signature Signature City of Corpus Christi United Way of the Coastal Bend Approved and accepted on behalf of the Texas Department of Community Affairs. This contract is not effective until s Approval Recommended. ATTEST: City Secretary Ben F. McDonald, Jr. Executive Director Texas Department of Community Affairs Division Director Legal Counsell Fiscal Director Deputy Director. Executive Director of Department. u: DAY OF FEBRUARY, 1977: J. BRUCE AYCOCK, CITY ATTORNEY By Ass stant City ttorney page 8 of 8 • CORPUS CHRISTI, TEXAS DAY OF TO THE MEMBERS OF THE CITY COUNCIL CORPUS CHRISTI, TEXAS FOR THE REASONS SET FORTH IN THE EMERGENCY CLAUSE OF THE FOREGOING ORDINANCE, A PUBLIC EMERGENCY AND IMPERATIVE NECESSITY EXIST FOR THE SUSPEN- SION OF THE CHARTER RULE OR REQUIREMENT THAT NO ORDINANCE OR RESOLUTION SHALL BE PASSED FINALLY ON THE DATE IT 19 INTRODUCED, AND THAT SUCH ORDINANCE OR RESOLUTION SHALL BE READ AT THREE MEETINGS OF THE CITY COUNCIL; 1, THEREFORE, REQUEST THAT YOU SUSPEND SAID CHARTER RULE OR REQUIREMENT AND PASS THIS ORDI- NANCE FINALLY ON THE DATE IT IS INTRODUCED, OR AT THE PRESENT MEETING OF THE CITY COUNCIL. RESPECTFULLY, MAYOR IO- IU1 THE CITY OF CORPIJV CHRISTI, TEXAS THE CHARTER RULE WAS SUSPENDED BY THE FOLLOWING VOTE: JASON LuBY DR. BILL TIPTON EDUARDO DE ASES RUTH GILL BOB GULLEY GABE LOZANO, SR. EDWARD L. SAMPLE THE ABOVE ORDINANCE WAS PASSED BY THE FOLLOWING VOTE: JASON LueY DR. BILL TIPTON EDUARDO DE ASES RUTH GILL BOB GULLEY GABE LOZANO, SR. EDWARD L. SAMPLE Af 13622