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HomeMy WebLinkAbout110-10 RESOLUTIONRESOLUTION NO. 110-10 A RESOLUTION AUTHORIZING APPLICATION AND ACCEPTANCE OF A HOME DEPOT FOUNDATION/SCI PILOT CITIES GRANT IN THE AMOUNT OF $500,000.00, WITH A CITY MATCHING AMOUNT OF $100,000.00, TO COMPLETE AN AFFORDABLE HOUSING PROJECT, DEVELOP A SUSTAINABILITY INITIATIVE, AND PERFORM AN ASSESSMENT OF CURRENT SUSTAINABILITY EFFORTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby authorizes application and acceptance of a Home Depot Foundation/SCI Pilot Cities grant in the amount of $500,000.00, with a city matching amount of $100,000.00, to complete an affordable housing project, develop a sustainability initiative, and perform an assessment of current sustainability efforts. PASSED and APPROVED this 15th day of June, 2010. APPROVED: ATTEST: 80146/.4.4.J . SONDRA E. SMITH, City Clerk/Treasurer John Coleman Submitted By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements 6/15/2010 City Council Meeting Date Agenda Items Only Division Action Required: Sustainability Department Approve $100,000 match for $500,000 grant from Home Depot Foundation. The original intent of these funds is not being shifted by dedicating them as a match for this grant. See attached memo for description of grant opportunity. $50,000 (Nutrient Reduction) $ 50,000.00 Cost of this request 4470.9470.5817.00 (Nutrient Reduction) 4520.9550.5814.05 (trails) Account Number 02097 (Nutrient Reduction) 036.1 (trails) Project Number Budgeted Item X $660,078 (Nutrient Reduction) $ 1,248,847.00 Category / Project Budget $334,032.85 (Nutrient Reduction) $ 130,894.00 Funds Used to Date $326,045.15 (Nutrient Reduction) $ 1,117,953.00 Remaining Balance Budget Adjustment Attached Nutrient Reduction Trails Program Category / Project Name Nutrient Reduction Trails Program / Project Category Name Nutrient Reduction Trails Fund Name De•artm Director Cit es'• rney Finance and Internal Services Director S-72 Date 6N/ 0 Date /212oto Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: Received in City Clerk's Office E�NT,E,�D 'h1�95 'lib'ln Comments: Revised January 15, 2009 aye 0[1 ARKANSAS THE CITY OF FAYETTEVILLE, ARKANSAS CORRESPONDENCE TO: Mayor Jordan and City Council FROM: John Coleman, Sustainability Director -� Thru: Jeremy Pate, Director of Development Services Don Marr, Chief of Staff DATE: May 28, 2010 SUBJECT: SCI Pilot Cities Grant 113 W. Mountain St. Fayetteville, AR 72701 Telephone: (479) 575-8272 Description In 2009, the Home Depot Foundation created the Sustainable Cities Institute (SCI) and committed $400 million over ten years to affordable housing and urban forestry projects. The SCI Pilot Cities program is the next phase of the Foundation's effort to support the development of sustainable communities. This program is comprised of sustainability -related experts who will serve as an on -the -ground resource to a city in the development and/or implementation of a project or initiative that exemplifies this holistic, long-term approach to sustainability planning and implementation which in turn will lead to a safer, healthier city. Fayetteville was one of thirty-seven cities invited to submit a letter of intent to become a SCI Pilot City. On May 21St the City was short-listed based on its initial application as one of eight cities to submit a full proposal. If awarded, this designation will include a $500,000 grant with additional fundraising support from the Home Depot Foundation to complete the following: • An affordable housing project in the community, • development of a sustainability initiative, and • an assessment of current sustainability efforts. The City has chosen to partner with the National Center for Appropriate Technology as the lead non-profit for this grant. NCAT has extensive national experience with the development of affordable housing projects, and one of its regional offices is located in the Walker Building on Center Street in Fayetteville. Affordable Housing Project Project partners also include Partners for Better Housing (PBH), which owns 7.5 acres in the Walker Park Neighborhood to develop the Houses at Willow Bend. Through a request for qualifications process, PBH hired Community by Design to design the Willow Bend Project. A portion of the initial grant dollars will go towards a design that will incorporate a holistic approach to sustainable design including energy efficient homes, eco -friendly materials, and a low impact footprint on the existing property. Sustainability Initiatives Given the City Council's unanimous support for the Low Impact Development (LID) ordinance, the City has chosen a LID technical engineering manual as one of two sustainability initiatives. This manual will define the calculations necessary to design LID projects in Fayetteville for both City and private -sector engineers. The second initiative will tie the Walker Park Neighborhood to the City's main trail system by constructing a spur from Frisco Trail at the Mill District. Budget Impact The SCI Pilot Cities grant requires a $50,000 match. Within the existing Trail bond and the Nutrient Reduction Plan we have identified $100,000 that will qualify as match for the grant without changing the original intent of the budgeted items. By providing double the match it also provides a more attractive grant proposal. Finally, any new money that is received for the purpose of trail construction has a strong potential for a one to one match by the Walton Family Foundation. RESOLUTION NO. A RESOLUTION AUTHORIZING APPLICATION AND ACCEPTANCE OF A HOME DEPOT FOUNDATION/SCI PILOT CITIES GRANT IN THE AMOUNT OF $500,000.00, WITH A CITY MATCHING AMOUNT OF $100,000.00, TO COMPLETE AN AFFORDABLE HOUSING PROJECT, DEVELOP A SUSTAINABILITY INITIATIVE, AND PERFORM AN ASSESSMENT OF CURRENT SUSTAINABILITY EFFORTS BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1. That the City Council of the City of Fayetteville, Arkansas hereby authorizes application and acceptance of a Home Depot Foundation/SCI Pilot Cities grant in the amount of $500,000.00, with a city matching amount of $100,000.00, to complete an affordable housing project, develop a sustainability initiative, and perform an assessment of current sustainability efforts. PASSED and APPROVED this 15th day of June, 2010. APPROVED: ATTEST: By: By: LIONELD JORDAN, Mayor SONDRA E. SMITH, City Clerk/Treasurer John Coleman Submitted By City of Fayetteville Staff Review Form City Council Agenda Items and Contracts, Leases or Agreements Mayor Signature City Council Meeting Date Agenda Items Only Division Action Required: Sustainability Department Contract with the Sustainable Cities Institute of the Home Depot Foundation and National Center for Appropriate Technology for a $500,000 grant to fund a design for an affordable housing project in the Walker Park Neighborhood, a trail extension on Frisco Trail, and a Low Impact Development Technical Engineering Manual. Cost of this request Account Number Project Number Budgeted Item Category / Project Budget Program Category / Project Name Funds Used to Date Program / Project Category Name Remaining Balance Fund Name Budget Adjustment Attached -Pc,1 Finance and Internal Services Director Chief of Sta I-3'2,01♦ Date Previous Ordinance or Resolution # Original Contract Date: Original Contract Number: 110-10 Received in City Clerk's Office 12-28-10A09:19 RCVD Comments: Revised January 15, 2009 aye e ARKANSAS THE CITY OF FAYETTEVILLE, ARKANSAS CORRESPONDENCE 113 W. Mountain St. Fayetteville, AR 72701 Telephone: (479) 575-8272 TO: FROM: DATE: SUBJECT: Lioneld Jordan, Mayor John Coleman, Sustainability Director-- December 27, 2010 SCI Pilot Cities Grant Contract RECOMMENDATION City staff recommends signing the attached contract which serves as the agreement between the Home Depot Foundation, National Center for Appropriate Technology, and the City of Fayetteville for the Sustainable Cities Institute's Pilot Cities program. The grant is in the amount of $500,000 and will be allocated to NCAT as the lead non-profit agency for the project. Grant funds will go towards three primary projects: 1. The design for an affordable housing project in the Walker Park Neighborhood. 2. An extension of Frisco Trail to the Walker Park Neighborhood 3. A Low Impact Development Technical Engineering Manual A formal budget and schedule of allocation is attached in the existing contract. BACKGROUND In May 2010, City Council passed Resolution 110-10 to apply for and receive a grant from the Home Depot Foundation as well as provide $100,000 in match from existing programs; $50,000 from the Trail bond program and $50,000 from the Engineering Division's Nutrient Reduction program. The City identified the National Center for Appropriate Technology as the lead non-profit agency, as required by the Home Depot Foundation, and Partners for Better Housing as a partnering non-profit in the project. The City of Fayetteville was one of thirty-seven cities invited to initially apply, and the application developed by NCAT and City staff was ultimately one of two selected. Grant Authorization Date: 01/01/2011 The Home Depot Foundation Grant Agreement with the City of Fayetteville, Arkansas and the National Center for Appropriate Technology City of Fayetteville Mayor Lioneld Jordan 113 W. Mountain St. Fayetteville, Arkansas 72670 National Center for Appropriate Technology Kathleen Hadley, Executive Director 3040 Continental Drive Butte, MT 59701 The Home Depot Foundation (the "Foundation") is pleased to approve a grant to the National Center for Appropriate Technology ("Grantee") in the amount of $500,000 (the "Grant') for performing duties as the coordinating nonprofit of the Foundation's pilot Sustainable Cities Institute program (the "Program"). In order to receive your Grant, we ask that you complete this Grant Agreement (the "Agreement"). Please sign both copies of the Agreement, return one copy to the Foundation with a copy of your 501(c)(3) letter, and retain the other copy for your files. Payment of the Grant is contingent upon the Foundation's receipt. of a signed copy of this Agreement and a copy of Grantee's 501(c)(3) letter and Grantee's compliance with the terms of this Agreement. Your signature on this Agreement acknowledges your acceptance of the following terms of this Grant:. 1. Funds paid to Grantee pursuant to the Grant and any income earned thereon, shall be used exclusively for the Program. During the two year grant period, the organization intends to achieve the following outcomes with regard to the Program: The specific charitable purposes of this Grant are set forth more fully in Grantee's grant proposal to Foundation and the related budgets, documents, and correspondence between the Foundation and the Grantee, to the extent approved by the Foundation, and all such documents are incorporated herein by reference. Grantee agrees that neither the purposes for which the Grant may be expended nor the manner in which the Grant may be used will be amended without the prior .written consent of the Foundation. 2. This Grant is made for the period January 1, 2011 — December 31, 2012. This contract is renewable for two 1 -year terms with each annual renewal contingent upon a favorable end - of -year evaluation, the ability to make any needed changes in the progress toward program goals, the performance of the Grantee, the relationship between the Grantee and Grantor and successful negotiation of agreed upon scope of work, grant amount and schedule. Negotiation of Year Two and Year Three contracts, if applicable, will occur after completion of the end -of -year evaluations in each grant year. Grantee agrees to turn in a Year One report by the Grant Report Due Date listed on page one, and to attend an end -of -year evaluation no later than September 15, 2011. The form for the Year One report is attached as Schedule A. The payment schedule for the distribution of the Year One Grant is attached as Schedule B. Grantor acknowledges and agrees that Grantee may use a portion of the Grant to award sub -grants to Grantee's Affiliates and other approved groups (the "Participating Recipients") as described in the Year One Deliverables Summary attached as Schedule D. 3. All Grant funds must be used exclusively for charitable purposes in accordance with all applicable federal and state laws, rulings and regulations. If any law, ruling or regulation now or hereafter in effect shall render any provision of this Agreement void, unenforceable or unlawful, either party may terminate this Agreement immediately by providing written notice to the other party. Immediately upon such termination, all disbursements or expenditures of the Grant funds shall cease and Grantee shall return any unexpended portion of the Grant to the Foundation. 4. Grant funds and any interest earned thereon shall not be used: A. To carry on propaganda, or otherwise to attempt to influence legislation (within the meaning of section 501 (c) (3) of the Internal Revenue Code of 1986, as amended (the "Code"); B. To participate or intervene in any political campaign on behalf of (or in o ppositin candidate for public office (within the meaning of section 501 (c) (3) of the Code) ; to) any C. Making a "taxable expenditure" described in section 501 (c) (3) of the code or; D. To make any grants to individuals or organizations (unless approved in writing by the Foundation). 5. Grantee shall maintain separate records of receipts and expenditures of Grant funds and make books, records and personnel available to the Foundation and its agents at reasonable times. The Foundation may, at its own expense, monitor or evaluate the use of Grant funds through various methods, including but not limited to site visits, conferences with your staff, third party evaluations, examination of books and records, etc. Grantee agrees to cooperate with the Foundation with regard to any such monitoring or evaluation. 6. This Agreement shall terminate immediately, the Foundation shall have disburse any additional amounts payable under the Grant, all further dsbursements oro expenditures of the Grant by Grantee shallcease, and Grantee shall immediately return any unexpended portion of the Grant to the Foundation if Grantee ceases to be recognized by the Internal Revenue Service as an organization exempt from taxation under section 501(c)(3) of the Code. Any organizational or operational changes by Grantee that reasonably could be expected to affect the exempt status of Grantee under section .501(c)(3) of the Code must be reported to the Foundation in writing immediately, and the Foundation, in its sole discretion, shall have the right to terminate this Agreement immediately upon such notice and shall thereafter have no further obligations to Grantee hereunder. 7. Notwithstanding anything stated herein, this Agreement shall terminate and all further disbursements or expenditures of the Grant by Grantee shall cease if any of the facts contained in Grantee's grant proposal cease to be correct and accurate or if Grantee fails to perform any of the requirements of this Agreement. In such event, Grantee shall immediately return any unexpended portion of the Grant to the Foundation, and the Foundation shall have no obligation to disburse any additional amounts payable under the Grant, regardless of any claimed adverse effect on the programs or operations of the Grantee. 8. Grantee will notify the Foundation immediately in the event that any of the following occur: A. The Grantee is unable to use any portion of the Grant funds for the intended purposes; B. The Grantee is unable to comply with any of the terms of this Agreement: or C. Any Grant funds are used in a manner inconsistent with the terms of this Agreement. 9. Public announcements of the Grant may be made by the Grantee and the Foundation.. The Grantee and the Foundation shall work together to develop and implement a mutually agreeable external communications plan for the Program. Both parties' consent is required prior to the distribution of any public announcements, including press releases or media alerts. Copies of such materials should be submitted to the other party at least fourteen (14) business days before such public announcement is to be released. Any written materials printed with Grant Funds should acknowledge the support of the Foundation. Each party will provide the other party with prior written notice of any reference to the other party in its written materials, and will give the other party .an opportunity to approve any such references, such approval not to be unreasonably withheld. Copies of all such materials should be submitted at least fourteen (14) days before such approval is required to be received, and final copies of Grantee's written materials must be included with Grantee's next written report to the Foundation. Use of each party's name, logos, and trademarks shall be subject to the terms and conditions of Schedule B. All public announcements or printed materials must comply with the requirements for Use of the Foundation's name and logos as specified in the Foundation's Communications Kit, a copy of which will be provided to you with the first Grant payment. 10. Grantee shall submit a full and complete written report to Foundation, in the format provided in Schedule C, which shall include information regarding the degree to which Grantee achieved the outcomes specifically set forth in Section 1 hereof. This report shall be due no later than the grant report due date set forth on page one of this grant agreement. Grantee agrees that the Foundation shall have no obligation to make a disbursement of any Grant funds so long as a written report due pursuant to this Agreement has not been received by the Foundation in a form acceptable to the Foundation in its sole discretion. Grantee's reporting obligation to the Foundation shall survive the termination of this Agreement, regardless of the reason therefore. 11. Grantee agrees to use its best efforts to comply with all applicable requirements of the USA Patriot Act and Executive Order 13224, and all subsequently enacted legislation, executive orders, or regulations, designed to prevent any Grant funds from being used in support of terrorism or a terrorist organization. 12. No part of the Grant funds shall be paid to any official of the Foundation, The Home Depot or any affiliate thereof, and Grantee acknowledges that no gifts or services were or will be rendered to the Foundation, The Home Depot or any affiliate thereof, or any official of any of these organizations in exchange for this Grant. 13. The undersigned declares that •Grantee operates in accordance with the Foundation's non- discrimination policy and does not discriminate against any person or group on the basis of age, political affiliation, race, national origin, ethnicity, disability, sexual orientation, or religious belief. 14. The Foundation reserves the right, in its sole discretion: A. To withhold any payments provided for under this Grant if Grantee is not in compliance with the Agreement. B. To recover from the Grantee any unexpended Grant Funds or Grant Products: C. To require restitution by the Grantee of any Grant Funds that have been used in violation of the Agreement; D. To require the Grantee to take reasonable precautions to prevent any diversion of Grant Funds or Products; and E. To withhold any applicable taxes from any Grant payments. 15. This Agreement is personal among the parties hereto and shall not be assignable by any party or transferable by operation of law or otherwise. 16. In the event of any dispute between the parties which arises under this Agreement, the parties agree to meet to discuss the issues and make good faith efforts to resolve the dispute prior to termination of this Agreement or exercise of any other available remedy. 17. This Agreement shall be governed by the laws of the State of Georgia, without reference to any conflict of law provisions. 18. This Agreement, together with any Schedules attached hereto, represents the full understanding of the parties and supersedes and replaces any prior or contemporaneous oral or written agreements between the parties concerning this Program. This Agreement may not be changed or modified except by written agreement signed on behalf of both parties. 19. USE OF THE FOUNDATION NAME, LOGOS, TRADEMARKS, AND SERVICE MARKS. A. The Foundation owns all rights, title and interest in and to or has a license to use and sub -license to Grantee in the United States and its possessions and Mexico the Foundation name, trademarks and logos as set forth below: The Home Depot Foundation, The Home Depot, (the "The Foundation Marks") and Sustainable Cities Institute. B. The Foundation grants to Grantee and the Participating Recipients, as defined in the Agreement, a non-exclusive, non -transferable, royalty -free license for the territory of the United States and its possessions and Mexico (the "Territory") to use the Foundation Marks only in accordance with the terms of the Agreement and the specifications that The Foundation shall provide Grantee in writing, from time to time. Grantee shall be . responsible for incorporating such specifications into any applicable agreements with Participating Recipients, and Grantee shall use its best efforts to ensure that each such Participating Recipient complies with the terms of this Section 1. This limited license is granted for the period of the term of the Agreement. Grantee may display the Foundation Marks on or in promotional materials at its locations, on collateral material. its website and publications, and any other materials as approved by The Foundation provided that every desired use of the Foundation Marks is discussed with The Foundation at the earliest possible stage of development. Grantee shall submit to the Foundation for approval all materials, publications and/or advertisements; in any media, that include the Foundation Names that will be distributed by Grantee to third parties, and such materials, publications and /or advertisements shall not be released for distribution until prior written approval has been obtained from the Foundation. Once approved by the Foundation, Grantee may continue to use identical materials. publications and /or advertisements until given notice by The Foundation to cease using .such materials, publications and /or advertisements. C. Grantee agrees that it will not in any way dispute, or do anything to impair the validity of the Foundation's rights in the Foundation Marks or the Foundation's sole ownership and right to use and control the use of its the Foundation Marks. Grantee further agrees that all use of the Foundation Marks by Grantee shall inure to the benefit of and be on behalf of the Foundation and Grantee agrees that nothing in the Agreement shall give Grantee any right, title or interest in the Foundation Marks other than to use the Foundation Marks only in accordance with the terms of the Agreement. D. Grantee represents and warrants to the Foundation that it will use its best efforts to ensure that: 1. Each time a Participating Recipient reproduces and/or republishes the Foundation Marks, it shall also reproduce the trademark notice as provided by the Foundation, as appropriate, and that prior approval for any such use will be obtained in writing from The Foundation. 2. The Foundation'Marks are used in a form identical to that provided by The Foundation, without alteration. This includes relative font size, stylization. and colorization. It will not create a composite mark, by combining any of the Foundation Marks in whole or in part, with any other trademark, trade name, service mark, logo or design. 4. No use of the Foundation Marks will be made which could adversely affect the reputation or goodwill of The Foundation. E. Grantee and Participating Recipients are not authorized to sell, assign, license. sublicense or otherwise transfer the Foundation Marks to any third party. or to reproduce the Foundation Marks in any manner. 20. USE OF GRANTEE'S NAME, LOGOS, AND SERVICE MARKS. A. Grantee owns all rights, title and interest in and to the CITY / NONPROFIT name and service marks in the United States and its possessions and Mexico, including without limitation all statutory and common law rights connected with the marks together with the associated goodwill as set forth below: CITY / NONPROFIT (the "GRANTEE Marks"). B. Grantee grants to the Foundation a non-exclusive, non -transferable, royalty -free license for the Territory to use the Grantee Marks only in accordance with the terms of the Agreement and the specifications that Grantee shall provide to the Foundation in writing from time to time. The Foundation shall be responsible for forwarding such specifications to its affiliates when necessary. This limited license is granted for the period of the term of the Agreement. The Foundation may display the Grantee Marks on or in promotional materials at its locations, on collateral material, its website and publications, and any other materials as approved by Grantee, provided that every desired use of the CITY / NONPROFIT brand is discussed with Grantee at the earliest possible stage of development. The Foundation shall submit to Grantee for approval all materials, publications, and/or advertisements, in any media, that include the Grantee Marks that will be distributed by The Foundation or its affiliates to third parties, and such materials, publications and/or advertisements shall not be released for distribution until prior written approval has been obtained from Grantee. Once approved by Grantee, The Foundation may continue to use identical materials, publications and /or advertisements until given notice by Grantee to cease using such materials, publications and /or advertisements. C. The Foundation agrees that it will not in any way dispute or do anything to impair the validity of Grantee's rights in the Grantee Marks or Grantee's sole ownership and right to use and control the use of its Grantee Marks. The Foundation further agrees that all use of the Grantee Marks by the Foundation shall inure to the benefit of and be on behalf of Grantee and the Foundation agrees that nothing in the Agreement shall give the Foundation any right, title or interest in the Grantee Marks other than to use the Grantee Marks only in accordance with the terms of the Agreement. D. The Foundation represents and warrants to Grantee that: 1 • Each time it reproduces and/or republishes the Grantee Marks, it shall also reproduce the trademark notice "TM", "®," or other notice provided by Grantee. as appropriate, and that prior approval for any such use will be obtained in writing from Grantee. 2. Grantee Marks shall be used in a form identical to that provided by Grantee, without alteration. This includes relative font size, stylization, and colorization. 3. It will not create a composite mark, by combining any of the Grantee Marks. in whole or in part, with any other trademark, trade name, service mark, logo or design. 4. No use of the Grantee Marks will be made which could adversely affect the reputation or goodwill of Grantee. E. The Foundation shall not use the Grantee Marks in any manner which, in the opinion of counsel to Grantee; would cause any income received by Grantee or its Affiliates pursuant to the Agreement to be taxed as unrelated business taxable income under the provisions of the Internal Revenue Code of 1986. Nothing in the Agreement shall be construed as requiring Grantee to provide anything to the Foundation that would constitute a "substantial return benefit" within the meaning of Treas. Reg. 1.513-4(c)(2). To effectuate Section 3(a), Grantee and the Foundation shall mutually agree upon business guidelines by which the parties will. acknowledge the Foundation's support of Grantee. F. The Foundation is not authorized to sell, assign, license, sublicense or otherwise transfer the Grantee Marks to any third party, or to reproduce the Grantee Marks in any manner. 21. TERMINATION OF THE CONTRACT A. Either party may terminate this Agreement fora material b notice to the breaching p thirty (30) days prior written no ' reach immediately upon the thin dayg party, unless such breach is cured within Y period. Home Depot may terminate this Agreement in its entirety at any time with or without cause by giving thirty (30) days prior written notice of termination to Grantee. Home Depot shall pay Grantee for all Services provided and authorized expenses incurred through the date of termination. 22. INDEMNIFICATION A. To the maximum extent allowed by law, Grantee (the "Indemnitor") will indemnify and hold harmless The Home Depot Foundation and its directors, officers, employees, and agents (the "Indemnitees"), from and against any and all third party claims (including those made by Grantee's directors officers and employees), losses, damages. suits. fees, judgments, costs and expenses (collectively referred to as "Claims"), including attorneys' fees incurred in responding to such Claims, that the Indemnitees may suffer or incur arising out of or in connection with (a) the Indernnitor's negligence, willful misconduct, or breach of any representation, warranty, or other obligation under this Agreement; (b) any allegation that the Indemnitees' use in accordance with this Agreement of Work Product or other material provided by Indemnitor infringes or violates any patent, copyright, trade secret, trademark, or other third party intellectual property right; or (c) any personal injury (including death) or damage to property resulting from the Indemnitor's or its agents' acts or omissions, except to the extent such portion of any Claims are caused by the negligence or willful misconduct of the Indemnitees. The Indemnitees will give prompt notice of any Claim to the Indemnitor, and the Indemnitor will defend the Indemnitees at the Indemnitees' request. If Home Depot is unable to use the Work Product because of a Claim that such use infringes or violates any patent, copyright, trade secret, trademark, or other. third party intellectual property right, Grantee will, at its expense and Home Depot's option: (i) procure for Home Depot the right to continue using such Work Product; or (ii) replace or modify the portion of the Work Product that is infringing so that it becomes non -infringing. If • neither option is available to Home Depot through the use of commercially reasonable efforts, Home Depot will return such portion of the Work Product that is infringing to Grantee, and Grantee will refund. all fees paid for such Work Product. Notwithstanding anything to the contrary, Home Depot shall not be liable to Grantee for indirect. incidental, special, punitive or consequential damages, including damages for lost opportunities, lost profits from this Agreement or any other transaction, or lost savings, even if such damages were foreseeable or result from a breach of this Agreement. In no event will Home Depot be responsible for any liabilities or damages resulting from, or in any way related to, this Agreement, whether in contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise greater than five hundred thousand dollars ($500,000), except to the extent such liabilities or damages are resulting from the gross negligence or willful misconduct of Home Depot. Home Depot's liability under this Agreement shall terminate one (1) year from the instance giving rise to such claim. 23. RIGHTS IN DATA: A. Home Depot, or its assignee, will own and have all right and title in all ideas, concepts, plans, creations or work product produced at the request of Home Depot during the term of this Agreement, including, without limitation, any writings, drawings and documentation of any kind (collectively, the "Work Product") and, to the extent possible, all Work Product shall be considered a work made for hire for Home Depot \.viihin the • meaning of Title 17 of the United States Code (the Copyright Act). Grantee hereby grants, transfers and assigns any and all right, title and interest in and to the Work Product and all materials contained therein or prepared therefore, including all copyrights and rights under copyright, to Home Depot worldwide and in perpetuity. In addition, Grantee shall assign and hereby so assigns to Home Depot all of its interest in the Work Product. Each party shall retain ownership of its pre-existing material used in accordance with this Agreement. Grantee grants to Home Depot an irrevocable, non- exclusive, worldwide, royalty -free license to use, execute and copy for its internal purposes any pre-existing materials contained in the Work Product. Grantee and all of its personnel shall cooperate fully with Home Depot and shall execute such further documentation as Home Depot may request in order to establish, secure, maintain or protect Home Depot's, or its assignee's, ownership the Work Product and of all rights therein. Grantee retains an irrevocable, non-exclusive, worldwide, royalty -free license to use, execute and copy for its purposes any materials contained in the Work Product for Grantee and Grantees sub -contractors as long as it retains the Sustainable Cities Institute logo and brand. S. Grantee hereby (i) waives any so-called "moral rights" with respect to the Work Product; (ii) agrees never to contest Home Depot's or its assignee's exclusive, complete and unrestricted ownership in and to the Work Product(includingall copyright rights therein ). or to claim adverse rights therein; and (iii) acknowledges that it shall not be entitled to any compensation beyond that specifically provided herein for any of the Work Product. Sincerely, f d� Kelly CaffareIli , e idem ( Date The Home Depot Found Agreement of rantee (City): City'; _ , or or City Ciainability Director or Similar Agreement of Grantee (Nonprofit): Grantee's POsident or B d Chair ZV ice Date Date 12 /aaz0 / 6 Da e Grantee's Executive Director SCHEDULE B: GRANT AGREEMENT BETWEEN THE HOME DEPOT The City of Fayetteville and the National Center forAppropriate Technology This Schedule B is incorporated in and is a part of the Agreement. AH capitalized terms not defined in this Schedule shall have the meanings set forth in the Agreement. 1. Disbursement Schedule The Foundation and CITY / NONPROFIT have agreed to the following preliminary schedule for the disbursement of the Grant Funds during the Grant Period (January 1, 2011 — March 1, 2013) (the "Preliminary Schedule Year One: January 1, 2011 — December 31, 2011 January 1, 2011: NCAT - Execution of Grant Agreement - Program Oversight, Fiscal Management, NCAT Subcontractor (Partners for Better Housing) City of Fayetteville - * Fa etteville Forward September 30, 2011: NCAT: Submission of Annual Report & Performance Review of Year One Planning, Outreach and Project Mana.ement 2011 Disbursement TOTAL Year Two: January 1, 2012 — December 31, 2012 January 1, 2012: NCAT - Program Oversight, Fiscal Management, Subcontractors , City of Fayetteville - * Walker Park Trail Extension September 30, 2012: NCAT:. Submission of Annual Report & Performance Review of Year One Planning; Outreach and Project Mana.ement 2012 Disbursement Total Final Disbursement: March lst, 2013 Approval of Final Report &Completion of Grant Administration Performance Review Disbursement TOTAL Funding Amount $75,000 $137,500 5,000 $50,000 $148,000 $12,000 Subtotals $217,500 $32,500 $198,000 $40,000 Totals $250;000 $238,000 $500,000 SCHEDULE D: BUDGET AGREEMENT BETWEEN THE HOME DEPOT FOUNDATION, The City of Fayetteville and the National Center for Appropriate Technology Grant Grant Funds Match Total Funds Match Total NCAT Labor 22,657 22,657 Fringe ; I .9? I 11 .97 I 10,196 10,1y6 14.365 i -1 3 (, c Community By Design 68,750 68, 7 50 68.750 City of Fayetteville - Trail x.7.50. Linkage 74,000 120,000 194,000 2 Energy Corp Members 74.000 1-0.000 1 1-1.00(1 18,000 42,000 60.,00(► - Materials 10,000 Land I 0,0(10 10.000 10,000 250,000 250,000 - Fayetteville Forward Outreach 10,000 10,000 1(1,000 000 Ecological Tool Enrollment 2,500 2,500 1.500 ,.t►t) I tt,500 Directly Allocated Costs 11,170 I I, 17t) 15,737 - 15.737 General & Administrative 22727 22.727 -)2 .727 Total 250,000 412,000 662.000 250,000 120.1)00 37(1-01)1) Total Grant Funds Match Total NCAT Labor 54.573 - 54,57` Fringe 24,561 2 • Community By Design 117 7,50, I ,5(.)0 137,500 .City of Fayetteville - Trail Linkage 145,000 740,000 388,000 Energy Corp Members 18,000 42,000 60.000 Materials 20,00() 20,0(10 Land 250,000 250,000 Fayetteville Forward Outreach 20,000 Ecological 5,000 Tool Enrollment 20,000 5,000 Directly Allocated Costs 26,907 _ 76,907 General & Administrative 45,454 45..454 Total 500,000 532,000 1.03 -),000 Foundation Funding Usage: NCAT Labor: This category includes direct salaries and wastes for NCAT staff working on this project that will provide project direction, management, and consulting time directly related to the project. Total $54,578 Fringe: NCAT is approved by its cognizant agent, USDA; to allocate a rate of 43'.;, for lrinec expense. We are anticipating an increase in fringe to 45`„ starting October I. 20 1(1. This ligure is calculated on total salaries/wages. This category includes statutory benefits such as FICA. FUTA, SUTA, and Workers' Compensation in addition to other benefits such as sick leave. vacation pay, holiday pay, pension contribution and other miscellaneous. r Total $24,561 Community' By Design: LID/Vertical and Horizontal Design Development and Master Planning for the Houses at Willow Bend. m Total $137,500 City of Fayetteville — Trail Linkage: Multi -use Trail Linkage to Walker Park!W ii low 13end Neighborhood. This multi -use trail linkage will connect the Walker Park/Willow Bend Neighborhood with the main artery of the City's downtown multi -use trail. Total $148,000 Energy Corp Members: Two, one-year Energy Corps Members to be placed with the t itv oI Fayetteville and the University of Arkansas' Applied Sustainability Center, respectively. Each Energy Corps member shall be responsible for facilitating direct community outreach and representing their host organization's program. For the City, this would include outreach and education around Low Impact Development and Sustainability. For the ASC. this would include facilitating direct enrollment outreach and services for Eco -.Logical Communities in the Walker Park/Willow Bend neighborhood. Total $18,000 Materials: Materials to be utilized directly on the project. Ex. Printing, postage. small tools. etc. Total $20,000 Fayetteville Forward Outreach: LID as a template for Fayetteville Forward Sustainability process — outreach, dvd and training. This line item includes outreach events such as communit\ energy efficiency forums, investigating long-term financing strategies for LID and energy - efficiency within Fayetteville. *' Total $20,000 Ecological Tool Enrollment: Eco-1oRical Communities Enrollment Campaign. This line item targets the 807 owner -occupied homes (as identified by the City of Fayetteville -s CDBG Program) in the Walker Park/Willow Bend Neighborhood as participants of the Eco -Logical Fayetteville dashboard. Enrollment outreach will be conducted through the neighborhood association, senior center and -churches within the defined area.