HomeMy WebLinkAboutHousing Authority - Neighborhood Stabilization Program NSP3 and NSP1 - 2012AGREEMENT BETWEEN
CITY OF FRESNO
AND
THE HOUSING AUTHORITY OF THE CITY OF FRESNO
FOR THE NEIGHBORHOOD STABILIZATION PROGRAM
THIS AGREEMENT, is effective this 29th day of November, 2012 ("Effective Date") by
and between the City of Fresno (.C|TY') and HOUSING AUTHORITY OF THE CITY OF
FRESNO, CA, a body corporate and politic ('SUBRECIPIENT).
CITY has applied for and has been awarded funds from the United States Department of
Housing and Urban Development (HUD) for a Neighborhood Stabilization Program 3 and a
Neighborhood Stabilization Program 1, ("NSP3" and "NSPI" respectively, or "NSP" collectively)
to advance the supply of affordable rental housing within the city of Fresno. CITY desires,
among other things, to encourage investment in the affordable rental housing market.
SUBRECIPIENT desires to exercise effective project control, as to the acquisition,
rehabilitation, related on-site and off-site improvements, rental and operation of foreclosed and
abandoned residential properties hereinafter referred to as the "Project(s)", and shall preserve
the residential properties as low, moderate, and middle-income rental housing, as defined by
the NSP Program and this Agreement.
CITY desires to award SUBRECIPIENT an aggregate of up to One Million Eight
Hundred Thousand dollars and 00/100 ($1,800,000.00) in the form of residual receipts NSP
loan(s) for the Prolect(s) (the "LOAN(S)"), for reimbursement of NSP-eligible costs in
accordance with applicable notices, regulations and guidance from HUD for the development of
affordable rental housing.
ïhe parties therefore agree as follows:
A. SERVICE
SUBRECIPIENT will carry out the services required under this agreement satisfactory to
CITY and in full accordance with the policies, procedures and other provisions of the NSP
Single-Family and Multi-Family Rental Development Program Manual ("Program Manual"),
provided to SUBRECIPIENT by CITY, and incorporated herein by reference. SUBRECIPIENT
hereby agrees to accept and follow any written amendments to the Program Manual by CITY
that are made as a direct result of additional guidance or regulations provided by HUD, as well
as any written amendments that are mutually agreed upon by CITY and SUBRECIPIENT; and
1. Subject to the prior review and approval of CITY, SUBRECIPIENT shall acquire,
develop andior rehabilitate, rent and operate residential property that is foreclosed upon,
abandoned or vacant in accordance with the definitions and requirements of the NSP
program and this Agreement and as described in Division lV, Scope of Service.
2. SUBRECIPIENT is responsible for providing the deliverables herein described within
the time periods and for the approximate average budget amounts described in EXHIBIT
"4", Rental Development Activity and Detailed Budget attached hereto and incorporated
herein.
Page 1 of77
B. TIME OF PERFORMANCE
1. Commencement and Completion Dates Services of SUBRECIPIENT shall commence
on the Effective Date, acquisition shall be completed on or before March 1,2013 and
rehabilitation shall be completed on or before March 1, 2014 ("Completion Date") with all NSP
funds allocated having been expended, unless CITY, through its City Manager's office, and.at
its sole discretion, approves an extension of the completion date.
2. Term of This Aqreement and the provisions herein shall begin on the Effective Date and
shall remain in force with respect to the Project(s), unless terminated earlier as provided herein,
through the duration of the Affordability Period and will continue for the time period during which
SUBRECIPIENT remains responsible for NSP reporting or compliance measures or remains in
control of NSP funds (e.9. Loans are outstanding) or other NSP assets, including program
income for any Project(s) after which this Agreement shall terminate.
c. LoAN(S)
SUBRECIPIENT'S sole source of compensation hereunder will be in the form of LOANs of NSP
funds as described herein.
1. Availabilitv of NSP Funds. SUBRECIPIENT understands and agrees that the
availability of NSP Funds is subject to the control of HUD, or other federal agencies, and
should the NSP Funds be encumbered, withdrawn or otherwise made unavailable to CITY,
whether earned by or promised to SUBRECIPIENT, and/or should CITY in any fiscal year
hereunder fail to allocate said Funds, CITY shall not provide said Funds unless and until
they are made available for payment to CITY by HUD and CITY receives and allocates said
Funds. No other funds owned or controlled by CITY shall be obligated under this
Agreement to the Project(s).
2. The total amount of NSP funding allocated to SUBRECIPIENT is up to One Million Eight
Hundred Thousand Dollars and no/100 ($t,800,000.00). This amount represents an allocation
of CITY's total NSP funding and is contingent upon SUBRECIPIENT's performance.
3. A detailed project budget and cash flow projections are included in EXH|B|T "A" attached
hereto. CITY may require additional budget breakdowns, for individual properties and/or
collectively in a form and content prescribed by CITY. SUBRECIPIENT shall provide such
supplementary budget information in a timely fashion on CITY'S request.
4. Loan of NSP. CITY agrees to provide Loan(s) of NSP Funds to SUBRECIPIENT in an
amount not to exceed One Million Eight Hundred Thousand dollars and 00/100 ($t ,800,000.00)
under the terms and conditions provided in this Agreement. The NSP Funds shall only be used
for payment or reimbursement of NSP Eligible Costs.
5. Loan Documents. For each Project, SUBRECIPIENT shall execute and documents shall
consist of a Note, a Deed(s) of Trust on the Property securing said note, a Declaration of
Restrictions, samples of which are attached hereto as Exhibits "E", "Du and "C" respectively, and
a memorandum of this Agreement. lt is understood that each property will have separate Loan
Documents.
Page 2 of77
6. Loan Repavment and Maturitv and lnterest Rate. Each LOAN will be due and payable in
30 years from its origination date in accordance with the Note(s). Each LOAN will have an
Affordability Period based on the amount of NSP funds loaned per Unit (See Division ll) and
bear interest at two percent (2%) per annum. Repayment shall commence at the end of the
Affordability Period with payments due annually from Residual Receipts with all remaining
principal and interest due at maturity.
7. lncorporation of Documents. The Loan Documents, the Act and HUD NSP regulations
and all exhibits, attachments, documents and instruments referenced herein, as now in effect
and as may be amended from time to time, constitute part of this Agreement and are
incorporated herein by reference. All such documents have been provided to the parties
herewith or have been otherwise provided to/procured by the parties and reviewed by each of
them prior to execution hereof.
8. Use of NSP Funds. SUBRECIPIENT warrants, covenants and agrees that it shall
request NSP Funds only for reimbursement of eligible costs aggregating not more than One
Million Eight Hundred Thousand dollars and 00/100 ($t,800,000.00) for all Projects.
a. lf any such Funds shall be determined to have been requested and/or used by
SUBRECIPIENT for costs other than for Eligible Costs, subject to the notice and cure provisions
of this Agreement, an equal amount from nonpublic funds shall become immediately due and
payable by SUBRECIPIENT to CITY. Notwithstanding, subject to SUBRECIPIENT'S full
cooperation with CITY and at CITY'S sole discretion, SUBRECIPIENT will/may be entitled to
participate in any opportunity to remedy, contest, or appeal such determination.
b. ln the event NSP Funds are requested to reimburse Eligible Costs which
subsequently lose eligibility as Eligible Costs, SUBRECIPIENT shall immediately return such
NSP Funds to CITY.
9. Conditions Precedent to Disbursement. CITY shall not be obligated to make or
authorize any disbursements of NSP Funds unless all the following conditions are satisfied:
a. There exists no Event of Default as provided in this Agreement, nor any act,
failure, omission or condition that with the giving of notice would constitute an Event of Default.
b. lnsurance coverage as required hereunder has been provided to and approved
by CITY's Risk Manager.
c. SUBRECIPIENT is current with its compliance of all reporting requirements set
forth in this Agreement.
d. SUBRECIPIENT has provided CITY with a written Request for Disbursement of
Funds and the Certification as described below.
10. Request for and Disbursement of NSP Funds. SUBRECIPIENT shall request
disbursement of NSP Funds using CITY's Request for Disbursement of Funds form
acceptable to CITY. All requests must provide in detail such Eligible Costs applicable to
the request. All requests shall be accompanied with the Certification required by paragraph
11 below. Said request shall be itemized and properly documented to clearly show the
Page 3 of77
items, tasks or services for which payment is being claimed and the basis for cost
computation whether by purchase agreement, cost per hour, cost per weight, cost per task
or other measurement as agreed by and between CITY and SUBRECIPIENT, as otherwise
set forth in this Agreement. Approved requests for reimbursements will be paid by check to
SUBRECIPIENT. ln the case of approved property acquisition costs, CITY will also provide
a disbursement of NSP funds to escrow.
11. SUBRECIPIENT Certification. SUBRECIPIENT shall submit to CITY a written
certification ("Certification") that, as of the date of the Request for Disbursement:
a. The representations and warranties contained in or incorporated by reference in
this Agreement continue to be true, complete and accurate in all material respects;
b. SUBRECIPIENT has carried out all of its obligations and is in compliance with all
the material obligations or covenants specified in this Agreement, to the extent that such
obligations or covenants are required to have been carried out or are applicable at the time of
the request for the Disbursement;
c. SUBRECIPIENT has not committed or suffered an act, event, occurrence, or
circumstance that constitutes an Event of Default or that with giving of notice would constitute
an Event of Default; and
d. The Disbursement requested is solely for reimbursement of eligible costs and is
supported by the itemized documentation that the expenses have been properly incurred and
are properly chargeable in connection with the Affordable Units.
12. Disbursement of Funds. Disbursements of NSP Loan proceeds shall occur within
the normal course of business (approximately thirty (30) days) after CITY receives and
approves the Request for Disbursement of Funds and the Certification to the extent NSP
Funds have been allocated. The disbursements of NSP funds to escrow for property
purchases is a process that may be used at CITY's sole discretion and may be completed
through a wire, or through the printing of check(s) to be deposited into escrow.
13. Recapture and Reallocation of SUBRECIPIENT'S NSP Allocation. lf SUBRECIPIENT
fails to expend NSP funds as indicated with regard to the goals and delivery schedule in
EXHIBIT "A', CITY at its sole discretion may recapture all or a portion of SUBRECIPIENT's total
NSP funding allocation. The portion recaptured will be equal to CITY's estimate of the amount of
NSP funds that would remain unspent by the spending deadlines described herein, based on
SUBRECIPIENT's activities to date and capacity to complete the work.
ln addition, the amount of SUBRECIPIENT's NSP funding allocation that is not obligated
or expended by the Completion will be recaptured immediately unless CITY grants an extension
of the Completion Date in writing based on extenuating circumstances and compelling evidence
that obligations will be completed during the extended period.
D. CITY RESPONSIBILITIES
CITY is responsible for the following tasks and deliverables.
1. Review and approval, within Program guidelines, of each property purchase as
described herein and in the Program Manual.
Page 4 of77
2. Completing Tier 1 environmental assessments and providing Tier 1 clearances for all
NSP target areas, as well as completing and approving site-specific environmental reviews
completed by SUBRECIPIENT.
3. Management of all draws of NSP funds from HUD and payment of valid and properly
docu mented reimbu rsement requests from S UB RECI P I E NT.
4. Reporting to HUD via the Disaster Recovery Grant Reporting (DRGR) system, using, in
part, data provided by SUBRECIPIENT.
5. Monitoring all program activities of SUBRECIPIENT to assure compliance with the terms
of this Agreement including all NSP3 and NSPI requirements.
6. Processing requests for disbursements of NSP funds, including necessary construction
inspections, in a timely manner; CITY will clearly and promptly describe any deficiencies
identified by CITY that prevent a disbursement or portion of a disbursement from being
approved. Upon the request of SUBRECIPIENT, CITY must promptly itemize and describe such
deficiencies in writing.
Ht
ilt
ilt
Page 5 of77
DrvtstoN tl
GENERAL CONDITIONS
I. DEFINITIONS
The following terms have the meaning and content set forth whenever and wherever used in
this Agreement and any attached exhibits or attachments hereto.
ACT means or refers to the authorizing legislation for the NSPI and NSP3 programs which are:
(Housing and Economic Recovery Act of 2008 and Dodd-Frank Wall Street Reform and
Consumer Protection Act).
ADA means the Americans with Disabilities Act of 1990, as most recently amended.
Acquisition Cost means the purchase price of a property, appraisal fees, property inspection
fees paid to a third party (e.9. pest inspection, lead-based paint inspection, etc.), fees and points
associated with SUBRECIPIENT'S use of temporary private funds for purchase of property, not
to exceed three (3) points and 8% interest p.a.
Affirmative Marketinq means a good faith effort to attract eligible persons of all racial, ethnic and
gender groups, in the housing market area, to rent the proposed Affordable Units, as hereinafter
defined.
Affordabilitv Period means the minimum period of affordability, by level of NSP investment per
unit as determined by the following table, commencing thirty (30) days from the recording of the
Certificate of Completion:
NSP3
lnvestment
Affordability Period
<$15,000/unit 5 years
$15,000-
$40,000/unit
10 years
>$40,000 15 years
Affordable Rental Housinq) means the acquisition, rehabilitation and leasing of NSP assisted
housing units and related on-site and off-site improvements, to be located upon the Affordable
Project Property(ies). All units will be leased as Low, Moderate, and Middle income housing in
accordance with the NSP Program requirements, and stipulations in this Agreement.
Affordable Proiect Propertv refers to the Property(ies) on which the Affordable Project Units will
be located.
Affordable Rental Housino means the rental housing units to be acquired, rehabilitated and
rented, on the Affordable Project Property(ies).
Page 6 of77
Budqet means the Proposed Project Budget attached hereto as EXHIBIT "4" in sample format,
for the Project(s), as may be amended, upon the approval of CITY's Housing and Community
Development Division Manager, provided any increase in NSP Funds hereunder requires City
Council Approval.
Certificate of Completion means that certificate issued, in the form attached as EXHIBIT "B" to
be issued to SUBRECIPIENT by CITY evidencing completion of the Project(s), a release of
construction related covenants for the purposes of the Agreement, to be issued individually for
each property assisted with NSP funds.
CFR means the Code of Federal Regulations.
Commencement of Construction means the various date(s) that SUBRECIPIENT or
SUBRECIPIENT's construction SUBRECIPIENT begins substantial physical work on each
Property, including, without limitation, delivery of materials and any work, beyond maintenance
of the Property(ies) in its status quo condition, and not later than thirty (30) calendar days
following CITY's approval of commencement of construction.
Completion Date means the date that CITY issues the final recorded Certificate of Completion
for the Project(s). The final Completion Date of the Project is December 31, 2013 unless
extended as provided herein.
Contract means this Agreement.
Current Market Appraised Value means the value of a foreclosed upon home or residential
property that is established through an appraisal made in conformity with the appraisal
requirements of the Uniform Relocation Assistance and Real Property Acquisitions Policies Act
of 1970 (URA) at 49 CFR 24103 and completed within 60 days prior to a final offer made for the
property(ies) by SUBRECIPIENT; provided, however, if the anticipated value of the proposed
acquisition is estimated at $25,000 or less, the current market appraised value of the property
may be established by a valuation of the property that is based on a review of available data
and is made by a person CITY determines is qualified to make the valuation.
Declaration of Restrictions means the Declaration of Restrictions, as outlined substantially in the
form attached hereto as EXHIBIT "C", which shall be recorded against the Property(ies) no later
than the date of disbursement of Loan funds for the purchase of said Property(ies), setting out
the requirements of this Agreement which shall run with the land.
Deed of Trust means that standard deed of trust including assignment of rents and security
agreement given by SUBRECIPIENT, as Trustor, to CITY as beneficiary recorded against the
Property(ies). All deeds of trust must be approved by the City Attorney as to form, as well as
any amendments to, modifications of and restatements of said Deed of Trust. The terms of any
such Deed of Trust shall be substantially in the form attached hereto as EXHIBIT "D".
Development Costs - see Eligible Costs.
Eliqible Costs or Development Costs means those costs allowable under NSP Regulations for
acquisition, development, rehabilitation and operation of NSP assisted units as may be
reimbursed by the Loan, consistent with the individual project budgets as pre-approved by
CITY, provided, however, that costs incurred in connection with any activity that is determined to
be ineligible under the Program by HUD or CITY shall not constitute Eligible Costs.
Page 7 ot77
Event of Default shall have the meaning assigned to such term hereunder.
Family has the same meaning given that term in 24 CFR 570.3.
Federal Neiqhborhood Stabilization Proqram 1 Funds (also referred to in this Agreement as
'NSP1 Funds") refers to the federal Neighborhood Stabilization Program 1 administered by
HUD.
Federal Neiqhborhood Stabilization Proqram 3 Funds (also referred to in this Agreement
'NSP3 Funds") refers to the federal Neighborhood Stabilization Program 3 administered
HUD.
Foreclosed. A home or residential property is foreclosed upon if any of the following conditions
apply: (a) The property's current delinquency status is at least 60 days delinquent under the
Mortgage Bankers of America delinquency calculation and the owner has been notified; (b) the
property owner is 90 days or more delinquent on tax payments; (c) under state, local, or tribal
law, foreclosure proceedings have been initiated or completed; or (d) foreclosure proceedings
have been completed and title has been transfened to an intermediary aggregator or servicer
that is not an NSP CITY, SUBRECIPIENT, sub-recipient, SUBRECIPIENT, or end user.
Hazardous Materials means any hazardous or toxic substances, materials, wastes, pollutants or
contaminants which are defined, regulated or listed as "hazardous substances," "hazardous
wastes," "hazardous materials," "pollutants," "contaminants" or "toxic substances" under federal
or state environmental and health safety laws and regulations, including without limitation,
petroleum and petroleum byproducts, flammable explosives, urea formaldehyde insulation,
radioactive materials, asbestos and lead. Hazardous Materials do not include substances that
are used or consumed in the normal course of developing, operating or occupying a housing
project, to the extent and degree that such substances are stored, used and disposed of in the
manner and in amounts that are consistent with normal practice and legal standards.
Household means one or more persons occupying a Unit in the proposed Project.
HUD means the United States Department of Housing and Urban Development.
Low. Moderate. and Middle income households means those households whose annual income
is at or below 120 percent (120%) of the median income for the Fresno, California Metropolitan
Statistical Area (MSA) as determined by HUD, except as HUD may establish income ceilings
higher or lower for the area on the basis of HUD findings that such variations are necessary.
Note refers to the instrument evidencing the non-assumable, NSP3 and NSPI Loan(s) given by
SUBRECIPIENT as promissor, in favor of CITY as promissee, for the performance of the
services set forth in this Agreement and secured by a Deed of Trust naming CITY as
beneficiary.
Operatinq Expenses means actual, reasonable and customary (for comparable quality,
construction of rental housing in Fresno County) costs, fees and expenses directly incurred,
paid, and attributable to the operation, maintenance and management of the Project in a
calendar year, including, without limitation: painting, cleaning, repairs, alterations, landscaping,
utilities, refuse removal, certificates, permits and licenses, sewer charges, real and personal
property taxes, assessments, insurance, security, advertising and promotion, janitorial services,
cleaning and building supplies, purchase, repair, servicing and installation of appliances,
as
by
Page 8 of77
equipment, fixtures and fumishings which are not paid from the capital replacement reserve,
fees and expenses of property management and common area expenses, fees and expenses of
accountants, attorneys and other professionals, repayment of any completion or operating loans
including any and all deferred SUBRECIPIENT's fees per the Budget, made to
SUBRECIPIENT, its successors or assigns, and other actual operating costs and capital costs
which are incurred and paid by SUBRECIPIENT, but which are not paid from reserve accounts.
Proqram lncome has the meaning provided by HUD regulations for NSP3 and NSP1.
Proiect Schedule means the schedule for commencement and completion of the Project
included within the Rental Development Activity and Detailed Budget, EXHIBIT'A'.
Proiect Units means the units acquired, rehabilitated and leased on the property(ies) to be
preserved as Affordable NSP3-assisted and NSPl-assisted Units.
Propertv means the property and/or properties to be purchased by SUBRECIPIENT, as pre-
approved in writing by CITY, to be rehabilitated and leased in accordance with the terms of this
Agreement.
Rent means the total monthly payment a tenant pays for an Affordable Unit including the
following: use and occupancy of the Unit and land and associated facilities, including parking,
provided by SUBRECIPIENT(oIher than parking services acquired by tenants on an optional
basis), any separately charged fees or service charges assessed by SUBRECIPIENT which are
required of all tenants (other than security deposits), the cost of an adequate level of service for
utilities paid by the tenant (including garbage collection, sewer, water, common area electricity,
but not telephone service), any other interest, taxes, fees or charges for use of the land or
associated facilities and assessed by a public or private entity other than SUBRECIPIENT, and
paid by the tenant. Rent does not include payments for any optional services provided by
SUBRECIPIENT.
Residual Receipts means Residual Receipts as defined in the Note.
Unit means a dwelling unit of the Project.
Very Low-lncome. For the purposes of this Agreement means those whose annual income
does not exceed fifty-percent (50%) of the median income for the Fresno, California
Metropolitan Statistical Area as determined by HUD, except as HUD may establish income
ceilings higher or lower than 50% of the median income for the area on the basis of HUD
findings that such variations are necessary.
II. INDEPENDENT CONTRACTOR
ln the furnishing of the services provided for herein, SUBRECIPIENT is acting solely as an
independent SUBRECIPIENT. Neither SUBRECIPIENT, nor any of its officers, agents or
employees shall be deemed an officer, agent, employee, joint venturer, partner or associate of
ClïY for any purpose. CITY shall have no right to control or supervise or direct the manner or
method by which SUBRECIPIENT shall perform its work and functions. However, CITY shall
retain the right to administer this Agreement so as to verify that SUBRECIPIENT is performing
its obligations in accordance with the terms and conditions thereof.
This Agreement does not evidence a partnership or joint venture between SUBRECIPIENT and
Page 9 of77
CITY. SUBRECIPIENT shall have no authority to bind CITY absent CITY'S express written
consent. Except to the extent otherwise provided in this Agreement, SUBRECIPIENT shall bear
its own costs and expenses in pursuit thereof.
Because of its status as an independent SUBRECIPIENT, SUBRECIPIENT and its officers,
agents and employees shall have absolutely no right to employment rights and benefits
available to CITY employees. SUBRECIPIENT shall be solely liable and responsible for all
payroll and tax withholding and for providing to, or on behalf of, its employees all employee
benefits including, without limitation, health, welfare and retirement benefits. ln addition,
together with its other obligations under this Agreement, SUBRECIPIENT shall be solely
responsible, indemnify, defend and save CITY harmless from all matters relating to employment
and tax withholding for and payment of SUBRECIPIENT'S employees, including, without
limitation, (i) compliance with Social Security and unemployment insurance withholding,
payment of workers compensation benefits, and all other laws and regulations governing
matters of employee withholding, taxes and payment; and (ii) any claim of right or interest in
CITY employment benefits, entitlements, programs and/or funds offered employees of CITY
whether arising by reason of any common law, de facto, leased, or co- employee rights or other
theory. lt is acknowledged that during the term of this Agreement, SUBRECIPIENT may be
providing services to others unrelated to CITY or to this Agreement.
III. INSURANCE REQUIREMENTS
Throughout the life of this Contract, SUBRECIPIENT shall pay for and maintain in full force and
effect all policies of insurance required hereunder with an insurance company(ies) either (i)
admitted by the California lnsurance Commissioner to do business in the State of California and
rated not less than "A- Vll" in Best's lnsurance Rating Guide, or (ii) authorized by City's Risk
Manager. The following policies of insurance are required:
(¡) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad
as the most current version of lnsurance Services Office (lSO) Commercial
General Liability Coverage Form CG 00 01 and include insurance for "bodily
injury," "property damage" and "personal and advertising injury" with coverage for
premises and operations (including the use of owned and non-owned
equipment), products and completed operations, and contractual liability
(including, without limitation, indemnity obligations under the Contract) with limits
of liability of not less than the following:
$1,000,000 per occurrence for bodily injury and property damage
$1,000,000 per occurrence for personal and advertising injury
$2,000,000 aggregate for products and completed operations
$2,000,000 general aggregate applying separately to the work performed under
the Contract(i¡) COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least as
broad as the most current version of lnsurance Service Office (lSO) Business
Auto Coverage Form CA 00 01, and include coverage for all owned, hired, and
non-owned automobiles or other licensed vehicles (Code 1 - Any Auto) with limits
of liability of not less than $1,000,000 per accident for bodily injury and property
damage.(iii) WORKERS' COMPENSATION insurance as required under the California Labor
Code.
Page 10 of77
(iv) EMPLOYERS' LIABILITY insurance with limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000
disease each employee.(v) BUILDERS RISK (Course of Construction) insurance in an amount equal to the
completed value of the project with no coinsurance penalty provisions. (Only
required if the project includes new construction of a building; or renovation of, or
addition to, an existing building.)
CONTRACTORS POLLUTION LIABILITY (required unless waived in writing by
the City's Risk Manager or his/her designee) insurance with limits of liability of
not less than the following:
$1,000,000 per occurrence or clarm
$2,000,000 general aggregate per annual policy period
ln the event SUBRECIPIENT purchases an Umbrella or Excess insurance policy(ies) to meet
the minimum limits of insurance set forth above, this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies).
ln the event this Contract involves any lead based, mold or asbestos environmental hazard,
either the Automobile Liability insurance policy or the Contractors Pollution Liability insurance
policy shall be endorsed to include Transportation Pollution Liability insurance covering
materials to be transported by SUBRECIPIENT pursuant to the Contract.
ln the event this Contract involves any lead-based environmental hazard (e.9., lead based
paint), the Contractors Pollution Liability insurance policy shall be endorsed to include coverage
for lead based environmental hazards. ln the event this Contract involves any asbestos
environmental hazard (e.9., asbestos identification or remediation), the Contractors Pollution
Liability insurance policy shall be endorsed to include coverage for asbestos environmental
hazards. ln the event this Contract involves any mold environmental hazard (e.9., mold
identification or remediation), the Contractors Pollution Liability insurance policy shall be
endorsed to include coverage for mold environmental hazards and "microbial matter including
mold" within the definition of "Pollution" under the policy.
SUBRECIPIENT shall be responsible for payment of any deductibles contained in any
insurance policies required hereunder and SUBRECIPIENT shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must be
declared to, and approved by, the City's Risk Manager or his/her designee. At the option of the
City's Risk Manager or his/her designee, either (i) the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects City, its officers, offìcials, employees, agents
and volunteers; or (ii) SUBRECIPIENT shall provide a financial guarantee, satisfactory to City's
Risk Manager or his/her designee, guaranteeing payment of losses and related investigations,
claim administration and defense expenses. At no time shall City be responsible for the
payment of any deductibles or self-insured retentions.
All policies of insurance required hereunder shall be endorsed to provide that the coverage shall
not be cancelled, non-renewed, reduced in coverage or in limits except after 30 calendar day
written notice has been given to City. Upon issuance by the insurer, broker, or agent of a notice
of cancellation, non-renewal, or reduction in coverage or in limits, SUBRECIPIENT shallfurnish
City with a new certificate and applicable endorsements for such policy(ies). ln the event any
policy is due to expire during the work to be performed for City, SUBRECIPIENT shall provide a
new certificate, and applicable endorsements, evidencing renewal of such policy not less than
15 calendar days prior to the expiration date of the expiring policy.
(v)
Page 11 oÍ77
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form. The SUBRECIPIENTs Pollution Liability insurance policy shall be written on
either an occurrence form, or a claims-made form. The General Liability, Automobile Liability
and SUBRECIPIENTS Pollution Liability insurance policies shall name City, its officers, officials,
agents, employees and volunteers as an additional insured. All such policies of insurance shall
be endorsed so SUBRECIPIENT's insurance shall be primary and no contribution shall be
required of City. The coverage shall contain no special limitations on the scope of protection
afforded to City, its officers, officials, employees, agents and volunteers. lf SUBRECIPIENT
maintains higher limits of liability than the minimums shown above, City requires and shall be
entitled to coverage for the higher limits of liability maintained by SUBRECIPIENT. The General
Liability insurance policy shall also name the City, its officers, officials, agents, employees and
volunteers as additional insureds for all ongoing and completed operations. The Builders Risk
(Course of Construction) insurance policy shall be endorsed to name the City as a loss payee.
Any Workers' Compensation insurance policy shall contain a waiver of subrogation as to City,
its officers, officials, agents, employees and volunteers.
SUBRECIPIENT shall furnish City with all certificate(s) and applicable endorsements effecting
coverage required hereunder. All certificates and applicable endorsements are to be received
and approved by the City's Risk Manager or his/her designee prior to City's execution of the
Contract and before work commences. Upon request of City, SUBRECIPIENT shall
immediately furnish City with a complete copy of any insurance policy required under this
Contract, including all endorsements, with said copy certified by the underwriter to be a true and
correct copy of the original policy. This requirement shall survive expiration or termination of
this Contract.
Claims-Made Policies - lf any coverage required is written on a claims-made coverage form:(i) The retroactive date must be shown, and must be before the effective date of the
Contract or the commencement of work by SUBRECIPIENT.(i¡) lnsurance must be maintained and evidence of insurance must be provided for at
least 5 years after completion of the work or termination of the Contract,
whichever first occu rs.(¡ii) lf coverage is canceled or non-renewed, and not replaced with another claims-
made policy form with a retroactive date prior to the effective date of the
Contract, or work commencement date, SUBRECIPIENT must purchase
extended reporting period coverage for a minimum of 5 years after completion of
the work or termination of the Contract, whichever first occurs.(iv) A copy of the claims reporting requirements must be submitted to City for review.(v) These requirements shall survive expiration or termination of the Contract.
lf at any time during the life of the Contract or any extension, SUBRECIPIENT or any of its
subcontractors fail to maintain any required insurance in full force and effect, all work under this
Contract shall be discontinued immediately, and all payments due or that become due to
SUBRECIPIENT shall be withheld until notice is received by City that the required insurance
has been restored to full force and effect and that the premiums therefore have been paid for a
period satisfactory to City. Any failure to maintain the required insurance shall be sufficient
cause for City to terminate this Contract. No action taken by City hereunder shall in any way
relieve SUBRECIPIENT of its responsibilities under this Contract. The phrase "fail to maintain
any required insurance" shall include, without limitation, notification received by City that an
insurer has commenced proceedings, or has had proceedings commenced against it, indicating
that the insurer is insolvent.
Page 12 of 77
The fact that insurance is obtained by SUBRECIPIENT shall not be deemed to release or
diminish the liability of SUBRECIPIENT, including, without limitation, liability under the indemnity
provisions of this Contract. The duty to indemnify City shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act as a
limitation upon the amount of indemnification to be provided by SUBRECIPIENT. Approval or
purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the
liability of SUBRECIPIENT, its principals, officers, agents, employees, persons under the
supervision of SUBRECIPIENT, vendors, suppliers, invitees, consultants, sub-consultants,
subcontractors, or anyone employed directly or indirectly by any of them.
ln the event of a partial or total destruction by the perils insured against of any or all of the work
andior materials herein provided for at any time prior to the final completion of the Contract and
the final acceptance by the City of the work or materials to be performed or supplied thereunder,
the SUBRECIPIENT shall promptly reconstruct, repair, replace, or restore all work or materials
so destroyed or injured at his/her sole cost and expense. Nothing herein provided for shall in
any way excuse the SUBRECIPIENT or his/her insurance company from the obligation of
furnishing all the required materials and completing the work in full compliance with the terms of
the Contract.
lf SUBRECIPIENT should subcontract all or any portion of the services to be performed under
this Contract, SUBRECIPIENT shall require each subcontractor to provide insurance protection
in favor of City, its officers, officials, employees, agents and volunteers in accordance with the
terms of each of the preceding paragraphs, except that the subcontractors' certificates and
endorsements shall be on file with SUBRECIPIENT and City prior to the commencement of any
work by the subcontractor.
IV. PERFORMANCE AND PAYMENT BONDS
The SUBRECIPIENT shall provide two good and sufficient surety bonds from a corporate surety
admitted by the California lnsurance Commissioner to do business in the State of California, on
forms as those provided by the City in these Specifications, and approved by the City.
1. The "Payment Bond" shall be for not less than 100 percent of the Contract price, to
satisfy claims of material suppliers and of mechanics and laborers employed by
SUBRECIPIENT on the work. The bond shall be maintained by the SUBRECIPIENT in full
force and effect until the work is completed and accepted by the City, and until all claims for
materials and labor are paid, and shall otherwise comply with Chapter 7, Title XV, Part 4,
Division 3 of the California Civil Code.
2. The "Faithful Performance Bond" shall be for 100 percent of the Contract price to
guarantee faithful performance of all work, within the time prescribed, in a manner satisfactory
to the City, and that all materials and workmanship will be free from original or developed
defects.
3. ln lieu of the bonds required above, CITY, in its sole discretion, may accept from
SUBRECIPIENT an lrrevocable Standby Letter of Credit issued with CITY named as the sole
beneficiary in the amount(s) of the bonds required above. The lrrevocable Standby Letter of
Credit is to be issued by a bank, and in a form, acceptable to CITY. This lrrevocable Standby
Letter of Credit shall be maintained by SUBRECIPIENT in full force and effect until CITY is
Page 13 of77
prov¡ded with a recorded Notice of Completion for construction of the Project and shall be
subject to and governed by the laws of the State of California."
V. INDEMNIFICATION
To the furthest extent allowed by law including California Civil Code section 2782,
SUBRECIPIENT shall indemnify, hold harmless and defend City and each of its officers,
officials, employees, agents and volunteers from any and all loss, liability, fines, penalties,
forfeitures, costs and damages (whether in Contract, tort or strict liability, including, but not
limited to personal injury, death at any time and property damage) incurred by City,
SUBRECIPIENT or any other person, and from any and all claims, demands and actions in law
or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen
directly or indirectly out of performance of this Contract. SUBRECIPIENT's obligations under
the preceding sentence shall apply regardless of whether City or any of its officers, officials,
employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability,
fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or willful
misconduct, of City or any of its officers, officials, employees, agents or volunteers.
lf SUBRECIPIENT should contract or subcontract all or any portion of the work to be performed
under this Contract, SUBRECIPIENT shall require each SUBRECIPIENT and/or subcontractor
to indemnify, hold harmless and defend City and each of its officers, officials, employees,
agents, and volunteers in accordance with the terms of the preceding paragraph.
This section shall survive termination or expiration of this Contract.
VI. GENERAL GUARANTY
Neither the final certificate of payment nor any provision in the Contract Documents nor partial
or entire occupancy of the premises shall constitute an acceptance of work not done in
accordance with the Contract Documents or relieve the SUBRECIPIENT or its SUBRECIPIENT
of liability in respect to any express warranties or responsibility for faulty materials or
workmanship. The SUBRECIPIENT or its SUBRECIPIENT shall remedy any defects in the
work and pay for any damage to other work resulting therefrom, which shall appear within a
period of 1 year from the date of final acceptance of work unless a longer period is specified.
The Engineer will give notice of observed defects with reasonable promptness.
VII. PRECEDENCE OF CONTRACT DOCUMENTS
The order of precedence of documents shall be: (1) Rules and Regulations of FederalAgencies
relating to the source of funds for this project; (2) Permits from other agencies as may be
required by law; (3) Supplemental Agreements, Change Orders, or this Agreement the one
dated later having precedence over another dated earlier; (4) Special Conditions; (5) General
Conditions; (6) Technical Specifications; (7) Plans; (8) Standard Specifications; (9) Standard
Plans. Detailed Plans shall have precedence over general Plans.
ln the event of any conflict between the body of this Agreement and any Exhibit or
Attachment hereto, the terms and conditions of the body of this Agreement shall control
and take precedence over the terms and conditions expressed within the Exhibit or
Attachment. Furthermore, any terms or conditions contained within any Exhibit or
Attachment hereto which purport to modify the allocation of risk between the parties,
provided for within the body of this Agreement, shall be null and void.
Page 14 of77
Whenever any conflict appears in any portion of the Contract, it shall be resolved by application
of the order of precedence.
VIII. NONFEDERAL LABOR STANDARD PROVISIONS
GENERAL PROVISIONS: The following Nonfederal Labor Standards Provisions, including the
following provisions concerning: maximum hours of work, minimum rates of pay, and overtime
compensation, with respect to the categories and classifications of employees hereinafter
mentioned are included in the Contract pursuant to the requirements of applicable State or local
laws, but the inclusion of such provisions shall not be construed to relieve the SUBRECIPIENT
or any subcontractor from the pertinent requirements of any corresponding Federal
Labor-Standard Provisions of this Contract. ln cases the minimum rates of pay set forth below
shall be higher than the minimum rates of pay required by or set forth in the Federal
Labor-Standards Provisions of this Contract for corresponding classifications, the minimum
rates of pay set forth below shall be deemed, for the purpose of this Contract, to be the
applicable minimum rates of pay for such classifications. The limitations, if any, in these
Nonfederal Labor Standards Provisions upon the hours per day, per week or month which
employees engaged on the work covered by this Contract may be required or permitted to work
thereon shall not be exceeded.
SCHEDULE OF WAGES AND SALARIES: ln accordance with the provisions of sections 1770
to 1781, inclusive of the Labor Code of the State of California and/or section (1Xb) of the United
States Labor Code, the Director of lndustrial Relations and/or the United States Secretary of
Labor shall ascertain the general prevailing rate of wages applicable to the work to be done
under this Contract to be included in these Specifications by reference. (Copies of the wage
rates or specific wage rate determinations may be obtained from the Contract Compliance
Officer at City of Fresno Public Works Department, Construction Management Division, 1721
Van Ness, Fresno, California 93721, (559) 621-5600.)
LABOR CODE SECTION 1775: PENALTIES FOR UNDER-PAYMENT OF WAGES: The
SUBRECIPIENT and each subcontractor shall comply with California Labor Code section 1775
and pay not less than the wages established by the Director of the Department of lndustrial
Relations and/or the Federal government. ln accordance with such section 1775,
SUBRECIPIENT or such subcontractor shall, as a penalty to the City, forfeit up to $200.00, as
determined by the Labor Commissioner, for each calendar day or portion thereof for each
worker under this Contract paid less than the established wage rates. These penalties shall be
withheld from progress payments then due. The SUBRECIPIENT shall contain in each
subcontract the requirements hereunder.
PENALTIES FOR VIOLATION OF EIGHT HOUR DAY:Eight hours labor constitutes a regular
day's work under this Contract. SUBRECIPIENT or any subcontractor under him/her shall
forfeit as a penalty to the City $25.00 for each worker employed in the execution of this Contract
by SUBRECIPIENT or such subcontractor for each calendar day during which any such worker
is required or permitted to labor more than eight hours in any one calendar day and 40 hours in
any one calendar week in violation of sections 1810 to 1815, inclusive, of the California Labor
Code. Notwithstanding the provisions of Sections 1810 to 1814, inclusive, of the California
Labor Code, and notwithstanding the foregoing, work performed by employees of
SUBRECIPIENTS and subcontractors in excess of B hours per day, and 40 hours during any
one week, shall be permitted upon public work upon compensation for all hours in excess of 8
hours per day at not less than one and one-half (1.5) times the basic rate of pay.
Page 15 of77
LABOR CODE SECTION 1777.5: EMPLOYMENT OF APPRENTICES: lf this Contract involves
$30,000 or more, the SUBRECIPIENT and each subcontractor shall comply with California
Labor Code section 1777.5, as it may be amended from time to time, the entire provisions of
which are incorporated bythis referenceas if fullysetforth herein, andArticle 10, Subchapter 1,
Chapter 2, Title I of the California Code of Regulations for all apprenticeable occupations
applicable to the work as defined in such laws and regulations. SUBRECIPIENT shall be
responsible for the compliance with such Labor Code section for all apprenticeable occupations
and shall contain in each subcontract the requirements hereunder. ln accordance with section
1777.5 of the California Labor Code and the rules and regulations of the California
Apprenticeship Council, properly indentured apprentices shall be employed in the execution of
this Contract in at least the ratio of not less than I hour of apprentice work for every 5 hours of
journeyman work (unless the respective SUBRECIPIENT or subcontractor has been exempted
from such ratio) and paid the prevailing rate of per diem wages for apprentices in the trade to
which he/she is registered. The employment and training of each apprentice shall be in
accordance with both the apprenticeship standards and apprentice agreements under which
he/she is training, or the rules and regulations of the California Apprenticeship Council. Prior to
commencing work on the Contract, SUBRECIPIENT and each subcontractor shall submit
contract award information to the City, if requested, and to an applicable apprenticeship
program that can supply apprentices to the job site. The information shall include an estimate of
journeyman hours to be performed under the Contract, the number of apprentices proposed to
be employed, and the approximate dates the apprentices would be employed. Within 60 days
after concluding work on the Contract, the SUBRECIPIENT and each subcontractor shall submit
to the City, if requested, and to the apprenticeship program a verified statement of the
journeyman and apprentice hours performed on the Contract. SUBRECIPIENT shall employ
apprentices for the number of hours computed before the end of the Contract or, in the case of
the subcontractor, before the end of the subcontract and endeavor, to the greatest extent
possible, to employ apprentices during the same time period that the journeymen in the same
craft or trade are employed at the job site.
FRESNO MUNICIPAL CODE SECTION 4-113: LABOR CODE SECTION 1777.5:
EMPLOYMENT OF APPRENTICES: lf this Contract involves $500,000 or more, the
SUBRECIPIENT shall contain in each subcontract the requirements hereunder and be
responsible for providing all documentation required hereunder from subcontractor to the City.
The SUBRECIPIENT and each subcontractor shall provide documentation to City
demonstrating compliance with the requirements of California Labor Code section 1777.5 and
Article 10, Subchapter 1, Chapter 2, Title 8 of the California Code of Regulations by providing
City copies of each of the following:
1. All contract award information (e.9., completed form DAS 140) sent by SUBRECIPIENT
and by subcontractors to the State Division of Apprenticeship Standards and each applicable
apprenticeship program in accordance with California Labor Code section 1777.5, as may be
amended from time to time, including identification of addressee.
2. All requests by SUBRECIPIENT and by subcontractors for approval, and all responses
and certificates from any applicable apprenticeship program disapproving or approving
SUBRECIPIENT or subcontractor(s), to train apprentices; if any.
3. All requests by SUBRECIPIENT and by subcontractors for dispatch of apprentices from
any applicable apprenticeship program (e.9., completed form DAS 142); and all responses
thereto, if any.
Page 16 of77
4. All certifications, if any, of SUBRECIPIENT and of subcontractor(s) as an individual
employer apprenticeship program by the State Division of Apprenticeship Standards or the
California Apprenticeship Council.
5. All apprenticeship agreements of apprentices employed by SUBRECIPIENT and by
subcontracto(s) and performing work under the Contract.
6. A verified statement by the SUBRECIPIENT and by the subcontractor within 60 days
after concluding the work of the respective journeyperson and apprentice hours performed on
the Contract or subcontract.
7. All certificates of any exemption by the State Division of Apprenticeship Standards,
California Apprenticeship Council or any apprenticeship program of SUBRECIPIENT or
subcontractor from any requirements of Califomia Labor Code section 1777.5, as may be
amended from time to time.
B. Other documentation as may be requested by City.
LABOR CODE SECTION 6705: lf this Contract involves an estimated expenditure in excess of
$25,000.00 and excavation of any trench or trenches five feet or more in depth, then your
attention is directed to California Labor Code section 6705 relating to a detailed plan showing
the design of shoring, bracing, sloping, or other provisions to be made for worker protection
from the hazard of caving ground during the excavation of such trench or trenches, the entire
provisions of which are incorporated by this reference as if fully set forth hereinafter. Before
execution of the Contract by the City, the SUBRECIPIENT shall submit to the City and the
Engineer shall accept, if satisfactory to him/her, said detailed plan.
lf, in the Engineer's opinion, there is any noncompliance with said detailed plan, then the
SUBRECIPIENT shall stop forthwith all trench work until, either in the Engineer's or the State
Division of lndustrial Safety's opinion, there is compliance. The City shall not be liable for costs
incurred by the SUBRECIPIENT due to the work stoppage and the SUBRECIPIENT will not be
given nor is entitled to an extension of time to complete the work within the time set forth in this
Contract due to the work stoppage.
WAGE AND PRICE CONTROL: Notwithstanding any provisions of the Contract to the contrary,
the SUBRECIPIENT shall be bound by the orders issued and rules and regulations adopted
pursuant to the Economic Stabilization Act of 1970 (Public Law 91-379, 84 Statutes 799), as
amended, or any subsequent Act of Congress.
COMPLIANCE WITH OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970: This Contract
is subject to all terms and conditions of the OCCUPATIONAL SAFETY AND HEALTH ACT of
1970, the California Occupational Safety and Health Act and their present and future
amendments. SUBRECIPIENT expressly assumes responsibility for compliance therewith and
warrants that all materials, supplies and equipment provided or installed pursuant to this
Contract, whether provided by the SUBRECIPIENT, subcontractor, or a supplier, fully satisfy the
requirements of said Acts. SUBRECIPIENT shall, upon insertion in each Contract with a
subcontractor or supplier of a clause by which the subcontractor or supplier warrants such
compliance, be relieved of responsibility by the subcontractor or supplier.
LABOR CODE SECTION 1776: PAYROLLS AND BASIC RECORDS: The SUBRECIPIENT and
each subcontractor shall comply with California Labor Code section 1776, the entire provisions
Page 17 of77
of which are incorporated by this reference as if fully setforth herein, and SUBRECIPIENT shall
contain in each subcontract the requirements hereunder.
1. Accurate payroll records and basic records relating thereto shall be maintained by the
SUBRECIPIENT and each subcontractor during the course of the work and preserved for a
period as required by law for all journeymen, apprentices, workers, and other employees
employed in connection with the work. Such records shall contain information as on the payroll
record forms provided by the Division of Labor Standards of the Department of lndustrial
Relations, the name, address, social security number, work classification, hourly rates of wages
paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash
equivalents), daily and weekly number of hours worked, deductions made and actual per diem
wages paid. The SUBRECIPIENT shall maintain records which show that the commitment to
provide such benefits is enforceable, that the plan or program is financially responsible, and that
the plan or program has been communicated in writing to all employees affected, and records
which show the costs anticipated or the actual cost incurred in providing such benefits.
SUBRECIPIENTS employing apprentices or trainees under approved programs shall maintain
written evidence of the registration of apprenticeship programs and certification of trainee
programs, the registration of the apprentices and trainees, and the ratios and wage rates
prescribed in the applicable programs.
2. (a) The SUBRECIPIENT shall submit monthly (30 days after each month ending pay
period) for each month in which any Contract work is performed a certified copy of all payrolls to
the Engineer. The payrolls submitted shall set out accurately and completely all of the
information required to be maintained under paragraph (a) of this clause. The SUBRECIPIENT
is responsible for the submission of certified copies of payrolls by all subcontractors.
(b) Each payroll submitted shall be accompanied by a "Statement of Compliance,"
signed by the SUBRECIPIENT or subcontractor or his or her agent who pays or supervises the
payment of the persons employed under the Contract and shall certify under penalty of perjury
under the laws of the State of California each of the following:
(i) That the payroll for the payroll period contains the information required to
be maintained under paragraph (a) of this clause entitled "LABOR CODE
SECTION 1776; PAYROLLS AND BASIC" and that such information is
true, correct and complete;(¡i) That each employee employed on the Contract during the payroll period
has been paid the full weekly wages earned, without rebate, either
directly or indirectly, and that no deductions have been made either
directly or indirectly from the full wages earned, other than permissible
deductions;(iii) That each employee has been paid not less than the applicable wage
rates and fringe benefits or cash equivalents for the classification of work
performed, as specified in the applicable wage determination
incorporated into the Contract;(iv) SUBRECIPIENT has complied with the requirements of California Labor
Code sections 1771, 1811, and 1815 for any work performed hereunder
by his/her employees.
(c) The monthly submission of a properly executed certification set forth on
reverse side of Optional Form WH-347 shall satisfy the requirement for submission of
"Statement of Compliance" required by paragraph (b) (2) of this clause.
the
the
Page 18 of77
(d) The falsification of any of the above certifications may subject the
SUBRECIPIENT or Subcontractor to civil or criminal prosecution.
3. The SUBRECIPIENT or subcontractor shall make certified copies of all the records
required under paragraph (a) of this clause available for inspection at all reasonable hours at
the principal office of the SUBRECIPIENT by, and furnished upon request to, the Engineer, the
Division of Labor Standards Enforcement of the Department of lndustrial Relations, the Division
of Apprenticeship Standards of the Department of lndustrial Relations, and each of their
authorized representatives. A cefiified copy of the employee's record shall likewise be made
available for inspection or furnished upon request by the employee or his/her authorized
representative. The SUBRECIPIENT shall provide hereunder the street address, city and county
of the location of the payroll records maintained by SUBRECIPIENT and shall provide a notice
of any change of location and address within 5 working days of such change. The
SUBRECIPIENT and subcontractors shall permit such representatives to interview employees
during working hours on the job. lf the SUBRECIPIENT or subcontractor fails to submit the
required records within 30 days after each week ending pay period, or to furnish or make them
available for inspection within 10 days of request, (SUBRECIPIENT has 10 days to comply)
after written notice, the SUBRECIPIENT shall forfeit $100.00 for each calendar day, or portion
thereof, for each worker, until strict compliance is effectuated, pursuant to California Labor Code
section 1776. These penalties shall be withheld from progress payments then due.
IX. FAIR EMPLOYMENT PRACTICES AND NONDISCRIMINAT¡ON
ln connection with the performance of work under this Contract, the SUBRECIPIENT agrees as
follows:
1. The SUBRECIPIENT shall not unlawfully discriminate, harass, or allow harassment
against any employee or applicant for employment because of race, religious creed, color,
national origin, ancestry, physical disability (including HIV and AIDS), mental disability, medical
condition (cancer), marital status, political affiliation, sex, age (over 40), sexual orientation, and
denial of family care leave or on any other basis prohibited by law. The SUBRECIPIENT shall
ensure that the treatment of employees and evaluation of applicants for employment are free of
such discrimination and harassment. 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 SUBRECIPIENT agrees to post in conspicuous places, available
to employees and applicants for employment, notices to be provided by the State of California
setting forth the provisions of this Fair Employment Practices section.
2. SUBRECIPIENT and all subcontractors shall comply with the provisions of the Fair
Employment and Housing Act (Government Code, Section 129OO et seq.), and the applicable
regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 et
seq.). The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code Section 12990 (a-f), set forth in Chapter 5 of Division 4 of Title
2 of the California Code of Regulations, are incorporated into this Agreement by reference and
made a part hereof as if set forth in full.
3. SUBRECIPIENT assures City that it shall comply with the requirements of the
Americans with Disabilities Act (ADA) of 1990, (42 U.S.C. 12101 et seq.), which prohibits
discrimination on the basis of disability, as well as all applicable regulations and guidelines
Page 19 of77
issued pursuant to the ADA; the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000d (1988)
et seq.; Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (1989) and
the Age Discrimination Act of 1975, as amended, 42 U.S.C.6102 (199a); together with all
applicable regulations and guidelines adopted to implement same. Said group of laws and
requirements are collectively referred to in this Contract as the "anti-discrimination laws".
4. The SUBRECIPIENT will send to each labor union or representative of workers with
which he/she has a collective bargaining agreement or other contract or understanding, a
written notice advising the said labor union or workers' representative of the SUBRECIPIENT's
commitments under this section, and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
5. The SUBRECIPIENT will permit access to his/her records of employment, employment
advertisements, application forms, and other pertinent data and records by the City, State of
California, the State Fair Employment and Housing Commission, or any other appropriate
agency designated by the City or the State of California, for the purposes of investigation to
ascertain compliance with the Fair Employment Practices and Nondiscrimination section of this
Contract.
6. SUBRECIPIENT agrees to collect and maintain information to show compliance with the
"anti-discrimination laws" including a list of discrimination complaints, reports of any compliance
reviews conducted by other agencies descriptions of any pending discrimination-based lawsuits
and data on the racial, ethnic, national origin, sex and handicap characteristics of the population
it serves.
7. SUBRECIPIENT agrees to cooperate with City, and any other appropriate agency
designated by the City, in all manners necessary to permit City and any such agency to
adequately report to the United States Environmental Protection Agency on SUBRECIPIENT's
compliance with the "anti-discrimination laws".
B. A finding of willful violation of the Fair Employment Practices section of this Contract or
of the California Fair Employment and Housing Act shall be regarded by the City as a basis for
determining the SUBRECIPIENT to be not a "responsible Bidder" as to future contracts for
which such SUBRECIPIENT may submit bids, for revoking the SUBRECIPIENT's
prequalification rating, if any, and for refusing to establish, reestablish, or renew a
prequalification rating for the SUBRECIPIENT.
The City will deem a finding of willful violation of the California Fair Employment and Housing
Act to have occurred upon receipt of written notice from the Fair Employment and Housing
Commission that it has investigated and determined that the SUBRECIPIENT has violated the
California Fair Employment and Housing Act and has issued an order under California
Government Code section 12973, section 12970, or obtained an injunction under California
Government Code section 12973.
Upon receipt of such written notice from the Fair Employment and Housing Commission, the
City shall notify the SUBRECIPIENT that unless he/she demonstrated to the satisfaction of the
City within a stated period that the violation has been corrected, that he/she will be reported to
the City Council as not a "responsible Bidder" on any future Contract.
L The SUBRECIPIENT agrees, that should the City determine that the SUBRECIPIENT
has not complied with the Fair Employment Practices section of this Contract, then pursuant to
Page 20 of77
Labor Code sections 1735 and 1775, the SUBRECIPIENT shall forfeit, as a penalty to the City,
for each calendar day, or portion thereof, for each person who was denied employment as a
result of such noncompliance, the penalties provided in the Labor Code for violation of
prevailing wage rates. Such monies may be recovered from the SUBRECIPIENT. The City
may deduct any such damages from any monies due the SUBRECIPIENT from the City.
Furthermore, SUBRECIPIENT agrees that the City shall have the right to terminate this Contract
either in whole or in part, and any loss or damage sustained by City in securing the goods or
services thereunder shall be borne and paid for by SUBRECIPIENT and by the surety under the
performance bond, if any, and City may deduct from any moneys due or thereafter may become
due to SUBRECIPIENT, the difference between the price named in the Contract and the actual
cost thereof to City to cure SUBRECIPIENT's breach of the Contract.
10. Nothing contained in this Fair Employment Practices section shall be construed in
manner or fashion so as to prevent the City from pursuing any other remedies that may
available at law.
11. After award of the Contract, the SUBRECIPIENT shall certify to the City that he/she has
or will meet the following standards for affirmative compliance, which shall be evaluated in each
case by the City:
a. The SUBRECIPIENT shall provide evidence, as required by the City, that he/she
has notified all supervisors, foremen, and other personnel officers in writing of the content of the
antidiscrimination clause and their responsibilities under it.
b. The SUBRECIPIENT shall provide evidence, as required by the City, that he/she
has notified all sources of employee referrals (including unions, employment agencies,
advertisement, Department of Employment) of the content of the antidiscrimination clause.
c. The SUBRECIPIENT shall file a Fair Employment Practices compliance report,
as required by the City. Willfully false statements made in such reports shall be punishable as
provided by law. The compliance report shall also spell out the sources of the work force and
who has the responsibility for determining whom to hire, or whether or not to hire. The
compliance report shall be kept current throughout the Contract in that the SUBRECIPIENT
shall report any changes in or additions to the answers therein, including changes in
agreements with others. After the work or supply of materials is complete, before final payment,
the SUBRECIPIENT shall submit a final statement of compliance.
d. Personally, or through his/her representatives, the SUBRECIPIENT shall,
through negotiations with the unions with whom he/she has agreements, attempt to develop an
agreement which will:
(1) Spell out responsibilities for nondiscrimination in hiring, referral,
upgrading and training.(2) Otherwise implement an affirmative antidiscrimination program in terms of
the unions; specific areas of skill and geography, to the end that qualified
disadvantaged workers will be available and given an equal opportunity
for employment.
12. SUBRECIPIENT's signature on this Contract shall constitute a certification under the
penalty of perjury under the laws of the State of California that SUBRECIPIENT has, unless
any
be
Page 21 of77
exempted, complied with the nondiscrimination program requirements of Government Code,
Section 12990, and Title 2, California Code of Regulations, Section 8103.
13. The SUBRECIPIENT will include the provisions of the foregoing paragraphs 1 through
12 in every first tier subcontract so that such provisions will be binding upon each such
subcontractor.
X. REPRESENTATIONS AND WARRANTIES OF SUBRECIP]ENT
Existence and Qualification. SUBRECIPIENT shall provide to CITY any evidence required
or requested by CITY to demonstrate the continuing existence, qualification, and authority
of SUBRECIPIENT to execute this Agreement and to perform the acts necessary to carry
out the Project. SUBRECIPIENT represents and warrants that as of the date hereof,
SUBRECIPIENT is a duly organized public entity, corporate and politic, in good standing
with the State of California; SUBRECIPIENT has the requisite power, right, and legal
authority to execute, deliver, and perform its obligations under this Agreement and has
taken all actions necessary to authorize the execution, delivery, performance, and
observance of its obligations under this Agreement. This Agreement, when executed and
delivered by SUBRECIPIENT and CITY, shall constitute the legal, valid, and binding
obligations of SUBRECIPIENT enforceable against SUBRECIPIENT in accordance with its
respective terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium, or other similar laws of
general applicability affecting the enforcement of creditors' rights generally, and (b) the
application of general principles of equity without the joinder of any other party.
No Litiqation Material to Financial Condition. SUBRECIPIENT represents and warrants as
of the date hereof that, except as disclosed to and approved by CITY in writing, no litigation
or administrative proceeding before any court or governmental body or agency is now
pending, nor, to the best of SUBRECIPIENT's knowledge, is any such litigation or
proceeding now threatened, or anticipated against SUBRECIPIENT that, if adversely
determined, would have a material adverse effect on the financial condition, business, or
assets of SUBRECIPIENT or on the operation of the Project.
No Leqal Bar. SUBRECIPIENT represents and warrants as of the date hereof that the
execution, delivery, performance, or observance by SUBRECIPIENT of this Agreement will
not, to the best of SUBRECIPIENT's knowledge, materially violate or contravene any
provisions of: (a) any existing law or regulation, or any order of decree of any court,
governmental authority, bureau, or agency applicable to SUBRECIPIENT; (b) governing
documents and instruments of SUBRECIPIENT; or (c) any mortgage, indenture, security
agreement, contract, undertaking, or other agreement or instrument to which
SUBRECIPIENT is a party or that is binding on any of its properties or assets, the result of
which would materially or substantially impair SUBRECIPIENT's ability to perform and
discharge its obligations or its ability to complete the Project(s) under this Agreement.
Assurance of Governmental Approvals and Licenses. SUBRECIPIENT represents and
warrants, as of the date hereof, that SUBRECIPIENT, to the best of SUBRECIPIENT's
knowledge, is in compliance with all federal, state, local governmental reviews, consents,
authorizations, approvals, and has or will obtain all licenses presently required by law to
enter into this Agreement and perform the work contemplated hereunder. SUBRECIPIENT
warrants that any work hereunder requiring a special license will only be performed by a
party legally licensed to perform such work and said party, if not SUBRECIPIENT, shall be
Page 22 of 77
under contract with SUBRECIPIENT to perform said work.
Prompt Proqress Pavment to Subcontractors. A prime SUBRECIPIENT or subcontractor shall
pay a subcontractor not later than 7 days of receipt of each progress payment in accordance
with Section 7108.5 of the California Business and Professions Code concerning prompt
payment to subcontractors. Any violation of Section 7108.5 shall subject the violating
SUBRECIPIENT or subcontractor to the penalties, sanction and other remedies of that section.
These requirements shall not be construed to limit or impair any contractual, administrative, or
judicial remedies otherwise, available to the prime SUBRECIPIENT or subcontractor in the
event of a dispute involving late payment or nonpayment by the prime SUBRECIPIENT,
deficient subcontractor performance, or noncompliance by a subcontractor. This provision
applies to both DBE and non-DBE subcontractors.
1. All contract and subcontracts (alltiers), shall contain the foreqoino provision.
Performance Monitorinq. CITY will monitor the performance of SUBRECIPIENT based on goals
and performance standards as stated above along with all other applicable federal, state and
local laws, regulations, and policies governing the funds provided under this contract.
Substandard performance as determined by CITY will constitute noncompliance with this
Agreement. lf corrective action is not taken by SUBRECIPIENT within a reasonable period of
time after being notified by CITY, contract suspension or termination procedures will be initiated.
SUBRECIPIENT agrees to provide HUD, the HUD Office of lnspector General, the General
Accounting Office, CITY, or CITY's internal auditor(s) access to all records related to
performance of activities in this agreement.
Compliance with Aqreement. SUBRECIPIENT warrants, covenants and agrees that, upon
any uncured default by SUBRECIPIENT within the meaning of Section Xl of this
Agreement, CITY may suspend or terminate this and any and all other Agreements with
SUBRECIPIENT without waiver or limitation of rights/remedies otherwise available to CITY.
Compliance with Laws. SUBRECIPIENT shall be responsible for and promptly and faithfully
comply with, conform to and obey all present and future federal, state and local statutes,
regulations, rules, ordinances and other legal requirements applicable by reason of this
Agreement or otherwise to the Project including without limitation prevailing wage
requirements. SUBRECIPIENT acknowledges that the use of federal funds on the Project
is subject to extensive federal regulation and covenants and agrees that it shall comply
with, conform to and obey (and take such steps as are required of SUBRECIPIENT to
enable CITY to comply with, conform to and obey) all federal statutes, regulations, rules
and policies applicable to the Project.
Compliance with Environmental Laws. SUBRECIPIENT shall cause the Affordable Units to
be in compliance with, and not to cause or permit the Project to be in violation of, any
Hazardous Materials law, rule, regulation, ordinance, or statute. Although CITY will utilize
its employees and agents for regular inspection and testing of the eligible Property,
SUBRECIPIENT agrees that, if CITY has reasonable grounds to suspect any such
violation, SUBRECIPIENT shall be entitled to thirty (30) days' notice and opportunity to
cure such violation. lf the suspected violation is not cured, CITY shall have the right to
retain an independent consultant to inspect and test the Property for such violation. lf a
Page 23 of 77
violation is discovered, SUBRECIPIENT shall pay for the reasonable cost of the
independent consultant.
Additionally, SUBRECIPIENT agrees:
1. That CITY shall not be directly or indirectly responsible, obligated or liable with the
inspection, testing, removal or abatement of asbestos or other hazardous or toxic chemicals,
materials, substances, or wastes and that all liability for such work shall be and remain solely
with SUBRECIPIENT;
2. Not to transport to or from the proposed Property, or use, generate, manufacture,
produce, store, release, discharge, or dispose of on, under, or about the Property, or
surrounding real estate, or transport to or from the Property, or surrounding real estate, any
hazardous or toxic chemicals, materials, substance, or wastes or allow any person or entity to
do so except in such amounts and under such terms and conditions permitted by applicable
laws, rules, regulations, ordinances, and statutes;
3. To give prompt written notice to CITY of the following:
a. Any proceeding or inquiry by any governmental authority with respect to the
presence of any hazardous or toxic chemicals, materials, substance, or waste in or on the
eligible Property or the surrounding real estate or the migration thereof from or to other property;
and
b. All claims made or threatened by any third party against SUBRECIPIENT or such
properties relating to any loss or injury resulting from any hazardous or toxic chemicals,
materials, substance, or waste; and
c. SUBRECIPIENT's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of such properties that would cause such properties or underlying or
surrounding real estate or part thereof to be subject to any restrictions on the ownership,
occupancy, transferability, or use of the property under any environmental law, rule, regulation,
ordinance or statute; and
4. To indemnify, defend, and hold CITY harmless from any and all claims, actions, causes
of action, demand, judgments, damages, injuries, administrative orders, consent agreements,
orders, liabilities, penalties, costs, expenses (including attorney's fees and expenses), and
disputes of any kind whatsoever arising out of or relating to SUBRECIPIENT or any other
party's use of release of any hazardous or toxic chemicals, materials, substance, or wastes on
the Property regardless of cause or origin, including any and all liability arising out of or relating
to any investigation, site monitoring, containment, cleanup, removal, restoration, or other
remedialwork of any kind or nature.
Conflict of lnterest. SUBRECIPIENT warrants, covenants and agrees that it shall comply
with the Conflict of lnterest requirements of NSP including, without limitation, that no
owner, sponsor or officer, employee, agent or consultant of SUBRECIPIENT (other than an
employee or agent of SUBRECIPIENT who occupies a Unit as the property manager or
maintenance worker) may occupy an Affordable Project Unit. SUBRECIPIENT understands
Page 24 of 77
and acknowledges that no employee, agent, consultant, officer or elected official or
appointed official of CITY, who exercises or has exercised any functions or responsibilities
with respect to the Affordable Project, or who is in a position to participate in a decision
making process or gain inside information with regard to these activities, may obtain a
financial interest or benefit from the Affordable Project, or have an interest in any contract,
subcontract or agreement with respect thereto, or the proceeds thereunder, either for him
or herself or for anyone with which that person has family or business ties, during his or her
tenure or for one year thereafter. The applicable Conflict of lnterest requirements of 24
CFR Section 570.611 shall also be followed.
1. Prior to CITY'S execution of this Agreement, SUBRECIPIENT shall complete a City
of Fresno conflict of interest disclosure statement in the form as set forth in Exhibit H,
attached hereto and incorporated herein. During the term of this Agreement,
SUBRECIPIENT shall have the obligation and duty to immediately notify CITY in writing of
any change to the information provided by SUBRECIPIENT in such statement.
2. SUBRECIPIENT shall comply, and require its subcontractors to comply, with all
applicable (i) professional canons and requirements governing avoidance of impermissible
client conflicts; and (ii) federal, state and local conflict of interest laws and regulations
including, without limitation, California Government Code Section 1090 et. seq., the
California Political Reform Act (California Government Code Section 87100 et. seq.), the
regulations of the Fair Political Practices Commission concerning disclosure and
disqualification (2 California Code of Regulations Section 18700 et. seq.) and Section 4-
112 of the Fresno Municipal Code (lneligibility to Compete). At any time, upon written
request of CITY, SUBRECIPIENT shall provide a written opinion of its legal counsel and
that of any subcontractors that, after a due diligent inquiry, SUBRECIPIENT and the
respective subcontractor(s) are in full compliance with all laws and regulations.
SUBRECIPIENT shall take, and require its subcontractors to take, reasonable steps to
avoid any appearance of a conflict of interest. Upon discovery of any facts giving rise to
the appearance of a conflict of interesf, SUBRECIPIENT shall immediately notify CITY of
fhese facts in writing.
3. ln performing the work or services to be provided hereunder, SUBRECIPIENT shall
not employ or retain the services of any person while such person either is employed by
CITY or is a member of any CITY council, commission, board, committee, or similar CITY
body. This requirement may be waived in writing by the City Manager, if no actual or
potential conflict is involved.
4. SUBRECIPIENT represents and warrants that it has not paid or agreed to pay any
compensation, contingent or otherwise, direct or indirect, to solicit or procure this
Agreement or any rightsibenefits hereunder.
5. Neither SUBRECIPIENT, nor any of SUBRECIPIENT'S subcontractors performing
any services on this Project, shall bid for, assist anyone in the preparation of a bid for, or
perform any services pursuant to, any other contract in connection with this Project.
SUBRECIPIENT and any of its subcontractors shall have no interest, direct or indirect, in
any other contract with a third party in connection with this Project unless such interest is in
accordance with all applicable law and fully disclosed to and approved by the City
Manager, in advance and in writing.
6. lf SUBRECIPIENT should subcontract all or any portion of the work to be performed
Page 25 of 77
or services to be provided under this Agreement, SUBRECIPIENT shall include the
provisions of this Section 9 in each subcontract and require its subcontractors to comply
therewith.
7. This Section shall survive expiration or termination of this Agreement.
Disadvantaqed Business Enterprise Outreach Activities. SUBRECIPIENT covenants and
agrees that it shall comply with all federal laws and regulations regarding Disadvantaged
Business Enterprise outreach activities, including, without limitation, the requirement that
SUBRECIPIENT comply with CITY's Disadvantaged Business Enterprise outreach program.
XI. DEFAULT AND REMEDIES
Events of Default. Each of the following shall constitute an "Event of Default" for purposes
of this Agreement after the cure period in this section has expired without a cure.
1. SUBRECIPIENT's use of NSP Funds, for costs other than Eligible Costs orfor uses not
permitted by the terms of this Agreement.
2. SUBRECIPIENT's failure to obtain and maintain the insurance coverage as required
under this Agreement.
3. Except as othen¡rise provided in this Agreement, the failure of SUBRECIPIENT to
punctually and properly perform any other covenant or agreement contained in this Agreement
including without limitation the following: (1) SUBRECIPIENT's substantial deviation in the
construction of the Project from the Final Plans/Conditional Use Permit (CUP), without CITY's
prior written consent; (2) SUBRECIPIENT's use of defective or unauthorized materials or
defective workmanship in pursuit of the Project; (3) SUBRECIPIENT's failure to commence or
complete the Project, unless delay is permitted under this Agreement; (4) the cessation of work
on the Project for a period of more than fifteen (15) consecutive days (other than as provided in
this Agreement) prior to submitting to CITY, certification that the Project is complete; (5) any
material adverse change in the financial condition of SUBRECIPIENT or the Project that gives
CITY reasonable cause to believe that the Project cannot be completed by the Completion Date
according to the terms of this Agreement; (6) SUBRECIPIENT's failure to remedy any
deficiencies in record keeping or failure to provide records to CITY upon CITY's request; (7)
SUBRECIPIENT's failure to substantially comply with any federal, state or local laws or
applicable CITY restrictions governing the Project, including but not limited to provisions of this
Agreement pertaining to equal employment opportunity, nondiscrimination and lead-based
paint.
4. Any representation, warranty, or certificate given or furnished by or on behalf of
SUBRECIPIENT shall prove to be materially false as of the date of which the representation,
warranty, or certification was given, or that SUBRECIPIENT concealed or failed to disclose a
materialfact to CITY, provided, however, that if any representation, warranty, or certification that
proves to be materially false is due merely to SUBRECIPIENT's inadvertence, SUBRECIPIENT
shall have a thirty (30) day opportunity after written notice thereof to cause such representation,
warranty, or certification to be true and complete in every respect.
5. SUBRECIPIENT shall file, or have filed against it, a petition of bankruptcy, insolvency, or
similar law, state or federal, or shall file any petition or answer seeking, consenting to, or
acquiescing in any reorganization, arrangement, composition, readjustment, liquidation,
Page 26 of 77
dissolution, or similar relief, and such petition shall not have been vacated within ninety (90)
days; or shall be adjudicated bankrupt or insolvent, under any present or future statute, law,
regulation, under state or federal law, and such judgment or decree is not vacated or set aside
within ninety (90) days.
6. SUBRECIPIENT's failure, inability or admission in writing of its inability to pay its debts
as they become due or SUBRECIPIENT's assignment for the benefit of creditors.
7. A receiver, trustee, or liquidator shall be appointed for SUBRECIPIENT or any
substantial part of SUBRECIPIENT's assets or properties, and not be removed within ten (10)
days.
B. SUBRECIPIENT's breach of any other material condition, covenant, warranty, promise
or representation contained in this Agreement not otherwise identified within this Section.
L Any substantial or continuous breach by SUBRECIPIENT of any material obligation
owed by SUBRECIPIENT imposed by any other agreement with respect to the financing, of the
Project, whether or not CITY is a party to such agreement after expiration of all notice and cure
periods contained within such document.
Notice of Default and Opportunitv to Cure. CITY shall give written notice to
SUBRECIPIENT of any Event of Default by specifying: 1) the nature of the event or
deficiency giving rise to the default; 2) the action required to cure the deficiency, if any
action to cure is possible; and 3) a date, which shall not be less than the lesser of any time
period provided in this Agreement, or thirty (30) calendar days from the date of the notice,
by which such deficiency must be cured, provided that if the specified deficiency or default
cannot reasonably be cured within the specified time, SUBRECIPIENT shall have an
additional reasonable period to cure so long as it commences cure within the specified time
and thereafter diligently pursues the cure in good faith. CITY acknowledges and agrees
that SUBRECIPIENT shall have the right to cure any defaults hereunder and that notice
and cure rights hereunder shall extend to any and all partners of SUBRECIPIENT that are
prior identified in a writing delivered to CITY in the manner provided in this Agreement.
Remedies Upon an Event of Default. Upon the happening of an Event of Default by
SUBRECIPIENT and a failure to cure said Event of Default within the time specified, CITY's
obligation to disburse any undisbursed Funds shall terminate. CITY may also at its option
and without notice institute any action, suit, or other proceeding in law, in equity or
otherwise, which it shall deem necessary or proper for the protection of its interests and
may without limitation proceed with any or all of the following remedies in any order or
combination that CITY may choose in its sole discretion:
1. Terminate this Agreement immediately upon written notice to SUBRECIPIENT;
2. Bring an action in equitable relief (1) seeking specific performance by SUBRECIPIENT
of the terms and conditions of this Agreement, and/or (2) enjoining, abating or preventing any
violation of said terms and conditions, and/or (3) seeking declaratory relief; and
3. Pursue any other remedy allowed by law or in equity or under this Agreement.
Page 27 of77
GENERAL MISCELLANEOUS
Without waiver of limitation, the parties agree that the following general provisions shall apply in
the performance hereof:
Professional Skill. lt is further mutually understood and agreed by and between the parties
hereto that inasmuch as SUBRECIPIENT represents to CITY that SUBRECIPIENT is
skilled in the profession and shall perform in accordance with the standards of said
profession necessary to perform the services agreed to be done by it under this
Agreement, CITY relies upon the skill of SUBRECIPIENT to do and perform the services in
a skillful manner and SUBRECIPIENT agrees to thus perform the services. Acceptance of
the services by CITY shall not operate as a release of SUBRECIPIENT from said standards
of said profession.
Attornev's Fees. lf either party is required to commence any proceeding or legal action to
enforce or interpret any term, covenant or condition of this Agreement, the prevailing party
will be entitled to recover from the other party its reasonable attorney's fees and legal
expenses.
Bindino on All Successors and Assiqns. Unless otherwise expressly provided in this
Agreement, all the terms and provisions of this Agreement shall be binding on and inure to
the benefit of the parties hereto, and their respective nominees, heirs, successors, assigns,
and legal representatives.
Counterparts. This Agreement may be executed in counterparts, each of which when
executed and delivered will be deemed an original, and all of which together will constitute
one instrument. The execution of this Agreement by any party hereto will not become
effective until counterparts hereof have been executed by all parties hereto.
Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but
shall, wherever possible, be cumulative with all other remedies at law or in equity. All
powers and remedies given by this Agreement shall be cumulative and in addition to those
othen¡¡ise provided by law.
Disclaimer of Relationship. Nothing contained in this Agreement, nor any act of CITY or of
SUBRECIPIENT, or of any other person, shall in and by itself be deemed or construed by
any person to create any relationship of third party beneficiary, or of principal and agent, of
limited or general partnership, or of joint venture.
Discretionarv Governmental Actions. Certain planning, land use, zoning and other permits
and public actions required in connection with the Project including, without limitation, the
approval of this Agreement, the environmental review and analysis under NEPA, CEQA or
any other statute, and other transactions contemplated by this Agreement are discretionary
government actions. Nothing in this Agreement obligates CITY or any other governmental
entity to grant final approval of any matter described herein. Such actions are legislative,
quasi-judicial, or otherwise discretionary in nature. CITY cannot take action with respect to
such matters before completing the environmental assessment of the Project under NEPA,
CEQA and any other applicable statutes. CITY cannot and does not commit in advance
that it will give final approval to any matter. CITY shall not be liable, in contract, law or
equity, to SUBRECIPIENT or any of its executors, administrators, transferees, successors-
in-interest or assigns for any failure of any governmental entity to grant approval on any
xil.
Page 28 of 77
matter subject to discretionary approval.
Effective Date. This Agreement shall be effective upon the Parties' complete execution
following City Council approval.
Entire Aqreement. This Agreement represents the entire and integrated agreement of the
parties with respect to the subject matter hereof. This Agreement supersedes all prior
negotiations, representations or agreements, either written or oral. This Agreement may be
modified or amended only by written instrument duly authorized and executed by both CITY
and SUBRECIPIENT.
Exhibits. Each exhibit and attachment referenced in this Agreement is, by the reference,
incorporated into and made a part of this Agreement.
Expenses lncurred Upon Event of Default. SUBRECIPIENT shall reimburse CITY for all
reasonable expenses and costs of collection and enforcement, including reasonable
attorney's fees, incurred by CITY as a result of one or more Events of Default by
SUBRECIPIENT under this Agreement.
Governinq Law and Venue. Except to the extent preempted by applicable federal law, the
laws of the State of California shall govern all aspects of this Agreement, including
execution, interpretation, performance, and enforcement. Venue for filing any action to
enforce or interpret this Agreement will be Fresno County, California.
Headinqs. The headings of the articles, sections, and paragraphs used in this Agreement
are for convenience only and shall not be read or construed to affect the meaning or
construction of any provision.
lnterpretation. This Agreement in its final form is the result of the combined efforts of the
parties. Any ambiguity will not be construed in favor or against any party, but rather by
construing the terms in accordance with their generally accepted meaning.
No Assiqnment or Succession. SUBRECIPIENT shall not sell, lease, transfer, assign or
otherwise dispose of all or any material part of any interest it might hold in the Property
without the prior written consent of CITY, which consent shall not be unreasonably withheld
or delayed. Ownership in the property will be held by the SUBRECIPIENT "Housing
Authority of the City of Fresno" or an affiliate, with Council approval.
1. This Agreement is personal to SUBRECIPIENT and there shall be no assignment by
SUBRECIPIENT of its rights or obligations under this Agreement without the prior written
approval of the City Manager or his/her designee. Any attempted assignment by
SUBRECIPIENT, its successors or assigns, shall be null and void unless approved in
writing by the City Manager or his/her designee.
2. SUBRECIPIENT hereby agrees not to assign the payment of any monies due
SUBRECIPIENT from CITY under the terms of this Agreement to any other individual(s),
corporation(s) or entity(ies). CITY retains the right to pay any and all monies due
SUBRECIPIENT directly to SUBRECIPIENT.
No Third-Partv Beneficiarv. The rights, interests, duties and obligations defined within this
Agreement are intended for the specific parties hereto as identified in the preamble of this
Page 29 of 77
Agreement. Notwithstanding anything stated to the contrary in this Contract, it is not
intended that any rights or interests in this Agreement benefit or flow to the interest of any
third parties other than expressly identified herein. No SUBRECIPIENT, subcontractor,
mechanic, materialman, laborer, vendor, or other person hired or retained by
SUBRECIPIENT shall have any rights hereunder and shall look to SUBRECIPIENT as their
sole source of recovery if not paid. No third party may enter any claim or bring any such
action against CITY under any circumstances. Except as provided by law, or as otherwise
agreed to in writing between CITY and such person, each such person shall be deemed to
have waived in writing all right to seek redress from CITY under any circumstances
whatsoever. SUBRECIPIENT shall include this paragraph in all contracts/subcontracts.
Non-reliance. SUBRECIPIENT hereby acknowledges having obtained such independent
legal or other advice as it has deemed necessary and declares that in no manner has it
relied on CITY, it agents, employees or attorneys in entering into this Agreement.
Notice. Any notice to be given to either party under the terms of this Agreement shall be in
writing and shall be deemed to be duly given if delivered personally, transmitted by
facsimile followed by telephone confirmation of receipt, or sent by United States registered
or certified mail, with postage prepaid, return receipt requested, addressed to the party to
which notice is to be given at the party's address set forth on the signature page of this
Agreement or at such other address as the parties may from time to time designate by
written notice. Notices served by United States mail in the manner above described shall
be deemed sufficiently served or given at the time of the mailing thereof.
Recordinq of Documents. SUBRECIPIENT agrees to cooperate promptly in any manner
required at CITY's request, with the recordation of documents/instruments consistent with
this Agreement in the Official Records of Fresno County, California. Said cooperation
includes but is not limited to correction of errors in documents and witnessed execution
thereof.
Recvclinq Proqram. ln the event SUBRECIPIENT maintains an office or operates a facility(ies),
or is required herein to maintain or operate same, within the incorporated limits of the City of
Fresno, SUBRECIPIENT at its sole cost and expense shall:
1. lmmediately establish and maintain a viable and ongoing recycling program, approved
by CITY'S Solid Waste Management Division, for each office and facility. Literature describing
CITY recycling programs is available from CITY'S Solid Waste Management Division and by
calling City of Fresno Recycling Hotline at (559) 621-1111.
2. lmmediately contact CITY'S Solid Waste Management Division at (559) 621-1452 and
schedule a free waste audit, and cooperate with such Division in their conduct of the audit for
each office and facility.
3. Cooperate with and demonstrate to the satisfaction of CITY'S Solid Waste Management
Division the establishment of the recycling program in paragraph (i) above and the ongoing
maintenance thereof.
Severabilitv. The provisions of this Agreement are severable. The invalidity or
unenforceability of any one provision of this Agreement shall not affect the remaining
Page 30 of 77
provisions.
Waiver. Neither failure nor delay on the part of CITY in exercising any right under this
Agreement shall operate as a waiver of such right, nor shall any single or partial exercise of
any such right preclude any further exercise thereof or the exercise of any other right. No
waiver of any provision of this Agreement or consent to any departure by SUBRECIPIENT
therefrom shall be effective unless the same shall be in writing, signed on behalf of CITY by
a duly authorized officer thereof, and the same shall be effective only in the specific
instance for which it is given. No notice to or demand on SUBRECIPIENT in any case shall
entitle SUBRECIPIENT to any other or further notices or demands in similar or other
circumstances, or constitute a waiver of any of CITY's right to take other or further action in
any circumstances without notice or demand.
ilt
Ht
Ht
Page 31 of77
DtvtstoN lil
FEDERAL REQUIREMENTS
GENERAL REQUIREMENTS
SUBRECIPIENT does not intend to use any financing that is secured by a mortgage insured by
HUD in connection with the Project as part of its demolition or construction of the Project.
The Project shall not be located in a tract identified by the Federal Emergency Management
Agency as having specialflood requirements. Notwithstanding the foregoing, in accordance with
the requirements of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001),
SUBRECIPIENT shall assure that for activities located in an area identified by the Federal
Emergency Management Agency (FEMA) as having special flood hazards, flood insurance
under the National Flood lnsurance Program is obtained and maintained as a condition of
financial assistance for acquisition or construction purposes (including rehabilitation).
Equal Employment Opportunity and Affirmative Action (EEOiAA) Statement - SUBRECIPIENT
will, in all solicitations or advertisements for employees placed by or on behalf of
SUBRECIPIENT, state that it is an Equal Opportunity or Affirmative Action employer.
Subcontract Provisions - SUBRECIPIENT will include the provisions of Paragraphs Xl.A, Civil
Rights, and B, Affirmative Action, in every subcontract or purchase order, specifically or by
reference, so that such provisions will be binding upon each of its own SUBRECIPIENTs or
subcontractors.
1. Monitoring - SUBRECIPIENT will monitor all subcontracted services on a regular basis
to assure contract compliance. Results of monitoring efforts shall be summarized in written
reports and supported with documented evidence of follow-up actions taken to correct areas of
noncompliance.
2. Content - SUBRECIPIENT shall cause all of the provisions of this contract in its entirety
to be included in and made a part of any subcontract executed in the performance of this
Agreement.
Prohibited Activity - SUBRECIPIENT is prohibited from using funds provided herein or
personnel employed in the administration of the program for: political activities; inherently
religious activities; lobbying; political patronage; and nepotism activities.
Gopyright - lf this contract results in any copyrightable material or inventions, HUD reserves the
right to royalty-free, non-exclusive and irrevocable license to reproduce, publish or otherwise
use and to authorize others to use, the work or materials for governmental purposes.
Eminent Domain - SUBRECIPIENT will not undertake any involuntary acquisition of property
with NSP funds without prior written consent of CITY and written opinion of counsel that such
acquisition is lavvful.
Uniform Relocation Assistance - SUBRECIPIENT agrees to comply with (a) the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended (URA),
and implementing regulations at 49 CFR Pa¡t 24; 24 CFR Parl 42 - Displacement, Relocation
Assistance and Real Property Acquisition for HUD and HUD Assisted Programs; and 24 CFR
570.606 - Displacement, relocation acquisition, and replacement of housing. SUBRECIPIENT
Page 32 of 77
shall provide appropriate relocation assistance (URA or section 104(d)) to eligible displaced
persons as defined by applicable HUD and/or URA regulations that are displaced as a direct
result of acquisition, rehabilitation, demolition or conversion for an NSP-assisted project.
SUBRECIPIENT also agrees to comply with applicable CITY or local ordinances, resolutions
and policies concerning the displacement of persons.
SECTION 3 OF THE HOUSING AND URBAN DEVELOPMENT ACT OF 1968.
A. The work to be performed under this contract is subject to the requirements of section 3
of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3).
The purpose of section 3 is to ensure that employment and other economic opportunities
generated by HUD assistance or HUD-assisted projects covered by section 3, shall, to the
greatest extent feasible, be directed to low- and very low-income persons, particularly persons
who are recipients of HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24 CFR part 135,
which implement section 3. As evidenced by their execution of this contract, the parties to this
contract certify that they are under no contractual or other impediment that would prevent them
from complying with the part 135 regulations.
C. The SUBRECIPIENT agrees to send to each labor organization or representative of
workers with which the SUBRECIPIENT has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers' representative of the
SUBRECIPIENT'S commitments under this section 3 clause, and will post copies of the notice
in conspicuous places at the work site where both employees and applicants for training and
employment positions can see the notice. The notice shall describe the section 3 preference,
shall set forth minimum number and job titles subject to hire, availability of apprenticeship and
training positions, the qualifications for each; and the name and location of the person(s) taking
applications for each of the positions; and the anticipated date the work shall begin.
D. The SUBRECIPIENT agrees to include this section 3 clause in every contract and
subcontract subject to compliance with regulations in 24 CFR, replacing SUBRECIPIENT'S
name with the contractor or subcontractods name as applicable.
HISTORIC PRESERVATION
SUBRECIPIENT agrees to comply with the Historic Preservation requirements set forth in the
National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and the procedures set
forth in 36 CFR Part 800, Advisory Council on Historic Preservation Procedures for Protection of
Historic Properties, insofar as they apply to the performance of this agreement.
ln general, this requires concurrence from the State Historic Preservation Officer for all
rehabilitation and demolition of historic properties that are fifty years old or older or that are
included on a Federal, state, or local historic property list. SUBRECIPIENT will provide project
descriptions to CITY staff to ensure Historic Preservation compliance during the environmental
revrew process.
LOBBYING
By its execution of this Agreement SUBRECIPIENT hereby certifies that:
Page 33 of77
1. No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to
any person for influencing or attempting to influence an officer or employee of any agency, a
SUBRECIPIENT of Congress, an officer or employee of Congress, or an employee of a
SUBRECIPIENT 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;
2. lf any funds other than Federal appropriated funds have been paid or will be paid to any
person for influencing or attempting to influence an officer or employee of any agency, a
SUBRECIPIENT of Congress, an officer or employee of Congress, or an employee of a
SUBRECIPIENT of Congress in connection with this Federal contract, grant, loan, or
cooperative agreement, it will complete and submit Standard Form-LLL, "Disclosure Form to
Report Lobbying," in accordance with its instructions; and
3. lt will require that the language of paragraph (d) of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts
under grants, loans, and cooperative agreements) and that all SUBRECIPIENTs shall certify
and disclose accordingly:
4. Lobbying Certification - This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into. Submission of this
certification is a prerequisite for making or entering into this transaction imposed by section
1352, title 31, U.S.C. Any person who fails to file the required certification shall be subject to a
civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
ADMINISTRATIVE REQUIREMENTS
Financial Management
L. Accounting Standards - Under this Agreement SUBRECIPIENT is not a sub-recipient
and therefore is not subject to the provisions of 24 CFR Part 84 and 24 CFR Part 85, which
apply only to governmental entities and nonprofit sub-recipients carrying out NSP programs.
2. SUBRECIPIENT will use adequate internal controls, and maintain necessary source
documentation for all costs incurred and adhere to any other accounting requirements included
in this Agreement or the Program Manual.
3. Cost Principles contained in OMB Circulars A-87, "Cost Principles for State, Local and
lndian Tribal Governments," A-122, "Cost Principles for Non-Profit Organizations," or A-21,
"Cost Principles for Educational lnstitutions," do not apply to this SUBRECIPIENT agreement.
Documentatlon and Record Keeping
1. Tenant Data - SUBRECIPIENT shall maintain tenant data demonstrating tenant eligibility
for services provided. Such data shall include, but not be limited to, tenant name, address,
income level or other basis for determining eligibility, and description of service or benefit
provided. Such information shall be made available upon request to CITY monitors or their
designees for review.
Page 34 of77
2. Records to be Maintained - SUBRECIPIENT shall maintain all records required by
Federal regulations specified in 24 CFR 570.506. Such records shall include but not be limited
to:
a. Records providing a full description of each activity undertaken and
demonstrating that each activity undertaken benefits low-, moderate-, or middle-income
persons;
b. Records documenting the eligibility of activities and properties assisted;
c. Records documenting the purchase and sale amounts-or rental amounts of
each property, discounts, and the sources and uses of funds for each activity;
d. Records documenting compliance with the fair housing and equal opportunity
requirements of the NSP program, including but not limited to the racial, ethnic, and gender
characteristics of persons who are applicants for, participants in, or beneficiaries of the program;
e. Records documenting efforts to ensure that the initial successor in interest in a
foreclosed upon dwelling or residential real property has complied with the tenant protection
requirements;
f. Financial records and other records necessary to document compliance with
Subpart K of 24 CFR Part 570.
3. Retention of Records - SUBRECIPIENT shall retain all financial records, supporting
documents, statistical records, and all other records pertinent to the Agreement for a period of
five (5) years. The retention period begins on the date that CITY submits its first quarterly
performance report to HUD via DRGR. Notwithstanding the above, if there is litigation, claims,
audits, negotiations or other actions that involve any of the records cited and that have started
before the expiration of the five-year period, then such records must be retained until completion
of the actions and resolution of all issues, or the expiration of the five-year period, whichever
occurs later.
4. Access to Records - SUBRECIPIENT shall furnish and cause each of its own
SUBRECIPIENTs or subcontractors to furnish all information and reports required hereunder
and will permit access to its books, records and accounts by CITY, HUD or its agent, or other
authorized Federal officials for purposes of investigation to ascertain compliance with the rules,
regulations and provisions stated herein.
5. Disclosure of lnformation - SUBRECIPIENT understands that tenant information
collected under this contract is private and the use or disclosure of such information, when not
directly connected with the administration of CITY's or SUBRECIPIENT's responsibilities with
respect to services provided under this contract, is prohibited by law unless written consent is
obtained from such person receiving service and, in the case of a minor, that of a responsible
parenUguardian.
6. Close-Out - SUBRECIPIENT's obligation to CITY shall not end until the HUD completes
all close-out requirements for the NSP grant. Activities during this close-out period shall include,
but are not limited to: making final payments; disposing of program assets (including the return
of all unused materials, equipment, unspent cash advances, program income balances, and
accounts receivable to CITY); and determining the custodianship of records. However, the
Page 35 of77
terms of this Agreement shall remain in effect during any period that SUBRECIPIENT has
control over NSP funds, including program income.
7. Audits & lnspections - All SUBRECIPIENT records with respect to any matters covered
by this Agreement shall be made available to CITY, CITY agency, HUD, and the Comptroller
General of the United States or any of their authorized representatives, at any time during
normal business hours, as often as deemed necessary, to audit, examine, and make excerpts
or transcripts of all relevant data. Any deficiencies noted in audit reports must be fully cleared by
SUBRECIPIENT within 30 days after receipt by SUBRECIPIENT. Failure of SUBRECIPIENT to
comply with the above audit requirements will constitute a violation of this contract and may
result in the withholding of future payments or termination of this agreement. SUBRECIPIENT
hereby agrees to have an annual agency audit conducted in accordance with OMB Circular A-
1 33.
Conflict of lnterest
SUBRECIPIENT agrees to abide by the provisions of 24 CFR 84.42 and 570.61 1 , which include
(but are not limited to) the following:
1. SUBRECIPIENT shall maintain a written code or standards of conduct that shall govern
the performance of its officers, employees or agents engaged in the award and administration of
contracts supported by Federal funds.
2. No employee, officer or agent of SUBRECIPIENT shall participate in the selection, or in
the award, or administration of, a contract supported by Federal funds if a conflict of interest,
real or apparent, would be involved.
3. No covered persons who exercise or have exercised any functions or responsibilities
with respect to NSP assisted activities, or who are in a position to participate in a decision-
making process or gain inside information with regard to such activities, may obtain a financial
interest in any contract, or have a financial interest in any contract, subcontract, or agreement
with respect to the NSP-assisted activity, or with respect to the proceeds from the NSP assisted
activity, either for themselves or those with whom they have business or immediate family ties,
during their tenure or for a period of one (1) year thereafter. For purposes of this paragraph, a
"coveÍed person" includes any person who is an employee, agent, consultant, offlcer, or elected
or appointed official of CITY, SUBRECIPIENT, or any designated public agency.
Use of and Reversion of Assets
The use and disposition of real property and equipment under this Agreement shall be in
compliance with the requiremenls of 24 CFR 570.503, 570.504, and 570.505, as applicable,
which include but are not limited to the following:
L SUBRECIPIENT shall transfer to CITY any NSP3 funds on hand and any accounts
receivable attributable to the use of funds under this Agreement at the time of expiration,
cancellation, or termination, unless otherwise specified in the HUD closeout agreement with
CITY.
2. Real property under SUBRECIPIENT's control that was acquired or improved, in whole
or in part, with funds under this Agreement shall be used in accordance with the NSP
Page 36of77
application for the period consistent with the continued affordability requirements. lf
SUBRECIPIENT fails to use NSP assisted real property in a manner that meets NSP
affordability and benefit requirements within and for the prescribed period of time,
SUBRECIPIENT shall comply with the applicable sections under 24 CFR 570.503, 570.504, and
570.505.
3. ln all cases in which equipment acquired, in whole or in part, with funds under this
Agreement is sold, the proceeds shall be program income (prorated to reflect the extent to
which funds received under this Agreement were used to acquire the equipment). Equipment
not needed by SUBRECIPIENT for activities under this Agreement shall be (a) transferred to
CITY for the NSP program or (b) retained after compensating CITY an amount equal to the
current fair market value of the equipment less the percentage of non-NSP funds used to
acquire the equipment.
COMPLIANCE WITH LAWS
SUBRECIPIENT covenants and agrees that, in addition to complying with the federal laws and
regulations already cited in this Agreement, SUBRECIPIENT has reviewed, and shall comply
with and require all its contractors and subcontractors on this Project comply with, all other
federal laws and regulations that pursuant to the following:
1. NSP Proqram, including, without limitation, requirements of the NSP Grant Agreement,
the HERA Act of 2008 andior the Dodd-Frank Act of 2010, the requirements applicable to
entitlement communities under CDBG regulations, 24 CFR 58.6 and the Flood Disaster
Protection Act of 1973, as amended (42 U.S.C. 4001-4128)
SUBRECIPIENT further acknowledges its responsibility for adherence to all applicable terms
and conditions of this grant award by sub-recipient entities and contractors, including obtaining
a DUNS number (or updating the existing DUNS record), and registering with the Central
Contracto r Reg istration.
2. Labor Standards
The Project "Labor" requirements, as applicable, of 24 CFR 92.354 including Davis Bacon
prevailing wage requirements as amended (40 U.S.C. 276a - 276a-7), as supplemented by
Department of Labor regulations (29 CFR Parts 1, 3, 5 and 7);
The Contract Work Hours and Safety Standards Act (40 U.S.C. 327-333), including without
limitation provisions of Section 102 and 107 and as supplemented by Department of Labor
Regulations (29 CFR Part 5), in regards to the construction and management of the proposed
Project.
The Copeland Anti-Kick BackAct (18 U.S.C. 874 et seq.) and its implementing regulations of
the U.S. Department of Labor at 29 CFR Part 5 and as supplemented by Department of Labor
regulations (29 CFR part 3, "Contractors and Subcontractors on Public Building or Public Work
Financed in Whole or in Part by Loans or Grants from the United States").
Page 37 of77
All applicable local, state and federal requirements conceming equal employment opportunity,
including compliance with Executive Order (E.O ) 11246, "Equal Employment Opportunity," as
amended by E.O. 11375, "Amending Executive Order 11246 Relating to Equal Employment
Opportunity," and as supplemented by regulations at 41 CFR part 60, "Office of Federal
Contract Compliance Programs, Equal Employment Opportunity, Department of Labor."
The provisions of the Drug-Free Workplace Act of 1988 (42 U.S.C. 701), in accordance with the
Act and with HUD's rules at 24 CFR part24, subpart F.
Non-discrimination in employment and contracting opportunities laws, regulations, and
executive orders referenced in 24 CFR 570.607, as revised by Executive Order 13279.
All other applicable Federal, state and loçal laws and regulations pertaining to labor standards
insofar as those acts apply to the performance of this Agreement.
3. Civil Riqhts and Discrimination.
Title B of the Civil Rights Act of 1968 PL. 90-284. (Fair Housing Act); Title Vl of the Civil Rights
Act of 1964 as amended (42 U.S.C. S 2000); Civil Rights Requirements,29 U.S.C. S 623,42
U.S.C. S 6102,42 U.S.C. S 12112,42 U.S.C. S12132,49 U.S.C. S 5332,29 CFR Part 1630,41
C.F.R. Parts 60 et seq.; Executive Order 11063 on Equal Opportunity and Housing; The
Housing and Community Development Act of 1974, including without limitation $$1Oa(b) and
109. Section 504 of the Rehabilitation Act of 1973 (29 U.S.C.794), which prohibits
discrimination against the individuals with disabilities or handicaps in any federally assisted
program. CITY shall provide SUBRECIPIENT with any guidelines necessary for compliance with
that portion of the regulations in force during the term of this Agreement. Americans with
Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and
Executive Order 11246 as amended by Executive Orders 11375, 11478, 12107 and 12086.
4. Affirmative Action
Disadvantaged Business Enterprises (DBE) - SUBRECIPIENT will use its best efforts to afford
small businesses, minority business enterprises, and women owned business enterprises to the
maximum practicable opportunity to participate in the performance of this contract. As used in
this contract, the terms "small business" means a business that meets the criteria set forth in
section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and "minority and
women's business enterprise" means a business at least fifty-one (51) percent owned and
controlled by minority group SUBRECIPIENTS or women. SUBRECIPIENT may rely on written
representations by businesses regarding their status as minority and women-owned business
enterprises in lieu of an independent investigation.
5. The provisions of the Clean Air Act (42 U.S.C. 7401 el seq.) and the Federal Water
Pollution ControlAct (33 U.S.C. 1251 el seq.), as amended.
6. The provisions of the Bvrd Anti-Lobbvinq Amendment (31 U.S.C. 1352).
7. The provision of E.O.s 12549 and 12689, "Debarment and Suspension," as set forth at
24 CFR paft24.
L Clean Water Requirements 33 U.S.C. 1251
Page 38 of77
9. Hatch Aet - no funds provided, nor personnel employed under this Agreement, shall be
in any way or to any exþnt engaged ln the conduct of political activities in violation of Chapter
15 of Title V of the United States Gode.
10. National Environmental Policv Act of 1969 and related federal environmental authorities
and regulations at 24 CFR part 50 or 58.
III
ilt
ilt
DIVISION IV
SCOPE OF SERVICE
SUBRECIPIENT will be responsible for carrying out activities in a manner satisfactory to CITY
and consistent with all standards required as a condition of providing these funds. Program
activities will include the following uses and corresponding activities eligible under NSP3 and
NSPl:
A. SUBRECIPIENT RESPONSIBILITIES
1. SUBRECIPIENT will carry out this program in accordance with the policies,
procedures and other provisions of the NSP Single-Family and Multi-Family Rental
Development Program Manual ("Program Manual"), provided to SUBRECIPIENT by CITY,
and incorporated herein by reference. SUBRECIPIENT hereby agrees to accept and follow
any written amendments to the Program Manual by CITY that are made as a direct result of
additional guidance or regulations provided by HUD, as well as any written amendments
that are mutually agreed upon by CITY and SUBRECIPIENT.
2. Program activity includes, subject to prior review and approval of CITY, the
acquisition and development of residential property that is foreclosed upon, abandoned, or
vacant in accordance with the definitions and requirements of the NSP program, to the
extent that these activities are incorporated in this Section and in EXHIBIT "A", Rental
Development Activity and Detailed Budget attached hereto and incorporated herein.
3. SUBRECIPIENT is responsible for providing the deliverables herein described within
the time periods and for the approximate average budget amounts described in EXHIBIT
"A".
4. SUBRECIPIENT shall maintain records which show sufficient documentation about
the purchase, rehabilitation costs and sale amounts of each property and the sources and
uses of funds for each activity so that HUD can determine whether CITY and
SUBRECIPIENT are in compliance with NSP requirements. SUBRECIPIENT will be
expected to provide this documentation to CITY for each property individually.
5. Prior to requesting/receiving any NSP funds, SUBRECIPIENT will be responsible for
executing a note and deed of trust in favor of CITY for a maximum amount of NSP funding
which will be equal to 111Yo of the total amount of the approved, individual Project Budget
for each property as more fully described herern.
6. SUBRECIPIENT's expenditures for program delivery will be limited as follows,
unless changes to the limits are agreed to in writing by CITY and SUBRECIPIENT for a
particular property:
a. The minimum number of multi-family residential rental properties to be acquired,
rehabilitated, and leased is one (1) with each home (property).
b. SUBRECIPIENT will acquire only properties in designated NSP target areas that
are eligible under NSP for rehabilitation or redevelopment as affordable residential rental
properties. Properties acquired must be abandoned, vacant, or foreclosed upon as defined in
the NSP program.
Page 40 of77
c. Designated target areas: SUBRECIPIENT may carry out this activity only in the
NSP combined target areas as identified in EXH|B|T "F", attached hereto.
d. Number of foreclosed and/or abandoned units to be leased to households with
incomes at or below 50% of area median income, to meet the CITY'S 25% set-aside
requirement: ten (10) units, Five Hundred and Seventy-Six Thousand Dollars and zero cents
($576,000.00) will be required to be set-aside to purchase and rehabilitate residential properties
to be leased to households earning at or below 50% of the area median income..
e. CITY must provide prior written approval for each property to be eligible for
funding under this Agreement. To request this approval, SUBRECIPIENT will provide CITY with
a property description, proof of abandoned, foreclosed, or vacant status as applicable,
preliminary scope of work for rehabilitation work, a preliminary Project Budget, and a preliminary
operating budget that estimates revenues, operating expenses, debt service and net operating
income for the number of years of occupancy that matches the proposed Affordability Period for
the property. The Project Budget will be provided in a form acceptable to CITY and similar to
the sample individual project budget in EXHIBIT "4" herein. CITY will base its approval upon an
assessment of NSP compliance, financial feasibility, conformity to expenditure limits described
herein, and the potential marketability of the property.
f. The SUBRECIPIENT is allowed a program delivery costs for staff time directly
associated with carrying out the NSP activity.
g. SUBRECIPIENT may earn no other fee or profit from the development of an
NSP-assisted dwelling unit.
h. SUBRECIPIENT may expend up to $250.00 per unit in NSP funds for marketing
costs such as advertisements and flyers. lf maketing is funded for multiple NSP homes, the
costs of such marketing must be allocated to each home.
¡. Other limits on expenditures: Other acquisition, rehabilitation-construction and
soft costs described in EXHIBIT "A" are not subject to per-unit cost limits on a line-item basis,
but must be reasonable and ordinary costs of development and, in the aggregate, must conform
to the per-unit cost limits described elsewhere in this Section. No NSP funds may be spent for
purchases of equipment.
j. Accounting for expenditures: SUBRECIPIENT will account for total NSP
expenditures per property by means of assigning distinct accounting codes for NSP3 and NSPI
funded or reimbursed expenses for each property and another accounting code, if applicable,
for non-NSP funded expenditures (if any). When the development of an NSP assisted property
is completed, SUBRECIPIENT will provide CITY with a complete accounting of NSP3 and NSPI
expenditures for that property along with non-NSP expenditures, if any.
Page 41 of77
7. Maximum rental amount:
a. The maximum rents are the lesser of: (1) the fair market rent for existing housing
for comparable units in the area as established by HUD under 24 CFR 92.252; or (2) a rent that
does not exceed 30 percent of the adjusted income of a family whose annual income equals 65
percent of the median income for the area, as determined by HUD annually, with adjustments
for number of bedrooms in the unit.
b. For Units set aside for households earning 50% or less of the area median
income, the rent will not exceed 30 percent of the annual income of a family whose income
equals 50 percent of the median income for the Fresno, California Metropolitan Statistical Area,
as determined by HUD, with adjustments for smaller and larger families. Not withstanding the
foregoing, the maximum rent for units under this paragraph shall not exceed that calculated
under paragraph 7(a).
c. lf the unit receives Federal or State project-based rental subsidy and the very
low-income family pays as a contribution toward rent not more than 30 percent of the family's
adjusted income, then the maximum rent (i.e., tenant contribution plus project-based rental
subsidy) is the rent allowable under the Federal or State project-based rental subsidy program.
d. SUBRECIPIENT must ensure that the rents do not exceed the maximum rent
minus the monthly allowances for utilities and services. Using a schedule of utility allowances
from the local housing authority or equivalent document, the estimated amounts of the tenant-
paid utilities will be deducted from the affordable housing payment amount. The result will be
the maximum allowed cash rent.
e. SUBRECIPIENT cannot refuse to lease NSP-assisted units to a certificate or
voucher holder under 24 CFR part 982-Section 8 Tenant-Based Assistance: Unified Rule for
Tenant-Based Assistance under the Section 8 Rental Certificate Program and the Section 8
Rental Voucher Program because of the status of the prospective tenant as a holder of such
certificate, or voucher.
B. Environmental reviews: SUBRECIPIENT is required to submit to CITY a
Neighborhood Stabilization Program "Project lntake Form" in the form of Exhibit "G"
attached hereto for each property proposed to be acquired or rehabilitated. The lntake
Form requests specific characteristics of the subject property to determine the project
description, acquisition, rehabilitation, land use/existing conditions, and environmental
issues. The "Project lntake Form" will be used by CITY to environmentally assess the
project pursuant to state and federal environmental guidelines. CITY will provide
SUBRECIPIENT a copy of CITY's completed environmental review on each property.
9. lnspections. SUBRECIPIENT shall allow CITY on-site access to all properties for
field inspections. SUBRECIPIENT shall permit, facilitate, and require its contractors and
consultants to permit and facilitate observation and inspection at each and every job site byClïY and other public authorities during reasonable business hours, for determining
compliance with this Agreement, including without limitation all annual, or other timelines
as provided by CITY, on-site inspections required by CITY.
10. Accessibilitv. SUBRECIPIENT covenants and agrees to comply with all federal,
state and local regulations concerning accessibility requirements in federally funded
housing, including, but not limited to the following:
Page 42of77
a. At least five percent (5%) of the dwelling units, or at least two (2), whichever is
greater, must be constructed to be accessible for persons with mobility disabilities. An additional
two percenl(2%) of the dwelling units, or at least one (1) unit, whichever is greater, must be
accessible for persons with hearing or visual disabilities. These units must be constructed in
accordance with the Uniform Federal Accessibility Standards (U.F.A.S.) or a standard that is
equivalent or stricter. These mandates can be found at 24 C.F.R. Part 8, which implements
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794).
b. The design and construction requirements of the Fair Housing Act (Title Vlll of
the Civil Rights Act of 1968, as amended), including the following seven (7) requirements of the
Fair Housing Accessibility Guidelines:
i. Provide at least one accessible building entrance on an accessible route.i¡. Construct accessible and usable public and common use areas.iii. Construct all doors to be accessible and usable by persons in
wheelchairs.iv. Provide an accessible route into and through the covered dwelling unit.v. Provide light switches, electrical outlets, thermostats and other
envíronmental controls in accessible locations.vi. Construct reinforced bathroom walls for later installation of grab bars
around toilets, tubs, shower stalls and shower seats, where such facilities are
provided.
vii. Provide usable kitchens and bathrooms such that an individual who uses
a wheelchair can maneuver about the space.
c. Title lll of the Americans with Disabilities Act of 1990 (ADA) as it relates to the
required accessibility of public and common use area of the Project.
d. The design and construction requirements as required by CITY's Universal
Design Ordinance pursuant to FMC 11-110, including, but not limited to the following
requirements:
i. No step accessible entryway;i¡. All interior doorways and passageways at least 32 inches wide;i¡i. One downstairs'ïlex room" and accessible bathroom with reinforcements
for grab bars;iv. Six square feet of accessible kitchen counter space; andv. Hallways at least 42 inches wide.
11. Affirmative Marketinq. SUBRECIPIENT warrants, covenants and agrees that it shall
comply with all affirmative marketing requirements, in order to provide information and
otherwise attract eligible persons from all racial, ethnic and gender groups in the housing
market. SUBRECIPIENT shall be responsible for complying with CITY's "Affirmative
Marketing Policy" document, as amended from time to time which is available upon request
from CITY'S Housing and Community Development Division. SUBRECIPIENT shall
maintain records of actions taken to affirmatively market units, and to assess the results of
these actions.
12. Construction Standards. SUBRECIPIENT shall construct the proposed Project Units
assisted under this Agreement in compliance with all applicable local codes, ordinances
and zoning requirements in effect at the time of issuance of CITY building permits.
Page 43of77
13. Covenants and Restrictions to Run with the Land. SUBRECIPIENT expressly
warrants, covenants and agrees to ensure that the covenants and restricfions sef fot-th in
Exhibit C of this Agreement are recorded and will run with the land, provided, however,
that, on expiration of this Agreement such covenants and restrictions shall expire.
a. CITY and SUBRECIPIENT hereby declare their understanding and intent that the
covenants and restrictions set forth herein directly benefit the land; (a) by enhancing and
increasing the enjoyment of the proposed Project by certain Low, Moderate, and Middle-lncome
households, and (b) by making possible the obtaining of advantageous financing for
construction.
b. SUBRECIPIENT covenants and agrees that after issuance of a recorded
Certification of Completion for the Project until the expiration of the Affordability Period it shall
cause the Units to be leased as Affordable Housing for Low, Moderate, and Middle-lncome
households.
c. Without waiver or limitation, CITY shall be entitled to injunctive or other equitable
relief against any violation or attempted violation of any covenants and restrictions, and shall, in
addition, be entitled to damages available under law or contract for any injuries or losses
resulting from any violations thereof.
d. All present and future owners of the Property and other persons claiming by,
through, or under them shall be subject to and shall comply with the covenants and restrictions.
The acceptance of a deed of conveyance to the Property shall constitute an agreement that the
covenants and restrictions, as may be amended or supplemented from time to time, are
accepted and ratified by such future owners, tenant or occupant, and all such covenants and
restrictions shall be covenants running with the land and shall bind any person having at any
time any interest or estate in the Property, all as though such covenants and restrictions were
recited and stipulated at length in each and every deed, conveyance, mortgage or lease thereof.
e. The failure or delay at any time of CITY or any other person entitled to enforce
any such covenants or restrictions shall in no event be deemed a waiver of the same, or of the
right to enforce the same at any time or from time to time thereafter, or an estoppel against the
enforcement thereof.
14. Displacement of Persons. SUBRECIPIENT covenants and agrees that it will take all
reasonable steps to minimize the displacement of any persons (families, individuals,
businesses, nonprofit organizations and farms).
15. Lead-Based Paint. SUBRECIPIENT covenants and agrees that it shall comply with
all applicable requirements of the Lead-Based Paint Poisoning Prevention Act of 42 U.S.C.
4821 elseq.,24 CFR Part 35, including the HUD 1012 Rule, and24 CFR 982.401(j), and
any amendments thereto, and EPA Section a02( c)(3) of the Toxic Substances Control Act
9TSCA) to address lead-based paint hazards created by renovation, repair, and painting
activities that disturb lead-based paint in target housing and child-occupied facilities.
Contractors performing renovations in lead-based paint units must be EPA-certified
renovators. These requirements apply to all Units and common areas of the Project.
SUBRECIPIENT shall incorporate or cause incorporation of this provision in all contracts
and subcontracts for work performed on the Project, which involve the application of paint.
SUBRECIPIENT shall be responsible for all disclosure, inspection, testing, evaluation, and
control and abatement activities.
Page 44 of77
16. Reportino Requirements. SUBRECIPIENT warrants, covenants and agrees with
CITY that it shall submit performance reports to CITY as detailed in Section E.14 below.
Furthermore, SUBRECIPIENT agrees to provide, at the sole cost of SUBRECIPIENT,
annual certified Financial Statements for the Project expenses and ongoing financial
transactions which occur as a result of this Agreement. SUBRECIPIENT agrees to account
for the expenditure of NSP Funds using generally accepted accounting principles, which
financial documentation shall be made available to CITY and HUD, upon their respective
written request(s).
17. Financial Statements and Audits. SUBRECIPIENT (or its successor who shall
receive federal financial assistance), as a recipient of federal financial assistance is
required to submit certified Financial Statements that comply Generally Accepted
Accounting Principles within one hundred and eighty (180) days following: 1) the end of
fiscal year(s) in which the federal funds are disbursed hereunder, and 2) the end of fiscal
year(s) in which this contract shall terminate, and otherwise upon CITY's, written request
during the term of this Agreement, SUBRECIPIENT, at its sole cost and expense shall
submit to CITY:
a. Certified annualfinancial statements of SUBRECIPIENT that are current, signed,
and prepared according to generally accepted accounting principles consistently applied (except
as otherwise disclosed therein) covering all the income and expenses and financialtransactions
for the Affordable Project during the prior fiscal year.
18. lnspection and Audit of Books, Records and Documents. SUBRECIPIENT shall be
accountable to CITY for NSP Funds disbursed for the Affordable Units pursuant to this
Agreement. Any duly authorized representative of CITY or HUD shall, at all reasonable times,
have access to and the right to inspect, copy, make excerpts or transcripts, audit, and examine
all books of accounts, records, files and other papers or property, and other documents of
SUBRECIPIENT pertaining to the Project and for up to six (6) years after the expiration or
termination of this Agreement.
a. SUBRECIPIENT will maintain books and records for the Project using generally
accepted accounting principles. SUBRECIPIENT agrees to maintain books and records that
accurately and fully show the date, amount, purpose and payee of all expenditures financed
with NSP Funds and to keep all invoices, receipts and other documents related to expenditures
financed with NSP3 and NSPI Funds for not less than six (6) years after the expiration or
termination of the Agreement. Books and records must be kept accurate and current. For
purposes of this section, "books, records and documents" include, without limitation; plans,
drawings, specifications, Iedgers, journals, statements, contracts/agreements, funding
information, funding applications, purchase orders, invoices, loan documents, computer
printouts, correspondence, memoranda, and electronically stored versions of all the foregoing.
b. CITY may audit any conditions relating to this Agreement at CITY's expense,
unless such audit shows a significant discrepancy in information reported by SUBRECIPIENT in
which case SUBRECIPIENT shall bear the cost of such audit. SUBRECIPIENT shall also
comply with any applicable audit requirements of NSP regulations.
c. SUBRECIPIENT will cooperate fully with CITY and HUD in connection with any
interim or final audit relating to the Programs and the Project(s) that may be performed relative
to the performance of this Agreement.
This section 18 shallsurvive the termination of this Agreement.
Page 45 of77
19. Terminated Proiect. SUBRECIPIENT understands and agrees that, if the Project is
terminated before the completion, either voluntary or otherwise, such constitutes an
ineligible activity and CITY shall not be required to provide any further NSP assistance
funding to the Project Units.
B. INCOME ELIGIBILITY REQUIREMENTS
1. lnitial and Annual lncome Certification. SUBRECIPIENT covenants and agrees that the
Project Units will be affordable to Low, Moderate, and Middle-lncome households during the
Affordability Period. For Units funded with the NSP3 to meet the set-aside requirement for very
Low lncome Households, the units must be leased to and occupied by, or, if vacant, available
for lease and occupancy by (a) person(s) whose annual household income at the time of initial
occupancy is not greater than fifty percent (50%) of the most recent annual median income
calculated and published by HUD for the Fresno Metropolitan Statistical Area applicable to such
household's size, and at an affordable rent consistent with NSP3 Program regulations, for the
Affordability Period except upon foreclosure or other transfer in lieu of foreclosure following
default under a Deed of Trust. For Units not funded to meet lhe 25% set-aside, then the units
must be leased to and occupied by, or, if vacant, available for lease and occupancy by (a)
person(s) whose annual household income at the time of initial occupancy is not greater than
one hundred twenty percent (120%) of the most recent annual median income calculated and
published by HUD for the Fresno Metropolitan Statistical Area applicable to such household's
size. However, if at any time following a transfer by foreclosure or transfer in lieu of foreclosure,
but still during the Affordability Period, the owner of record prior to the foreclosure or transfer in
lieu of foreclosure, or any newly formed entity that includes such owner of record those whom
such owner of record has or had business ties, obtains an ownership interest in the Project or
the Property, the Affordability Period shall be revived according to its original terms. ln the
event SUBRECIPIENT fails to comply with this Section, or the Affordability Period is not revived
following transfer by foreclosure or transfer in lieu of foreclosure, SUBRECIPIENT shall return to
CITY all NSP Funds disbursed to SUBRECIPIENT by CITY.
2. SUBRECIPIENT covenants and agrees with CITY that it shall comply with the
procedures for annual income determinations to ensure continued availability of the Units to
eligible households. SUBRECIPIENT shall obtain, complete and maintain on file, immediately
prior to initial occupancy, and annually thereafter, income certifications from each tenant
Household leasing any NSP-assisted Unit. SUBRECIPIENT shall make a good faith effort to
verify that the income provided by an applicant or occupying Household in an income
certification is accurate by taking one or more of the following steps as part of the verification
process: (1) obtain a pay stub for the most recent pay period; (2) obtain an income verification
form from the applicant's current employer; (3) obtain an income verification form from the
Social Security Administration and California Department of Social Services if the applicant
receives assistance from either of such agencies; or (4) if the applicant is unemployed, obtain
another form of independent verification. Copies of household income certification and
verification must be available for review by CITY. SUBRECIPIENT further warrants, covenants
and agrees that it shall cooperate with CITY in CITY's income certification/affordability
monitoring activities.
C. DEVELOPMENT AND CONSTRUCTION OF THE PROJECT
Without waiver of limitation, the parties agree as follows:
1. Commencement and Completion of Proiect. SUBRECIPIENT shall commence
Page 46 of77
construction and, record a Notice of Completion upon completion of construction of the
Project in accordance with the Project Schedule as identified in EXHIBIT "4".
2. Contracts and Subcontracts. All demolition, hazardous waste abatement,
construction work and professional services for the Project shall be performed by persons
or entities licensed or otherwise legally authorized to perform the applicable work or service
in the State of California and the City of Fresno. SUBRECIPIENT shall provide CITY with
copies of all agreements it has entered into with any and all general contractors for the
Project. SUBRECIPIENT shall require that each such general contractor agreement
contain a provision whereby the party(ies) to the agreement other than SUBRECIPIENT
agree to: (i) notify CITY immediately of any event of default by SUBRECIPIENT thereunder;
(ii) notify CITY immediately of the filing of a mechanic's lien, (iii) notify CITY immediately of
termination or cancellation of the agreement; and (iv) provide CITY, upon CITY's request,
an Estoppel Certificate certifying that the agreement is in full force and effect and
SUBRECIPIENT is not in default thereunder. SUBRECIPIENT agrees to notify CITY
immediately of termination or cancellation of any such agreement(s), notice of filing of a
mechanic's lien, or breach or default by other party(ies) thereto.
SUBRECIPIENT will not use NSP funds to demolish major structures or convert units
from non-residential uses only without the prior written permission of CITY. Permission for
demolition of minor structures such as porches, sheds and garages shall be deemed to have
been granted when CITY approves the work write-ups for a particular property that
SUBRECIPIENT is assisting with NSP funds.
3. Damaoe to Propertv. To the extent consistent with the requirements of any permitted
encumbrance, or as otherwise approved by CITY, and subject to the insurance requirements of
this Agreement, if any building or improvement constructed on the Property is damaged or
destroyed by an insurable cause, SUBRECIPIENT shall, at its cost and expense, diligently
undertake to repair or restore said buildings and improvements consistent with the original
Plans and Specifications of the Project. Such work or repair shall commence within ninety (90)
days after the insurance proceeds are made available to SUBRECIPIENT and shall be
complete within two (2) years thereafter. All insurance proceeds collected for such damage or
destruction shall be applied to the cost of such repairs or restoration and, if such insurance
proceeds shall be insufficient for such purpose, SUBRECIPIENT shall make up the deficiency.
4. Fees. Taxes and Other Levies. SUBRECIPIENT shall be responsible for payment of
all fees, assessments, taxes, charges and levies imposed by any public authority or utility
company with respect to the Project Property(ies), and shall pay such charges prior to
delinquency. However, SUBRECIPIENT shall not be required to pay and discharge any
such charge so long as: (a) the legality thereof is being contested diligently and in good
faith and by appropriate proceedings, and (b) if requested by CITY, SUBRECIPIENT
deposits with CITY any funds or other forms of assurances that CITY, in good faith, may
determine from time to time are appropriate to protect CITY from the consequences of the
contest being unsuccessful. SUBRECIPIENT shall have the right to apply for and obtain an
abatement and/or exemption of the Project from real property taxes in accordance with all
applicable rules and regulations, including Section 21a@) of the California Revenue and
Taxation Code.
5. Financinq. SUBRECIPIENT shall promptly inform CITY of any new financing or
funding not included in the Budget for the Project(s), and SUBRECIPIENT shall provide
CITY copies of all agreements with any and all Funding Sources for the Project(s).
SUBRECIPIENT shall require each agreement with any and all Funding Sources not
Page 47 of77
included in the Budget to contain a provision whereby the party(ies) to the agreement other
than SUBRECIPIENT, if permitted by the parties' applicable rules and regulations, agree to
notify CITY immediately of any event of default by SUBRECIPIENT thereunder. Should
SUBRECIPIENT not comply with all obligations of this section, the loan shall become
immediately due and payable as provided for in this Agreement. This section shall survive
expiration or termination of this Agreement.
6. ldentification Siqnaqe. Before the start of construction, SUBRECIPIENT shall place
a poster or sign, with a minimum four feet by four feet in size, identifying the City of Fresno
as a Project participant. The sign shall also include CITY's Housing Logo, as well as
HUD's Equal Housing Opportunity logo, as mandated by HUD. Font size shall be a
minimum of 4 inches. The poster/sign shall be appropriately placed, and shall remain in
place throughout the Project construction.
7. Utilities. SUBRECIPIENT shall be responsible, at its sole cost and expense, to
determine the location of any utilities on the Property and to negotiate with the utility
companies for and to relocate the utilities, if any, as necessary to complete the Project.
B. Mechanic's Liens and Stop Notices. lf any claim of lien is filed against the Property
or a stop notice affecting any financing, NSP Funds or Funding Sources for the Project, is
served on CITY or any other third party in connection with the Project, SUBRECIPIENT
shall, within twenty (20) days of such filing or service, either pay and fully discharge the lien
or stop notice, effect the release of such lien or stop notice by delivering to CITY a surety
bond in sufficient form and amount, or provide CITY with other assurance satisfactory to
CITY that the claim of lien or stop notice will be paid or discharged.
a. lf SUBRECIPIENT fails to discharge, bond or otherwise satisfy CITY with
respect to any lien, encumbrance, charge or claim referred to in this Section, then, in
addition to any other right or remedy, CITY may, but shall not be obligated to, discharge
such lien, encumbrance, charge, or claim at SUBRECIPIENT's expense. Alternatively,
CITY may require SUBRECIPIENT to immediately deposit with CITY the amount necessary
to satisfy such lien or claim and any costs, pending resolution thereof. CITY may use such
deposit to satisfy any claim or lien that is adversely determined against SUBRECIPIENT.
SUBRECIPIENT hereby agrees to indemnify and hold CITY harmless from liability for such
liens, encumbrances, charges or claims together with all related costs and expenses.
L Permits and Licenses. Upon CITY's reasonable request, SUBRECIPIENT shall
submit, for CITY approval, all the necessary permits and licenses required for
Commencement of construction of the Project. As CITY may reasonably request,
SUBRECIPIENT, at its sole cost and expense, shall provide to CITY copies of any and all
permit approvals and authorizations including plot plan, plat, zoning variances, sewer,
building, and other permits required by governmental authorities other than CITY in pursuit
of the Project, and for its stated purposes in accordance with all applicable building,
environmental, ecological, landmark, subdivision, zoning codes, laws, and regulations.
10. Scope of WorkMork Write Ups. Prior to acquisition of a property and
commencement of construction on any PROJECT for which an NSP LOAN is sought
hereunder, SUBRECIPIENT shall submit to CITY for approval, a Scope of WorkANork Write
Up similar in form and content to the attached Exhibit L Failure to obtain prior approval may
make PROJECT ineligible for NSP LOAN funding under this Agreement. SUBRECIPIENT
shall construct the Project(s) in full conformance with C|TY-approved Scope of WorkMork
Write Ups and any modifications/change orders thereto approved by CITY. SUBRECIPIENT
Page 48 of77
shall obtain CITY's prior written approval for any modifications to the Scope of WorkMork Write
Ups. SUBRECIPIENT shall ensure that construction of the proposed PROJECT employs
building materials of a quality suitable for the requirements of the PROJECT. SUBRECIPIENT
shall cause completion of the construction of the proposed Project in full conformance with
applicable local, state and federal laws, statutes, regulations, NSP requirements and building
and housing codes.
11.
SUBRECIPIENT shall be solely responsible for all aspects of SUBRECIPIENT's conduct in
connection with the Project, including but not limited to, compliance with all local, state and
federal laws including without limitation, as to prevailing wage and public bidding
requirements. The Council of the City of Fresno has adopted Resolution No. 82-297
ascertaining the general prevailing rate of per diem wages and per diem wages for holidays
and overtime in the Fresno area for each craft, classification or type of workman needed in
the execution of contracts for CITY. A copy of the resolution is on file at the Office of the
City Clerk. Actual wage schedules are available upon request at CITY's Construction
Management Office. Without limiting the foregoing, SUBRECIPIENT shall be solely
responsible for the quality and suitability of the work completed and the supervision of all
contracted work, qualifications and financial conditions of and performance of all contracts,
subcontractors, consultants and suppliers. Any review or inspection undertaken by CITY
with reference to the Project and/or payroll monitoring/auditing is solely for the purpose of
determining whether SUBRECIPIENT is properly discharging its obligation to CITY, and
shall not be relied upon by SUBRECIPIENT or by any third parties as a warranty or
representation by CITY as to governmental compliance and/or the quality of work
completed for the Project.
12. Property Condition. SUBRECIPIENT shall maintain the Property and all
improvements on site in a reasonably good condition and repair (and, as to landscaping, in
a healthy condition), all according to the basic design and related plans, as amended from
time to time. SUBRECIPIENT and those taking direction under SUBRECIPIENT shall: (i)
maintain all on-site improvements according to all other applicable law, rules, governmental
agencies and bodies having or claiming jurisdiction and all their respective departments,
bureaus, and officials; (ii) keep the improvements free from graffiti; (iii) keep the Property
free from any accumulation of debris or waste material; (iv) promptly make repairs and
replacements to on-site improvements; and (v) promptly replace any dead, or diseased
plans and/or landscaping (if any) with comparable materials.
13. Relocation. lf and to the extent that construction of the proposed Project results in
the permanent or temporary displacement of residential tenants, home-owners or
businesses, SUBRECIPIENT shall comply with all applicable local, state, and federal
statutes and regulatory with respect to relocation planning, advisory assistance and
payment of monetary benefits. SUBRECIPIENT shall be solely responsible for payment of
any relocation benefit to any displaced persons and any other obligations associated with
complying with said relocation laws.
14. Reportinq Requirements. SUBRECIPIENT shall submit to CITY the following
Project reports:
a. From the date of the execution of the Agreement, until issuance of the final
Project's recorded Certificate of Completion, SUBRECIPIENT shall submit a Quarterly Report,
in a form approved by CITY, which will include the progress of construction of the Project(s) and
affirmative marketing efforts (as applicable). The Quarterly Reports are due within fifteen (15)
Page 49 of77
days after each March 31st, June 30th, September 30th, and December 31st, during said
period.
b. Annually, beginning on the first day of the month following CITY's issuance of the
Certificate of Completion, and continuing until the termination of the Agreement,
SUBRECIPIENT shall submit an Annual Report to CITY, in a form approved by CITY. The
Annual Report shall include, at a minimum, the following information: the rents, the annual
income and the family size of the Households, the date tenancy commenced for each Affordable
rental Unit, certification from an officer of SUBRECIPIENT that the Units are in compliance with
the Affordable Rental Unit Requirements, and such other information CITY may be required by
law to obtain. SUBRECIPIENT shall provide any additional information reasonably requested
by CITY.
c. Annually, beginning on the first day of the month following CITY's issuance of the
recorded Certificate of Completion for the Project, and continuing until the expiration of the
Agreement, SUBRECIPIENT shall submit proof of insurance as required in this Agreement.
15. lt shall be
the responsibility of SUBRECIPIENT to coordinate and schedule the work to be performed
so that the Commencement of the Project and issuance of the Certificate of Completion will
take place in accordance with the provisions of the Agreement and Project Schedule. The
time for performance contained in the Project Schedule shall be automatically extended
upon the following:
a. The time for performance of provisions of the Agreement by either party shall be
extended for a period equal to the period of any delay directly affecting the Project or this
Agreement which is caused by: war, insurrection, strike or other labor disputes, lock-outs, riots,
floods, earthquakes, fires, casualties, acts of God, acts of a public enemy, epidemics,
quarantine restrictions, freight embargoes, lack of transportation, suits filed by third parties
concerning or arising out of this Agreement, or unseasonable weather conditions. An extension
of time for any of the above specified causes shall be granted only if written notice by the party
claiming such extension is sent to the other party within thirty (30) calendar days from the date
the affected party learns of the commencement of the cause and the resulting delay and such
extension of time is accepted by the other party in writing. ln any event, the Project must be
completed no later than one hundred eighty (180) calendar days after the scheduled completion
date specified in this Agreement, notwithstanding any delay caused by that included in this
section.
b. Any and all extensions hereunder shall be by mutualwritten agreement of CITY's
Housing and Community Development Division Manager and SUBRECIPIENT and shall not
cumulatively exceed one hundred eighty (180) days.
1ô. Certificate(s) of Completion. Upon completion of the construction of the Project(s),
SUBRECIPIENT shall: 1) certify in writing to the CITY that the Project has been
constructed in accordance with the Final Scope of WorkMork Write ups; 2) submit to CITY
a cost-certifying final budget for the Project where SUBRECIPIENT shall identify the actual
costs of construction of the Project; 3) submit to CITY a Certificate of Occupancy for the
Project; and 4) submit to CITY a recorded Notice of Completion for the Project. Upon a
determination by CITY that SUBRECIPIENT is in compliance with all of SUBRECIPIENT's
construction obligations, as specified in this Agreement, CITY shall furnish, within thirty
(30) calendar days of a written request by SUBRECIPIENT, a recorded Certificate of
Completion for the Project in the form attached hereto as EXHIBIT "8". CITY will not
Page 50 of77
unreasonably withhold or delay furnishing the recorded Certificate of Completion. lf CITY
fails to provide the recorded Certificate of Completion within the specified time, it shall
provide SUBRECIPIENT with a written statement indicating in what respects
SUBRECIPIENT has failed to complete the Project in conformance with this Agreement or
has otherwise failed to comply with the terms of this Agreement, and what measures
SUBRECIPIENT will need to take or what standards it will need to meet in order to obtain
the recorded Certificate of Completion. Upon SUBRECIPIENT taking the specified
measures and meeting the specified standards, SUBRECIPIENT will certify to CITY in
writing of such compliance and CITY shall deliver the recorded Certificate of Completion to
SUBRECIPIENT in accordance with the provisions of this section.
D. RENTAL OPERATIONS
1. Leasinq the NSP-assisted Units. Before leasing any Affordable Units,
SUBRECIPIENT shall submit its proposed form of lease agreement for CITY's review and
approval. SUBRECIPIENT covenants and agrees to utilize only leases that have been
approved in advance by CITY. CITY shall respond to SUBRECIPIENT's submission of a
sample lease agreement within thirty (30) days. Should CITY not respond within thirty (30)
days of the lease agreement submittal, SUBRECIPIENT shall be authorized to use the
submitted sample lease agreement. Additionally, SUBRECIPIENT agrees not to terminate
the tenancy or to refuse to renew or lease with a tenant of the Units assisted with NSP
Funds except for serious or repeated violation of the terms and conditions of the lease
agreement, for violation of applicable federal, state, or local law, or for other good cause.
Any such termination or refusal to renew must be preceded by not less than thirty (30)
days' written notice served by SUBRECIPIENT or its authorized management entity upon
the tenant specifying the grounds for such action. SUBRECIPIENT agrees it shall annually
report to CITY the number of leases that were not renewed or terminated and the reason
for such non-renewal or termination.
2. Lease Provisions for NSP Units. SUBRECIPIENT shall include in all Leases for the
NSP-assisted Units, provisions which authorize SUBRECIPIENT to immediately terminate
the tenancy of any Household of which one or more of its members misrepresented any
fact material to the Household's qualification as a Low, Moderate, and Middle-lncome
Household. Each such lease agreement shall also provide that the Household is subject to
annual certification, and that, if the Household's annual income increases above the
applicable limits for Low-lncome, such Household's rent may be subject to increase to the
lesser of: 1) the amount payable by tenant under state or local law; or 2) thirty percent
(30%) of the Household's actual adjusted monthly income, except that, consistent with the
Act, tenants of NSP-assisted units that have been allocated low income housing tax credits
by a housing credit agency pursuant to section 42 of the internal Revenue Code of 1986
(26 U.S.C. 42) must pay rent governed by section 42.
3. Final Manaqement Plan. Before leasing any Affordable Units, and at least thirty (30)
calendar days prior to the construction Completion Date, SUBRECIPIENT shall submit to
CITY, for review and approval, a plan for marketing and managing the proposed Affordable
Units ("Final Management Plan"). The Final Management Plan shall address in detail how
SUBRECIPIENT or its designated management entity plans to market the availability of the
Affordable Units to prospective tenants and how SUBRECIPIENT plans to certify the
eligibility of potential tenants. The Final Management Plan shall also address how
SUBRECIPIENT and/or the management entity plan to manage and maintain the Affordable
Units in accordance with NSP3 Program regulations, and shall include appropriate financial
information and documentation. The Final Management Plan shall contain detailed
Page 51 o177
descriptions of policies and procedures with respect to tenant selections and evictions.
ropics to be cover"'$åiï!Ëþ:1*gim*å thero.rowins:
o Credit reports;. Criminal background checks;
: ã#J;:i.i[]iT$;iJ,i"#,iåand
refund po icv;
. lncome Limits;. Equal Housing Opportunity Statement;: îff:iiiï.iJ,J:i,,i,,13::::nii"i;lJå0",",
a. The Final Management Plan shall contain copies of all standardized forms
associated with the above listed topics. The Final Management Plan shall include a form lease
agreement that SUBRECIPIENT proposes to enter into with the Low, Moderate, and Middle-
lncome tenants. SUBRECIPIENT shall abide by the terms of this Final Management Plan,
approved by CITY, in marketing, managing and maintaining the Affordable Units.
b. At least thirty (30) calendar days prior to the first Project's Completion Date,
SUBRECIPIENT shall submit any proposed management contract to CITY for prior review.
CITY shall have the right to review any proposed amendments, other than renewals to the
management contract, and any new management contracts during the term of this Agreement.
Such management contract(s) shall contain a provision expressing this right.
4. Propertv Manaqement. SUBRECIPIENT shall comply with the following
management responsibilities: SUBRECIPIENT directly and/or through its designated
management entity, is specifically responsible for all management functions with respect to
the Project including, without limitation, the selection of tenants, certification and re-
certification of Household size and income, evictions, collection of Rents and deposits,
construction management, affirmative marketing, maintenance, landscaping, routine and
extraordinary repairs, replacement of capital items and security. CITY shall have no
responsibility for such management of the Project.
5. Maintenance and Securitv. SUBRECIPIENT shall (i) at its own expense maintain the
Project in good condition, in good repair and in decent, safe, sanitary, habitable and
tenantable living conditions for the benefit of the Unit occupants. SUBRECIPIENT shall not
commit or permit any waste on or to the Project, and shall prevent and/or rectify any
physical deterioration of the Project. SUBRECIPIENT shall maintain the housing Units in
conformance with all applicable federal, state and local laws, ordinances, codes and
regulations, the Final Management Plan, and this Agreement.
6. Nondiscrimination. All of the NSP Assisted Units shall be available for occupancy
on a continuous basis to households who are income eliglble. SUBRECIPIENT shall not
discriminate or segregate in the constructed complex, the use, enjoyment, occupancy or
conveyance of any part of the Project or Property on the basis of race, color, ancestry,
national origin, religion, sex, marital status, family status, source of income/rental
assistance subsidy, physical or mental disability, Acquired lmmune Deficiency Syndrome
(AIDS) or AlDS-related conditions (ARC), sexual orientation, or any other arbitrary basis.
SUBRECIPIENT shall otherwise comply with all applicable local, state and federal laws
Page 52of77
concerning nondiscrimination in housing. Neither SUBRECIPIENT nor any person claiming
under or through SUBRECIPIENT, shall establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants or vendees of any Affordable Unit or in connection with employment
of persons for the construction of any Affordable Unit. All deeds or contracts made or
entered into by SUBRECIPIENT as to the Affordable Units or the Project or portion thereof,
shall contain covenants concerning nondiscrimination consistent with this section.
SUBRECIPIENT shall include a statement in all advertisements, notices and signs for
availability of Affordable Units for rent to the effect that SUBRECIPIENT is an Equal
Housing Opportunity Provider.
E. Property Maintenance
SUBRECIPIENT covenants and agrees, for the entire term of the Agreement, the
following:
1. Adequate Repair and Maintenance. After construction of the Project,
SUBRECIPIENT shall maintain the Project and Property in compliance with all applicable
codes, laws, and ordinances.
2. lnspection of Propertv. Any duly authorized representative of CITY or HUD shall, at
all reasonable times, have access and the right to inspect the Property until completion of
the Project and expiration of the applicable Affordability Period within seventy-two (72)
hours written notice, subject to the rights of the tenants.
3. No Other Liens. SUBRECIPIENT shall not create or incur, or suffer to be created or
incurred, or to exist, any additional mortgage, pledge, encumbrance, lien, charge, or other
security interest of any kind on the eligible Property, other than those related to construction or
pre-development loans in relation to the Project consistent with the attached Budget without
prior written consent of CITY, which will not be unreasonably withheld. Furthermore, the CITY
will provide its written consent or state its written reasons for withholding such consent, within
forty-five (45) days from receipt of SUBRECIPIENT'S request.
4. Ownership. Except as required in pursuit hereof, SUBRECIPIENT shall not sell,
lease, transfer, assign or otherwise dispose of ("Transfer") all or any material part of any
interest it might hold in the Property or the Project without prior written consent of CITY,
which consent shall not be unreasonably withheld or delayed. "Transfer" shall exclude the
leasing of any single Unit in the Project.
5. Pavment of Liabilities. SUBRECIPIENT shall pay and discharge in the ordinary
course of its business all material obligations and liabilities, the nonpayment of which could
have a material or adverse impact on its financial condition, business, or assets or on the
operation of the Project, except such obligations and liabilities that have been disclosed to
CITY in writing and are being contested in good faith.
6. Report of Events of Default. SUBRECIPIENï shall promptly give written notice to
CITY upon becoming aware of any Event of Default under this Agreement.
Page 53of77
F. SUBRECIPIENT Staffing
The names and roles of SUBRECIPIENT's key personnel (staff or contractors) executing
the project are as follows:
Chief Executive: Renena Smith, Assistant City Manager
NSP Project Manager: John Robertson, lnterim Housing Manager
Construction Manager: John Giannetta, Sr. Community Revitalization Specialist
Financial staff person responsible for approving submission of NSP payment requests:
Crystal Smith, Management Analyst lll
Any changes in the key personnel assigned or their general responsibilities under this
project are subject to the prior approval of CITY.
G. TENANT PROTECTION REQUIREMENTS
SUBRECIPIENT agrees to comply with the Recovery Act and the Dodd-Frank provisions
concerning tenant protections applicable to NSP acquisitions of foreclosed property.
SUBRECIPIENT must document its efforts to ensure that the initial successor in interest (lSll) in
a foreclosed upon dwelling or residential real property (typically, the lSll in property acquired
through foreclosure is the lender or trustee for holders of obligations secured by mortgage liens)
has provided bona fide tenants with the notice and other protections outlined in the Recovery
Act. SUBRECIPIENT will not use NSP funds to finance the acquisition of property from any lSll
that failed to comply with applicable requirements unless SUBRECIPIENT assumes the
obligations of such lSll with respect to bona fide tenants. lf SUBRECIPIENT elects to assume
such obligations, it may only do so if the tenant is still occupying the property and will provide
any tenant displaced as a result of the NSP funded acquisition with the assistance outlined in 24
CFR 570.606. lf SUBRECIPIENT knows that the lsll did not comply with the NSP tenant
protection requirements and vacated the property contrary to the NSP requirements, NSP funds
cannot be used to acquire such properties.
ilt
ilt
Hl
Page 54 of77
f*
lN WITNESS WHEREOF, the parties
California, the day and year first above written.
CITY OF FRESNO, a MunicipalCorporation
By:
Mark Scott, City Manager
have executed this Agreement in Fresno,
HOUS TY OF THE CITY OF
FRES corporate and politic
By:
Chief Executive Officer/
Director
(Attach notary certificate of acknowledgment)
Date:
APPROVED AS TO FORM:
Francine Kanne
lnterim City Attorney
CITY:
City of Fresno,
a Municipal Corporation
Mark Scott, City Manager
2600 Fresno Street
Fresno, C493721
Date:
(Attach notary certificate of acknowledgment)
ATTEST:
WONNE SPENCE,
City
cMc
^0"Robert C. Abrams
Deputy City Attorney
Date: 3-r'20/3
Deputy:
Date: +/u1r I
SUBRECIPIENT:
Fresno Housing Authority, a California
Public Agency
Preston Prince, CEO/Executive Director
1331 Fulton Mall
Fresno, C493721
Attachments:
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhibit H:
Exhibit l:
Sample Budget and Proposed Expenditure Schedule
Exemplar Certificate of Completion
Exemplar Declaration of Restrictions
Exemplar Deed of Trust
Sample Note
Eligible NSP3 Areas
lntake Form
Conflict of interest Disclosure
Sample Scope of Work Write Up
Page 55 of77
CAI.IFORNIA ALL.PURPOSE ACKNOWLEDGMENT
State of California
ÌCounty of frtçno
On before me,
personally appeared
KATHERYl{ CORNELL
Commission # 1866130
Î{otary Public - Galifornia
Fresno County
who proved to me on the basis of satisfactory
evidence to be the person(s) whose nameþ) i
subscribed to the within instrument and acknowledged
personþ), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the
laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and otficial seal.Comn.
Signature:
Place Notary Seal and/or Stamp Above
OPTIONAL
Though the informat¡on below is not requ¡red by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of th¡s fom to another documenL
Description of Attached Document
Title or Type of Document:
Number of Pages:
Signe(Than Named Above:
Capacity(ies by Signer(s)
Signer's Name:Signe/s Name:
n Corporate Officer - Title(s):
I lndividual
n Corpor - Title(s):
n Partner-n Limited n General n Partner-n Limited E General
n Attorney in Fact
E Trustee
in Fact
NT
n Guardian or n Guardian or
I Other:n Other:
Signer ls Representing:Signer ls Representing:
Top of thumb here
@2008National NotaryAssociation.9350DeSotoAve,P.O.Box2402.Chatsworth,CA913l3-2402.ffiNationalNotaryorg llem#5907 Fìeorder:CallToll-Free1-800-876-6827
CALIFORNIA
ALL.PURPO SE ACKNO\ryLED GMENT
State of California
County of FRESNO
B. MANGUM Notary Public, personally
who proved to me on the basis of satisfactory evidence to the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
(Notory Seal)
WITNESS my hand and official seal.
Description of the Attached Documenl (optionol)
Parc Grove Commons Northwest closing
Title or description of ottoched document
Number of Pages Document Date
Exhibit A
Sample Budget and Proposed Expenditure Schedule
EXPENDITLIRE SCHEDULE
PROJECTED TOTÀL UNIT COSTS
Page57 of77
PROJECTED TOTAL IJMTC'}SIS
Exhibit B:
Exemplar Certificate of Gompletion
Page 59 of77
RECORDED AT THE REQUEST OF
AND WHEN RECORDED RETURN TO:
City of Fresno
Development and Resource Management
Department
Housing and Community Development
Division
Attention: Manager
2600 Fresno Street, Room 3070
Fresno, CA 93721-3605
(SPACE ABOVE THIS LrNE FOR RECORDER',S USE)
CERTIFICATE OF COMPLETION
This Certificate of Completion is recorded at the request and for the benefit of the City of
Fresno and is exempt from the payment of a recording fee pursuant to Government Code
Section 6103.
APN:
City of Fresno
Director or Designee
Development and Resource
Management Department
Date:
By:
Page 60 of77
APN:
Recitals:
A. By a City of Fresno ('ClTY") Neighborhood Stabilization Program ("NSP")
Agreement dated ,2012, ('NSP Agreement"), as may be amended from time
to time,a California company (hereinafter referred to as
"SUBRECIPIENT"), agreed to purchase and rehabilitate residential units for rental to
Low, Moderate, and Middle-lncome households ("Project"), upon premises to be
identified at various times after the execution of the NSP Agreement (the "Property"),
one of which is identified by the assessor's parcel number above, with the assistance of
NSP Funds while meeting the affordable housing, income targeting and other
requirements of the NSP program according to the terms and conditions of the NSP
Agreement and the Loan Documents and other documenUinstruments referenced
therein.
B. Under the terms of the NSP Agreement, after the SUBRECIPIENT
completes each Project, the SUBRECIPIENT may ask CITY to record a Certificate of
Completion.
C. The SUBRECIPIENT has asked CITY to furnish SUBRECIPIENT with a
recordable Certiflcate of Completion.
D. The CITY's issuance of this Certificate of Completion is conclusive
evidence that the SUBRECIPIENT has completed reconstruction of this particular and
singular ProjecUActivity as set forth in the NSP Agreement.
NOW THEREFORE:
1.The CITY certifies that the
and completed the Project
SUBRECIPIENT commenced the Project on
on and has done so in full
compliance with the NSP Agreement.
2. This Certificate of Completion is not evidence of the SUBRECIPIENT's
compliance with, or satisfaction of, any obligation to any mortgage or security interest
holder, or any mortgage or security interest insurer, securing money lent to fìnance work
on the Property or Project, or any part of the Property or Project.
3. This Certificate of Completion is not a notice of completion as referred to
in California Civil Code Section 3093.
4. Nothing contained herein modifies any provision of the NSP3 Agreement.
Page 61 of77
lN WITNESS WHEREOF, CITY has executed this Certificate of Completion as of this
day of 20
CITY OF FRESNO
Director or Designee
Development and Resource Management Department
ATTEST:APPROVED AS TO FORM:
YVONNE SPENCE, CITY CLERK FRANCINE M. KANNE
INTERIM CITY ATTORNEY
By.
By:
By:
By:
Deputy
Date:
SUBRECIPIENT:
a California company
Name:
Title:
(Attach notary certificate of acknowledgment)
Date:
AssistanVDeputy
Date:
Page 62of77
Exhibit C:
Exemplar Declaration of Restrictions
Page 63 o177
RECORDING REQUESTED BY AND for the benefit
of the City of Fresno and is exempt from the
payment of a recording fee in accordance with
Government Code Sections 6103 and27383.
AND WHEN RECORDED MAIL TO:
CITY OF FRESNO
Downtown and Community Revitalization Dept.
Housing and Community Development Division
Attn: [Name]
2600 Fresno Street, Rm. 3070
Fresno, CA 93721-3605
Title Order No. [Number]
Escrow No. [Number]
(SPAGE ABOVE THtS LrNE FOR RECORDER'S USE)
THIS DECLARATION OF RESTRICTIONS, ("Declaration"), is executed as of this
[Date] day of [Month], Year by [Declarant Name] ("Declarant") in favor of the City of Fresno,
acting by and through its Development and Resource Management Department - Housing
and Community Development Division, ("ClTY").
WHEREAS, Declarant is the owner of the real estate in the county of Fresno, state of
California, consisting of Address: [Address] APN: [Number], which is more particularly
described in Exhibit "A", attached hereto and made a part hereof (the "Property"); and
WHEREAS, Pursuant to a certain Neighborhood Stabilization Program ('NSP")
Agreement dated [Date], [Year] incorporated herein ("NSP Agreement") and instruments
referenced therein, Declarant agrees to utilize, and CITY agrees to provide, certain NSP
Funds from the United States Department of Housing and Urban Development (HUD), to
Declarant and Declarant agrees to construct and/or rehabilitate and preserve the Project
Units (the "Project") for Low, Moderate- and Middle-lncome households (collectively
"Affordable Units"), subject to the terms and conditions set forth in the NSP Agreement; and
WHEREAS the NSP regulations promulgated by HUD, and the NSP Agreement
impose certain affordability requirements upon property benefited thereby, which
affordability restrictions shall be enforceable for a [Years] ([Written Out Number]) year
period; and
WHEREAS, these restrictions are intended to bind Declarant and all purchasers and
their successors.
NOW THEREFORE, Declarant declares that the Property is held and will be held,
transferred, encumbered, used, sold, conveyed and occupied subject to the covenants,
restrictions, and limitationssetforth in this Declaration, all of which aredeclared and agreed
to be in furtherance of the plan for the construction and/or rehabilitation, sale and
NSP Declaration of Restrictions
Approved as to form 021 21 3
APN [Number]
DECLARATION OF RESTRICTIONS
Page 1 of 6
occupancy of the Affordable Units upon the Property. All of the restrictions, covenants and
limitations will run with the land and will be binding on all parties having or acquiring any
right, title or interest in the Property or any part thereof, will inure to the benefit of the future
Owners of the home or any part thereof, the United States and the City, and will be
enforceable by any of them. Any purchaser under a contract of sale covering any right, title
or interest in any part of the Property, by accepting a deed or a contract of sale or
agreement of purchase, accepts the document subject to, and agrees to be bound by, any
and all restrictions, covenant, and limitations set forth in this Declaration for period of
[Amount of Years] constituting the Affordability Period.
Period of Affordability: The Neighborhood Stabilization Program requires the City to set
periods of affordability as provided in NSP regulations. The minimum period of affordability
for this program is [Years] ([Written Out Number]). Year one shall be the 12-month period
following issuance of the Certifìcate of Completion of the Project Property, with each
succeeding year beginning on the anniversarythereof and ending 12 month hence. There
will be no partial years.
L Declarations. Declarant hereby declares that the Property, including the
Affordable Units, is and shall be subject to the covenants and restrictions hereinafter set
forth, all of which are declared to be in furtherance of the Project and the NSP Agreement,
and are established and agreed upon for the purpose of enhancing and protecting the value
of the Property and in consideration for CITY entering into the NSP Agreement with
Declarant.
2. Restrictions. The following covenants and restrictions on the use and
enjoyment of the Property shall be in addition to any other covenants and restrictions
affecting the Property, and all such covenants and restrictions are for the benefit and
protection of CITY, and shall run with the Property and be binding on any future owner's of
the Property and inure to the benefit of and be enforceable by the CITY. These covenants
and restrictions are as follows.
a. Declarant for itself and its successor(s) on title covenants and agrees
that from the date of recordation of the CITY's Certificate of Completion, until the expiration
of the Affordability Period it shall cause the Project Units to be used as Affordable Housing.
Declarant further agrees to file a recordable document setting forth the Project Completion
Date(s) and the Affordability Period when determined by the CITY. Unless otherwise
provided in the NSP Agreement, the term Affordable Housing shall include, without
limitation, compliance with the following requirements:
(i) Nondiscrimination. There shall be no discrimination against nor
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, national origin, ancestry, or handicap in the sale, transfer, Lrse,
occupancy, tenure, or enjoyment of any of the Property, nor shall Declarant or any person
claiming under the Declarant, establish or permit any practice of discrimination or
segregation with reference to the selection, location, number, use or occupancy of owners
or vendees of the Project and/or Property.
(ii) Principal Residence. Each of the Affordable Units within the
Project upon the Property shall be leased only to eligible Low-, Moderate- and Middle-
lncome households, who shall occupy the Affordable Units as their principal residence. The
NSP Declarat¡on of Restrictions
Approved as to form 02121 3
Page 2 of 6
foregoing requirement that the Property tenants occupy the Affordable Units as their
principal residence does not apply to persons, other than natural persons, who acquire the
Property or portion thereof by foreclosure or deed in lieu of foreclosure; or HUD qualifìed
entities that acquire the Property or portion thereof, with the consent of the CITY.
(iii) lncome Requirements. The Affordable Units constituting the
Project upon the Property and each of them may be leased only to (a) natural person(s)
whose annual household income at the time is not greater than one hundred twenty percent
(120o/o) of the most recent annual median income calculated and published by HUD for the
Fresno Metropolitan Statistical Area applicable to such household's size.
(iv) Recapture Requirements. Should the Affordable Unit(s) not
continue to be the principal residence of the family leasing the PropertyiAffordable Unit as
affordable housing for the duration of the period of affordability then the entire financial
assistance provided by City and allocated to the Property including all NSP Program
Funding assistance, excluding any discounted NSP funds shall immediately come due and
must be repaid to/recaptured by the City's NSP Program Trust Fund and thereupon the
balance of the affordability restrictions shall be released. The affordability restrictions also
may terminate upon occurrence of any of the following termination events: foreclosure,
transfer in lieu of foreclosure or assignment of an FHA insured mortgage to HUD, provided
the affordability restrictions shall be revived according to the original terms if, during the
original affordability period, the owner of record before such termination events obtains an
ownership interest in the housing. The City shall be possessed of a first right of refusal to
purchase the Property before foreclosure to preserve affordability.
Item (a) above is hereinafter referred to as the Covenants and Restrictions.
3. Enforcement of Restrictions. Without waiver or limitation, the CITY shall be
entitled to injunctive or other equitable relief against any violation or attempted violation of
any Covenant and Restriction, and shall, in addition, be entitled to damages for any injuries
or losses resulting from any violations thereof.
4. Acceptance and Ratification. All present and future owners of the Property
and other persons claiming by, through, or under them shall be subject to and shall comply
with the Covenant and Restrictions. The acceptance of a deed of conveyance to the
Property shall constitute an agreement that the Covenant and Restrictions, as may be
amended or supplemented from time to time, are accepted and ratified by such future
owners, tenant or occupant, and such Covenant and Restriction shall be a covenant
running with the land and shall bind any person having at any time any interest or estate in
the Property, all as though such Covenant and Restriction was recited and stipulated at
length in each and every deed, conveyance, mortgage or lease thereof.
Notwithstanding the foregoing, upon foreclosure by a lender or other transfer
in lieu of foreclosure, or assignment of an FHA-insured mortgage to HUD, the Affordability
Period shall be terminated if the foreclosure or other transfer in lieu of foreclosure or
assignment recognizes any contractual or legal rights of public agencies, nonprofit
sponsors, or others to take actions that would avoid the termination of low-income
affordability. However, the requirements with respect to Affordable Rental Units shall be
revived according to their original terms, if during the original Affordability Period, the owner
NSP Declaration of Restrictions
Approved as to form 0212'l 3
Page 3 of 6
of record before the foreclosure or other transfer, or any entity that includes the former
owner or those with whom the former owner has or had formerly, family or business ties,
obtains an ownership interest in the Project or the Property, the Affordability Period shall be
revived according to its original terms.
5. Benefit. This Declaration shall run with and bind the Property for a term
commencing on the date this Declaration is recorded in the Office of the Recorder of the
County of Fresno, state of California, and expiring upon the expiration of the Affordability
Period. The failure or delay at any time of the CITY or any other person entitled to enforce
this Declaration shall in no event be deemed a waiver of the same, or of the right to enforce
the same at any time or from time to time thereafter, or an estoppel against the enforcement
thereof.
6. Costs and Attorney's Fees. ln any proceeding arising because of failure of
Declarant or any future owner of the Property to comply with the Covenant and Restrictions
required by this Declaration, as may be amended from time to time, the CITY shall be
entitled to recover its costs and reasonable attorney's fees incurred in connection with the
successful enforcement of such default or failure.
7. Waiver. Neither Declarant nor any future owner of the Property may exempt
itself from liability for failure to comply with the Covenant and Restrictions required in this
Declaration; provided however, that upon the transfer of the Property, the transferring
owner shall be released from liability hereunder, upon CITY's written consent of such
transfer, which consent shall not be unreasonably withheld, conditioned or delayed.
8. Severability. The invalidity of the Covenant and Restrictions or any other
covenant, restriction, condition, limitation, or other provision of this Declaration shall not
impair or affect in any manner the validity, enforceability, or effect of the rest of this
Declaration and each shall be enforceable to the greatest extent permitted by law.
9. Pronouns. Any reference to the masculine, feminine, or neuter gender herein
shall, unless the context clearly requires the contrary, be deemed to refer to and include all
genders. Words in the singular shall include and refer to the plural, and vice versa, as
appropriate.
10. lnterpretation. The captions and titles of the various articles, sections,
subsections, paragraphs, and subparagraphs of this Declaration are inserted herein for
ease and convenience of reference only and shall not be used as an aid in interpreting or
construing this Declaration or any provision hereof.
11. Amendment. No amendment or modification of this Declaration shall be
permitted without the prior written consent of the CITY and Declarant.
12. Recordation. Declarant acknowledges that this Declaration will be filed of
record in the Office of the Recorder of county of Fresno, State of California.
13. Capitalized Terms. All capitalized terms used in this Declaration, unless
otherwise defined herein, shall have the meanings assigned to such terms in the
Agreement.
NSP Declaration of Restrictions
Approved as to form 021 21 3
Page 4 of 6
14. Headings. The headings of the articles, sections, and paragraphs used in this
Agreement are for convenience only and shall not be read or construed to affect the
meaning or construction of any provision.
lN WITNESS WHEREOF, Declarant has executed this Declaration of Restrictions on
the date first written above.
DECLARANT:
[Declarant Name]
a California [Legal ldentity]
IDate]
lName]
[Title]
Name: (Attach notary certificate of acknowledgment)
By:
APP
City
ROVED AS TO FORM:
Attorney's Offìce
By:
Robert C. Abrams Date
Deputy City Attorney
NSP Declaration of Restrictions Page 5 of 6
Approved as to form 02121 3
Legal Description
EXHIBIT "A''
THE LAND REFFERED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO,
COUNTY OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
ILegal Description]
Real propefi in the City of Fresno, County of Fresno, State of California, described as follows:
PARCEL 1:
LOTS 3 AND 4 OF TRACT NO. 1766, ELDORADO PARK CrTy OF FRESNO, COUNTY OF FRESNO,
STATE OF CAUFORNIA, ACCORDING TO THE MAp THEREOF RECORDED DECEMBER 3, 1959 IN
BOOK 19, PAGE 92 OF PLATS, RECORDS OF SAID COUNTY,
EXCEPTNG THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINEMLS WITHIN
OR UNDERLYING SAID PROPERTY, BUT WITHOUT ANY RIGHT OF INGRESS OR EGRESS OVER
SAID PROPERTY FOR THE PURPOSE OF RECOVERING THE SAME THEREFROM BUT WITH THE
RIGHT TO DRILL OR BORE SLANTED WELLS OR TUNNEIS FROM ADJACENT I.ANDS INTO AND
THROUGH THE SUBSURFACE OF SAID I.AND BELOW A DEPTH OF 1OO FEET FOR THE PURPOSE
OF RECOVERING SAID OII-, GAS, AND OTHER HYDROCARBONS AND MINERALS THEREFROM.
PARCEL 2:
LOTS 5 AND 6 OF TRACT NO. 1766, ELDORADO PARK, Ctfy OF FRESNO, COUNTY OF FRESNO,
STATE OF CAUFORNIA, ACCORDING TO THE MAP THEREOF RECORDED DECEMBER 3, 1959 IN
BOOK 19 PAGE 92 OF PI-ATS, RECORDS OF SAID COUNTY.
EXCEPTNG THEREFROM ALL OIL, GAS AND OTHER HYDROCARBONS AND MINERATS ,WITHIN
OR UNDERLYING SAID PROPERTY/ BUT WITHOUT ANY RIGHT OF INGRESS AND EGRESS OVER
SAID PROPERTY FORTHE PURPOSE OF RECOVERING THE SAME THEREFROM BUTWITH RIGHT
TO DRILL OR BORE SLANTED WELLS OR TUNNELS FROM ADJACENT I-ANDS INTO AND
THROUGH THE SUBSURFACE OF SAID LAND BELOW A DEPTH OF 1OO FEET FOR THE PURPOSE
OF RECOVERING SAID OIL, GAS AND OTHER HYDROCARBONS AND MINERAIS THEREFROM.
APN: 418-151-34-5 & 418-151-32-S
NSP Declaration of Restrictions
Approved as to form 02 1 21 3
Page 6 of 6
Exhibit D:
Exemplar Deed of'Trust with Assignment of Rent
RECORDING REQUESTED BY and for the benefit of the
City of Fresno and is exempt from the payment of a
record¡ng fee ¡n accordance with Govemment Code
Sections 6103 and 27383.
Name
Address
City/St
Attn:
AND WHEN RECORDED MAIL TO
City of Fresno
Planning and Development Department
2600 Fresno Street, Rm. 3070
Fresno CA 93721-3605
IName]
Title Order No. [Number]
Escrow No. [Number]
SPACE ABOVE THIS LINE FOR RECORDER'S USE
APN [Number]
DEED OF TRUST W¡TH
ASSIGNMENTS OF RENTS
THIS DEED OF TRUST With Assignment of Rents ("Deed of Trust") made this [Date] day of [Month], [Year], by and
between [Name of Trustor or Borrower], [Legal ldentity] (herein "Trustor" and "Borrower"), [Name of Trustee] (herein
"Trustee"), and the City of Fresno, a Municipal Corporation organized and existing under the laws of the State of
California whose address is 2600 Fresno Street, Fresno, California 93721 (herein "Beneficiary" and "Lender").
Trustor, in consideration of the indebtedness herein recited and the trust herein created, does irrevocably grant and
convey to Trustee, in trust, with power of sale, all Trustor's right, title, and interest now owned or hereafter acquired in the
real property ("Land") known as [Address] located in Fresno County, California and more particularly described in the
Attached Exhibit A, incorporated by reference (Trustor agrees that any greater to the Land later acquired during the term
of this Deed of Trust will be subject to this Deed of Trust), together with the rents, issues, and profits, subject however, to
the right, power, and authority granted and conferred on Trustor in this Deed of Trust to collect and apply the rents,
issues, and profits; and
Trustor also irrevocably grants, transfers, and assigns to Trustee, in trust, with power of sale, all of Trustor's right, title and
interest now owned or later acquired to the following property (including the rights or interests pertaining to the property)
located at the Property:
(1) All buildings ("Buildings") and improvements now or later on the land and all easements, rights,
appurtenances, water and water rights, minerals and mineral rights; all machinery, equipment,
appliances, and fixtures for the generation or distribution of air, water, heat, electricity, light, fuel, or
refrigeration or for ventilating or sanitary purposes or for the exclusion of vermin or insects or for the
removal of dust, refuse, or garbage; all wall safes, builtin furniture, and installations, window shades and
blinds, light fixtures, fire hoses and brackets, screens, linoleum, carpets, furniture, furnishings, fixtures,
plumbing, laundry tubs and trays, refrigerators, heating units, stoves, water heaters, incinerators, and
communication systems and installations for which any Building is specially designed; all of these item,
whether now or later installed, being declared to be for all purposes of this Deed of Trust a part of the
Land, the specific enumerations in this Deed of Trust not excluding the general;
(2) The rents, issues, profits, and proceeds relating to the foregoing; and
(3) The Property to the extent not included on clauses (1) and (2) above.
TO SECURE, in order of priority that Beneficiary determines:
Dæd of Trust w¡th Assígnmflts of Rent,
Approwd as to fom 021213 - Page 1 ot 9
Payment of the indebtedness evidenced by a note of Trustor of even date with this Deed of Trust in the
principal amount of [Written Dollar Amount] ($[Amount]) ("Note"), payable to Beneficiary or order, and all
extensions, modifications, or renewals of that note;
Payment of the interest on that indebtedness according to the terms of the Note;
Payment of all other sums (with interest as provided herein) becoming due and payable to Beneficiary or
Trustee pursuant to the terms of this Deed of Trust;
(4) Performance of every obligation contained in this Deed of Trust, the Note, the NSP Agreement dated the
[Date] day of [Month], [Year] and its related documents, the Declaration of Restrictions dated the [Date]
day of [Month], [Year], any instrument now or later evidencing or securing any indebtedness secured by
this Deed of Trust, and any agreements, supplemental agreements, or other instruments of security
executed by Trustor as of the same date of this Deed of Trust or at any time subsequent to the date of
this Deed of Trust for the purpose of further securing any indebtedness amending this Deed of Trust or
any instrument secured by this Deed of Trust (collectively the "Loan Documents"); and
(5) Payment of all other obligations owed by Trustor to Beneficiary that by their terms recite that they are
secured by this Deed of Trust, including those incurred as primary obligor or as guarantor.
Trustor covenants that Trustor is lawfully seized of the estate hereby conveyed and has the right to grant and convey the
Property, and that the Property is unencumbered except for encumbrances of record. Trustor covenants that Trustor will
forever warrant and will defend the grant made in this Deed of Trust against all claims and demands, subject to
encumbrances of record. Trustor covenants that Trustor will maintain and preserve the lien of this Deed of Trust until all
the indebtedness under the Note is paid in full.
Trustor represents and warrants to Beneficiary that as of the date of this Deed of Trust Trustor is a [ype of Entity]
organized, validly existing, and in good standing under the laws of the State of [Name of State] and is qualified to do
business in California; that Trustor has the requisite power and authority to own, develop, and operate the property; and
that Trustor is in compliance with all laws, regulations, ordinances, and orders of public authorities applicable to it.
Trustor represents and warrants to Beneficiary that as of the date of this Deed of Trust the execution, delivery, and
performance by the Borrower and the borrowings evidenced by the Note are within the power of the Borrower; have been
duly authorized by all requisite corporate or partnership actions, as appropriate; has received all necessary governmental
approvals, and will not violate any provision of law, any order of any court or agency of government, the charter
documents of Borrower, or any indenture, agreement, or any other instrument to which Borrower is a party or by which
Borrower or any of it property is bound, nor will they conflict with, result in a breach of, or constitute (with due notice and
lapse of time) a default under any indenture, agreement, or other instrument, or result in the creation or imposition of any
lien, charge, or encumbrance of any nature on any of the property or assets of Borrower, except as contemplated by the
provisions of the Loan Documents; and each of the Loan Documents, when executed and delivered to Beneficiary, will
constitute a valid obligation, enforceable in accordance with its terms.
Trustor represents and warrants to Beneficiary that as of the date of this Deed of Trust that the Property is not used
principally for agricultural or grazing purposes; that Trustor is engaged in the development and operation of lmprovements
to the Property; and that the principal purpose of the Loan is the acquisition, development and/or the operation of the
lmprovements to the Property.
UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows:
Dæd of Trust wÌth Assignments of Rst,
Approwd as to fom 021213 - Page 2 of I
(1)
(2)
(3)
2
1.Pavment of Princioal. Borrower.shall promptly pay when due the principal indebtedness evidenced by the Note.
Hazard lnsurance. Borrower, at its sole cost and expense, for the mutual benefit of Borrower and Beneficiary, shall
keep the improvements now existing or hereafter erected on the Property insured against loss by
fire, hazards included within the term "extended coverage", and such other hazards as Lender may require and in
such amounts and for such periods as Lender may require as set forth in the NSP Agreement referenced above.
The insurance carrier providing the insurance shall be chosen by Borrower subject to approval by Lender; provided
that such approval shall not be unreasonably withheld. All insurance policies and renewals thereof shall be in a form
acceptable to Lender and shall include a standard mortgage clause in favor of and in a form acceptable to Lender.
Lender shall have the right to hold the policies and renewals thereof, subject to the terms of any mortgage, deed of
trust or other security agreement with a lien which has priority over this Deed of Trust.
ln the event of loss, Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of
loss if not made promptly by Borrower.
lf the Property is abandoned by Borrower, or if Borrower fails to respond to Lender within 30 days from the date notice
is mailed by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits, Lender is
authorized to collect and apply the insurance proceeds at Lender's option either to restoration or repair of the Property
or to the sums secured by this Deed of Trust.
Borrower shall
keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and
shall comply with the provisions of any lease if this Deed of Trust is on a leasehold. lf this Deed of Trust is on a unit in
a condominium or a planned unit development, Borrower shall perform all of Borrower's obligations under the
declaration or covenants creating or governing the condominium or planned unit development, the byJaws and
regulations of the condominium or planned unit development, and constituent documents. Borrower shall not permit
overcrowded conditions to exist as defined by the U.S. Department of Housing and Urban Development.
Protection of Lender's Security. lf Borrower fails to perform the covenants and agreements contained in this Deed of
Trust, or if any action or proceeding is commenced which materially affects Lender's interest in the Property, then
Lender, at Lender's option, upon notice to Borrower, may make such appearances, disburse such sums, including
reasonable attorney's fees, and take such action as is necessary to protect Lender's interest. lf Lender requires
mortgage insurance as a condition of making the loan secured by this Deed of Trust, Borrower shall pay the
premiums required to maintain such insurance in effect until such time as the requirement for such
insurance terminates in accordance with Borrower's and Lender's written agreement or applicable laws.
Any amounts disbursed by Lender pursuant to this Paragraph 5 shall become additional
indebtedness of Borrower secured by this Deed of Trust. Unless Borrower and Lender agree to other terms of
payment, such amounts shall be payable upon notice from Lender to Borrower requesting payment thereof. Nothing
contained in this paragraph 5 shall require Lender to incur any expense or take any action hereunder.
5. lnsoection. Lender may make or cause to be made reasonable entries upon and inspections of the Property,
provided that Lender shall provide Borrower notice prior to any such inspection specifying reasonable cause therefore
related to Lender's interest in the Property.
6. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or part thereof, orfor conveyance in lieu of condemnation, are hereby
assigned and shall be paid to Lender, subject to the terms of any mortgage, deed of trust or other security agreement
with a lien which has priority over this Deed of Trust.
Dæd of Trust with Ass¡gmmts of Rentl
Approwd as to fom 021213 - Page 3 of I
3
4
7. Borrower Not Released, Forbearance Bv Lender Not a Waiver. Extension of the time for payment or modification of
amortization of the sums secured by this Deed of Trust granted by Lender to any successor in interest of Borrower
shall not operate to release, in any manner, the liability of the original Borrower and Borrower's successors in interest.
Lender shall not be'required to commence proceedings against such successor or refuse to extend time for payment
or otherwise modify amortization of the sums secured by this Deed of Trust be reason of any demand made by the
original Borrower and Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedy
hereunder, or otherwise afforded by applicable law, shall not be waiver of or preclude the exercise of any such right of
remedy.
8. The covenants and agreements herein
contained shall bind, and the rights hereunder shall inure to the respective successors and assignees of Lender and
Borrower. All covenants and agreements of Borrower shall be joint and several. Any borrower who co-signs this
Deed of Trust, but does not execute the Note, (a) is co-signing this Deed of Trust only to grant and convey that
Borrower's interest in the Property of Trustee under the terms of this Deed of Trust, (b) is not personally liable on the
Note or under this Deed of Trust or the Note, without that Borrower's consent and without releasing
that Borrower or modifying this Deed of Trust as to that Borrower's interest in the Property.
9. Transferability. One of the inducements to Beneficiary for making the Loan is the identity of Trustor. The existence of
any interest in the Property other than the interests of Trustor and Beneficiary and any encumbrance permitted in this
Deed of Trust, even though subordinate to the security interest of Beneficiary, and the existence of any interest in
Trustor other than those of the present owners, would impair the Property and the security interest of Beneficiary, and,
therefore, except as provided herein or in the Loan Documents, Trustor/Borrower will not sell, convey, assign,
transfer, alienate, or othen¡vise dispose of its interest in the Property, either voluntarily or by operation of law, or agree
to do so, without the prior written consent of Beneficiary. Consent to one tfansaction by Beneficiary will not be
deemed a waiver of the right to require consent to further or successive transactions. lf Trustor is a corporation, any
sale, transfer, or disposition of fifty percent (50%) or more of the voting interest of Trustor or of any entity that directly
or indirectly owns or controls Trustor, including, without limitation, the parent company of Trustor, and the parent
company of the parent company of Trustor, will constitute a sale of the Property for purposes of this article. lf Trustor
is a partnership any change or addition of a general partner of Trustor, change of a partnership interest of Trustor, or
sale, transfer, or disposition of fifty percent (50%) or more of the voting interest or partnership interest of any partner
of Trustor or of any corporation, partnership or entity that directly or indirectly owns or controls any partner of Trustor,
including, without limitation, each parent company of a partner of Trustor and each parent company of any parent
company of a partner of Trustor, will constitute a sale of the Property for purposes of this section. lf Trustor is a
limited liability company, any change of the manager or any sale, transfer or disposition of fifty percent (50%) or more
of the partnership interests of Trustor, or disposition of fifty percent (50%) or more of the voting interest of Trustor or of
any corporation, partnership or entity that directly or indirectly owns or controls any member of Trustor, including
without limitations, each parent company of Trustor and each parent company of any parent company of a member of
Trustor, will constitute a sale of the Property for purposes of this section. Any transaction in violation of this section
will cause all lndebtedness, irrespective of the maturity dates, at the option of the Beneficiary and without demand or
notice, immediately to become due, together with any prepayment premium in accordance with the terms of the Note
except as prohibited by law.
10. Notice. Except for any notice required under applicable law to be given in another manner, (a) any notice to Borrower
provided for in this Deed of Trust shall be given by delivering it or by mailing such notice by certified mail addressed to
Borrower at the Property Address or at such other address as Borrower may designate by notice to Lender as
provided herein, and (b) any notice to lender shall be given by certified mail to Lender's address stated herein or to
such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this
Deed of Trust shall be deemed to have been given to Borrower or Lender when given
in the manner designated herein.
Deed ot Trust with Assignmsts of Rent,
Approwd as to fom 021213 - P age 4 o'l I
11. Governinq Law: Severability. The state and local laws applicable to this Deed of Trust shall be the laws of the
jurisdiction in which the Property is located. The foregoing sentence shall not limit the applicability of Federal law to
this Deed of Trust or if the Note conflicts with applicable law, such conflict shall not affect other provisions of this Deed
of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of this
Deed of Trust and the Note are declared to be severable. As used herein, "costs", "expenses", and "attorney's fees"
include all sums to the extent not prohibited by applicable law or limited herein.
12. Borrower's Copy. Borrower shall be furnished a conformed copy of the Note and of this Deed of Trust at the time of
execution or after recordation thereof.
NON-CONFORMING COVENANTS. Borrower and Lender further covenant and agree as follows:
13. Acceleration: Remedies. Upon Borrower's breach of any covenant or agreement of Borrower in this Deed of Trust,
including the covenants to pay when due any sums secured by this Deed of Trust, the Note or the Program
restrictions, Lender priorto acceleration shall give notice to Borrower as provided in paragraph 10 hereof specifying:
(1) the breach; (2) the action required to cure such breach; (3) a date, not less than 10 days from the date notice is
mailed to Borrower, by which such breach must be cured; and (4) that failure to cure such breach on or before the
date specified in the notice may result in acceleration of the sums secured by this Deed of Trust and sale of the
Property. The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a
court action to assert the nonexistence of a default or any other defense of Borrower to acceleration and sale. lf the
breach is not cured on or before the date specified in the notice, Lender, at Lender's option may declare all of the
sums secured by this Deed of Trust to be immediately due and payable without further demand and may invoke the
power of sale and any other remedies permitted by applicable law. Lender shall be entitled to collect all reasonable
costs and expenses incurred in pursuing the remedies provided in this paragraph 13, including, but not limited to,
reasonable attorney's fees. lf Lender invokes the power of sale, Lender shall execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Lender's election to cause the Property to be sold and
shall cause such notice to be recorded in each county in which the Property or some part thereof is located. Lender
or Trustee shall mail copies of such notice in the manner prescribed by applicable law. Trustee shall give public
notice of sale to the persons and in the manner prescribed by applicable law. After the lapse of such time as may be
required by applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction to the
highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and
in such order as Trustee may determine.
Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any
previously scheduled sale. Lender or Lender's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without any covenant or
warranty, expressed or implied. The recitals in the Trustee's deed shall be primo facio evidence of the truth of the
statements made therein. Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable
costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs of title
evidence; (b) to all sums secured by this Deed of Trust; and (c) the excess, if any, to the person or persons legally
entitled thereto.
14. Borrower's Riqht to Reinstate. Notwithstanding Lender's acceleration of the sums secured by this Deed of Trust due
to Borrower's breach, Borrower shall have the right to have any proceedings begun by Lender to enforce this Deed of
Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in
this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Borrower pays Lender
all sums which would be then due under this Deed of Trust and the Note had no acceleration occurred; (b) Borrower
cures all breaches of any other covenants or agreements of Borrower contained in this Deed of Trust; (c) Borrower
pays all reasonable expenses incurred by Lender and Trustee in enforcing the covenants and agreements of
Deed ol Trusl with Assignments of Rent:
Approwd as to fom 02 1 213 - Page 5 of 9
Borrower in paragraph 13 hereof, including but not limited to, reasonable attorney's fees; and (d) Borrower takes such
action as Lender may reasonably require to assure that the lien of this Deed of Trust, Lender's interest in the Property
and Borrower's obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such
payment and cure by Borrower, this Deed of Trust and the obligations secured hereby shall remain in full force and
effect as if no acceleration had occurred.
15. As additional security hereunder, Borrower
hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under
paragraph 13 hereof or abandonment of the Property, have the right to collect and retain such rents as they become
due and payable.
Upon acceleration under paragraph 13 hereunder or abandonment of the Property, Lender, in person, by agent or by
judicially appointed receiver shall be entitled to enter upon, take possession of and manage the Property and to
collect the rents of the Property including those past due. All rents collected by Lender or the receiver shall be applied
first to premiums on receiver's bonds and reasonable attorney's fees, and then to the sums secured by this Deed of
Trust. Lender and the receiver shall be liable to account only for those rents actually received.
'16. Reconvevance. Upon payment of all sums secured by this Deed of Trust, Lender shall request Trustee to reconvey
the Property and shall surrender this Deed of Trust, and all notes evidencing indebtedness secured by this Deed of
Trust to Trustee. Trustee shall reconvey the Property without warranty and without charge to the person or persons
legally entitled thereto. Such person or persons shall pay all costs of recordation, if any.
17. Substitute Trustee. Lender at lender's option, may from time to time, appoint a successor trustee to any Trustee
appointed hereunder by an instrument executed and acknowledged by Lender and recorded in the Fresno County
Recorder's Office. The instrument shall contain the name of the original Lender, Trustee and Borrower, the book and
page where this lnstrument is recorded and the name and address of the successor trustee. The successor trustee
shall, without conveyance of the Property, succeed to all the title, powers and duties conferred upon the Trustee
herein and by applicable law. This procedure for substitution of trustee shall govern to the exclusion of all other
provisions for substitution.
18. Statement of Obliqation. Lender may collect a fee not to exceed $50 forfurnishing the statement of obligation as
provided by Section 2943 of the Civil Code of California.
19. Event of Default.
The following events are each an "Event of Default":
(a) Default in the payment of any sum of principal or interest when due under the Note or any other sum due under
the Loan Documents.
(b) Failure to maintain insurance as provided in Section 2 hereof.
(c) The failure (without cure during the applicable period, if any, for cure) of any Borrower to observe, perform, or
discharge any obligation, term, covenant, or condition of any of the Loan Documents, any agreement relating to
the Property, or any agreement or instrument between any Loan Party and Beneficiary.
(d) The assignment by Trustor, as lessor or sublessor, as the case may be, of the rents or the income of the Property
or any part of it (other than to Beneficiary) without first obtaining the written consent of Beneficiary.
(e) The following events:
Deed of Trust w¡th Ass¡gnmsts of Rent:
Appro€d as to fom 021213 - Page 6 of I
(i) the filing of any claim or lien against the Property or any party of it, whether or not the lien is prior to this Deed
of Trust, and the continued maintenance of the claim or lien for a period of thirty (30) days without discharge,
satisfaction, or adequate bonding in accordance with the terms of this Deed of Trust;
(ii) the existence of any interest in the Property other than those of Trustor, Beneficiary, any tenants of Trustor,
and any one listed in a title exception approved by Beneficiary in writing; or
(iii) the sale, hypothecation, conveyance, or other disposition of the Property except with the express written
approval of Beneficiary, any of which will be an Event of Default because Trustor's obligation to own and
operate the Property is one of the inducements to Beneficiary to make the Loan;
(f) Default under any agreement to which Trustor is a party, which agreement relates to the borrowing of money by
Trustor f rom Beneficiary.
(g) Any presentation or warranty made by any Loan Party or any other Person under this Deed of Trust or in, under,
or pursuant to the Loan Documents, is false or misleading in any material respect as of the date on which the
representation or warranty was made.
(h) Any of the Loan Documents, at any time after their respective execution and delivery and for any reason, cease to
be in full force or are declared null and void, or the validity or enforceability is contested by Borrower or any
stockholder or partner of Borrower, or Borrower denies that it has any or further liability or obligation under any of
the Loan Documents to which it is a party.
lf one or more Event of Default occurs and is continuing, then Beneficiary may declare all the lndebtedness to be due
and the lndebtedness will become due without any further presentment, demand, protest, or notice of any kind, and
Beneficiary may:
(i) in person, by agent, or by a receiver, and without regard to the adequacy of security, the solvency of Trustor,
or the existence of waste, enter on and take possession of the Property or any party of it in its own name or in
the name of Trustee, sue for or otheruvise collect the rents, issues, and profits, and apply them, less costs and
expenses of operation and collection, including reasonable attorneys'fees, upon the lndebtedness, all in any
order that Beneficiary many determine. The entering on and taking possession of the Property, the collection
of rents, issues, and profits, and the application of them will not cure or waive any default or notice of default
or invalidate any act done pursuant to the notice;
(ii) commence an action to foreclose this Deed of Trust in the manner provided by law for the foreclosure of
mortgages of real property;
(iii) deliver to Trustee a written declaration of default and demand for sale, and a written notice of default and
election to cause the Property to be sold, which notice Trustee or Beneficiary will cause to be filed for record;
(iv) with respect to any Personalty, proceed as to both the real and personal property in accordance with
Beneficiary's rights and remedies in respect of the Land, or proceed to sell the Personalty separately and
without regard to the Land in accordance with Beneficiary's rights and remedies; or
(v) exercise any of these remedies in combination or any other remedy at law or in equity.
20. Protection of Securitv.
Dæd of Trust w¡th Ass¡gnments of Rentl
Approwd as to fom 02'1213 - Page 7 of I
lf an Event of Default occurs and is continuing, Beneficiary or Trustee, without notice to or demand upon Trustor, and
without releasing Trustor from any obligations or defaults may:
(a) enter on the Property in any manner and to any extent that either deems necessary to protect the security of this
Deed of Trust;
(b) appears in and defend any action or proceeding purporting to affect, in any manner, the Obligations or the
lndebtedness, the security of this Deed of Trust, or the rights or powers of Beneficiary or Trustee;
(c) pay, purchase, or compromise any encumbrance, charge, or lien that in the judgment of Beneficiary or Trustee is
prior or superior to this deed of Trust; and
(d) pay expenses relating to the Property and its sale, employ counsel, and pay reasonable attorneys' fees.
Trustor agrees to repay on demand all sums expended by Trustee or Beneficiary pursuant to this section with interest
at the Note Rate of lnterest, and those sums, with interest, will be secured by this Deed of Trust.
21. Effect of Assignment.
The assignment rents as provided herein will not impose on Beneficiary any duty to produce rents, issues, or profits
from the Property, or cause Beneficiary to be:
(a) a "mortgage-in-possession" for any purpose;
(b) responsible for performing any of the obligations of the lessor under any of the Leases; or
(c) responsible for any waste committed by lessees or any other parties, any dangerous or defective condition of the
Property, or any negligence in the management, upkeep, repair, or control of the Property.
Beneficiary will not be liable to Trustor or any other party as a consequence of the exercise of the rights granted to
Beneficiary under this assignment or the failure of Beneficiary to perform any obligation of Trustor arising under
Leases.
lN WITNESS WHEREOF, Borrower has executed this Deed of Trust on the day and year set forth above. By signing
below, Borrower agrees to the terms and conditions as set forth above.
IName]
ILegal ldentity]
IDate]
IName]
ITitle]
STATE OF CALIFORNIA
couNTY oF ) s.s
Dæd of Trust w¡th Assignmffts of Rst;
Apprcwd as to fom 021213 - Page I of 9
By
before me,a Notary Public,
personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal
Signature
(Th¡s area for officìal notarial seãl)
APPROVED AS TO FORM:
City Attorney's Office
By
Robert C. Abrams
Senior/Deputy City Attorney
Date
Legal Description
EXHIBIT "4"
THE TAND REFFERED TO HEREIN BELOW IS SITUATED IN THE CITY OF FRESNO, COUNTY OF FRESNO,
STATE OF CALIFORNIA AND IS DESCRIBED AS FOLLOWS:
ILegal Description]
APN [Number]
Dæd of Trust with Asslgnments of Rent,
Approvèd as to fom 0212'f3
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO TRUSTEE
The undersigned is the legal owner and holder of the note or notes, and of all other indebtedness secured by the
foregoing Deed of Trust. Said note or notes, together with all other indebtedness secured by said Deed of Trust,
have been fully paid and satisfied; and you are hereby requested and directed, on payment to you of any sums owing
to you under the terms of said Deed of Trust, to cancel said note or notes above mentioned, and all other evidence of
indebtedness secured by said Deed of Trust delivered to you herewith, together with the said Deed of Trust, and to
reconvey, without warranty, to the parties designated by the terms of said Deed of Trust, all the estate now held by
you under the same.
. Dated
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destroy this Deed of Trust OR THE NOTE which it secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made
Dæd of Trust w¡th Ass¡gnments of Rffit;
Approwd as to fom 021213
Exhib¡t E
Sample Note
Deed of Trust with Assrgnments of Rfft; Page 65 of 77
DO NOT DESTROY THIS
Borrower for Ca ncellation.
NOTE: When paid, this note
PROMISSORY NOTE
Secured by Deed of Trust
must be surrendered to
Loan Number: [Number] [Date]
APN Number: [Number]
Property Address: [Address]
Fresno, California [Zip Code]
Loan Amount: $lAmount]
For value received, the undersigned, [DEVELOPER], [Legal ldentity]
("Borrower"), promises to pay to the order of the City of Fresno, a California municipal
corporation, ("Lender"), the sum of $[Amount], to the extent that such funds are loaned
to Borrower, with interest on the unpaid principal balance running from the date of
disbursement with simple interest at the rate of [Number]% annually in accordance with
the Neighborhood Stabilization Program (NSP) Agreement dated [Date], [Year], entered
into between the Lender and borrower, ("Agreement"), with all principal and interest due
and payable on or before the earlier of (i) Borrower's uncured default under the
Agreement with respect to the Project, and (ii) [Fill in DATE which is 30 years from this
datel, ("Maturity Date"), on which date the unpaid balance of principal with unpaid
interest thereon shall be due and payable, along with attorney's fees and costs of
collection, and without relief from valuation and appraisement laws.
This is a Residual Receipts Note. Principal and interest payments equal to 100%
of annual Residual Receipts, to the extent that Residual Receipts exist and are itemized
in audited financial statements supplied to Lender with each payment hereunder, shall
be due [Fill in TIME PERIOD (_ days/weeks/months) after which the 1st payment is
duel, unless otherwise agreed to by Lender in writing, and said payment continues each
successive year thereafter until the Maturity Date, upon which all principal and interest
shall be due and payable (prorated amounts to be paid for the first and last year of the
Note). Any failure to make a payment required hereunder within ten (10) days after
such payments are due shall constitute a default under the Agreement with respect to
the Project and this Note. lt shall not be a default hereunder if no payment was made
because Project Residual Receipts did not exist for any particular year. Additionally any
failure to timely submit to Lender audited flnancial statements within thirty (30) days
after such financial statements are due shall constitute a default under the Agreement
with respect to the Project and Note.
Residual Receipts means in each operating year, the sum of: (i) all cash received by the
Project from rents, lease payments, and all sources generally considered in the
apartment industry to be "other income" (which does not include payments for optional
services provided by Borrower), and excluding (a) tenant security or other deposits
required by law to be segregated, and (b) interest on reserves not available for
distribution, and (ii) the net proceeds of any insurance (including rental interruption
insurance), other than fire and extended coverage and title insurance, to the extent not
reinvested, less the sum of: (i) payments towards any deferred developer fee (including
repayment of loans or capital contributions made by a partner to a partnership
Promissory Note
Approved as to form 021 21 3
specif¡cally for the purpose of paying the deferred developer fee), if applicable; (ii)
contributions to any prudent and reasonable cash reserves for working capital, capital
expenditures, repairs, replacements and anticipated expenditures, in such amounts as
may be reasonably required for the operation of the Project not to exceed an amount as
pre-approved by Lender, annually adjusted in proportion to the average increase of the
following indices (a) the United States Bureau of Labor Statistics for Hourly Wage Rates
of all workers in manufacturing, and (b) of all Commodity Wholesale Prices, said indices
shall be re-defined to the mutual satisfaction of the parties in the event of change in
form and basis of indices, all increases shall use the indices for calendaryear 2010 as
their base; (iii) the payment of principal and interest, and any associated fees,
expenses, and costs, with respect to the Financing; (iv) payments made to any
investors which are required to reimburse the investors a portion of its capital
contribution in relation to the Project when there is a shortfall in funding initially
promised pursuant to any investor or partnership agreement; (v) the payment of any
deferred development costs.
All capitalized terms used in this Note, unless otherwise defined, will have the
respective meanings specified in the Agreement. ln addition, as used in this Note, the
following term will have the following meaning:
Business Dav means any day other than Saturday, Sunday, or public holiday
or the equivalent for banks generally under the laws of California. Whenever
any payment to be made under this Note is stated to be due on a day other
than a Business Day, that payment may be made on the next succeeding
Business Day.
This Note, and any extensions or renewals hereof, is secured by a Deed of Trust
and Assignment of Rents, on real estate in Fresno County, California, that provides for
acceleration upon stated events, dated as of the same date as this Note, and executed
in favor of and delivered to the Lender ("Deed of Trust"), insured as a 1't position lien on
the Property.
Time is of the essence. lt will be a default under this Note if Borrower defaults
under the Agreement, any other Loan Document with the Lender, or this Note and such
default continues beyond the notice and cure period as provided in such documents. ln
the event of a default by Borrower with respect to any sum payable under this Note and
the failure to cure such default within ten ('10) days, the Borrower shall pay a late charge
equal to the lesser of two percent (2%) of any outstanding payment or the maximum
amount allowed by law. All payments collected shall be applied first to payment of any
costs, fees or other charges due under this Note or any other Loan Documents then to
the interest and then to principal balance. On the occurrence of an uncured default or
on the occurrence of any other event that under the terms of the Loan Documents give
rise to the right to accelerate the balance of the indebtedness, then, at the option of
Lender, this Note or any notes or other instruments that may be taken in renewal or
extension of all or any part of the indebtedness will immediately become due without
any further presentment, demand, protest, or notice of any kind. Lender acknowledges
and agrees that it shall send notice of any default hereunder to the limited partners of
Prom¡ssory Note
Approved as to form 02121 3
Borrower and shall accept any cure offered by such limited partners on the same basis
as it would accept a cure from Borrower.
The indebtedness evidenced by this Note may, at the option of the Borrower, be
prepaid in whole or in part without penafty. Lender will apply all the prepayments first to
the payment of any costs, fees, late charges, or other charges due under this Note or
under any of the other Loan Documents and then to the interest and then to the
principal balance.
All Loan payments are payable in lawful money of the United States of America
at any place that Lender or the legal holders of this Note may, from time to time, in
writing designate.
Borrower agrees to pay all costs including, without limitation, reasonable attorney
fees, incurred by the holder of this Note in the successful enforcement of payment,
whether or not suit is filed, and including, without limitation, all costs, reasonable
attorney fees, and expenses incurred by the holder of this Note in connection with any
bankruptcy, reorganization, arrangement, or other similar proceedings involving the
Borrower that in any way affects the exercise by the holder of this Note of its rights and
remedies under this Note. All costs incurred by the holder of this Note in any action
undertaken to obtain relief from the stay of bankruptcy statutes are specifically included
in those costs and expenses to be paid by Borrower.
Any notice, demand, or request relating to any matter set forth herein shall be in
writing and shall be given as provided in the Agreement.
No delay or omission of Lender in exercising any right or power arising in
connection with any default will be construed as a waiver or as acquiescence, nor will
any single or partial exercise preclude any further exercise. Lender may waive any of
the conditions in this Note and no waiver will be deemed to be a waiver of Lender's
rights under this Note, but rather will be deemed to have been made in pursuance of
this Note and not in modification. No waiver of any default will be construed to be a
waiver of or acquiescence in or consent to any preceding or subsequent default.
The Deed of Trust provides as follows:
Except as provided herein or in the Loan Documents, Trustor/Borrower
will not sell, convey, assign, transfer, alienate, or otherwise dispose of its
interest in the Property, either voluntarily or by operation of law, or agree
to do so, without the prior written consent of Beneficiary....Any transaction
in violation of this section will cause all lndebtedness, irrespective of the
maturity dates, at the option of the Beneficiary and without demand or
notice, immediately to become due, together with any prepayment
premium in accordance with the terms of the Note except as prohibited by
law.
Lender may transfer this Note and deliver to the transferee all or any part of the
Property then held by it as security under this Note, and the transferee will then become
Promissory Note
Approved as to form 021 21 3
vested with all the powers and rights given to Lender; and Lender will then be forever
relieved from any liability or responsibility in the matter, but Lender will retain all rights
and powers given by this Note with respect to Property not transferred.
lf any one or more of the provisions in this Note is held to be invalid, illegal, or
unenforceable in any respect by a court of competent jurisdiction, the validity, legality,
and enforceability of the remaining provisions will not in any way be affected or
impaired. This Note will be binding on and inure to the benefit of Borrower, Lender, and
their respective successors and assigns.
Borrower and Lender agree that this Note will be deemed to have been made
under and will be governed by the laws of California in all respects, including matters of
construction, validity, and performance, and that none of its terms or provisions may be
waived, altered, modified, or amended except as Lender and Borrower may consent to
in a writing duly signed by Borrower or Lender or its authorized agents.
This Note may be prepaid at any time without penalty.
lN WITNESS WHEREOF, Borrower has caused this Promissory Note to be
executed as of the date and year first above written.
[Name of Developer]
[Legal ldentity]
By:
[Name]
[Title]
(Attach notary certificate of acknowledgment)
APPROVED AS TO FORM:
City Attorney's Offlce
Robert C. Abrams
Deputy City Attorney
Promissory Note
Approved as to form 021213
Date
By:
Date
Exhibit F:
Eligible NSP Areas
Div lV Scope of Serv¡ce 12.26 Page 66 of77
Exhibit G:
Developer's NSP3 Eligibility lntake Form
Please submit a completed lntake Form with your request for Neighborhood Stabilization
ncomplete responses he property
information will be us
N?TE: Re/ease of funds cannot occur prÍor to environmental clearance.
K:\IIOUSING\NSP3\Chcck List\ltSP3 Prelirn úrtake Form 12 18 l2.doc
Page67 of77
Date 12t21t2112
street Address of ProjecuProperty to be Acquired ( ner- t-vtew, parcet Report)
1346 and 13288 San Ramon Avenue, Fresno CA 93710
City zip
93710
Census Tract No.A.P"N. No.
Fresno 418-1 51-32S and 418-1 51-34S
current owner coasfline Re Hotdings corp
Name/Co. Name
street Address 8105 trvine center Dr #1050
city, state, ZiP |rin", catifornia 926184922
Telephone No.Fax
E-MailAddress
¡ì : i;,i: i: t.
: j:j:::::-;Lj:l
:: ! r: :i.:::j: .-:
1. Does the project lie within an ellgible NSP area? (Ref - NSpJ RevÍsed prtority Area Map)
ElYes n ruo
IF NO, STOP HERE. PROPERTY IS INELIGIBLE.
lndicate Type of Project:
E¡ Acquisition of real propertyE Rehabilitation
Current Condition of Property:
tr Vacanttr AbandonedE Foreclosed
Type of Dwelling;
E Single DwellÍng E Dupfex El Triplex E Four-plex E Commercial
E lndustrial El Other 32-Unit, Multi-family residential property
Wilf the residence be owner- or renter-occupied? renter occupied
ls the mortgage/tax foreclosure process completed? I yes ! f,¡o
ls the property currently occupied? [ Yes E t'¡o
lf foreclosure, was property foreclosed upon prior to February j7, 2OOg?
D Yes EI ruo
Date of Foreclosure: ,,, , , ,E lf foreclosure was after February 17,2009, adequate documentation of tenant
protection complÍance from the initial Successor in lnterest must be provided.
tr Copy of certification must be provided.
tr lf inltial Successor in lnterest cannot certify or demonstrate compliance with NSp tenantprotection, the diligence to determine whether any
bona fide tena they were altowed to remain throuin
the end of the uireã notices.
Occupancy status at time of Notice of Foreclosure Occupied
Provide copíes of the following recorded documents , 1 - J,
1.Notice of DefaulUForeclosure (Ref - Hattof Records)E
2.Notice of Trustee's Sale (Ref - Hall ol Records)E
3. El Trustee's Deed Upon Sale (Ref -Hattof Records)
4. tr Owner-Occupied (Ref - By evtdence of Cìty ofFresno lJtjtity, pG&E)
El Tenant-Occupied (Ref - By evtdence of property being vacant at tîme of Notice of
DefaulúForeclosure, i.e., City of Fresno lJtility, evlctlon papers, pG&E, sÌgned wriilen slatement underpenalty of perJury that the home was vacant by credtbte source, i,e., neighbor, bank, bank s reattir)
5.
6. Po"? tfe propg(y_comply with Tenant Protection requirements? (er- NSp porìcy
Aleñ Guldance on NSP Tenant proteallon Requirements lJnderthe Recovery Act)
I YES ! I'¡O IF NO, STOP HERE. PROPERTY IS INELIGIBLE.
K:V{OUSING\NSP3\Check List\l{SP3 Prelim Intake Fonn 12 l8 l2.doc
Page 68 of 77
Exh¡bit H
Conflict of lnterest Disclosure
Div tv scope of Service 12.26 Page 69 Of 77
Explanation:
DISCLOSURE OF CONFLICT OF INTEREST
Signature
Date
(name)
(company)
(address)
(city state zip)¡ Additional page(s) attached.
YES*NO
1 Are you currently in litigation with the City of Fresno or any of its
agents?
!!
2 Do you represent any firm or organization or person who is in litigation
with the Gity of Fresno?
!¡
3 Do you currently represent or perform work for any clients who do
business with the City of Fresno?
tr tr
4 Are you or any of your principals, managers, or professionals, owners
or investors in a business which does business with the City of
Fresno, or in a business which is in litigation with the City of Fresno?
tr !
5 Do you or any ofyour subcontractors have, or expect to have any
interest, direct, or indirect, in any other contract in connection with this
Proiect?
¡n
" lf the answer to any question is yes, please explain in full below.
Div lV Scope of Service 12.26 Page 70 of77
Exhib¡t I
Sample Scope of Work Write Up
Div tV scope of Service 12 26 Page 7 1 Of 77
State Prevailing Wage Project
SCOPE OF WORK
ËXHIB¡T "C"
Project No: 12-0016
Owner: City Of Fresno, 621-8300
Contact: JohnGiannetta, (559)621-8434
Slte Address:
386 N Park
Fresno, CA 93701
The shall be responsible to include in his bid any permits and all requirements by the Planning and
Development Deparlment to insure that all installations will meet all applicable codes. Those installations
performed shall óe in strict compliance with all Building, Plumbing, Mechanical, and Electrical Codes. Quality of the
work performed and materiafs installed shall be as outlined in "A Guide to Rehaþ¡litation Standards: Standard
Specifications" and are to meet the standards of the industry, as determined by the staff of the City of Fresno's
Planning and Devetopment Department, Housing and Community Development Divis¡on. Repair of items will þe
done as outlined below to guarantee those repaírs for at least one year. The Contractor is required to submit a
construction schedule to the City and Owner prior to the start of work. A complete list of all subcontractors that witl
be used on the project must be included and submitted to the City along w¡th the sealed bid.
Basement Under Floor Area
Structural
Repair Retainlng Wall@ Basement (FCC)
Repair retaining wall as needed
Repair / Construct Basernent Access Door @ Basement (FCG)
Construct a safe operable basement access door with hinges and latch.
Repair all damaged brick and concrete connecting to foundation for proper
support. lnstall a handrail down to basement attached to side of stainvay for
safety purposes.
Bathroom(s)
Remodel
Complete Remodel Bathroom @ Hall Bathroom (FCC)
Completely remodel bathroom. Remove vanity cabinet and replace with a
corner vanity cabinet and mirror to match. Remove toilet and replace with a
low ffow toilet, replace existing baseboard to match at vanity cabinet, install
granite counter top wíth sìnk and faucet to match shower, install mâtch¡ng
1/4 round on shower tile enclosure for finished look, install 5 wire shelves in
closet area behind door, prime and paÍnt walls, trim, and door in a water
based semi-gloss enamel. lnstall exhaust fan" NOTE: lnclud¡ng the
relocation of all plumbing as needed.
Bedroom
Electrical
Health & Safety: Repair / Replace Swltch Leg @ Back Bedroom (FGG) $
Repair switch leg by removing conduit on exterior of wall and rewire to a cut
in box inside the wall to match others throughout house.
Finish Work
$
Page72 oÍ 77
door of similar size' t¡lpe
to match existíng cotor.
close ProPerlY'
Consultlng
Asbestos
Health & Safety: Asbestos Work @ Outlined Scope in Suruey
contractor will review asbestos abatement scope outf ined in asbestos survey
provided. contractor will be responsible for hiring a licensed asbestos
abatement contractor for proper completion of asbestos abatement including
notifications, monitoring, additional testing, and disposal'
1. properly remove abãndoned transite pipe from under residence thru
exterior wall and up thru eve of residence.
2. Proper removaf of separatiOn wall in between kitchen and living room.
Asbestos is contained in kitchen ceiling tape and texture.
3. Proper removal of separation walls between kitchen and laundry room.
Asbestos is contained in kitchen ceiling tape and texture'
Lead Testing
Clearance fails.
Entire Structure
Electrical
Health & safety: upgrade Electrical servÌce / wiring @ Entire structure
(Fcc)
Remove and replace service panel to a 200 amp service. Upgrade all
substandard wiring to meet today's code, adaptable to solar connection'
Repface all switches, plugs and device plates as needed to meet today's
code, replace old light fixtures with new like style,
Evaporative Cooler
lnstall Evaporative Cooler and Ductíng @ Ëntire Structure
lnstall a roof mount Master Cool brand evaporative cooler of proper size, for
house square footage with all necessâry ducting needed.
Entry
Front Entry Door
Replace Front Ëntry and Rear Doors @ Front and Rear Entry's (FCC)
Replace front door and rear entry doors with a metal six panel door. Use
remaining deadbolts from both doors. Replace old entry locks with passage
lock to match deadbolts. lnstall propeÍ weather stripping and thresholds on
both front and rear entry doors. Front door to match ERA and style of
existing older home.
ExterÍor
Exterior Painting
Exterior Painting @ Exterior (FCC)
$
$
Page73 ol77
pa¡nr¡nsectintrusion'LBPClearancetestingwillfollowcom results must pass required certification standards'
Con e for testing costs and clean up"
Fencing
Remove / Replace Ex¡sting Rear Yard fence @ Back Yard (FCC)
Remove and replace approximately 100 feet of rear yard fence, To be
replaced with 6 ft wood fence, lnstall gate at north side of house with locking
hardware.
On Site
Construct a New Carport @ Reaf Yard {FCC}
construct a new carport over 12x20 concrete slab with approved drawings,
plans and required permits in designated area and design type approved by
ttre ¡nf¡ll committee according to all city codes and city compliances required,
Permil to show final inspection approval upon completion.
Remove Trees and StumPs @ Exterior
Removal of three trees, front yard tree and stump, removal of tree and stump
in back yard fence line, removal of tree and stump on north side of house.
Remove/ Repair/ Replace Porch Railings @ Front Porch Railing (FCC)
Repair front porch railing to be level and uniform. Replace any material wíth
like material to match existing construction.
Plumbing
Health & Safety: Remove and Replace Water Heater @ Exterior (FCC)
Remove and replace water heater with insta-hot style water heater located
on exterior wall, Remove all excess piping including asbestos exhaust piping
on exterior south wafl.
Health & Safety: Repair and Replace llVater Ma¡n @ Front yard (FCC)
Remove PVC water main and replace with proper materials for code.
lnstall Back Flow Preventers @ Exterior (FGC)
lnstall back F[ow Preventers on all exterior hose bibs
Windows
Health & Safety: Lead Remediation Wood Window Change Out @
Exterior (FCC)
$
$
$
$
Page74 o177
windows to be used must be approved by Karana Hattersley Drayton
historic preservation officer 621 -8520'
.1. Windows in rear bedroom to be centered on existing walls, lowered and
framed to allow proper egress for a sleeping room.
lnterior
Electrical
lnstall as Required carbon Monoxide and smoke Detector Alarms @
lnterior {FCC}
As per California Building Code Section R315'1 and R315,2, Carbon
Monoxide alarms shall be instatled in the following locations;
1. Outside each separate dwelling unit sleeping area in the immediate
vicinity of the bedroom(s)
2. On every level of a dwelling unit including basements.
Note: R315.3.1 Multipurpose alarms may be used in mentioned areas as
well.
Finish Work
lnterÍor Painting @ lnterior (FCC)
painting. Use coatings and associated products from leading paint
manufacturers and follow their required recommendâtions. Use Safe LBP
Work Practices as required according to EPA and State of Ca standards
found in the LBP Report on pre determined areas of concern findings report,
Pfumbing
Install Wall Heaters @ lnterior (FCC)
Remove and relocate wall heater replace with new energy efficient model.
lnstall heat transfer ducting to transfer heating to bedrooms. Heat transfer- ducting system will require a minimum of R-8 ducting and will be required to
run off a separate thermostat located in a low heat area.
Kitchen
Remodel
$
$
$
Complete Remodelof Kitchen @ Kitchen (FCG)
Page75 of77
plumbing as needed.
On Site
Concrete
Concrete Flat Work @ DrivewaY
Housing Authority for half of cost).
Remove Exlsting Concrete and lnstall New @ Front Yard (FCC)
Break up and haul off existing concrete to repair trip hazards as required per
Health ând Safety issues. replace with new concrete to match existing and
connecting to drivewaY.
Landscaping / Sprinklers
Repair/ Replace Sprinkler System @ Front Yard
Repair/ replace sprinkler system in front yard. Allow separate stations for
ffower beds and lawn.
Front Yard Landscape @ Front Yard
lnstâll new lâwn through front yard and park strip, flowers and shrubs
installed in flowerbed in front yard and along nodh side of house,
Patio Cover
Build Patio Cover to Meet Gurrent Code Requirements @ Back yard
(Fcc)
Obtain permit to build a new patio cover that extends out. Approx 15 X 10.
Cover to meet all current code requirements with drawings and permit
obtained from the City Building Department. Roofing to match house
Prune Trees
Prune Trees For Safety @ Back Yard
Prune rear yard corner tree out of neighbors yard and down to a manageable
size away from power lines.
Roof
Replace Ëxisting Roof
Remove and Re-Roof Existing @ Roof
î 1442fìn
$
Page76 oÍ77
unevenness in rafters before rooting. lnspect for water leaks at valleys, ridge
and roof jacks / vents for damage or mold to insulation and replace as
required with required insulation.
Sub Floor
Sub Floor Vents
Repair / Replace Sub Floor Vents @ Sub Floor (FGC)
Repair and replace all defective sub floor vents as needed-
Total $
Page77 of77
Project No: 12-0016
ADDENDUM TO CONTRACT
Owner's Name:
Project Address:
City Of Fresno
386 N Park Fresno, CA 93701
It shall be the responsibility of the Contractor to include all costs necessary to perform and complete the items listed in this
rm, and to perform all work in accordance with this Contract. The items ÎÌsted below shall be the only changes
by this Addendum, all other items and/or provísions of the Confract w¡ll remain the same,
Addendum to Scope Of Work
1. City of Fresno will obtain all required permits for project
2. Front yard landscape, lawn to be fescue rotl in, plants to be 8 azaleas.
3. Plumbing, Remove and relocate wall heater replace with new energy efficient model. lnstatl heat transfer ducting to
transfer heating to bedrooms. Heat transfer ducting system will require a minimum of R-8 ducting and will be required to
run off a separate thermostat located in a low heat area" (FCC) to relocate wafl heater only. Contractor wíil be
responsible for installing heat transfer system.
CONTRACTOR'S CERTIFICATION: I hereby cerlify that alf the items outlined above are included in my
originat Bid and Proposal,
Contractor's Signature Date
Owner's Signature
OWNER'S CERTIFICATION: I hereby certify that all the items outlined above are in addition to the original Scope of
Work. All other items and/or provisions of the original Scope of Work wíll remain the same.