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AGREEMENT BETWEEN
CITY OF FRESNO
AND
TFS INVESTMENTS, LLC.
FOR THE NEIGHBORHOOD STABILIZATION PROGRAM
THIS AGREEMENT, is entered this 29th day of November, 2012by and between the City
of Fresno ("CITY") and TFS INVESTMENTS, LLC., a California Limited Liability Company
("DEVELOPER").
RECITALS
WHEREAS, 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); and
WHEREAS, 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.
WHEREAS, CITY has an allocation of the NSP3 and NSPI funds to award in
accordance with applicable notices, regulations and guidance from HUD in the pursuit of
encouraging the development of affordable rental housing; and
WHEREAS, DEVELOPER desires to act as the owner/developer exercising effective
project control, as to the acquisition, rehabilitation, related on-site and off-site improvements,
and rental 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; and
WHEREAS, to further its goal of increasing the supply of Affordable Rental Housing
within the City of Fresno, CITY desires to assist DEVELOPER by providing an aggregate of up
to One Million Eight Hundred Thousand dollars and 00/100 ($t,800,000.00) in the form of
residual receipts NSP loan(s) to DEVELOPER for the Project(s) (the "LOAN(S)"), for
reimbursement of NSP-eligible costs.
AGREEMENT
NOW, THEREFORE, lN CONSIDERATION of the above recitals, incorporated herein by
reference, the mutual promises herein contained, and for other good and valuable consideration
hereby acknowledged, the parties agree as follows:
A. SERVICE
DEVELOPER 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 DEVELOPER by CITY, and incorporated herein by reference. DEVELOPER hereby
agrees to accept and follow any written amendments to the Program Manual by CITY that are
UNCN.ûltDiv I 12 26 Page 1 of 101
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
1. Subject to the prior review and approval of CITY, DEVELOPER shall acquire,
develop and/or 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. DEVELOPER 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.
B. TIME OF PERFORMANGE
1. Commencement and Completion Dates Services of DEVELOPER shall commence on
the day this Agreement is executed by the last party to execute it ("Commencement Date") and
shall be completed on December 31,2013 ("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 Aoreement and the provisions herein shall begin on the Commencement
Date and will 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 DEVELOPER is 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)
DEVELOPER'S sole source of compensation hereunder will be in the form of LOANs of NSP
funds as described herein.
1. Availabilitv of NSP Funds. DEVELOPER 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 DEVELOPER, 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 DEVELOPER is up to Three Million Three
Hundred Thousand Dollars and no/100 ($9,900,000.00). This amount represents an allocation
of CITY's total NSP3 and NSPl funding which is contingent upon DEVELOPER's performance.
3. A detailed project budget and cash flow projections are included in EXHlBlT "A" attached
hereto. CITY may require addrtional budget breakdowns, for individual properties and/or
Div I 12 26 Page 2 of 101
collectively in a form and content prescribed by CITY. DEVELOPER shall provide such
supplementary budget information in a timely fashion on CITY'S request.
4. Loan of NSP3 and NSPI Funds. CITY agrees to provide a Loan of NSP3 Funds to
DEVELOPER in an amount not to exceed One Million Eight Hundred Thousand dollars and
00/100 ($1,400,000.00) underthe terms and conditions provided in this Agreement. The NSP
Funds shall only be used for payment or reimbursement of NSP Eligible Costs.
5. Loan Documents. For each Project, DEVELOPER shall execute and documents shall
consist of a Note, a Deed(s) of Trust on the Property securing said note, a Declaration of
Restrictions, samples of which are attached hereto as Exhibits "E", "D" arìd "C" respectively, and
a memorandum of this Agreement. lt is understood that each property will have separate Loan
Documents.
6. Loan Repayment and Maturitv and lnterest Rate. The LOAN(s) will be due and payable
in 30 years from origination date in accordance with the Note(s). Each LOAN will have an
Affordability Period based on the amount of NSP funds loaned per Unit (See Division ll) and
bear interest at two percent (2%) per annum. Repayment shall commence at the end of the
Affordability Period with payments due annually from Residual Receipts with all remaining
principal and interest due at maturity.
7. lncorporation of Documents. The Loan Documents, the Act and HUD NSP regulations
and all exhibits, attachments, documents and instruments referenced herein, as now in effect
and as may be amended from time to time, constitute part of this Agreement and are
incorporated herein by reference. All such documents have been provided to the parties
herewith or have been othen¡yise provided to/procured by the parties and reviewed by each of
them prior to execution hereof.
8. Use of NSP Funds. DEVELOPER warrants, covenants and agrees that it shall
request NSP Funds only for reimbursement of eligible costs aggregating not more than One
Million Eight Hundred Thousand dollars and 00/100 ($t,800,000.00)for all Projects.
a. lf any such Funds shall be determined to have been requested and/or used by
DEVELOPER 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 DEVELOPER to CITY. Notwithstanding, subject to DEVELOPER'S full cooperation
with CITY and at CITY'S sole discretion, DEVELOPER 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, DEVELOPER shall immediately return such NSP
Funds to CITY.
L 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:
Div 112.26 Page 3 of 90
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. DEVELOPER is current with its compliance of all reporting requirements set forth
in this Agreement.
d. DEVELOPER has provided ClïY with a written Request for Disbursement of
Funds and the Certification as described below.
10. Request for and Disbursement of NSP Funds. DEVELOPER 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
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 DEVELOPER, as otherwise set
forth in this Agreement. Approved requests for reimbursements will be paid by check to
DEVELOPER. ln the case of approved property acquisition costs, CITY will also provide a
disbursement of NSP funds to escrow.
11. DEVELOPER Certification. DEVELOPER 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. DEVELOPER 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. DEVELOPER 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.
Div I 12.26 Page 4 of 1O1
13. Recapture and Reallocation of DEVELOPER'S NSP Allocation. lf DEVELOPER 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 DEVELOPER'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
DEVELOPER's activities to date and capacity to complete the work.
ln addition, the amount of DEVELOPER'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.
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 DEVELOPER.
3. Management of all draws of NSP funds from HUD and payment of valid and properly
documented reimbursement requests from DEVELOPER.
4. Reporting to HUD via the Disaster Recovery Grant Reporting (DRGR) system, using, in
part, data provided by DEVELOPER.
5. Monitoring all program activities of DEVELOPER to assure compliance with the terms of
this Agreement including all NSP3 and NSPl requirements.
6. Processing requests for disbursements of NSP3 and NSPI 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 DEVELOPER, CITY must promptly itemize and describe
such deficiencies in writing.
ililt
Div 112.26 Page 5 of 101
DIVISION II
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.
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 DEVELOPER'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.
Affordability 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 Com pletion :
NSP3
lnvestment
Affordability Period
<$15,000/unit 5 years
$15,000-
$40,000/unit
10 years
>$40,oo0 15 years
Affordable Rental Housino) 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 Project Property refers to the Property(ies) on which the Affordable Project Units will
be located.
Affordable Rental Housinq means the rental housing units to be acquired, rehabilitated and
rented, on the Affordable Project Property(ies).
Budget 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
Division ll - General Conditions Page 6 Of 101
12.26
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 "8" to
be issued to DEVELOPER 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 DEVELOPER or
DEVELOPER's construction DEVELOPER 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 24.103 and completed within 60 days prior to a final offer made for the
property(ies) by DEVELOPER; 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 DEVELOPER, 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.
Event of Default shall have the meaning assigned to such term hereunder.
Division ll - General Conditions
12.26
Page 7 of 101
Familv has the same meaning given that term in 24 CFR 570.3.
Federal Neiqhborhood Stabilization Proqram 1 Funds (also referred to in
"NSP1 Funds") refers to the federal Neighborhood Stabilization Program
HUD.
Federal Neiqhborhood Stabilization Proqram 3 Funds (also referred to in
"NSP3 Funds") refers to the federal Neighborhood Stabilization Program
HUD.
this Agreement
1 administered
this Agreement
3 administered
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 transferred to an intermediary aggregator or servicer
that is not an NSP CITY, DEVELOPER, sub-recipient, DEVELOPER, 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 percenl(120%) of the median incomeforthe 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
DEVELOPER 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,
equipment, fixtures and furnishings 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
Division ll - General Conditions
12 26
AS
by
AS
by
Page 8 of 101
including any and all deferred DEVELOPER's fees per the Budget, made to DEVELOPER, its
successors or assigns, and other actual operating costs and capital costs which are incurred
and paid by DEVELOPER, 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.
Property means the property and/or properties to be purchased by DEVELOPER, 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 DEVELOPER(other than parking services acquired by tenants on an optional
basis), any separately charged fees or service charges assessed by DEVELOPER 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 DEVELOPER, and
paid by the tenant. Rent does not include payments for any optional services provided by
DEVELOPER.
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, DEVELOPER is acting solely as an
independent DEVELOPER. Neither DEVELOPER, nor any of its officers, agents or employees
shall be deemed an officer, agent, employee, joint venturer, partner or associate of CITY for any
purpose. CITY shall have no right to control or supervise or direct the manner or method by
which DEVELOPER shall perform its work and functions. However, CITY shall retain the right to
administer this Agreement so as to verify that DEVELOPER is performing its obligations in
accordance with the terms and conditions thereof.
This Agreement does not evidence a partnership or joint venture between DEVELOPER and
CITY. DEVELOPER shall have no authority to bind CITY absent CITY'S express written
consent. Except to the extent otherwise provided in this Agreement, DEVELOPER shall bear its
own costs and expenses in pursuit thereof.
Division ll - General Conditions
12.26
Page 9 of 101
Because of its status as an independent DEVELOPER, DEVELOPER and its officers, agents
and employees shall have absolutely no right to employment rights and benefits available to
CITY employees. DEVELOPER 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, DEVELOPER shall be solely responsible, indemnify, defend
and save CITY harmless from all matters relating to employment and tax withholding for and
payment of DEVELOPER'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 andior 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, DEVELOPER may be providing services to others unrelated to CITY or
to this Agreement.
III. INSURANCE REQUIREMENTS
Throughout the life of this Contract, DEVELOPER 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:(i) 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 followrng:
$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(ii) 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.(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.)
Division ll - General Conditions
12.26
Page 10 of 101
(vi) 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 claim
$2,000,000 general aggregate per annual policy period
ln the event DEVELOPER 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 environmenlal 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 DEVELOPER 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.
DEVELOPER shall be responsible for payment of any deductibles contained in any insurance
policies required hereunder and DEVELOPER 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, officials, employees, agents and volunteers;
or (ii) DEVELOPER 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, DEVELOPER shall furnish
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, DEVELOPER 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.
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form. The DEVELOPERs Pollution Liability insurance policy shall be written on
either an occurrence form, or a claims-made form. The General Liability, Automobile Liability
and DEVELOPERS 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 DEVELOPER'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
Division ll - General Conditions
12.26
Page 11 of 101
City, its officers, officials, employees, agents and volunteers. lf DEVELOPER 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 DEVELOPER. 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.
DEVELOPER 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, DEVELOPER 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 undenvriter 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 DEVELOPER.(ii) 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 occurs.(iii) 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, DEVELOPER 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, DEVELOPER or any of its
subcontracors 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
DEVELOPER 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 DEVELOPER 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.
The fact that insurance is obtained by DEVELOPER shall not be deemed to release or diminish
the liability of DEVELOPER, 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 DEVELOPER. Approval or purchase of any
insurance contracts or policies shall in no way relieve from liability nor limit the liability of
DEVELOPER, its principals, officers, agents, employees, persons under the supervision of
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DEVELOPER, 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
and/or 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 DEVELOPER shall promptly reconstruct, repair, replace, or restore all work or materials so
destroyed or injured at hisiher sole cost and expense. Nothing herein provided for shall in any
way excuse the DEVELOPER 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 DEVELOPER should subcontract all or any portion of the services to be performed under this
Contract, DEVELOPER 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 DEVELOPER and City prior to the commencement of any
work by the subcontractor.
IV. PERFORMANCE AND PAYMENT BONDS
The DEVELOPER 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 DEVELOPER
on the work. The bond shall be maintained by the DEVELOPER 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
DEVELOPER 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 DEVELOPER in full force and effect until CITY is
provided 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, DEVELOPER
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, DEVELOPER or any other person,
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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. DEVELOPER'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 DEVELOPER should contract or subcontract all or any portion of the work to be performed
under this Contract, DEVELOPER shall require each DEVELOPER 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 DEVELOPER or its DEVELOPER of
liability in respect to any express warranties or responsibility for faulty materials or
workmanship. The DEVELOPER or its DEVELOPER 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 orderof precedence of documents shall be: (1)Rules and Regulations of Federal Agencies
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.
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 DEVELOPER or
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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
Io 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
DEVELOPER 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, DEVELOPER
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. ïhe DEVELOPER 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. DEVELOPER 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
DEVELOPER 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
DEVELOPERS and subcontractors in excess of 8 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.
LABOR CODE SECTION 1777.5: EMPLOYMENT OF APPRENTICES: lf this Contract involves
$30,000 or more, the DEVELOPER and each subcontractor shall comply with California Labor
Code section 1777.5, as it m4y be amended from time to time, the entire provisions of which are
incorporated by this reference as if fully set forth herein, and Article 10, Subchapter 1, Chapter
2, Title 8 of the California Code of Regulations for all apprenticeable occupations applicable to
the work as defined in such laws and regulations. DEVELOPER 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
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the ratio of not less than t hour of apprentice work for every 5 hours of journeyman work (unless
the respective DEVELOPER 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 either 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, DEVELOPER 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 DEVELOPER and each subcontractor shall submit to the City, if requested, and to
the apprenticeship program a verified statement of the journeyman and apprentice hours
pedormed on the Contract. DEVELOPER 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
DEVELOPER shall contain in each subcontract the requirements hereunder and be responsible
for providing all documentation required hereunder from subcontractor to the City. The
DEVELOPER 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 I 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 DEVELOPER
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 DEVELOPER and by subcontractors for approval, and all responses and
certificates from any applicable apprenticeship program disapproving or approving
DEVELOPER or subcontracto(s), to train apprentices; if any.
3. All requests by DEVELOPER and by subcontractors for dispatch of apprentices from any
applicable apprenticeship program (e.9., completed form DAS 142); and all responses thereto, if
any.
4. All certifications, if any, of DEVELOPER and of subcontracto(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 DEVELOPER and by
subcontracto(s) and performing work under the Contract.
6. A verified statement by the DEVELOPER and by the subcontractor within 60 days after
concluding the work of the respective journeyperson and apprentice hours performed on the
Contract or subcontract.
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7. All certificates of any exemption by the State Division of Apprenticeship Standards,
California Apprenticeship Council or any apprenticeship program of DEVELOPER or
subcontractor from any requirements of California Labor Code section 1777.5, as may be
amended from time to time.
8. 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 DEVELOPER 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
DEVELOPER 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 DEVELOPER due to the work stoppage and the DEVELOPER 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 DEVELOPER 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. DEVELOPER 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 DEVELOPER, subcontractor, or a supplier, fully satisfy the
requirements of said Acts. DEVELOPER 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 DEVELOPER and
each subcontractor shall comply with California Labor Code section 1776, the entire provisions
of which are incorporated by this reference as if fully set forth herein, and DEVELOPER shall
contain in each subcontract the requirements hereunder.
1. Accurate payroll records and basic records relating thereto shall be maintained by the
DEVELOPER 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
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DEVELOPER 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.
DEVELOPERS 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 DEVELOPER shall submit weekly (7 days after each week ending pay
period) for each week 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 DEVELOPER 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 DEVELOPER 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:(¡) 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;(ii) 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) DEVELOPER 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 weekly 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.
(d) The falsification of any of the above certifications may subject the DEVELOPER
or Subcontractor to civil or criminal prosecution.
3. The DEVELOPER 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 DEVELOPER 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 certified 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 DEVELOPER shall provide hereunder the street address, city and county of
the location of the payroll records maintained by DEVELOPER and shall provide a notice of any
the
the
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change of location and address within 5 working days of such change. The DEVELOPER and
subcontractors shall permit such representatives to interview employees during working hours
on the job. lf the DEVELOPER or subcontractorfails to submit the required records within 10
days after each week ending pay period, or to furnish or make them available for inspection
within 10 days of request, (DEVELOPER has 10 days to comply) after written notice, the
DEVELOPER 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 NONDISCRIMINATION
ln connection with the performance of work under this Contract, the DEVELOPER agrees as
follows:
1. The DEVELOPER 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 DEVELOPER 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 DEVELOPER 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. DEVELOPER and all subcontractors shall comply with the provisions of the Fair
Employment and Housing Act (Government Code, Section 12900 et seq.), and the applicable
regulations promulgated thereunder (California Code of Regulations, Title 2, Section 7285.0 etseq.). 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. DEVELOPER 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 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 DEVELOPER 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 DEVELOPER's
commitments under this section, and shall post copies of the notice in conspicuous places
available to employees and applicants for employment.
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5. The DEVELOPER 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. DEVELOPER 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. DEVELOPER agrees to cooperate with City, and any other appropriate agency
designated by the City, in all manner necessary to permit City and any such agency to
adequately report to the United States Environmental Protection Agency on DEVELOPER's
compliance with the "anti-discrimination laws".
L 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 DEVELOPER to be not a "responsible Bidder" as to future contracts for which
such DEVELOPER may submit bids, for revoking the DEVELOPER's prequalification rating, if
any, and for refusing to establish, reestablish, or renew a prequalification rating for the
DEVELOPER.
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 DEVELOPER 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 DEVELOPER 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.
9. The DEVELOPER agrees, that should the City determine that the DEVELOPER has not
complied with the Fair Employment Practices section of this Contract, then pursuant to Labor
Code sections 1735 and 1775, The DEVELOPER 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 DEVELOPER. The City may deduct any such
damages from any monies due the DEVELOPER from the City. Furthermore, DEVELOPER
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 DEVELOPER and by the surety under the performance bond, if any, and
City may deduct from any moneys due or thereafter may become due to DEVELOPER, the
difference between the price named in the Contract and the actual cost thereof to City to cure
DEVELOPER's breach of the Contract.
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10. Nothing contained in this Fair Employment Practices section shall be construed in any
manner or fashion so as to prevent the City from pursuing any other remedies that may be
available at law.
11. After award of the Contract, the DEVELOPER 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 DEVELOPER 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 DEVELOPER 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 DEVELOPER 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 DEVELOPER 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
DEVELOPER shall submit a final statement of compliance.
d. Personally, or through hisiher representatives, the DEVELOPER shall, through
negotiations with the unions with whom he/she has agreements, attempt to develop an
agreement which will:
(1 ) Spell out responsibilities
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. DEVELOPER's signature on this Contract shall constitute a certification under the
penalty of perjury under the laws of the State of California that DEVELOPER has, unless
exempted, complied with the nondiscrimination program requirements of Government Code,
Section 12990, and Title 2, California Code of Regulations, Section 8103.
13. The DEVELOPER 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 DEVELOPER
Existence and Qualification. DEVELOPER shall provide to CITY any evidence required or
requested by CITY to demonstrate the continuing existence, qualification, and authority of
DEVELOPER to execute this Agreement and to perform the acts necessary to carry out the
Project. DEVELOPER represents and warrants that as of the date hereof, DEVELOPER is
a duly organized Limited Liability Company in good standing with the State of California;
DEVELOPER has the requisite power, right, and legal authority to execute, deliver, and
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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 DEVELOPER and CITY,
shall constitute the legal, valid, and binding obligations of DEVELOPER enforceable
against DEVELOPER 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. DEVELOPER 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 DEVELOPER's knowledge, is any such litigation or proceeding
now threatened, or anticipated against DEVELOPER that, if adversely determined, would
have a material adverse effect on the financial condition, business, or assets of
DEVELOPER or on the operation of the Project.
No Leqal Bar DEVELOPER represents and warrants as of the date hereof that the
execution, delivery, performance, or observance by DEVELOPER of this Agreement will
not, to the best of DEVELOPER'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 DEVELOPER; (b) governing
documents and instruments of DEVELOPER; or (c) any mortgage, indenture, security
agreement, contract, undertaking, or other agreement or instrument to which DEVELOPER
is a party or that is binding on any of its properties or assets, the result of which would
materially or substantially impair DEVELOPER'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. DEVELOPER represents and
warrants, as of the date hereof, that DEVELOPER, to the best of DEVELOPER'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. DEVELOPER
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 DEVELOPER, shall be
under contract with DEVELOPER to perform said work.
Prompt Proqress Pavment to Subcontractors. A prime DEVELOPER 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 DEVELOPER 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
othen¡vise, available to the prime DEVELOPER or subcontractor in the event of a dispute
involving late payment or nonpayment by the prime DEVELOPER, deficient subcontractor
performance, or noncompliance by a subcontractor. This provision applies to both DBE and
non-DBE su bcontractors.
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All contract and subcontracts (all tiers), shall contain the foreqoinq provision.
Perlormance Monitorino. CITY will monitor the performance of DEVELOPER 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 DEVELOPER within a reasonable period of time
after being notified by CITY, contract suspension or termination procedures will be initiated.
DEVELOPER agrees to provide HUD, the HUD Office of lnspector General, the General
Accounting Office, CITY, or CITY's internal audito(s) access to all records related to
performance of activities in this agreement.
Compliance with Aqreement. DEVELOPER warrants, covenants and agrees that, upon any
uncured default by DEVELOPER within the meaning of Section Xl of this Agreement, CITY
may suspend or terminate this and any and all other Agreements with DEVELOPER without
waiver or limitation of rights/remedies otherwise available to CITY.
Compliance with Laws. DEVELOPER 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. DEVELOPER 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 DEVELOPER 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. DEVELOPER 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,
DEVELOPER agrees that, if CITY has reasonable grounds to suspect any such violation,
DEVELOPER 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 violation is
discovered, DEVELOPER shall pay for the reasonable cost of the independent consultant.
Additionally, DEVELOPER agrees:
1. That CITY shall not be directly or
inspection, testing, removal or abatement
materials, substances, or wastes and that
with DEVELOPER;
indirectly responsible, obligated or liable with the
of asbestos or other hazardous or toxic chemicals,
all liability for such work shall be and remain solely
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
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do so except in such amounts and under such terms and conditions permitted by applicable
laws, rules, regulations, ordinances, and statutes;
3. ïo 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 DEVELOPER or such
propeñies relating to any loss or injury resulting from any hazardous or toxic chemicals,
materials, substance, or waste; and
c. DEVELOPER'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 DEVELOPER 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 remedial
work of any kind or nature.
Conflict of lnterest. DEVELOPER 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 DEVELOPER (other than an employee
or agent of DEVELOPER who occupies a Unit as the property manager or maintenance
worker) may occupy an Affordable Project Unit. DEVELOPER understands 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, DEVELOPER 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, DEVELOPER
shall have the obligation and duty to immediately notify CITY in writing of any change to the
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information provided by DEVELOPER in such statement.
2. DEVELOPER 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, DEVELOPER shall provide a written opinion of its legal counsel and that
of any subcontractors that, after a due diligent inquiry, DEVELOPER and the respective
subcontractor(s) are in full compliance with all laws and regulations. DEVELOPER 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, DEVELOPER shall immediately notify CITY of fhese facts in writing.
3. ln performing the work or services to be provided hereunder, DEVELOPER 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. DEVELOPER 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 DEVELOPER, nor any of DEVELOPER'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.
DEVELOPER 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 DEVELOPER should subcontract all or any portion of the work to be performed or
services to be provided under this Agreement, DEVELOPER 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. DEVELOPER 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 DEVELOPER
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.
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1. DEVELOPER's use of NSP Funds, for costs other than Eligible Costs or for uses not
permitted by the terms of this Agreement.
2. DEVELOPER's failure to obtain and maintain the insurance coverage as required under
this Agreement.
3. Except as otherwise provided in this Agreement, the failure of DEVELOPER to
punctually and properly perform any other covenant or agreement contained in this Agreement
including without limitation the following: (1) DEVELOPER's substantial deviation in the
construction of the Project from the Final Plans/Conditional Use Permit (CUP), without CITY's
prior written consent; (2) DEVELOPER's use of defective or unauthorized materials or defective
workmanship in pursuit of the Project; (3) DEVELOPER'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 DEVELOPER 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) DEVELOPER's failure to remedy any deficiencies
in record keeping or failure to provide records to CITY upon CITY's request; (7) DEVELOPER'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
DEVELOPER shall prove to be materially false as of the date of which the representation,
warranty, or certification was given, or that DEVELOPER 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 DEVELOPER's inadvertence, DEVELOPER 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. DEVELOPER 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,
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. DEVELOPER's failure, inability or admission in writing of its inability to pay its debts as
they become due or DEVELOPER's assignment for the benefit of creditors.
7. A receiver, trustee, or liquidator shall be appointed for DEVELOPER or any substantial
part of DEVELOPER's assets or properties, and not be removed within ten (10) days.
8. DEVELOPER's breach of any other material condition, covenant, warranty, promise or
representation contained in this Agreement not othen¡uise identified within this Section.
9. Any substantial or continuous breach by DEVELOPER of any material obligation owed
by DEVELOPER imposed by any other agreement with respect to the financing, of the Project,
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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 DEVELOPER
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, DEVELOPER 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
DEVELOPER shall have the right to cure any defaults hereunder and that notice and cure
rights hereunder shall extend to any and all partners of DEVELOPER 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
DEVELOPER 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 DEVELOPER;
2. Bring an action in equitable relief (1) seeking specific performance by DEVELOPER 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.
XII. 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 DEVELOPER represents to CITY that DEVELOPER 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 DEVELOPER to do and perform the services in a skillful manner and
DEVELOPER agrees to thus perform the services. Acceptance of the services by CITY
shall not operate as a release of DEVELOPER 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 Assions. Unless otherwise expressly provided in this
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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. ïhe 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
otherwise provided by law.
Disclaimer of Relationship. Nothing contained in this Agreement, nor any act of CITY or of
DEVELOPER, 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 DEVELOPER or any of its executors, administrators, transferees, successors-in-
interest or assigns for any failure of any governmental entity to grant approval on any
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 DEVELOPER.
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. DEVELOPER 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
DEVELOPER under this Agreement.
Governing Law and Venue. Except to the extent preempted by applicable federal law, the
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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. DEVELOPER 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.
1. This Agreement is personal to DEVELOPER and there shall be no assignment by
DEVELOPER 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
DEVELOPER, its successors or assigns, shall be null and void unless approved in writing
by the City Manager or his/her designee.
2. DEVELOPER hereby agrees not to assign the payment of any monies due
DEVELOPER 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
DEVELOPER directly to DEVELOPER.
No Third-Party Beneficiary. The rights, interests, duties and obligations defined within this
Agreement are intended for the specific parties hereto as identified in the preamble of this
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 DEVELOPER, subcontractor,
mechanic, materialman, laborer, vendor, or other person hired or retained by DEVELOPER
shall have any rights hereunder and shall look to DEVELOPER 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.
DEVELOPER shall include this paragraph in all contracts/subcontracts.
Non-reliance. DEVELOPER 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
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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.
Recording of Documents. DEVELOPER 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 DEVELOPER 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, DEVELOPER 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
provisions.
Waiver. Neither failure nor delay on the part of CITY ín 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 DEVELOPER
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 DEVELOPER in any case shall
entitle DEVELOPER 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.
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DtvtstoN ilt
FEDERAL REQUIREMENTS
GENERAL REQUIREMENTS
DEVELOPER 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 special flood requirements. Notwithstanding the foregoing, in accordance with
the requirements of the Flood Disaster Protection Act of 1973 (42 U.S.C.4001), DEVELOPER
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 (EEO/AA) Statement - DEVELOPER will,
in all solicitations or advertisements for employees placed by or on behalf of DEVELOPER,
state that it is an Equal Opportunity or Affirmative Action employer.
Subcontract Provisions - DEVELOPER 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 DEVELOPERs or
subcontractors.
1. Monitoring - DEVELOPER 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 - DEVELOPER 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 - DEVELOPER 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.
Copyright - 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 - DEVELOPER 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 lawful.
Uniform Relocation Assistance - DEVELOPER 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 ParI24; 24 CFR ParI 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. DEVELOPER
Div lll Fed Conditions 12 26 Page 31 of 101
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.
DEVELOPER 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 complywith 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 DEVELOPER agrees to send to each labor organization or representative of
workers with which the DEVELOPER has a collective bargaining agreement or other
understanding, if any, a notice advising the labor organization or workers' representative of the
DEVELOPER'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 DEVELOPER agrees to include this section 3 clause in every contract and
subcontract subject to compliance with regulations in 24 CFR, replacing DEVELOPER'S name
with the contractor or subcontractor's name as applicable.
HISTORIC PRESERVATION
DEVELOPER 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. DEVELOPER will provide project
descriptions to CITY staff to ensure Historic Preservation compliance during the environmental
review process.
LOBBYING
By its execution of this Agreement DEVELOPER hereby certifies that:
Div lll Fed Conditions 12.26 Page 32of 101
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
DEVELOPER of Congress, an officer or employee of Congress, or an employee of a
DEVELOPER 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
DEVELOPER of Congress, an officer or employee of Congress, or an employee of a
DEVELOPER 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 DEVELOPERs 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 penaltyof not less than $10,000 and not more than $100,000foreach such failure.
ADMI N ISTRATIVE REQU I REMENTS
Financial Management
1.. Accounting Standards - Under this Agreement DEVELOPER 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. DEVELOPER 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, "CosI Principles for Non-Profit Organizations," or A-21,
"Cost Principles for Educational lnstitutions," do not apply to this DEVELOPER agreement.
Documentation and Record Keeping
1. Tenant Data - DEVELOPER 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.
Div lll Fed Conditions 12.26 Page 33 of 101
2. Records to be Maintained - DEVELOPER 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 - DEVELOPER 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 - DEVELOPER shall furnish and cause each of its own
DEVELOPERS 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 - DEVELOPER 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 DEVELOPER'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
parenVguardian.
6. Close-Out - DEVELOPER'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
terms of this Agreement shall remain in effect during any period that DEVELOPER has control
over NSP funds, including program income.
7. Audits & lnspections - All DEVELOPER 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
Div lll Fed Conditions 12.20 Page 34 of 101
or transcripts of all relevant data. Any deficiencies noted in audit reports must be fully cleared by
DEVELOPER within 30 days after receipt by DEVELOPER. Failure of DEVELOPER 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. DEVELOPER hereby agrees to
have an annual agency audit conducted in accordance with OMB Circular A-133.
Gonflict of lnterest
DEVELOPER agrees to abide by the provisions of 24 CFR 84.42 and 570.611, which include
(but are not limited to) the following:
1. DEVELOPER 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 DEVELOPER 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 NSP3-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 "covered person" includes any person who is an employee, agent, consultant,
officer, or elected or appointed official of CITY, DEVELOPER, 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
1. DEVELOPER shall transfer to CITY any NSP 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 othenruise specified in the HUD closeout agreement with
CITY.
2. Real property under DEVELOPER's control that was acquired or improved, in whole or
in part, with funds under this Agreement shall be used in accordance with the NSP3 application
for the period consistent with the continued affordability requirements. lf DEVELOPER 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, DEVELOPER 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
Div lll Fed Conditions 12.26 Page 35 of 1 01
not needed by DEVELOPER 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
DEVELOPER covenants and agrees that, in addition to complying with the federal laws and
regulations already cited in this Agreement, DEVELOPER 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 and/or the Dodd-Frank Act of 2010, the requirements applicable to
entitlement communities under CDBG regulations, 24 CFR 58.6 and the Flood Disaster
Protection Actof 1973, as amended (42 U.S.C. 4001-4128)
DEVELOPER 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
Contractor 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 Back Act (18 U.S.C. 874 eI 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").
All applicable local, state and federal requirements concerning 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 parI24, subpart F.
Div lll Fed Conditions 12.26 Page 36 of 101
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 local laws and regulations pertaining to labor standards
insofar as those acts apply to the performance of this Agreement.
3. Civil Riqhts and Discrimination.
Title 8 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. 5623,42
U.S.C. S 6102, 42 U.S.C. S 12112,42U.5.C S12132,49 U.S.C. S 5332, 29 CFR ParI1630, 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) and109. 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 DEVELOPER 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) - DEVELOPER 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 DEVELOPERs or women. DEVELOPER 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 et. seq.) and the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended.
6. The provisions of the Byrd Anti-Lobbvinq Amendment (31 U.S.C. 1352).
7. The provision of E.O.s 12549 and 12689, "Debarment and Suspension," as setforth at
24 CFRparI24.
8. Clean Water Requirements 33 U.S.C. 1251
9. Hatch Act - no funds provided, nor personnel employed under this Agreement, shall be
in any way or to any extent engaged in the conduct of political activities in violation of Chapter
15 of Title V of the United States Code.
10. National Environmental Policv Act of '1969 and related federal environmental authorities
and regulations at 24 CFR part 50 or 58.
Div lll Fed Conditions 12 26 Page 37 of 101
3.
the
¡rAn
DIVISION IV
SCOPE OF SERVICE
DEVELOPER 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. DEVELOPER RESPONSIBILITIES
1. DEVELOPER 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 DEVELOPER by CITY, and incorporated
herein by reference. DEVELOPER 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 DEVELOPER.
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 "4", Rental
Development Activity and Detailed Budget attached hereto and incorporated herein.
DEVELOPER is responsible for providing the deliverables herein described within
time periods and for the approximate average budget amounts described in EXHIBIT
4. DEVELOPER 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 DEVELOPER are
in compliance with NSP requirements. DEVELOPER will be expected to provide this
documentation to CITY for each property individually.
5. Prior to requestingireceiving any NSP funds, DEVELOPER 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 lo 110% of the total amount of the approved, individual Project Budget
for each property as more fully described herein.
6. DEVELOPER's expenditures for program delivery will be limited as follows, unless
changes to the limits are agreed to in writing by CITY and DEVELOPER for a particular
property:
a. The minimum number of homes (properties) to be acquired, rehabilitated, and
leased is ten (10) With each home (property) having a maximum of four units, unless pre-
approved in writing by the City Manager or his designee.
b. DEVELOPER will acquire only properties in designated NSP target areas that
are eligible under NSP for rehabilitation or redevelopment as affordable residential properties.
Properties acquired must be abandoned, vacant, or foreclosed upon as defined in the NSP
program.
Div lll Fed Conditions 12 26 Page 38 of 1 01
c. Designated target areas: DEVELOPER may carry out this activity only in the
NSP combined target areas as identified in EXHlBlT "F", attached hereto.
d. Number of foreclosed and/or abandoned homes to be leased to households with
incomes at or below 50% of area median income, to meet CITY's 25% set-aside requirement:
twelve (12) units, a minimum of One Million and Eighty Dollars and zero cents ($1,080,000), will
be required to be set-aside to purchase or 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, DEVELOPER 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 "A" 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 DEVELOPER is allowed a fee (Developer Fee) of ten percent (10%) of total
development costs. Up to twenty-percent (20%) will be payable upon acquisition of an NSP
qualified property, forty-percent (40%) is payable upon final completion of
rehabilitation/construction work, and the balance is payable upon fifty-percent (50%) initial
occupancy by a qualified renter(s) in properties with two or more units, and in single family
residences upon initial occupancy by a qualified renter.
g. DEVELOPER may earn no other fee or profit from the development of an NSP-
assisted dwelling unit. The Developer Fee is expressly in lieu of the payment or reimbursement
of any administrative or management costs incurred by DEVELOPER in the implementation of
the Activity.
h. DEVELOPER may expend up to $500.00 per home in NSP funds for marketing
costs such as advertisements and flyers. lf marketing is funded for multiple NSP homes, the
costs of such marketing must be allocated to each home.
i. Other limits on expenditures: Other acquisition, rehabilitation-construction and
soft costs described in EXHIBIT "A" are not subject to per-home 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-home cost limits described elsewhere in this Section. No NSP funds may be spent
for purchases of equipment.
j. Accounting for expenditures: DEVELOPER will account for total NSP
expenditures per home 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 home is
completed, DEVELOPER will provide CITY with a complete accounting of NSP3 and NSPI
expenditures for that home along with non-NSP expenditures, if any.
7. Maximum rental amount:
Div lll Fed Conditions 12 2b Page 39 of 1 01
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 CFR92.252; 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 projeclbased rental
subsidy) is the rent allowable under the Federal or State project-based rental subsidy program.
d. DEVELOPER 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. DEVELOPER cannot refuse to lease NSP-assisted units to a certificate or
voucher holder under 24 CFR part 992-Section 8 TenanlBased Assistance: Unified Rule for
Tenant-Based Assistance under the Section 8 Rental Certificate Program and the Section I
Rental Voucher Program because of the status of the prospective tenant as a holder of such
certificate, or voucher.
8. Environmental reviews: DEVELOPER 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 DEVELOPER a copy of CITY's
completed environmental review on each property.
L lnspections. DEVELOPER shall allow CITY on-site access to all properties for field
inspections. DEVELOPER shall permit, facilitate, and require its contractors and
consultants to permit and facilitate observation and inspection at each and every job site by
ClïY 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. DEVELOPER 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:
Div lll Fed Conditions 12 26 Page 40 of 101
a. At least _percent (_%) of the dwelling units, or at least (_),
whichever is greater, must be constructed to be accessible for persons with mobility disabilities.
An additional _percent (_%) of the dwelling units, or at least (_) 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 al 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.
ii. 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
environmental 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;
ii. All interior doonruays and passageways at least 32 inches wide;
iii. One downstairs "flex room" and accessible bathroom with reinforcements
for grab bars;
iv. Six square feet of accessible kitchen counter space; and
v. Hallways at least 42 inches wide.
11. Affirmative Marketinq. DEVELOPER 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. DEVELOPER 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. DEVELOPER shall maintain
records of actions taken to affirmatively market units, and to assess the results of these
actions.
12. Construction Standards. DEVELOPER
assisted under this Agreement in compliance
and zoning requirements in effect at the time of
shall construct the proposed Project Units
with all applicable local codes, ordinances
issuance of CITY building permits.
10'tDiv lll Fed Conditions 12 26 Page 41 of
13. Covenants and Restrictions to Run with the Land. DEVELOPER expressly
warrants, covenants and agrees fo ensure that the covenants and restrictions set forth 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 shatt expire.
a. CITY and DEVELOPER 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. DEVELOPER 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 Properly 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. DEVELOPER 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. DEVELOPER 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 eIseq.,24 CFR Part 35, including the HUD 1012 Rule, and 24 CFR 982.401(j), and
any amendments thereto, and EPA Section 402( 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.
DEVELOPER 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.
DEVELOPER shall be responsible for all disclosure, inspection, testing, evaluation, and
control and abatement activities.
16. Reportinq Requirements. DEVELOPER warrants, covenants and agrees with ClTy
that it shall submit performance reports to CITY as detailed in Section E.14 below.
Furthermore, DEVELOPER agrees to provide, at the sole cost of DEVELOPER, annual
Div lll Fed Conditions 12.26 Page 42 of 101
certified Financial Statements for the Project expenses and ongoing financial transactions
which occur as a result of this Agreement. DEVELOPER 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. DEVELOPER (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, DEVELOPER, at its sole cost and expense shall submit to CITY:
a. Certified annual financial statements of DEVELOPER 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 financial transactions
for the Affordable Project during the prior fiscal year.
18. lnspection and Audit of Books, Records and Documents. DEVELOPER 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
DEVELOPER pertaining to the Project and for up to six (6) years after the expiration or
termination of this Agreement.
a. DEVELOPER will maintain books and records for the Project using generally
accepted accounting principles. DEVELOPER 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, ledgers, 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 DEVELOPER in
which case DEVELOPER shall bear the cost of such audit. DEVELOPER shall also comply
with any applicable audit requirements of NSP regulations.
c. DEVELOPER 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 shall survive the termination of this Agreement.
19. Terminated Proiect. DEVELOPER understands and agrees that, if the Project is
terminated before the completion, either voluntary or otherwise, such constitutes an
Div lll Fed Conditions 12 26 Page 43 of 101
ineligible activity and CITY shall not be required to provide any further NSP assistance
funding to the Project Units.
B INCOME EL¡GIBILITY REQUIREMENTS
1. lnitial and Annual lncome Certification. DEVELOPER 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 the 25o/o 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 Propedy, the Affordability Period shall be revived according to its original terms.
ln the event DEVELOPER fails to comply with this Section, or the Affordability Period is not
revived following transfer by foreclosure or transfer in lieu of foreclosure, DEVELOPER shall
return to CITY all NSP Funds disbursed to DEVELOPER by CITY.
2. DEVELOPER 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. DEVELOPER 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. DEVELOPER 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. DEVELOPER 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. DEVELOPER shall commence
construction and, record a Notice of Completion upon completion of construction of the
Project in accordance with the Project Schedule as identified in EXHIBIT "A'.
Div lll Fed Conditions 12.26 Page 44 of 101
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. DEVELOPER shall provide CITY with
copies of all agreements it has entered into with any and all general contractors for the
Project. DEVELOPER shall require that each such general contractor agreement contain a
provision whereby the party(ies) to the agreement other than DEVELOPER agree to: (i)
notify CITY immediately of any event of default by DEVELOPER 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 DEVELOPER is not in
default thereunder. DEVELOPER 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.
DEVELOPER 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 DEVELOPER 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, DEVELOPER 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 DEVELOPER 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, DEVELOPER shall make up the deficiency.
4. Fees, Taxes and Other Levies. DEVELOPER 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, DEVELOPER 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, DEVELOPER 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. DEVELOPER 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 21aß) of the California Revenue and Taxation
Code.
5. Financinq. DEVELOPER shall promptly inform CITY of any new financing or
funding not included in the Budget for the Project(s), and DEVELOPER shall provide CITY
copies of all agreements with any and all Funding Sources for the Project(s). DEVELOPER
shall require each agreement with any and all Funding Sources not included in the Budget
to contain a provision whereby the party(ies) to the agreement other than DEVELOPER, if
Div lll Fed Conditions 12.26 Page 45 of 101
permitted by the parties' applicable rules and regulations, agree to notify CITY immediately
of any event of default by DEVELOPER thereunder. Should DEVELOPER 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, DEVELOPER 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. DEVELOPER 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.
8. 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, DEVELOPER 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 DEVELOPER 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 DEVELOPER's expense. Alternatively, CITY may
require DEVELOPER 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 DEVELOPER. DEVELOPER
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, DEVELOPER shall submit,
for CITY approval, all the necessary permits and licenses required for Commencement of
construction of the Project. As CITY may reasonably request, DEVELOPER, 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 Work/Work Write Ups. Prior to acquisition of a property and
commencement of construction on any PROJECT for which an NSP LOAN is sought
hereunder, DEVELOPER shall submit to CITY for approval, a Scope of Work/Work 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. DEVELOPER shall
construct the Project(s) in full conformance with C|TY-approved Scope of Work/Work Write Ups
and any modifications/change orders thereto approved by CITY. DEVELOPER shall obtain
Div lll Fed Conditions '12.26 Page 46 of 101
CITY's prior written approval for any modifications to the Scope of Work/l/r/ork Write Ups.
DEVELOPER shall ensure that construction of the proposed PROJECT employs building
materials of a quality suitable for the requirements of the PROJECT. DEVELOPER 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. . DEVELOPER
shall be solely responsible for all aspects of DEVELOPER'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 ClïY. 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, DEVELOPER 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
andlor payroll monitoring/auditing is solely for the purpose of determining whether
DEVELOPER is properly discharging its obligation to CITY, and shall not be relied upon by
DEVELOPER 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. Propertv Condition. DEVELOPER 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. DEVELOPER and those taking direction under DEVELOPER 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, DEVELOPER shall comply with all applicable local, state, and federal statutes
and regulatory with respect to relocation planning, advisory assistance and payment of
monetary benefits. DEVELOPER 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. DEVELOPER 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, DEVELOPER 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)
Div lll Fed Conditions 12.26 Page 47 of 101
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, DEVELOPER
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 DEVELOPER that the Units are in compliance with the Affordable
Rental Unit Requirements, and such other information CITY may be required by law to obtain.
DEVELOPER 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, DEVELOPER shall submit proof of insurance as required in this Agreement.
15. lt shall be
the responsibility of DEVELOPER 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 mutual written agreement of CITY's
Housing and Community Development Division Manager and DEVELOPER and shall not
cumulatively exceed one hundred eighty (180) days.
16. Certificate(s) of Completion. Upon completion of the construction of the Project(s),
DEVELOPER shall: 1) certify in writing to the CITY that the Project has been constructed in
accordance with the Final Scope of Work/Work Write ups; 2) submit to CITY a cost-
certifying final budget for the Project where DEVELOPER 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 DEVELOPER is in compliance with all of DEVELOPER's
construction obligations, as specified in this Agreement, CITY shall furnish, within thirty
(30) calendar days of a written request by DEVELOPER, a recorded Certificate of
Completion for the Project in the form attached hereto as EXHIBIT "B'. CITY will not
Div lll Fed Conditions 12.26 Page 48 of 101
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 DEVELOPER with a written statement indicating in what respects DEVELOPER
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 DEVELOPER will
need to take or what standards it will need to meet in order to obtain the recorded
Certificate of Completion. Upon DEVELOPER taking the specified measures and meeting
the specified standards, DEVELOPER will certify to CITY in writing of such compliance and
CITY shall deliver the recorded Certificate of Completion to DEVELOPER in accordance
with the provisions of this section.
D. RENTAL OPERATIONS
1. Leasinq the NSP-assisted Units. Before leasing any Affordable Units, DEVELOPER
shall submit its proposed form of lease agreement for CITY's review and approval.
DEVELOPER covenants and agrees to utilize only leases that have been approved in
advance by CITY. CITY shall respond to DEVELOPER's submission of a sample lease
agreement within thirty (30) days. Should CITY not respond within thirty (30) days of the
lease agreement submittal, DEVELOPER shall be authorized to use the submitted sample
lease agreement. Additionally, DEVELOPER 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 DEVELOPER or its authorized management entity upon the tenant
specifying the grounds for such action. DEVELOPER 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. DEVELOPER shall include in all Leases for the
NSP-assisted Units, provisions which authorize DEVELOPER 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, DEVELOPER 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
DEVELOPER or its designated management entity plans to market the availability of the
Affordable Units to prospective tenants and how DEVELOPER plans to certify the eligibility
of potential tenants. The Final Management Plan shall also address how DEVELOPER
and/or the management entity plan to manage and maintain the Affordable Units in
accordance with NSP3 Program regulations, and shall include appropriate financial
Div lll Fed Conditions 12 26 Page 49 of 101
information and documentation. The Final Management Plan shall contain detailed
descriptions of policies and procedures with respect to tenant selections and evictions.
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 DEVELOPER proposes to enter into with the Low, Moderate, and Middle-
lncome tenants. DEVELOPER 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,
DEVELOPER 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. Property Manaqement. DEVELOPER shall comply with the following management
responsibilities: DEVELOPER 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. DEVELOPER 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. DEVELOPER shall not
commit or permit any waste on or to the Project, and shall prevent and/or rectify any
physical deterioration of the Project. DEVELOPER 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 eligible. DEVELOPER 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
Div lll Fed Conditions 12.26 Page 50 of 101
(AIDS) or AIDS-related conditions (ARC), sexual orientation, or any other arbitrary basis.
DEVELOPER shall otherwise comply with all applicable local, state and federal laws
concerning nondiscrimination in housing. Neither DEVELOPER nor any person claiming
under or through DEVELOPER, 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 DEVELOPER as to the Affordable Units or the Project or portion thereof,
shall contain covenants concerning nondiscrimination consistent with this section.
DEVELOPER shall include a statement in all advertisements, notices and signs for
availability of Affordable Units for rent to the effect that DEVELOPER is an Equal Housing
Opportunity Provider.
E. Property Maintenance
DEVELOPER covenants and agrees, for the entire term of the Agreement, the following:
1. Adequate Repair and Maintenance. After construction of the Project, DEVELOPER
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. DEVELOPER 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.
4. Ownership. Except as required in pursuit hereof, DEVELOPER 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. DEVELOPER 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. DEVELOPER shall promptly give written notice to CITY
upon becoming aware of any Event of Default under this Agreement.
Div lll Fed Conditions 12.26 Page 51 of 101
F. DEVELOPER Staffing
The names and roles of DEVELOPER'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
DEVELOPER agrees to comply with the Recovery Act and the Dodd-Frank provisions
concerning tenant protections applicable to NSP acquisitions of foreclosed property.
DEVELOPER 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. DEVELOPER will not use NSP funds to finance the acquisition of property from any lsll
that failed to comply with applicable requirements unless DEVELOPER assumes the obligations
of such lSll with respect to bona fide tenants. lf DEVELOPER 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 DEVELOPER 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
Div lll Fed Conditions 12.26 Page 52 of 101
lN WITNESS WHEREOF, the parties
California, the day and year first above written.
CITY OF FRESNO, a Municipal Corporation
B
Mark Scott, City Manager
(Attach notary certificate of acknowledgment)
Date:
ATTEST:
YVONNE SPENCE, CMC
City Clerk
By:
Deputy:
t /zilt eDate:
Developer:
TFS lnvestments, LLC., a California Company
Terance Frazier, Managing Partner
7643 N lngram, Suite '105
Fresno, CA 93711
have executed this Agreement in Fresno,
TFS INVESTMENTS, LLC., a California
Company
Terance aging Partner
APPROVED AS TO FORM:
Francine Kanne
lnterim City Attorney
Date:
City:
City of Fresno, a municipal corporation
Mark Scott, City Manager
Office of the City Manager
2600 Fresno Street
Fresno, C493721
By:
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
(Attach notary cer cate of acknowledgment)
Div lll Fed Conditions 12.26 Page 53 of 101
CALIFORNIA ALL.PURPOSE ACKNOWLEDGI'IENT crvtl coDE s tt89
State of California
County of Fresno
on o1 /28/2013 beforer", Katheryn Cornel_1, Notary publ_ic
Date
personally appeared
Here lnsert Name and Title of the Ofiicer******Renena smith******
Name(s) of Signe(s)
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 acknowledgedto 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:
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to anothei do¿ument.
ption of Attached Document
of Document:
I(ATHERYII CORNETL
Commisslon # l866l30
tlolrry Public - Calitornia
fnrno County
Conm.ocl 22,2013
Place Notary Seal Above
Tte
Document
Signe(s) Other Than
Capacity(ies) Glaimed by
Signer's Name:
E Corporate Officer - Title(s):
n lndividual
n Partner - tr Limited trGeneral
n Aftorney in Fact
E Trustee
tr Guardian or Conservator
tr Other:
Signer ls Representing:
Number of Pages:
Signer's Name:
E Corporate Officer - Title(s):
n lndividual
-nLimited trGeneral
Fact
E Trustee
E Guardian or
tr Other:
Signer ls Representing:
Top of thumb here Top of thumb here
O 2010 Nat¡onal Notary Association . Nat¡onatNotary org , 1-BOO-US NOTAFy (1-800-876-6927)Item #5907
CALIFORNIA ALL.PURPOSE AGKI{OWLEDGMENT crYtl. coDE s rt89
State of California
Gounty of Fresno
On 01 / 2S / ZOI g before me,Ka
Date
personally appeared ******TeranCe Frazier******
Name(s) of S¡gner(s)
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 seat.
Place Notary Seal Above
Though the informat¡on below is not required by taw, it may prove valuabte to persons relying on the document
and could prevent fraudulent removal and reattachment ol this form to another document.
of Attached Document
Title of Document:
Document Number of Pages:
Signe(s) Other Than
Capacity(ies) Claimed
Signer's Name:Signer's Name:
n Corporate Officer - Title(s):n Corporate Officer - Title(s):
n lndividualn lndividual
n Partner - n Limited flGeneral
n Atorney in Fact
n Trustee
! Guardian or Conservalor
n Other:
-nLimited nGeneral
Fact
n Trustee
tr Guardian or
! Other:
Signer ls Representing:Signer ls Representing:
Commlssion # l866tg0
ll,otrry Public - Calilorni¡
Fr¡¡no Counly
Top of thumb here Top of thumb here
O 2010 Nal¡onal Notary Assoc¡ation . NationatNotary.org . 1 -900-US NOTARY (f-g00-826-6827)
Exhibit A
Sample Budget and Proposed Expenditure Schedule
PROJECTED AVERAGE UNIT
COSTS
NSP Other
Total NOTES
Purchase price of property
s70 000 s0 s70 000 No fees or sofi costs mav be charqed exceot those identifìed in the Aoreement
Acquisition poriion of developer
s2 4oc)so $2,400 Fee must cover costs of reseårch and other acquisition costs not described in other line items
Acquisitionr prorations legal,
titlè âni .ê^^.diñâ ^Âêrê 1 504)sô s1 500 Should include develope/s costs related to acquisitions and NSP lien documents
Rehâbilitâlion/constnrctiôn s50 ôôô $0 $50,000 lncludes site security costs
Rehab/construction portion of
s4 800 $0 s4 800
Real estate taxes during
s30n $0 $300
Property and liability ìnsurance
.tr rrinô hôl.1inô ôêri^.1 s700 s0 $700
Marketino budoet oer un t s500 s0 s50c)
Final port¡on of developer fee,
.ftè? ^..tt^^^.\)s4 8ôô s0 s¿ Ann
Tolel Côsts s135 000 $0 s 1 35,000
PROJECTED NSP FUNDS
EXPENDED Nov Dec Jan Feb Mâr Anr Mav Jun Ju Auo Sêo Ocf Nov TOfALS
Acouisition costs $221 704 51 7 300 s 517300 s ))1 7¡¡s $$s q s $s1 478 000
Constuction period costs (at
I Âôô s 167.400 s 167 400 $ 111 600 111 600 s 167 400 1Ê,7 4Õt:t 1,600 $s q 1 116 UOO
Mârkelinô ând Fin2l Dêv Fêê s $s 10 600 s 15 900 15 9r]0 s lo 600 10 6no 15,900 s 15 900 s 10 600 1 06 oôcl
Sûbtôt2l nrôôrâñ riÊli,$ 221.700 s 628.900 $ 684 700 s 399 7CJ0 s 127 50ı 1 27 5O1t s 1 7A ôtì0 1 78.000 $ 127.500 s 15900 s 10 600 s2 7ôô Onn
Prôôrâm A.lminislrâliôn s s s $s q c $$s
TOTAL PROJECTED NSP
FYÞENhITI IÞtrQ $ 221.700 s 628.900 $ 684.700 s 39S 700 s 127 500 127 500 $ 1 78 ô0ll 1 78.000 $ 127.500 s 15900 s 10 600 s2 7ôô Onn
CUMULATIVE PROJECTED
NSP EXPENDITTIRFS s s 221.700 s 850 600 $1 535 300 s1 s35 000 s2 062 50(^J 1 qo n00 $2.368.000 $2.546.000 $2.673 500 $2 689 400 s2 700 000 s2 700 000
ESTIMATED PORTION
SPENT ON 25% SETASIDE s1 33 020 s5'10 360 s921 18(^l 161 00t)1 2i7 5ãn $1,314,000 $1.420 800 s1 527 600 $1 604 100 s1 610 oôaJ $1 Â?O nnn s0
Div lll Fed Conditions 12.26 Page 55 of 101
Note: one housing unit cãn Ìnclude 2 or more rentèl units
20'12 2013
Dec FÞh Mar ADr Mav Jun Ju Arro Sêô Ocf Nov Dec TOTALS
Acouisition âoreements lhousino unitsì 3 7 7 3 2A
ì lhôlrsrnô ltnlfsì 7 7 3 2A
Construction specs/est's comoleted (units)3 3 4 3 3 4 )a
2 3 3 2 2 3 3 2 2|t
Housino units rented 2 3 2 2 3 3 ,20
All NSP3 assisted units shall be ecquired, rehâbilitâted and leased by the
Project Completion D¿te: November 30, 2013
INCOME TARGETING AND SETASIDE EXPENDITURES Tota
Homes rented to households =<50% AMI \2
Homes rented to households al <'1 20% AMI 8
Div lll Fed Conditions 12.2b Page 56 of 101
Exhibit B:
Exemplar Gertificate of Gom pletiøn
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 THrS 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
By:
Director or Designee
Development and Resource
Management Department
Date:
Div lll Fed Conditions '12.26 Page 58 of 101
APN:
Recitals:
A. By a City of Fresno ("C|TY") Neighborhood Stabilization Program ("NSP")
Agreement dated , 2012, ("NSP Agreement"), as may be amended from time
to time,, a California company (hereinafter referred to as "DEVELOPER"),
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 documenVinstruments referenced therein.
B. Under the terms of the NSP Agreement, after the DEVELOPER completes each
Project, the DEVELOPER may ask CITY to record a Certificate of Completion.
D. The DEVELOPER has asked CITY to furnish DEVELOPER with a
recordable Certificate of Completion.
E. The CITY's issuance of this Certificate of Completion is conclusive
evidence that the DEVELOPER has completed reconstruction of this particular and
singular Project/Activity as set forth in the NSP Agreement.
NOW THEREFORE:
1. The CITY certifies that the DEVELOPER commenced the Project
on and completed the Project on and has done so in full
compliance with the NSP Agreement.
2. This Certificate of Completion is not evidence of the DEVELOPER'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 finance 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.
Div lll Fed Conditions 12.26 Page 59 of 101
lN WITNESS WHEREOF, CITY has executed this Ceftificate of Completion as of this
day of ,20-.
CITY OF FRESNO
By:
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:
Deputy
Date:
DEVELOPER:
a California company
By:
Name:
Title:
(Attach notary certificate of acknowledgment)
Date:
Assistant/Deputy
Date:
Div lll Fed Conditions 12.26 Page 60 of 1 01
Exhibit C:
Exemplar Eleelaration of Restrietions
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 and 27383.
AND WHEN RECORDED MAIL TO:
CITY OF FRESNO
Downtown and Community Revitalization Dept.
Housing and Community Development Division
Attn: Housing Manager
2600 Fresno Street, Rm. 3070
Fresno, CA 93721-3605
Title Order No
No.
ABOVE THIS LIN
APN [Number]
DECLARATION OF RESTRICTIONS
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, cons¡sting of APN: [Number], which is more particularly described in
Exhibit "4", 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 thirty (30) 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 limitations set forth in this Declaration, all of which are
declared and agreed to be in furtherance of the plan for the construction and/or
Page 62of 101
rehabilitation, sale and 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 the period of thirty (30) 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 thirty years (30 years). Year one shall be the 12-month
period following issuance of the Certificate of Completion of the Project Property, with
each succeeding year beginning on the anniversary thereof and ending 12 month
hence. There will be no partial years.
1. 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 Propefty 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 fufther agrees to file a recordable document setting forth
the Project Completion Date(s) and the Affordability Period when determined by the
CITY. Unless othenruise 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,
use, 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.
Page 63 of 101
(i¡) 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 a principal
residence. The 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 qualified entities that acquire the Property or portion thereof, with the consent of
the CITY.
(ii¡) 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 (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.
(iv) Recapture Requirements. Should the Affordable Unit(s) not
continue to be the principal residence of the family leasing the Property/Affordable 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
foreclosu re to preserve affo rdability.
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, moftgage or lease
Page 64 of 101
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 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 Propefty 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 Propefty,
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
Page 65 of 1 01
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
othen¡uise defined herein, shall have the meanings assigned to such terms in the
Agreement.
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.
ilt
lN WITNESS WHEREOF, Declarant has executed this Declaration of
Restrictions on the date first written above.
DECLARANT:
[Declarant Name]
a California [Legal ldentity]
By:
[Name]
Name: (Attach notary certifìcate of acknowledgment)
Title:
Date:
APP
City
ROVED AS TO FORM:
Attorney's Office
IName]Date
Senior Deputy/Deputy City Attorney
By:
Page 66 of 1 01
Legal Description
THE LAND REFFERED TO HEREIN BELOW IS SITUATED IN THE CITY OF
FRESNO, COUNTY OF FRESNO, STATE OF CALIFORNIA AND IS DESCRIBED AS
FOLLOWS:
[Legal Description]
APN [Number]
Page 67 of 101
Exhibit D:
Exemplar Deed of Trust with Assignment of Rent
Page 68 of 101
RECORDING REQUESTED BY ANd
for the benefit of the City of Fresno ancl is exempt
fì-orn the paylìrent of a recolding fee in accoldance with
Governrnent Code Sections 6103 and21383,
AND WHEN RECORDED IVAIL TO
City of Fresno
Name Planning and Development Department
Address 2600 Fresno Street, Rm. 3070
city & Fresno CA 93121-3605
State Attn: Housing Manager
ritle order No. 10-291835-A-CU
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEED OF TRUST WITH
ASSIGNMENTS OF RENTS
THIS DEED OF TRUST With Assignment of Rents ("Deed of Trust") made this [Datel day of {Month], [Yqar], by and
between lName of Trustor or Borrower], [Legal ldentity] (rerein "Trustor" and "Borrower"), [Name of TrusieeJ (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 powerof sale, all Trustor's right, title, and interest now owned or hereafter acquired in the real
property ("Land") 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 Trusl
will be subject to this Deed of Trust), together with the renis, 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 Trustof 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:
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, equ¡pment, appliances, and fixtures forthe
generation or distribution of air, water, heat, electricity, light, fuel, or refrigeration orfor ventilating or san¡tary
purposes or for the exclusion of vermin or insects or for the removal of dust, refuse, or garbage; all wall safes,
built-in furniture, and installations, window shades and blinds, light fixtures, fire hoses and brackets, screens,
linoleum, carpets, furniture, furnishings, fixtures, plumbing, laundrytubs 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 ofTrust a part ofthe Land, the specific enumerat¡ons in this Deed ofTrust not excludingthe general;
The rents, issues, profits, and proceeds relating to the foregoing; and
The Property to the extent not included on clauses (L) and (2) above.
(1)
l2l
(3)
Page 69 of 101
modifications, or renewals of that note;
Payment of the ¡nterest on that indebtedness according to the terms of the Note;
Payment of all other sums (with ¡nterest as provided herein) becoming due and payable to Beneficiary or Trustee
pursuant to the terms of this Deed of Trust;
Performance of every obligation contained in this Deed of Trust, the Note, the NSP Agreement dated the [DateJ
day of [Month], IYearJ 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 thls 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
Payment of all other obligations owed by Trustor to Beneficiary that by their terms recite that they are secured by
this Deed ofTrust, 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, subjeci to
encumbrances of record. Trustor covenants that Trustor will maintain and preserve the lien of this Deed of Trust until all the
indebtedness underthe Note is paid in full
Trustor represents and warrants to Beneficiary that as of the date of this Deed of Trust Trustor is a flype of Entity]
organ¡zed, validly existing, and in good standing under the laws of the State of [Name of Statel 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 provlsion of law, any order of any couñ 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 tìme) 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.
Ïrustor represents and warrants to Beneficiary that as of the date of this Deed of Trust that the Property is noi 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:
1. Pavment of Principal. Borrower shall promptly pay when due the principal indebtedness evidenced by the Note.
2. Hazard lnsurance. Borrower, at its sole cost and expense, for the mutual benefit of Borrower and Beneficlary, 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 tn such
amounts and for such periods as Lender may require as set forth in the NSP Agreemeni referenced above.
The insurance carrier prov¡ding 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.
(2t
(3)
(4)
(s)
Page 70 of 101
aJ
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 provisìons 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 by-laws 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 Lendeis Securitv. lf Borrower fails to perform the covenants and agreements contained in ihis Deed of
Trust, or if any action or proceeding is commenced which materially affects Lender's interest in the Property, ihen
Lender, at Lender's option, upon notice io 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.
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
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, or for 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.
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 io 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
othen¡¡ise 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.
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
Transferabilitv. 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 ¡nterest of Beneficiary, and the existence of any interest in
Ïrustor other than those of the present owners, would impair the Property and the security interest of Beneficiary, and,
4
t
7
Page 71 of 101
10
11
therefore, 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. Consent to one transaction by Beneficiary will not be deemed a waiver
of the right to require consent io 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.
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 Trustshall be given by dellvering 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.
Governing Law: Severability. The state and local laws applicable to ihis 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 Ïrust 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.
Borrower's Copv. 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,
Lenderpriortoaccelerationshall givenoticetoBorrowerasprovidedinparagraphl0hereofspecifying: (1)thebreach;
(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 Ïrustee
may determine.
12
Page 72 of 101
14
Trustee may postpone saie 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.
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 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.
As additional security hereunder, Borrower
hereby assigns to Lenderthe rents of the Property, provided that Borrowershall, priorto acceleration under paragraph
13 hereof or abandonment of the Property, have the rlght 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.
Reconveyance. Upon payment of all sums secured by this Deed of Trust, Lender shall request Trustee to reconvey the
Property and shall surrenderthis Deed of Trust, and all notes evidencing indebtedness secured bythis Deed of Trustto
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.
Substitute Trustee. Lender at lender's option, may from time to time, appoint a successor trustee to any Trustee
appointed hereunder by an insirument 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
Statement of Obliqation. Lender may collect a fee not to exceed $50 for furnishing the statement of obligation as
provided by Section 2943 of the Civil Code of California.
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.
15
16
17
18
19
Page 73 of 101
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
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.
The following events:
(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 wrìtten
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;
Default under any agreement to which Trustor is a party, which agreement relates to the borrowing of money by
Trustor from Beneficiary
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 afier 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 otherwise 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 Security
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:
(c)
(d)
(e)
(f)
(s)
Page 74 of 101
(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
pr¡or 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
atthe Note Rate of lnterest, and those sums, with interest, will be secured by this Deed of Trust.
21. Effect of Assiqnment.
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 io
Beneficiary under this assignment or the failure of Beneficiary to perform any obligation of Trustor arising under Leases
Page 75 of 101
STATE OF CALIFORNIA
COUNTY
OF
On
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.
who proved to me on the basis of saiisfactory evidence to be the person(s) whose name(s) is/are subscribed to the withìn
instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/heritheir 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 Sta'te of California that the foregoing paragraph is true and
correct.
WITNESS my hand and official seal
APPROVED AS TO FORM:
åffiffix tRëffi
Senior Deputy/Deputy City Attorney
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 wiih ihe 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
Pìease mail Deed of Trust,
Note and Reconveyance to
Do not |ose or destroy this Deed of Trust OR THE NOTE which lf secures. Both must be delivered to the Trustee for
cancellation before reconveyance will be made
Page 77 of 101
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:
ip.esffipÌiffi
APN ll$lüiÉiù d
Page 78 of 101
Exhibit D:
Exemplar Deed of Trust
Page 79 of 1O1
RECORDING REQUESTED BY
Chicago Title Company
AND WHEN RECORDED MAIL TO:
City of Fresno
Housing and Community Dev. Division
2600 Fresno Street, Room 3070
Fresno CA 93721-3605
(SPACE ABOVE TH|S LtNE FOR RECORDER'S USE)
File No.:
A.P.N.:
DEED OF TRUST AND ASSIGNMENT OF RENTS
THIS DEED OF TRUST, made this
TRUSTOR: DEVELOPER
whose address is
,2012, by
. Fresno. California
TRUSTEE:
and BENEFICIARY: Citv of Fresno. a California municipal corporation
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND ASSIGNS to TRUSTEE lN
TRUST, WITH POWER OF SALE, that property in the City of Fresno, Fresno County, State
of California, described as:
See Exhibit "A" attached hereto.
TOGETHER WITH the rents, issues, and profits thereof, SUBJECT, HOWEVER, to the right, power and
authority given to and conferred upon Beneficiary by paragraph 10 of the provisions, incorporated by
reference, to collect and apply such rents, issues and profits.
FOR THE PURPOSE OF SECURING:
'1. Performance of each agreement of Trustor, incorporated by reference or contained herein, including
without limitation the NSP Agreement entered between DEVELOPER, a California compaby and
Beneficiary dated 2012.
2. Payment of the indebtedness evidenced by a Promissory Note of even date
to
herewith, and any
City of Fresnoextension or renewal thereof, in the principal sum of $
executed by Trustor in favor of Beneficiary or order.
3. Payment of such further sums as the then record Owner of said property hereafter may borrow from
Beneficiary, when evidenced by another Note (or Notes) reciting it is so secured.
Page 80 of 1 01
TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR AGREES:
(1) To keep said property in good condition and repair; not to remove or demolish any building thereon;
to complete or restore promptly and in good and workmanlike manner any building which may be
constructed, damaged or destroyed thereon, and to pay when due all claims for labor performed and
materials furnished therefore; to comply with all laws affecting said property or requiring any alterations or
improvements to be made thereon; not to commit or permit waste thereof; not to commit, suffer or permit
any act upon said property in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all
other acts which from the character or use of said property may be reasonably necessary, the specific
enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory to and with loss payable to
Beneficiary. The amount collected under any fire or other insurance policy may be applied by Beneficiary
upon indebtedness secured hereby and in such order as Beneficiary may determine, or at option of
Beneficiary the entire amount so collected or any part thereof may be released to Trustor. Such
application or release shall not cure or waive any default or notice of default hereunder or invalidate any
act done pursuant to such notice.
(3) To appear in and defend any action or proceeding purporting to affect the security hereof or the rights
or powers of Beneficiary or Trustee; and to pay all costs and expenses, including cost of evidence of title
and attorneys'fees in a reasonable sum, in any such action or proceeding in which Beneficiary or Trustee
may appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust.
(a) To pay: at least ten ('10) days before delinquency, all taxes and assessments affecting said property,
including assessments on appurtenant water stock; when due, all encumbrances, charges and liens, with
interest, on said property or any part thereof, which appear to be prior or superior hereto; all costs, fees
and expenses of this Trust.
Should Trustor fail to make any payment or to do any act as herein provided, then Beneficiary or Trustee,
but without obligation so to do and without notice to or demand upon Trustor and without releasing
Trustor from any obligation hereof, may: make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof, Beneficiary or Trustee being authorized to
enter upon said property for such purposes; appear in and defend any action or proceeding purporting to
affect the security hereof or the rights or powers of Beneficiary or Trustee; pay, purchase, contest or
compromise any encumbrance, charge or lien which in the judgment of either appears to be prior or
superior hereto; and, in exercising any such powers, pay necessary expenses, employ counsel and pay
his reasonable fees.
(5) To pay immediately and without demand all sums so expended by Beneficiary or Trustee, with
interest from date of expenditure at the rate called for in the note secured hereby, or at the amount
allowed by law at date of expenditure, whichever is greater, and to pay for any statement provided for by
law in effect at the date hereof regarding the obligation secured hereby any amount demanded by the
Beneficiary not to exceed the maximum allowed by law at the time when said statement is demanded.
(6) That any award of damages in connection with any condemnation for public use of or injury to said
property or any part thereof is hereby assigned and shall be paid to Beneficiary who may apply or release
such moneys received by him in this same manner and with the same effect as above provided for
disposition of proceeds of fire or other insurance.
(7) That by accepting payment of any sum secured hereby after its due date, Beneficiary does not waive
his right either to require prompt payment when due of all other sums so secured or to declare default for
failure so to pay.
(8) That at any time or from time to time, without liability therefore and without notice, upon written
request of Beneficiary and presentation of this Deed of Trust and said note for endorsement, and without
affecting the personal liability of any person for payment of the indebtedness secured hereby, Trustee
may: reconvey any part of said property; consent to the making of any map or plat thereof; join in granting
Page 81 of 101
any easement thereon; or join in any extension agreement or any agreement subordinating the lien or
charge hereof.
(9) That upon written request of Beneficiary stating that all sums secured hereby have been paid, and
upon surrender of this Deed of Trust and said Note to Trustee for cancellation and retention and upon
payment of its fees, Trustee shall reconvey, without warranty, the property then held hereunder. The
recitals in such reconveyance of any matters or facts shall be conclusive proof of the truthfulness thereof.
The Grantee is such reconveyance may be described as "the person or persons legally entitled thereto."
Five (5) years after issuance of such full reconveyance, Trustee may destroy said Note and this Deed of
Trust (unless directed in such request to retain them.)
(10) That as additional security, Trustor hereby gives to and confers upon Beneficiary the right, power
and authority, during the continuance of these Trusts, to collect the rents, issues and profits of said
property, reserving unto Trustor the right, prior to any default by Trustor in payment of any indebtedness
secured hereby or in performance of any agreement hereunder, to collect and retain such rents, issues
and profits as they become due and payable. Upon any such default, Beneficiary may at any time without
notice, either in person, by agent, or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and take possession of said
property or any part thereof, in his own name sue for or otherwise collect such rents, issues and profits,
including those past due and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorneys' fees, upon any indebtedness secured hereby, and in such
order as Beneficiary may determine. The entering upon and taking possession of said property, the
collection of such rents, issues and profits and the application thereof as aforesaid, shall not cure or
waive any default or notice of default hereunder or invalidate any act pursuant to such notice.
(11) That upon default by Trustor in payment of any indebtedness secured hereby or in performance of
any agreement hereunder after expiration of all applicable cure periods, Beneficiary may declare all sums
secured hereby immediately due and payable by delivery to Trustee of written declaration of default and
demand for sale and of written notice of default and of election to cause to be sold said property, which
notice Trustee shall cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed of
Trust, said Note(s) and all documents evidencing expenditures secured hereby.
After the lapse of such time as may then be required by law following the recordation of said notice of
default, and notice of sale having been given as then required by law, Trustee, without demand on
Trustor, shall sell said property at the time and place fixed by it in said notice of sale, either as a whole or
in separate parcels, and in such order as it may determine, at public auction to the highest bidder for cash
in lawful money of the United States, payable at time of sale.
Trustee may postpone sale of all or any portion of said property by public announcement at such time and
place of sale, and from time to time thereafter may postpone such sale by public announcement at the
time fixed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying
the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed
of matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor,
Trustee, or Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all reasonable costs, fees and expenses of Trustee and of this Trust, including cost of
evidence of title in connection with sale, Trustee shall apply the proceeds of sale to payment of: all sums
expended under the terms hereof, not then repaid, with accrued interest at the amount allowed by law in
effect at the date hereof; all other sums then secured hereby; and the remainder, if any, to the persons or
persons legally entitled thereto.
(12) Beneficiary, or any successor in ownership of any indebtedness secured hereby may, from time to
time, by instrument in writing, substitute a successor or successors to any Trustee named herein or acting
hereunder, which instrument, executed by the Benefrciary and duly acknowledged and recorded in the
office of the recorder of the county or counties where said property is situated, shall be conclusive proof
of proper substitution of such successor Trustee or Trustees, who shall, without conveyance from the
Page 82 of 101
Trustee predecessor, succeed to all its title, estate, rights, powers and duties, must contain the name of
the original Trustor, Trustee and Beneficiary hereunder, the book and page where this Deed of Trust is
recorded and the name and address of the new Trustee.
(13) That this Deed of Trust applies to, inures to the benefit of, and binds all parties hereto, their heirs,
legatees, devisees, administrators, executors, successors and assigns. The term Beneficiary shall mean
the owner and holder, including pledgees, of the Note secured hereby, whether or not named as
Beneficiary herein. ln this Deed of Trust, whenever the context so required, the masculine gender
includes thefeminine and/or neuter, and the singular number includes the plural.
(14) That Trustee accepts this Trustwhen this Deed of Trust, duly executed and acknowledged, is made
a public record as provided by law. Trustee is not obligated to notify any party hereto of pending sale
under any other Deed of Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee
shall be party unless brought by Trustee.
(15) The Loan is a nonrecourse obligation of Trustor. Neither Trustor nor any of its general and limited
partners shall have any personal liability for repayment of the Loan. The sole recourse of the Lender
under the Loan Documents for repayment of the Loan shall be the exercise of its rights against the
Property.
(16) The withdrawal, removal and/or replacement of (where applicable) general partner of Trustor
pursuant to the terms of a partnership agreement due to a violation by a general partner of the terms of a
partnership agreement, or a voluntary withdrawal from a partnership by a general partner, and any
transfer of limited partnership interests or interests in the same, shall not constitute a default under any of
the Loan Documents, and any such actions shall not accelerate the maturity of the Loan.
(17) Beneficiary agrees that the lien of this Deed of Trust shall be subordinate to any extended low-
income housing commitment (as such term is defined in Section 42(hX6XB) of the lnternal Revenue
Code) (the "Extended Use Agreement") recorded against the Property, provided that such Extended Use
Agreement, by its terms, must terminate upon foreclosure under this Deed of Trust or upon a transfer of
the Property by instrument in lieu of foreclosure, in accordance with Section 42(hX6)(E) of the lnternal
Revenue Code, subject to the limitations upon evictions, terminations of tenancies and increases in gross
rents of tenants of low-income units as provided in that Section.
(18) Prior to declaring or taking any remedy permitted under Loan Documents, (where applicable)
Trustor's limited partners shall have an additional period of not less than thirty (30) days to cure such
alleged default. Notwithstanding the foregoing, in the case of a default that cannot with reasonable
diligence be remedied or cured within thirty (30) days, Trustor's limited partners shall have such additional
time as reasonably necessary to remedy or cure such default, but in no event more than ninety (90) days
from the expiration of the initial thirty (30) day period above, and if the Trustor's limited partners
reasonably believe that in order to cure such default, Trustor's limited partners must remove one or both
of Trustor's general partners in order to cure such default, Trustor's limited partners shall have and
additional thirty (30) days following the effective date of such removal to cure such default.
(19) Beneficiary shall give the Trustor's limited partners notice of any default under the Loan Documents
at the following address:
ln accordance with Section 2924b, Civil Code, request is hereby made that a copy of any Notice of
Default and a copy of any Notice of Sale be mailed to Trustor at Trustor's address hereinbefore set forth,
or if none shown, to Trustor at property address.
Page 83 of 1 01
By
NOTICE: A COPY OF ANY NOTICE OF DEFAULT AND OF ANY NOTICE OF SALE WILL BE SENT
ONLY TO THE ADDRESS CONTAINED IN THIS RECORDED REQUEST. IF YOUR ADDRESS
CHANGES, A NEW REQUEST MUST BE RECORDED.
Except as provided herein or in the NSP3 Agreement, if the Trustor/Grantor shall sell, convey or alienate
said property, or any part thereof, or any interest therein, or shall be divested of his title or any interest
therein in any manner or way, whether voluntarily or involuntarily, without the written consent of the
Beneficiary being first had and obtained, Beneficiary shall have the right, at its option, except as
prohibited by law, to declare any indebtedness or obligations secured hereby, irrespective of the maturity
date specified in any Note evidencing the same, immediately due and payable.
Signature of Trustor(s):
ALL SIGNATURES MUST BE NOTARIZED
Page 84 of 101
Exhibit E
Sample Note
Page 85 of 101
DO NOT DESTROY THIS NOTE: When paid, this note must be surrendered to
Borrower for Cancellation.
PROMISSORY NOTE
Loan Amount: S Date:, 2013
Fresno, California
For value received, the undersigned, DEVELOPER, a California company
("Borrower"), promises to pay to the order of the City of Fresno, a California municipal
corporation, ("Lender"), the sum of 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 (i¡) flnsert Number of Years of
Affordability Periodl years from the date of the issuance of the Certificate of Completion
as referenced in the Agreement, ("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 one hundred eighty (180) days following the completion of construction, unless
othen¡vise 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 financial 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
Page 86 of 101
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
specifically 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 proporlion 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 calendar year 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 shoftfall 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 othenruise defined, will have the
respective meanings specified in the Agreement. ln addition, as used in this Note, the
following terms will have the following meanings:
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.
Note Maturitv Date means Insert Number of Years of Affordability Period]
years from the date Lender enters project completion data into HUD's DRGR
system constituting the completion date.
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 3'd 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
Page 87 of 101
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
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 penalty. 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 forlh 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 paftial 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:
[E]xcept as provided herein or in the Loan Documents, Trustor/Borrower
will not sell, convey, assign, transfer, alienate, or othen¡yise dispose of its
interest in the Property, either voluntarily or by operation of law, or agree
Page BB of 1 01
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
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.
DEVELOPER
a California company
Name:
Title:
(Attach notary certificate of acknowledgment)
Date:
APPROVED AS TO FORM:
City Attorney's Office
lName] [D.afe]
Senior Deputy/Deputy City Attorney
By:
By:
Page 89 of 1 01
Exhibit F:
Eligible NSP Areas
Div lV Scope of Service 12.26 Page 90 of 101
Exhibit G:
lntake Form
Please submit a completed lntake Form with your request for Neighborhood Stabilization Program (NSP)
3 funds. Give a brief description as your response and where requested, encircle Yes or No. lncomplete
responses may cause a delay in the closing of the property transaction. The provided information will be
used to determine project eligibility and environmental clearance - Release of Funds cannot occur prior to
environmental clearance.
Date:
Street Address of Project/Property to be Acquired:
City Zp Census Tract No:A.P.N:
Current Owner:
Name/Co. Name:
Street Address:
City, State, Zip:
Telephone No:Fax:
E-Mail:
Project Description
Provide photographs of the project and site (photos should include views looking
north, south, east and west from the projecf fo see adjacent land uses).
A.lndicate type of project:
Acquisition of real property n
Rehabilitation n
B.ls property:
vacant
abandoned
foreclosed
n
C. ls the property
other, commercial
a residential: single family dwelling, duplex,
or
tri-plex, four-plex,
industrial?
Div lV Scope of Service 12.26 Page 91 of 101
D. Will the residence be owner or renter occupied?
F. ls the mortgage/tax foreclosure process completed? ( Yes / No )
G. Has the property owner made any mortgage payment within the last 90
days?(Yes/ No)
H. Has the property been vacant for more than 90 days? ( Yes / No )
ls the property currently occupied? ( Yes / No )
J. Was propertyforeclosed upon priorto February 17,2009? ( Yes / No )
Give date foreclosed:
K. lf foreclosed after February 17, 2009, are you providing adequate
documentation of tenant protection compliance from the lnitial Successor in
lnterest? ( Yes / No ).
Provide copy of certification.
L.lf lnitial Successor in lnterest will not or cannot certify or demonstrate
compliance with NSP tenant protection, the transaction must be abandoned,
or perform due diligence to determine whether any bona fide tenant occupied
the property. lf so, determine if they were allowed to remain through the end
of the lease term or tenancy and received any required notices.
ll. Acquisition
A. What is the listed price of the propefty on the real estate data base (i.e.
Fannie Mae, REO, Multiple listings, etc.)?
$
B. Has the seller accepted an offer from the buyer? ( Yes / No / Pending )
C. List any provisions or contingencies attached to the offer:
Div lV Scope of Service 12.26 Page 92 of 101
D.Does the accepted offer to purchase the property
discounted price of at least one percent (1%) below
appraised value of the property? ( Yes / No )
meet the requÍred
the current market-
E. How much NSP funds are you requesting for Acquisition? $
lll. Rehabilitation
(Provide a detailed cost estimate far all proposed rehabilitation work).
A. Does the project currently meet the City's property rehabilitation standards?(Yes/ No)
B. lf No, please lists all items necessary to rehabilitate the residence back to
habitability:
C.Could the project benefit from rehabilitation
efficiency or conservation by installing
efficient windows, installation of insulation?
improvements to increase energy
energy star appliances, energy(Yes/ No)
D. ldentify improvements to increase energy efficiency:
Div lV Scope of Service .12.26 Page 93 of 101
E. A City lnspector will conduct an inspection of the property to determine the
habitability of the residence, or to verify the rehab assess/nenf as required by
fhe NSP regulations, (Note: This inspection is not to be confused with a
third-party Home lnspection that may be required by buyer - lender or seller).
Please ldentify a contact persan and telephone number whom to be
contacted in order to schedule a site visit inspection.
Name of Contact Person:
Telephone:
lV. ExistingConditions
A.Describe the Project Site Area:
Gross Acres/sq. ft:
B.Existing Zoning:
c.Existing Use of Land:
D.Existing General Plan Designation:
V. Residential Project
A.Number of Existing Dwelling Units:
Single Family(four-plex or less):
Apartments (5 units or more):
Condominiums:
B.Number of Dwelling Units with:
One bedroom
Two bedrooms
Three bedrooms
Four or more bedrooms
Div lV Scope of Service 12.26
C. Total number of parking spaces provided:
Covered parking:
Uncovered:
D.Number of stories:
E. Type of appliances and heating (gas, electric, gas/electric, solar):
F.Total Number of gross square feet of floor area:
vt.Environmental Data
A.Land Use
1. What use(s) currently occupy the project site (vacant, industrial, residential,
etc.)?
2. What land uses (agriculture, residences, school, etc.) are north, south, east,
& west of the site?
3.How many structures are on the site?
Have the structures been tested for asbestos containing materials?
No)
lnclude report and/or laboratory test results, if available.
(Yes/
4. Have the structures been tested for lead-based paint? ( Yes / No )
lnclude report and/or laboratory test results, if available.
Div lV Scope of Service 12.26 Page 95 of 1 01
5. Describe the project site's topography and vegetation:
B. Circulation
ldentify by name all major and secondary highways and freeways adjacent to
the proposed project:
C.Floodplain Management
ls any part of the area of consideration located in a Special Flood Hazard
Area (SFHA, i.e. area designated "A" or "Y" Zone by FEMA)? ( Yes / No )
D. Historic/Architecturally Significant Project
Does the project involve any structures, buildings, street lighting systems,
spaces, sites or components thereof which may be designated or eligible for
designation in any of the following: (please check)
¡ National Register of Historic Places
n California Register of Historic Resources
What year was the structure built?
E. Airport Clear Zones
ls the subject property located in the Clear Zone (CZ), Approach Protection
Zone, or in the Runway Clear Zone (RCZ) of a commercial civil airport or
military airfield?(Yes/ No)
Div lV Scope of Service 12.26 Page 96 of I 01
F. Explosive & Flammable Operations
Will this proposed acquisition/rehabilitation project result in increased
residential density or cause a vacant building to become physically or legally
habitable?(Yes/ No)
ls the proposed project within 1 mile of any visible, explosive-or-flammable-
substance container (a stationary, above-ground tank with a capacity of more
than 100 gallons)? ( Yes / No )
lf yes, what is tank volume?
gallons, or dike area around tank: sq. ft.
G. Toxiclïazardous/Radioactive Materials, Contamination, Chemicals or Gases(24 cFR 58.5(iX2)
Are there visible dumps, landfills, industrial sites or other locations containing
or releasing loxiclhazardous/ radioactive/materials, chemicals or hazardous
wastes on or near the subject site? ( Yes / No )
Does this project site contain an underground storage tank (which is not a
residential fuel tank)? ( Yes / No )
Do Federal, State or local environmental records sources reveal nearby on or
nearby sites that may pose threats to the subject site occupants' health or
safetv? ( Yes / No )
H. Storage Tanks
Are there any storage tanks/containers (larger than 100 gallons) on the
project site or vicinity? ( Yes / No ).
lf yes, what are the sizes of each tank?
Describe the contents (diesel, propane, gas, etc.)
What is the approximate distance from the container to the project site? _
Div lV Scope of Service 12.26 Page 97 of 101
L Noise Sources
ls the project site within 2 blocks of a railroad track? ( Yes / No )
ls the project site within 1 mile of an airport? ( Yes / No )
ls the project site within 2 blocks of a major highway? ( Yes / No )
lf yes, describe the noise sources and their locations in relation to the project
site:
Div lV scope of service 12.2ô Page 98 Of 1 01
Exh¡b¡t H
Conflict of lnterest Disclosure
Div lV scope of Service 12 26 Page 99 Of 101
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?
tr ¡
2 Do you represent any firm or organization or person who is in litigation
with the City of Fresno?
n !
3 Do you currently represent or per-form work for any clients who do
business with the City of Fresno?
n 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 litioation with the Citv of Fresno?
n n
5 Do you or any of your subcontractors have, or expect to have any
interest, direct, or indirect, in any other contract in connection with this
Proiect?
tr n
* lf the answer to any question is yes, please explain in full below.
D¡v lV Scope of Service 12.26 Page 100 of 101
Exh¡bit I
Sample Scope of Work Write Up
Div lV scope of Service 12.26 Page 1 01 Of 1 0'1
State Prevailing Wage Project Project No: 12-0016
ËxHlBlT "c"
SCOPE OF WORK
Owner: City Of Fresno,621-8300
Contact: John Giannetta, (559)621-8434
Site Address:
386 N Park
Fresno, CA 93701
The Contractor shall be responsible to include in his bid any permits and all requirements by the Planning and
Development Department to insure that all installations will meet ail applicable codes. Those installations
performed shall be in strict compliance with all Building, Plumbing, Mechanical, and Electrical Codes. Quality of the
work performed and materials installed shall þe as outlined in "A Guide to Rehabilitation Standards: Standard
SpecifÌcations" and are to meet the standards of the industry, as determined by the staff of the City of Fresno's
Planning and Þevelopment Department, Housing and Community Development Division, Repair of items will be
done as outl¡ned below to guarantee those repairs 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 will
be used on the project must be included and submitted to the City along with the sealed bid.
Basement Under Floor Area
Structural
Repair Retaining Wall @ Basement (FCC)
Repair retaining wall as needed
Repair / Construct Basement Access Door @ Basement (FCC)
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 stainrvay for
safety purposes
Bathroom(s)
Remodel
Complete Remodel Bathroom @ Hall Bathroom (FCC)
$
Completely remodel bathroom Remove vanity cabinet and replace with a
corner vanìty cabinet and mirror to match. Remove toilet and replace with a
low flow toilet, replace existing baseboard to match at vanity cabinet, install
granite counter top with sink and faucet to match shower, install matching
1/4 round on shower tìle enclosure for fìnished look, install 5 wire shelves in
closet area behind door, prirne and paint walls, trim, ând door ¡n a water' based semi-gioss enamel, lnstall exhaust fan. NOTE: lncluding the
relocation of all plumbing as needed.
Bedroom
Electrical
Health & Safety: Repair / Rêptace Swítch Leg @ Back Bedroom (FCC) $
Repair switch leg by renroving conduit on exterior of wall and rewire to a cut
in box inside the wall to match others throughout house,
Finish Work
Replace ln
Replace mi door of similar size, type
anó des¡gn to match existing color'
Door to be dose ProPerlY'
Consulting
Asbestos
Heafth & Safety: Asbestos Work @ Outlined $cope in Survey
Contractor will review asbestos aba{ement scope outlined in asbestos survey
provided. Contractor wiil be responsible for hiring a licensed asbestos
abatement contractor for proper completion of asbestos abatement including
notifications, monitoring, additional testing, and disposal
1. Propedy remove abandoned transite pipe from under residence thru
exterior walt and up thru eve of residence.
2. Prcper removal of separation wall in between kitchen and living room.
Asbestos is contained ín kitchen ceiling tape and texture.
3. Proper removal of separation walls between kitchen and laundry room
Asbestos is contained in kitchen ceìling tape and texture.
Lead Testing
Health & Safety: Obtain Lead Consultation & Clearance
Obtain Lead Consultation regarding safe work practices from the CDPH/RRP
Certified Supervisor who performed the Lead Assessment. After completion
of all work, the City of Fresno will pay for the Lead Clearance lnspection
conducted by the Certified Lead lnspector/Assessor that performed the
original Lead Assessment/Consultation for the property. Contractor is
responsible for consulting fee ($ 500.00) and any re-inspections costs if the
Clearance fails.
Entire $tructure
Electrical
Health & Safety: Upgrade Electrical Service / Wiring @ Entire Structure
(Fcc)
Remove and replace service panel to a 200 amp service- Upgrade all
substandard wiring to meel today's code, adaptable to solar connection.
Replace all switches, plugs and device plales as needed to meet today's
code, replace old light fixtures with new like style.
Evaporative Cooler
Install Evaporative Cooler and Ductíng @ Ëntire Structure
lnstatl a roof mount Master Cool brand evaporative cooler of proper size, for
house square footage with all necessary ducting needed.
Entry
Front Entry Þoor
Replace Front Entry and Rear Doors @ Front and Rear Entry's (FCG)
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 proper weather stripping and thresholds on
both front and rear entry doors. Fronl door to match ËRA and style of
existing older home.
Exterior
Exterior Painting
Exterior Painting @ Exterior (FCC)
$
Repair/prepare surfaces listed 1o be painted according to the "The Guide to
Rehabilitation standards " and paint to manufacturer's recommendation.
Honle was built in 1928, Use Safe Work Practices and the EPA's RRP
(Renovation, Repaìr & Painting) methods. Stucco surfaces shall be sprayed
and back rolled to assure complete penetration of paint into cracks and
voids. All surfaces shall have two (2) coats of paint includìng a primer coat of
Glidden Gripper coat Primer/sealer GL-321-1200 or equivalent. All cracks
and voids over 1/8" shatl be filled with a recommended caulking before
painting to seal moisture or insect intrusÌon. LBP Clearance testing willfollow
completion of paínting and results must pass required certification standards.
Contractors are responsible for testing costs and clean up.
Fencing
Remove / Replace Existing 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 noflh side of house with locking
hardware
On Site
Construct a New Carpoft @ Rear Yard {FCC)
Construct a new carport over 12x20 concrete slab with approved drawings,
plans and required permits in desìgnated area and design type approved by
the infill comnrittee according to all city codes and city compliances required,
Permit to show final inspection approval upon completion.
Remove Trees and Stumps @ Exterior
Removal of three trees, front yard tree and stump, removal of lree 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 with
like material to match existing construction.
Plumbing
Health & Safety: Remove and Replace Water Heater @ Exterior (FCG)
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 wall.
Health & Safety: Repair and Replace Water Ma¡n @ Front yard (FCC)
Remove PVC water main and replace with proper materials for code.
lnstall Back Flow Preventers @ Exterior (FCC)
lnstall back Flow Preventers on all exterior hose bibs
Windows
Health & Safety: Lead Remediation Wood Window Ghange Out @Exterior (FCC)
$
Remove and rePlace ve/Poor on LBP
Ìnspection & Risk As be WOOD SASH'
dual-pane, low-e, S PPtoved equal,
MATCHING THE EX ad Hazard Control
Program approved materials. Work to inc
¡nstállat¡on, repair, trim and painting of all ndow
enclosures on interior and exteriorèlevati to sitls,
frames and casing, use LBP Safe Rule as required with
proper clean-up. Contractor will be additional testing
costs and cleanuP required if area
Windows to be used must be approved by Karana Hatterstey Drayton
historic preservation officer 621 -8520.
L Windows in rear bedroom to be centered on existing walls, lowered and
framed to allow proper egress for a sLeeping room.
lnterior
Ëlectrical
lnstall as Required Carbon Monoxide and Smoke Detêctor Alarms @
lnterior (FGC)
As per California Building Code Sectíon R31 5.1 and R315.2, Carbon
Monoxide alarms shall be installed ìn the following locations;
1 Outside each separate dwelting 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
lnterior Painting @ tnterior (FGC)
if subject was built before '1978 use extra caution and LBP "Safe Work
Practices". Clearance testing will follow completion of painting and results
must pass required certification standards. Painters are responsible for any
further tesling costs and appropriate clean up of property. Follow all "Guide
to Rehabilitation Standards" requirements for preparalion, prìming and finish
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 ln the LBP Report on pre determined areas of concern findings report.
Pfumbing
lnstall Wall Heaters @ lnterior (FCC)
Remove and relocate wall heater replace with new energy efficient modef .
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 fow heat area.
Kitchen
Remodel
Complete Remodelof Kitchen @ Kitchen (FCG)
$
range and ho slide in or droP
le basin sink ull out handlei::il!-[J".î ii3iffl"'
removed and where else is needed. NOTË: lncluding the relocation of atl
plumbing as needed.
On Site
Concrete
Concrete Flat Work @ Driveway
Use industry standards for removal, prep, set up, forming, pour and finish
with broom type finish for non slip feature. Joint all areas requiied not to
exceed a 12' span with proper slope to avoid water pooling. Use
recommended mix as required for intended purpose. Repair all areas and
leave ground next to concrete with proper grade and evenness. All concrete
over pour or debris ìs to be removed and leave area clean. (Driveway has
already been installed, Contractor to provide payment of $1442'00 to
Housing Authority for half of cost),
Retnove Existing Concrete and lnstall New @ Front Yard {FCC)
Break up and haul off existing concrete to repairtrip hazards as required per
Health and Safety issues. replace with new concrete to match existing and
connecting to driveway,
Landscaping / Sprinklers
RepaÌr/ Replace Sprinkler System @ Front Yârd
Repair/ replace sprinkler system in front yard. Allow separate stations for
flower beds and lawn.
Front Yard Landscape @ Front Yard
lnstall new lawn through front yard and park strip, flowers and shrubs
installed in flowerbed in front yard and along north 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 1 5 X 10.
Cover to meet all current code requirements with drawings and permit
obtained from the City Buitding Department Roofing to match house
Prune Trees
Prune Treês 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
$ l4¿2 00
$
Remove allexisting roofing ( ose of. lnstall roof bracing
arrd repair roof strutture to a panels (South Facing Slope)'
Provide and install new oSB ired; 30#felt, and 30 year
unevenness in rafters before roofing. lnspect for water leaks at valleys, ridge
and roof jacks i vents for damage or mold to ìnsulation and replace as
required with required insulation,
Sub FÍoor
Sub Floor Vents
Repair / Replace $ub Floor Vents @ Sub Floor (FCG)
Repair and replace all defective sub floor vents âs needed.
Project No: 12-0016
ADDENDUM TO CONTRACT
Owner's Name: CÍty Of Fresno
Project Address: 386 N Park Fresno, CA 93701
It shall be the responsibility of the Contractor to include all costs necessary to perform and compfete the ítems listed in thìs
A-ddendum, and to perform all work in accordance with this Contract. The items listed below snåll Oe the only changes
affected by this Addendum, ali other ¡tems andior provisions of the Contract will remain the same.
Acldendum to Scope Of Work
e B azaleas
new energy efficient model. lnstall heat transfer ducting to
I require a minimum of R.B ducting and will lre required to
) to relocate wafl heater only. Contractor will be
CONTRACTOR'S CERTIFf CATION :I hereby certify that atl the items ouflined above are included in myoriginal Bid and Proposal
Contractor's Signature Date
Owner's Signature
OWNER S CERT|FICAT|ON: I hereby ð
Work. Alt other items end/or provisions of the orlginal Scope of Work will remain the same.