HomeMy WebLinkAbout2013-215 RESOLUTION NO. 2013-715
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2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING AND AUTHORIZING THE CITY MANAGER TO
3 EXECUTE AN AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO
AND INLAND HOUSING DEVELOPMENT CORPORATION, INC., FOR THE
4 IMPLEMENTATION OF THE SINGLE FAMILY HOUSING REHABILITATION
5 PROGRAM FOR THE AREA WEST OF THE 215 FREEWAY IN THE AMOUNT OF
$700,000 IN HOME INVESTMENT PARTNERSHIP ACT FUNDS.
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WHEREAS, the City of San Bernardino (the "City") is an entitlement jurisdiction and
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annually receives certain federal funds under the United States Department of Housing and Urban
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Development's ("HUD") HOME Investment Partnership Act ("HOME") and Community
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Development Block Grant(CDBG)programs; and
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WHEREAS, on May 3, 2010, the Mayor and Common Council adopted Resolution 2010-
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100, approving the City's 2010-2015 Consolidated Plan; and
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WHEREAS, on May 7, 2012, the Mayor and Common Council adopted Resolution 2012-
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82, approving the 2012-2013 Action Plan that is required to guide and identify which needs the
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City will address incrementally for the 2010-2015 period; and
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WHEREAS, on June 17, 2013, the Mayor and Council adopted Resolution 2013-179,
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approving and amending the City's 2010-2015 Consolidated Plan by allocating $1,400,000 of
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HOME funds for Single Family Housing Rehabilitation Program to be implemented in part by
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Neighborhood Housing Services of the Inland Empire, Inc., for the area east of the 215 Freeway and
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Inland Housing Development Corporation, Inc., for the area west of the 215 Freeway; and
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WHEREAS, the Inland Housing Development Corporation, Inc., (IHDC) is a non-profit
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organization that provides housing rehabilitation services in the City and in the City and County of
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Riverside; and
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WHEREAS, under terms of the Single Family Housing Rehabilitation Agreement
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("Agreement"), IHDC will assist the City in providing deferred rehabilitation loans to income
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eligible households to address code related deficiencies and bring the homes to habitable standards
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meeting and exceeding the health and safety code. Rehabilitation work will include but will not be
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1 limited to roof replacement, electrical and plumbing, heating and cooling system replacement,
2 replacement of windows and doors; and installation of new landscape; and
3 WHEREAS, in compliance with the California Environmental Quality Act ("CEQA") and
4 the National Environmental Policy Act("NEPA") guidelines,the authorization and execution of the
5 Agreement is determined to be an exempt action pursuant to Section 15332 of the CEQA Guidelines
6 and 24 CFR 58.34(a)(3) of NEPA Guidelines because the proposed action is required for federal
7 programs administration and compliance.
8 NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
9 COUNCIL OF THE CITY OF SAN BERNARDINO,AS FOLLOWS:
10 Section 1. The Mayor and Common Council hereby approves $700,000 in HOME
11 funds for the Single Family Housing Rehabilitation Program Implementation Agreement with
12 Inland Housing Development Corporation, Inc., and authorizes the City Manager to execute the
13 Agreement, attached and incorporated herein as Exhibit"A".
14 Section 2. The Mayor and Common Council finds and determines that authorization
15 and execution of the Agreement is exempt, pursuant to Section 15332 of the CEQA Guidelines and
16 24 CFR 58. 34(a)(3) of the NEPA Guidelines because the proposed action is required for federal
17 programs administration and compliance.
18 Section 3. This Resolution shall take effect upon its adoption.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SA
1 BERNARDINO APPROVING AND AUTHORIZING THE CITY MANAGER T
2 EXECUTE AN AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDIN
AND INLAND HOUSING DEVELOPMENT CORPORATION, INC., FOR TH
3 IMPLEMENTATION OF THE SINGLE FAMILY HOUSING REHABILITATIO
PROGRAM FOR THE AREA WEST OF THE 215 FREEWAY IN THE AMOUNT 0
4 $700,000 IN HOME INVESTMENT PARTNERSHIP ACT FUNDS.
5
6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
7 Common Council of the City of San Bernardino at a joint regular meeting thereof, held on
8 the 15th day of July , 2013, by the following vote to wit:
9 Council Members: Ayes Nays Abstain Absent
10 MARQUEZ X
11 JENKINS x
12 VALDIVIA X
SHORETT X
13
KELLEY x
14
JOHNSON x
15
MCCAMMACK
16 C/7/4,
17
Georgean anna, City Clerk
18
Ti
19 The foregoing resolution is hereby approved this 1,1 day of July , 2013
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crr,w
21 '
Patrick J. orris, . •r
22 • ..n Bernardino
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Approved as to form:
25 JAMES F. PENMAN, City Attorney
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By:
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EXHIBIT Ai
CITY OF SAN BERNARDINO
SINGLE FAMILY RESIDENCE REHABILITATION LOAN PROGRAM HOME
SUBRECIPIENT AGREEMENT
THIS SINGLE FAMILY RESIDENCE REHABILITATION LOAN PROGRAM HOME
SUBRECIPIENT AGREEMENT (the "Agreement") is made and entered into this 15th day of
July, 2013 (the "Effective Date"), by and between the RIVERSIDE HOUSING
DEVELOPMENT CORPORATION, dba INLAND HOUSING DEVELOPMENT
CORPORATION, a California non-profit corporation (the "Contractor") and the CITY OF SAN
BERNARDINO (the "City"), a municipal corporation. The City and the Contractor agree as
follows:
RECITALS
WHEREAS, the City administers a single family residence rehabilitation loan program
which loans funds (the "Rehabilitation Loan Program") to low-moderate income homeowners
who reside in the City of San Bernardino (the "City"), in the County of San Bernardino (the
"County"), in the State of California (the "State") to permit such homeowners to undertake
certain housing rehabilitation and correction work, including, without limitation, asbestos and
lead containing materials abatement work, handicap accessibility improvements and utility
energy improvements to single family residential dwelling units owned and occupied by such
low-moderate homeowners; and
WHEREAS, the City desires to execute a three (3) year agreement with the Contractor,
renewable annually by the City in its sole discretion and subject to the appropriation by the
United States Department of Housing and Urban Development("HUD"); and
WHEREAS, the City desires to allocate an amount not to exceed the sum of Seven
Hundred Thousand Dollars ($700,000) annually of HOME Partnership Act Funds, in accordance
with the terms, the covenants and the conditions of this Agreement, which amount may be
increased by the City in the event the minimum number of required Loans is exceeded by the
Contractor for any given year; and
WHEREAS, the Rehabilitation Loan Program promotes and expands the supply of
affordable housing in the City and fosters the elimination and prevention of blight; and
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS MENTIONED
ABOVE, THE MUTUAL PROMISES OF THE CITY AND OF THE CONTRACTOR IN THIS
AGREEMENT AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY THE
CITY AND BY THE CONTRACTOR, THE CITY AND THE CONTRACTOR AGREE AS
FOLLOWS:
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Section 1. DEFINITIONS OF CERTAIN TERMS. In addition to the words and
phrases, which are defined in the Recitals of this Agreement and/or in this Agreement, the
following words and terms shall have the meaning set forth below:
"County Recorder's Office" means and refers to the County Recorder's Office for the
County of San Bernardino, State of California.
"Deed of Trust" means and refers to the Deed of Trust and Assignment of Rents securing
the obligations of the Note and encumbering the Home. The Deed of Trust must be
executed and acknowledged by the Qualified Homeowner and shall be recorded by or for
the City in the County Recorder's Office. The Deed of Trust shall be subordinate to the
Senior Deed of Trust. The Deed of Trust must be substantially similar to the Deed of
Trust attached hereto and incorporated herein by this reference as Exhibit"1".
"Environmental Laws" mean and refer to all applicable federal, state, municipal and local
laws, statutes, codes, ordinances, rules, regulations, orders and judgments relating to the
protection or clean-up of the environment, the use, treatment, storage, transportation,
generation, manufacture, processing, distribution, handling or disposal of, or emission,
discharge or other release or threatened release of hazardous substances, the preservation
or protection of waterways, groundwater, drinking water, air, wildlife, plants or other
natural resources, the health and safety of persons, or the protection of the health and
safety of employees, now or hereafter existing, as the same may be amended, modified or
supplemented from time to time, including, without limitation: the Clean Air Act, as
amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act
of 1976, as amended, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment
Response, Compensation and Liability Act of 1980, as amended (including the Superfund
Amendments and Reauthorization Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 et
seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the
Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.;
the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; the California
Health and Safety Code (Section 25100 et seq., § 25249.5 et seq., Section 39000 et seq.);
the California Water Code (Section 13000 et seq.); the California Environmental Quality
Act ("CEQA"); the California Public Resources Code; all comparable state and local
laws, laws of other jurisdictions or orders and regulations; and any and all common law
requirements, rules and bases of liability regulating, relating to or imposing liability or
standards of conduct concerning pollution or protection of human health or the
environment, as now or may at any time hereafter be in effect.
"City Manager" means and refers to the City Manager of the City and his or her
authorized representatives.
"General Contractor Agreement" means and refers to the Single Family Residence
Rehabilitation Loan Program General Contractor Agreement by and between the
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Qualified Homeowner and the contractor identified therein (the "General Contractor") as
approved, in writing, by the Contractor. The General Contractor Agreement relates,
without limitation, to the construction, the installation and the completion by the General
Contractor of the Work described in the General Contractor Agreement. The General
Contractor Agreement shall be executed by and between the Qualified Homeowner and
the General Contractor and shall be accepted, in writing, by the Contractor. The General
Contractor Agreement shall be substantially similar to the General Contractor Agreement
attached hereto and incorporated herein by this reference as "Exhibit"2".
"Grant" means and refers to a grant, now or hereafter made by the City, to the Qualified
Homeowner, to permit the Qualified Homeowner to construct, to install and/or to
complete the Grant Improvements from the use of the Grant Funds.
"Grant Application" means and refers to the application for a grant, as fully completed
and executed by the Qualified Homeowner. The Grant Application shall be submitted by
the Qualified Homeowner to the Contractor and the Contractor shall verify that the Grant
Application is complete. Each Grant Application shall contain the information relating to
the Qualified Homeowner and the proposed use of the Grant Funds by the Qualified
Homeowner together with a current preliminary report or other proof of title acceptable
to the City of the Home.
"Grant Funds" mean and refer to the grant funds disbursed, or to be disbursed, by the
City or by the Contractor, to, or for the benefit of, the Qualified Homeowner, in
connection with the Grant, to permit the Qualified Homeowner to construct, to install and
to complete the Grant Improvements.
"Grant Improvements" mean and refer to those repairs and improvements to the Home
for which the Grant Funds shall be used by or for the benefit of the Qualified
Homeowner.
"Hazardous Substances" mean and refer to any pollutant, contaminant, waste and any
toxic, carcinogenic, reactive, corrosive, ignitable, flammable or infectious chemical,
chemical compound or substance or otherwise hazardous wastes, toxic or contaminated
substances or similar materials, including, without limitation, any quantity of asbestos,
urea formaldehyde, PCBs, radon gas, lead, lead-based paint, crude oil or any fraction
thereof, all forms of natural gas, petroleum products, by-products or derivatives,
radioactive substances, methane, hydrogen sulfide or materials, pesticides, waste waters,
or sludges, any of the above of which are subject to regulation, control or remediation
under any Environmental Laws.
"Home" means and refers to the land and the single-family dwelling unit located thereon
in the Target Area within the City, owned by the Qualified Homeowner and resided in by
the Qualified Homeowner as its principal residence.
"Homeowner's Release and Waiver" means and refers to the Homeowner's Release and
Waiver, as executed by the Qualified Homeowner and the Contractor. The Homeowner's
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Release and Waiver provides, without limitation, that the Contractor shall be permitted to
display yard signs at the Qualified Homeowner's Home and that the Contractor shall be
permitted to photograph or videotape the Qualified Homeowner's Home. The
Homeowner's Release and Waiver shall be substantially similar to the Homeowner's
Release and Waiver attached hereto and incorporated herein by this reference as Exhibit
«3„
"Improvements" mean and refer to the following types of eligible improvements to the
Qualified Homeowner's Home that will be permitted under the Program: (i) roof repairs
and re-roof or overlay, (ii) exterior and interior painting, including, without limitation,
lead testing, (iii) drought tolerant landscaping (irrigation system, with hydro seeds, sod or
artificial turf), (iv) window replacement, (v) carpet replacement and/or finished flooring
replacement, (vi) HVAC system, (vii) electrical work, (viii) sewer repair or sewer
installation (the "Sewer Repairs"), (ix) termite repairs, (x) exterior concrete hardscape
such as sidewalks, driveways, curbs, gutters, hand railings or ramps, (xi) door or window
screens repairs or replacements, (xii) tub, shower, toilet repairs or replacements, (xiii)
foundation or structural repairs, (xiv) fencing or (xv) installation of alternative energy
sources, including, without limitation, solar panels. The Improvements must relate to
health and safety code violations (i.e., blown sewer lines, septic tank destruction, etc.).
In connection with each Loan Application for Sewer Repairs, the City shall have the right
to determine whether or not such Sewer Repairs shall be made from funds disbursed by
the City from Loan Funds under the Program or from grant funds disbursed by the City to
an applicant under the Single Family Beautification Grant Program, or under any other
then-existing grant program. Should the City determine that the Sewer Repairs will need
to be disbursed by the City from grant funds pursuant to the Single Family Beautification
Grant Program, or any other then-existing grant program, the Contractor shall advise the
applicant, in writing, that the applicant will need to prepare, to execute and to submit a
new grant application to the Contractor under the Single Family Beautification Grant
Program, or under any other then-existing grant program, which grant application,
without limitation, shall request the City to make a grant to the applicant to permit the
applicant to make and to complete the Sewer Repairs.
"Laws" mean and refer to all federal, state, municipal and local laws, statutes, codes,
ordinances, regulations, rules, orders or judgments, now or hereafter in effect, as
amended from time to time, including, without limitation, the Environmental Laws, all
applicable building, plumbing, mechanical, electrical and health and safety codes and
City ordinances.
"Lead Based Paint Acknowledgment" means and refers to the "Lead Based Paint
Acknowledgment of Receipt" as executed by the Qualified Homeowner and by the
General Contractor. The Lead Based Paint Acknowledgment acknowledges receipt by
the Qualified Homeowner of the Lead Based Paint Pamphlet from the General
Contractor. The Lead Based Paint Acknowledgment is attached hereto and incorporated
herein by this reference as Exhibit"4".
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"Lead Based Paint Disclosure" means and refers to the "Lead Based Paint Disclosure"by
and between the Qualified Homeowner and the General Contractor. The Lead Based
Paint Disclosure is to be executed by the General Contractor and by the Qualified
Homeowner and is attached hereto and incorporated herein by this reference as Exhibit
«5„
"Loan" means and refers to each loan transaction approved, granted and made by the City
to or for the benefit of the Qualified Homeowner in accordance with this Agreement.
Each Loan shall be evidenced by a Note and secured by a Deed of Trust encumbering the
Home owned by the Qualified Homeowner to whom the Loan has been made by the City.
Each Loan made by the City to the Qualified Homeowner may not exceed the lesser of:
(i) $30,000 or (ii) twenty-five percent (25%) of the then fair market value of the Home as
determined by a licensed appraiser approved by the City (the "Loan Amount"), without
the prior written approval of the City Manager. If necessary to bring the property to
code, funding up to$50,000 may be provided with the approval of the City Manager or
designee. The Loan shall be subordinate to the Senior Loan. The Qualified Homeowner
shall pay all amounts that exceed the Loan Funds paid by the City to or for the benefit of
the Qualified Homeowner under the Program to enable the Qualified Homeowner to
complete the Improvements in connection with the Qualified Homeowner's Home. For
each year during the term of this Agreement, the Contractor will attempt to approve,
complete, process and finalize up to twenty-two (22) Loans.
"Loan Application" means and refers to the Single Family Residence Rehabilitation Loan
Program Application as fully completed and executed by the Qualified Homeowner. The
Loan Application shall be submitted by the Qualified Homeowner to the Contractor and
the Contractor shall verify that the Loan Application is complete. Each Loan Application
shall contain the information relating to the Qualified Homeowner and the proposed use
of the Loan Funds by the Qualified Homeowner together with a current preliminary title
report or other proof of title acceptable to the City for the Home. The Contractor shall
require all Qualified Homeowners to complete the Loan Application substantially similar
to the Loan Application attached hereto and incorporated by reference as Exhibit"6."
"Loan Disbursement Account" means and refers to a separate custodial deposit account,
which the Contractor shall establish with an FDIC-insured depository institution for the
receipt and disbursement of the Loan Funds in connection with the approval, granting and
making by the City to the Qualified Homeowner of the Loan under the Program in
accordance with this Agreement. Such deposit account agreement among the Contractor,
the City and such depository institution shall be in a form and substance as reasonably
satisfactory to the City. The Contractor shall create and maintain a separate Loan
Disbursement Account for each Loan approved, granted and made by the City to or for
the benefit of each Qualified Homeowner. No other funds of the Contractor shall be
deposited or co-mingled in the Loan Disbursement Account. The Contractor shall serve
as the trustee of the City in the administration of all of the Loan Funds or deposit in each
Loan Disbursement Account, including any interest as may accrue thereon.
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"Loan Documents" mean and refer to the following: (i) the Loan Application (attached
hereto as Exhibit"6"), (ii) the Loan Services Agreement (attached hereto as Exhibit"7"),
(iii) the Maintenance Agreement Covenant (attached hereto as Exhibit "8"), (iv) the
Homeowner's Release and Waiver (attached hereto as Exhibit "3", (v) the Note (attached
hereto as Exhibit "9"), (vi) the Deed of Trust (attached hereto as Exhibit "1"), (vii) the
issuance of a title policy in favor of the City in the amount of the Loan Funds approved
by the City from a title company acceptable to the City, and (viii) this Agreement and
such other agreements, documents, instruments, guarantees and/or certifications
evidencing, securing, guaranteeing, relating to or in connection with the Loan to the
Qualified Homeowner, the Loan Funds and/or the Loan Disbursement Account. The
Loan Documents shall be subordinate to the Senior Loan Documents.
"Loan Funds" mean and refer to the funds delivered by the City to or for the benefit of a
Qualified Homeowner in connection with the Loan that the City has approved and made
to the Qualified Homeowner in accordance with this Agreement. Each Loan made by the
City to the Qualified Homeowner may not exceed the Loan Amount, without the prior
written approval of the City Manager. The Qualified Homeowner shall timely pay all
amounts that exceed the Loan Funds paid by the City to or for the benefit of the Qualified
Homeowner under the Program in order to construct, install, perform and/or complete the
Improvements in connection with the Qualified Homeowner's Home.
"Loan Services Agreement" means and refers to the Single Family Residence
Rehabilitation Loan Program Loan Services Agreement by and between the Qualified
Homeowner and the Contractor. The Loan Services Agreement, without limitation,
notifies the Qualified Homeowner that the City has made, or has agreed to make, the
Loan to the Qualified Homeowner, restates and certifies the Program qualifications and
guidelines, identifies the role of the Contractor and restates the Qualified Homeowner's
duties and responsibilities under the Program. The Loan Services Agreement must be
executed by the Qualified Homeowner and by the Contractor and must be substantially
similar to the Loan Services Agreement attached hereto and incorporated herein by this
reference as Exhibit"7".
"Low-Moderate Income Housing Funds" mean and refer to the HOME Funds that the
City intends to use to make the Loan to or for the benefit of the Qualified Homeowner in
accordance with this Agreement and HOME regulation and guidelines. The City and the
Contractor will offer the Loan to a Qualified Homeowner who earns not more than 80%
of the current annual median income for the San Bernardino County area, adjusted for
family size (as those terms are defined by U. S. Department of Housing and Urban
Development("HUD") as further illustrated in Exhibit"10" of this Agreement(the "2013
Income Limits") and are subject to annual adjustments.
"Maintenance Agreement Covenant" means and refers to the "Residential Property
Maintenance Agreement Containing Covenants Affecting Real Property (Single Family
Residence Rehabilitation Loan Program) by and between the City and the Qualified
Homeowner. The Maintenance Agreement Covenant provides, without limitation, for
maintenance-related duties and obligations to be performed and completed by the
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Qualified Homeowner in connection with the Qualified Homeowner's Home. The
Maintenance Agreement Covenant shall be executed and acknowledged by and between
the City and the Qualified Homeowner, and must be in recordable form for recordation
by the Contractor or by the City in the County Recorder's Office. The Maintenance
Agreement Covenant must be substantially similar to the Maintenance Agreement
Covenant attached hereto and incorporated herein by this reference as Exhibit"8".
"Maintenance Class" means and refers to the Maintenance Class provided by and
conducted by the Contractor pursuant to the Homebuyer Education Program Agreement,
dated as of , 2013, by and between the City and the Contractor. The Qualified
Homeowner is required to attend the Maintenance Class after the City has approved the
Loan to a Qualified Homeowner. In the Maintenance Class, the Qualified Homeowner
shall learn, without limitation, to properly maintain the Qualified Homeowner's Home
and/or the Improvements to be constructed, installed,performed and completed thereon.
"Note" means and refers to the Promissory Note Secured by Deed of Trust in the amount
of the Loan made by the City to and for the benefit of the Qualified Homeowner. The
Note shall be executed by the Qualified Homeowner and the obligations of the Note shall
be secured by the Deed of Trust. The outstanding principal balance of the Note shall
accrue simple interest at the rate of three percent (3%) per annum. No periodic payments
of principal and interest, or of interest-only shall be due and payable by the Qualified
Homeowner to the City during the term of the Note. The outstanding principal amount of
the Note, all accrued and unpaid interest and all other fees, charges and amounts due
under the Note, under the Deed of Trust and under the other Loan Documents (the "Loan
Payoff') shall be payable by the Qualified Homeowner to the City on the date that: (i)
the Qualified Homeowner is in default under the Loan Documents, subject to any
applicable cure period, (ii) the Qualified Homeowner refinances the Loan, or (iii) on the
date that the Qualified Homeowner sells, conveys or transfers the Home to an
unauthorized third person in violation of the Loan Documents; provided, however, if the
Qualified Homeowner remains the fee owner of the Home for a period of ten (10) years
from the date that the Deed of Trust is recorded in the County Recorder's Office, the
Loan shall be forgiven and discharged by the City, the City shall record a reconveyance
or release of the Deed of Trust in the County Recorder's Office and the Qualified
Homeowner shall have no further duty or obligation to pay to the City the Loan Payoff.
The Note shall be substantially similar to the Note attached hereto and incorporated
herein by this reference as Exhibit"9".
"Project" means and refers to the construction, the installation and/or the completion of
the Improvements from the use of the Loan Funds and of the Grant Improvements from
the use of the Grant Funds.
"Program" means and refers to the program created, administered and maintained by or
for the City in connection with the Loan, the disbursement by the City to the Contractor
of the Loan Funds to or for the benefit of each Qualified Homeowner in accordance with
this Agreement and the performance and completion by the Contractor of the Services.
The Contractor shall offer the Program to Qualified Homeowners in the specific Target
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Area during the term of this Agreement. The Contractor shall offer the Program on an
as-needed, first-come, first-served basis, to Qualified Homeowners in the Target Area
within the City for the term of this Agreement. However, in case of an emergency, of an
urgent need or of a life-threatening situation, the Contractor may process a Loan
Application ahead of other Loan Applications subject to the approval by the City
Manager.
"Qualified Homeowner" means and refers to a person or household (i) which owns and
occupies its Home as its principal residence within the Target Area for at least twelve
(12) continuous months preceding the date of submission of its Loan Application to the
Contractor, (ii) has a personal or household income level, adjusted for family size, during
the twelve (12) months preceding the date of submission of its Loan Application to the
Contractor within the ranges of income for low-moderate income households, adjusted
for family size, as set forth in Exhibit "10", (iii) must complete, execute and submit the
Loan Application to the Contractor, (iv) must agree to attend the Maintenance Class
conducted by the Contractor, (v) must agree to live in its Home, as its principal residence,
for not less than ten (10) years after the recordation of the Deed of Trust and the
Maintenance Agreement Covenant in the County Recorder's Office, (vi) must execute
and acknowledge, where appropriate, all Loan Documents, (vii) must agree to agree to
maintain its Home pursuant to the Maintenance Agreement Covenant for a period of ten
(10) years following the recordation of such Maintenance Agreement Covenant in the
County Recorder's Office, and (viii) who must not have received any grant or any loan
from the City for a period of ten (10) years prior to the submission by the Qualified
Homeowner to the City and/or to the Contractor of the Loan Application. On a case-by-
case basis, the City Manager of the City, in its sole and absolute discretion, may waive
this one 12-month residency requirement.
"Senior Deed of Trust" means and refers to the senior deed of trust executed and
acknowledged by the Qualified Homeowner. The Senior Deed of Trust secures the
obligations of the Senior Promissory Note and of the Senior Loan and encumbers the
Home.
"Senior Lender" means and refers to an institutional lender, including, without limitation,
any bank, savings bank, savings and loan association, insurance company, credit union or
other lender licensed to conduct business in the State of California, approved by the City
in its sole and absolute discretion and making the Senior Loan to the Qualified
Homeowner.
"Senior Loan" means and refers to the loan made by the Senior Lender to the Qualified
Homeowner. The Senior Loan is evidenced by the Senior Promissory Note and is
secured by the Senior Deed of Trust encumbering the Home owned by the Qualified
Homeowner.
"Senior Loan Documents" mean and refer to the Senior Promissory Note, the Senior
Deed of Trust and all other instruments, documents, agreements, guarantees and/or
certificates evidencing, securing, guaranteeing or relating to the Senior Loan.
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"Senior Promissory Note" means and refers to the Senior Promissory Note executed by
the Qualified Homeowner in favor of the Senior Lender. The Senior Promissory Note is
secured by the Senior Deed of Trust, which Senior Deed of Trust encumbers the Home
owned by the Qualified Homeowner.
"Services" mean and refer, without limitation, to the Program origination, the
preparation, execution and delivery of the Loan Documents, the Loan Fund disbursement
control, related accounting, Work monitor (course of construction builder contract)
services and other services to be provided by the Contractor to or for the benefit of the
City in accordance with this Agreement. The various elements of the Services are more
fully set forth in the "Scope of Services" attached hereto as Exhibit "11." For each year
of the Agreement, the Contractor will attempt to approve, complete, process and finalize
up to ten(10) Loans to Qualified Homeowners in the Target Area.
"Target Area" means and refers to the specific area, areas, neighborhood or
neighborhoods in the City, in which the City has instructed the Contractor to offer the
Program to Qualified Homeowners to better maximize the effectiveness of the Loan
Funds. In the absence of specific direction from the City Manager, the Contractor shall
offer the Program on an as-needed, first-come, first-served basis, to Qualified
Homeowners within the Target Area. However, in the case of an emergency, of an
urgent need or of a life-threatening situation, the Contractor may process a Loan
Application subject to the approval of the City Manager.
"Work" means and refers, without limitation,to the Improvements, or any part thereof,to
be constructed, installed, performed and/or completed by a state-licensed General
Contractor on or in connection with a Home pursuant to the terms, covenants and
conditions of the General Contractor Agreement. Only the Improvements and/or the
items of Work set forth in the General Contractor Agreement shall be authorized for
payment by the Contractor, up to the maximum amount authorized under the terms of the
Program for such Improvements, or any part thereof. Any costs of Improvements and/or
of Work in excess of the maximum amount of the Program (which are not the fault of
such General Contractor) shall be paid for by the Qualified Homeowner unless approved
in writing by the City Manager.
Section 2. PERFORMANCE BY CONTRACTOR AND BY CITY. The
Contractor and the City agree to perform the terms, covenants and conditions of this Agreement.
Section 3. SCOPE OF SERVICES. The Contractor agrees to provide the Services
to the City as set forth herein, as described in the Scope of Services, attached hereto as Exhibit
11. Promptly following the date of approval of this Agreement by the governing board of the
City,the Contractor,without limitation, shall or will continue to:
(A) cause the Loan Disbursement Account to be established, or maintained, and the
general form of an FDIC - insured deposit account agreement acceptable to the City to be
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fully executed by the Contractor, by the depository institution and by the City within
thirty(30) calendar days following the date of approval of this Agreement;
(B) use the general form of the Loan Application in connection with an application by
a Qualified Homeowner for the approval by the City to the Qualified Homeowner of the
Loan under the Program in accordance with this Agreement. The applicant for the Loan
must submit to the Contractor federal and state income tax returns filed by the applicant
with the appropriate taxing authorities for the past two (2) years which tax returns must
be acceptable to the Contractor in its sole and absolute discretion;
(C) subject to the completion of the tasks described in Section 3(A) and in Section
3(B) above, continue the process of receiving and reviewing Loan Applications and
provide the Services as provided for in the Agreement. The Contractor shall offer the
Program to Qualified Homeowners in the Target Area on an as-needed, first-come, first-
served basis; provided, however, in the case of an emergency, of an urgent need or of a
life-threatening situation, the Contractor may process a Loan Application ahead of other
Loan Applications subject to the approval of the City Manager;
(D) transmit a copy of a completed set of the Loan Documents to the City Manager of
the City, together with: (i) a recommendation from the Contractor to the City to approve
the Loan Application and the Loan to the Qualified Homeowner, and (ii) a request from
the Contractor to the City for a transfer of the Loan Funds by the City for the account of
the Qualified Homeowner. The City Manager shall either authorize the funding of such
Loan or reject the request for funding on behalf of the City within ten (10) business days
of receipt from the Contractor. Any rejection of a Loan Application shall be in writing
and shall state the reasons for such action. Each acceptance of a Loan Application by the
City shall be evidenced by the signature of the Executive Director of the Loan
Documents, where designated. All Loan Documents shall be executed, acknowledged,
where designated, and completed by the Qualified Homeowner and by the Contractor,
and the disbursement of Loan Funds by the City to or for the benefit of the Qualified
Homeowner shall occur within sixty (60) calendar days following the date of submission
by the Contractor to the City Manager of the funding request, or the Loan Documents
shall be of no further force or effect;
(E) no fees, charges or expenses shall be payable by any applicant to the Contractor
or to the City for a Loan, except from the Loan Funds, nor shall the Contractor charge a
Qualified Homeowner for any cost or service in connection with the origination or
subsequent administration of the Loan during the time the Improvements and/or the Work
is constructed, installed, performed and/or completed at the Home, except for the
Maintenance Class fee payable to the Contractor, or as authorized under the Program by
the City Manager;
(F) instruct the City Manager to transfer the Loan Funds for the account of each
Qualified Homeowner to the Loan Disbursement Account as set forth in Section 3(D),
above, upon confirmation by the Contractor that the Loan Documents for the Program are
executed and complete and that the Deed of Trust and the Maintenance Agreement
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Covenant (and any other documents to be recorded in the County Recorder's Office) are
ready for recordation in the County Recorder's Office. The Contractor shall coordinate
the issuance of the policy of title insurance in favor of the City by the title insurance
company with the recordation of the Deed of Trust and of the Maintenance Agreement
Covenant;
(G) deliver a fully executed and acknowledged, where designated, original set of the
Loan Documents for each Loan (except for the Deed of Trust and for the Maintenance
Agreement Covenant which documents shall be recorded by the Contractor on behalf of
the City in the County Recorder's Office)to the City upon request of funding and transfer
of the Loan Funds for the account of the Qualified Homeowner to the Loan Disbursement
Account;
(H) verify that no Loan Funds are disbursed from the Loan Disbursement Account for
the account of a Qualified Homeowner except: (i) to pay a state-licensed General
Contractor and/or state-licensed subcontractor for the Improvements and/or for the Work
constructed, installed, performed and/or completed at the Home pursuant to the General
Contractor Agreement (less a ten percent (10%) retention pending completion of the
Improvements and/or of the Work and final executed written release of all mechanics and
materials liens from the General Contractor and/or from all subcontractors). No
disbursement of the Loan Funds from the Loan Disbursement Account shall be
authorized for any building materials or equipment items which are not physically
delivered at the Home before the date of payment of such Loan Funds to the General
Contractor and/or to the subcontractor; or (ii) to pay a Loan title fee or cost amount
expressly authorized in writing by the City Manager;
(I) prepare and maintain a Loan Funds disbursement ledger for all payments
authorized and made by the Contractor to the General Contractors and/or to the
subcontractors for the account and debit to each Qualified Homeowner under each Loan
made by the City to or for the benefit of the Qualified Homeowner in accordance with
this Agreement. Such ledger shall show each payment by date and reference the
particular Loan, the Loan Documents and the name of the Qualified Homeowner to
which it corresponds. Such ledger shall also include a monthly starting and ending
balance for the Loan Disbursement Account, a final reconciliation of the adjusted balance
of each Loan upon the completion of the Improvements and/or of the Work, and such
other accounting information as the City Manager may request. A copy of such ledger
shall be submitted to the City Manager each month with the first such monthly submittal
due on the first day of the next month following the date of the initial deposit of the Loan
Funds by the Contractor and/or the City into the Loan Disbursement Account;
(J) No Improvements and/or Work shall be authorized for payment by the Contractor
unless the Loan Documents are complete and the Contractor has received a fully
executed copy of the General Contractor Agreement by and between the General
Contractor and the Qualified Homeowner. Once the Improvements and/or the Work has
commenced on a particular Home, neither the Qualified Homeowner, the General
Contractor nor the subcontractor shall authorize an amendment or modification of such
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contract to include any item of Work, which is not eligible for payment using the Loan
Funds under the terms and conditions of the Loan under the Program. Each such contract
by and between the General Contractor and the Qualified Homeowner, the General
Contractor and the subcontractor, and/or the subcontractor and the Qualified Homeowner
shall include a section, which recites the words of the first two (2) sentences of this
Section 3(J).
(K) Contractor at its expense shall provide a dedicated and trained staff member to
administer the Services and the Program described in this Agreement for a minimum of 2
working days per week for the term of this Agreement; such staff member shall be
located in an City-designated and supplied work area.
(L) The Contractor represents, warrants and covenants that the Contractor shall
reserve membership on the Contractor's board of directors to one(1) or more individuals
who reside in the City of San Bernardino, County of San Bernardino, State of California,
as required by applicable Laws, City, or as necessary, for the term of this Agreement.
Section 4. TIME OF PERFORMANCE OF SERVICES. The Services to be
performed hereunder by the Contractor shall be undertaken and completed in such sequence as to
assure expeditious completion and to best carry out the purposes of the Program and this
Agreement. All Services required hereunder shall begin upon the execution of this Agreement.
Section 5. TERM OF AGREEMENT. This Agreement shall take effect upon the
approval by the governing board of the City and the complete execution by the parties (the
"Effective Date"). The Agreement shall remain in effect through June 30, 2016, subject to
annual approval by the City in its sole discretion and the appropriation by the United States
Department of Housing and Urban Development("HUD").
Section 6. COMPENSATION PAYABLE BY CITY TO CONTRACTOR.
(A) The City shall annually compensate the Contractor for the performance of the
Services using the HOME Funds in accordance with the following schedule:
$70,000 Annual Program Administration Fee for
Contractor
$630,000 Single Family Residence Rehabilitation Loan
Program
$700,000 Total
(B) From and after the Effective Date of this Agreement, unless otherwise
revised by City, the Program Administration Fee payable by City to the Contractor as
compensation for Services performed by the Contractor under this Agreement shall be
paid directly to the Contractor upon receipt by City of a corrected invoice. City shall pay
to the Contractor the correct amount identified on the invoice within thirty (30) calendar
days after the receipt by City. The Program Administration Fee under this Agreement and
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shall not exceed Seventy Thousand Dollars ($70,000) in the aggregate, for any given
year, payable in twelve (12) equal monthly installments of$5,833.33 during the term of
this Agreement.
(C) Notwithstanding the foregoing, in the event the Contractor exceeds twenty -two
(22) Loans in any given year, additional Loan Funds will need to be procured in order to fund
any additional Loans made by the Contractor under this Agreement. The City will exercise its
reasonable efforts to amend this Agreement, in writing, and to obtain additional Loan Funds to
fund additional Loans, in excess of twenty-two (22) Loans, by the Contractor for that year. The
City makes no warranty, no representation and no covenant to the Contractor that the City will
be able to obtain any additional Loan Funds to fund any additional Loans under this Agreement.
Section 7. PERSONNEL OF CONTRACTOR. The Contractor represents that it
has, or will secure at its own expense, all personnel required to perform the Services. All of the
Services required hereunder will be performed by persons who are either employed by or under
the supervision and control of the Contractor, and all personnel engaged in the Services shall be
fully competent and qualified to perform such Services.
Section 8. INDEPENDENT CONTRACTOR. All acts of the Contractor and all
others acting on behalf of the Contractor relating to the performance of this Agreement, shall be
performed as independent contractors and not as agents, officers, or employees of the City. The
Contractor has no authority to bind or incur any obligation on behalf of the City. The Contractor
has no authority or responsibility to exercise any right or power vested in the City. No agent,
officer, or employee of the City shall be considered an agent or employee of the Contractor. It is
understood by both the Contractor and the City that this Agreement shall not under any
circumstance be construed or considered to create an employer-employee relationship or a joint
venture as between the Contractor and the City. The Contractor is and at all times during the
Term of this Agreement shall represent and conduct itself as an independent contractor and not
as an agent or employee of the City. The Contractor shall be responsible to the City only for the
requirements and results specified in this Agreement, and except as expressly provided in this
Agreement, shall not be subject to control by the City with respect to the physical action or
activities of the Contractor in fulfillment of this Agreement. The Contractor has control over the
manner and means of performing the Services under this Agreement so long as consistent with
the requirements of the Program. The Contractor is permitted to provide services to others
during the same period Services are provided to the City under this Agreement. If necessary,the
Contractor has the responsibility for employing other persons or firms to assist the Contractor in
fulfilling the terms and obligations under this Agreement. If in the performance of this
Agreement any third persons are retained as subcontractors by the Contractor, such persons shall
be entirely and exclusively under the direction, supervision, and control of the Contractor. All
terms of employment including hours, wages, working conditions, discipline, hiring, and
discharging or any other term of employment or requirements of law shall be determined by the
Contractor. The Contractor hereby agrees to indemnify, defend (if requested by City), protect
and hold the City harmless from any and all claims that may be made against the City or based
upon any contention by any employee of the Contractor or by any third party that an employer-
employee relationship or joint venture exists between any person or entity and the City, by
reason of the performance of any of the Services under this Agreement.
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Section 9. PAYMENT OF AND TRANSFER OF LOAN FUNDS TO LOAN
DISBURSEMENT ACCOUNT., The City shall promptly honor each request by the Contractor
for the City to transfer Loan Funds to the Contractor who will in turn deposit the Loan Funds to
the Loan Disbursement Account to fund each approved Loan as submitted by the Contractor to
the City under Section 3(D). Within sixty (60) calendar days following receipt of each request
for remittance of the Loan Funds, the City shall transfer by bank check to the Contractor such
Loan Funds to use as provided herein.
Section 10. COMMERCIAL GENERAL LIABILITY INSURANCE,
AUTOMOBILE INSURANCE, WORKERS' COMPENSATION INSURANCE,
EMPLOYER'S LIABILITY INSURANCE, ERRORS AND OMISSIONS AND
PROFESSIONAL LIABILITY INSURANCE.
(A) The Contractor shall obtain and keep in force during the term of this Agreement,
at its sole cost and expense, the following insurance policies: (i) a commercial general liability
policy of insurance with coverage at least as broad as "Insurance Services Office Commercial
General Liability Form (G0001)", in the amount of One Million Dollars ($1,000,000) combined
single limit per occurrence, naming the City and the City and the elected officials, officers,
employees, attorneys and agents of each of them as additional insureds (collectively, the
"Additional Insureds") with said insurance covering comprehensive general liability including,
but not limited to, contractual liability, assumed contractual liability under this Agreement, acts
of subcontractors, premises-operations, explosion, collapse and underground hazards, if
applicable, broad form property damage, and personal injury including libel, slander and false
arrest, (ii) comprehensive automobile liability insurance covering owned, non-owned and hired
vehicles by or for the Contractor, combined single limit in the amount of One Million Dollars
($1,000,000) per occurrence, naming the Additional Insureds as additional insureds on each
automobile insurance policy, (iii) workers' compensation insurance in such insurance coverage
amounts as statutorily required, or similar insurance in form and amounts required by law, and
employer's liability insurance, combined single limit in the amount of One Million Dollars
($1,000,000), and (iv) errors and omissions and professional liability, combined single limit in
the amount of One Million Dollars ($1,000,000) per occurrence.
(B) Any and all insurance policies required hereunder shall be obtained from
insurance companies admitted in the State of California and rated at least A: XII in the most
current Best's Key Rating Insurance Guide. In no event shall the Contractor be permitted or
entitled to assign to any third party rights of action, which the Contractor may have against the
City. All said insurance policies shall provide that they may not be canceled unless the City
receive written notice of cancellation at least thirty (30) calendar days prior to the effective date
of cancellation. Any and all insurance obtained by the Contractor shall be primary to and shall
not be contributing with any insurance carried by the City or by the City whose insurance shall
be considered excess insurance only. Any insurance which the City and/or City may otherwise
carry, including self insurance, for all purposes of this Agreement shall be separate and apart
from the requirements of this Agreement. Legal counsel for the City must approve each
insurance policy required in Section 10(A) of this Agreement. The Contractor waives
subrogation and agrees that the Contractor, the City are co-insured. The insurer shall have no
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right of subrogation, against the City or against any of the other Additional Insureds. The
Additional Insureds shall be named as additional insureds on each insurance policy.
(C) All insurance which the Contractor shall carry or maintain pursuant to this Section
10 shall be in such form, for such amounts, for such periods of time as the City may require or
approve.
(D) The Contractor shall deliver or cause to be delivered to the City concurrently
upon the execution of this Agreement an endorsement of the insurance policies required in this
Section 10(A) of this Agreement evidencing the existence of the insurance coverage required by
the City under Section 10(A) of this Agreement and shall also deliver, no later than thirty (30)
calendar days prior to the expiration of any insurance policy, a certificate of insurance
evidencing each renewal policy covering the same risks. The City may request the Contractor to
provide, and the Contractor shall immediately provide, additional or greater insurance, in such
amounts and with such deductibles as reasonably determined by the City, at the cost and expense
of the Contractor.
Section 11. INDEMNIFICATION.
(A) The Contractor agrees to indemnify, defend with legal counsel reasonably
acceptable to the City, protect and hold the City and their respective elected officials, directors,
officers, members, managers, consultants, contractors, employees, agents and attorneys, and the
successors and assigns of each of them (singularly and collectively, the "Indemnified Parties"
which defined term shall also includes the City), harmless from and against all actions, causes of
action, claims, demands, liabilities, damages, losses, liabilities, obligations, judgments, suits,
costs, expenses and fees (including, without limitation, reasonable attorneys' fees, court costs
and expert fees of any nature whatsoever), now or hereafter arising from or related to: (i) any act
or omission of the Contractor and/or of any of the Contractor's directors, officers, members,
managers, consultants, contractors, subcontractors, materialmen, laborers, any other person or
entity furnishing or supplying work, services, goods, or supplies in connection with the
performance of this Agreement, employees and agents, and the successors and/or assigns of each
of them (singularly and collectively, the "Indemnifying Parties" which defined term shall also
include the Contractor), in performing, or failing to perform, its obligations hereunder, (ii) any
default by the Contractor under this Agreement, subject to any applicable cure period, (iii) any
violation by any of the Indemnifying Parties of any Laws, (iv) any warranty or representation
made by the Contractor to the City in this Agreement that is or becomes false and untrue, (v)
death, bodily injury and/or personal injury to any person, (vi) any destruction, loss or damage to
real property or personal property, (vii) the presence of any Hazardous Substances at, on, in,
above, under or about any Home owned by a Qualified Homeowner resulting, directly or
indirectly, from the acts or omissions of any Indemnifying Parties, and/or (viii) the aggravation
of any environmental condition by any Indemnifying Parties at, on, in, above, under or about any
Home owned by a Qualified Homeowner. Without limiting the Contractor's indemnification of
the Indemnified Parties, the Contractor shall provide and maintain, at its sole cost and expense
during the term of this Agreement, the insurance described in Section 10(A) of this Agreement.
Such insurance shall be provided by insurer(s) satisfactory to the City and evidence of such
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insurance satisfactory to the City shall be delivered to the City Manager no later than the
effective date of this Agreement.
(B) The City shall indemnify, defend (if requested by the Contractor) and hold
harmless the Contractor, its agents, officers, and employees, from all claims, loss, demands and
liability for damages for personal injury, bodily injury or property damage suffered by reason of
any act or omission of the City or any of its officers or employees or agents under this
Agreement except where such action or omission giving rise to such a claim is caused by or is
the result of an action, omission or request of the Contractor and/or of any of the other
Indemnifying Parties, or is alleged to arise out of the execution of this Agreement. The
provisions of Section 11(A) and Section 11(B) shall survive the execution, delivery,
performance, expiration or early termination of this Agreement.
Section 12. DEFAULTS AND BREACH - GENERAL. The failure or delay by
either party to perform any material term or provision of this Agreement shall constitute a default
hereunder; provided, however, that if the party who is otherwise claimed to be in default by the
other party commences to cure, correct or remedy the alleged default within thirty (30) calendar
days after receipt of written notice specifying such default and shall diligently complete such
cure, correction or remedy, such party shall not be deemed to be in default hereunder. A default
shall also occur under this Agreement whenever a representation and/or warranty made in this
Agreement is or becomes false or untrue. A default shall also occur under this Agreement
whenever a party files, or has filed against it, a petition in bankruptcy, is or becomes insolvent, is
unable to pay its debts as they mature, assigns its assets for the benefit of creditors, or a receiver,
trustee or custodian is appointed by a court to exercise control over all or substantially all of the
assets of the party and such receiver, trustee or custodian is not discharged by the court within
sixty (60) calendar days after said appointment date. The party which may claim that a default
has occurred shall give written notice of default to the party in default specifying the alleged
default. Delay in giving such notice shall not constitute a waiver of any default nor shall it
change the time of default; provided, however, the injured party shall have no right to exercise
any remedy for a default hereunder without delivering the written default notice as specified
herein. Any failure or delay by a party in asserting any of its rights and remedies as to any
default shall not operate as a waiver of any default or of any rights or remedies associated with a
default, and the rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party. In the event that a default of either party may remain uncured for more than thirty
(30) calendar days following written notice, as provided above, a "breach" shall be deemed to
have occurred. In the event of a breach, the party who is not in default shall be entitled to
terminate this Agreement and seek any appropriate remedy or damages by initiating legal
proceedings. If any action or proceeding is brought to enforce the terms hereof or declare rights
hereunder, it shall be brought in the Superior Court of the County of San Bernardino, San
Bernardino District, State of California. The governing law to be applied in any such action or
proceeding shall be the law of the State of California. The prevailing party in any such legal
proceedings shall be entitled to recover as an element of its costs of bringing such suit, and not as
part of its damages, its reasonable attorneys' fees, court costs, expert witness fees and consultant
fees and costs. The costs, salary and expenses of the City Attorney and members of his office in
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such action or proceeding on behalf of the City shall be considered as "attorneys' fees" for
purposes of this Section.
Section 13. NONDISCRIMINATION. During the Contractor's performance of the
Services, the Contractor shall not discriminate on the grounds of race, religion, creed, color,
national origin, age, ancestry, physical handicap, medical condition, marital status, sex, or sexual
orientation in the performance of the Services, including, without limitation, in the selection and
retention of employees, General Contractors and subcontractors and the procurement of materials
and equipment, except as provided in Section 12940 of the California Government Code.
Section 14. CONFLICT OF INTEREST. The Contractor warrants, by execution of
this Agreement, that it has no interest, present or contemplated, in the Program or in any Home
benefited thereby or Work performed on any Home using the Loan and the Loan Funds. The
Contractor further warrants that it owns or possesses no interest in real property, business
interests or owner of income (other than such amounts of compensation payable by the City to
the Contractor for the Services under this Agreement) that will be affected by the Program or,
alternatively, if such interest exists or arises the Contractor will promptly file with the City an
affidavit disclosing any such interest.
Section 15. AMENDMENTS. All amendments to this Agreement shall be subject to
the approval of both parties in the sole discretion of each of them, mutual and in writing. The
City Manager of the City is authorized to make non-substantive changes, clarifications,
corrections to the Agreement, including budget line item adjustments, provided such actions are
approved by legal counsel for the City and do not increase the City's monetary annual
appropriation to the Contractor as approved by the governing board of the City.
Section 16. TERMINATION.
(A) This Agreement may be terminated for any reason by either party who is not then
in default upon ten (10) calendar days prior written notice to the other party. In such event, the
Contractor shall be entitled to receive compensation for Services pro-rated through the date of
such termination, provided that the Services have been rendered.
(B) In the event of a termination of the Agreement as a result of a breach, the rights
and duties of the parties shall be as set forth in Section 12.
(C) In the event of any termination of this Agreement, the Contractor shall promptly
return all Loan Funds that have been disbursed by the City to the Contractor with the exception
of any Loan Funds that have been properly disbursed by the Contractor to or for the benefit of
one or more Qualified Homeowners under this Agreement, without charge or expense to the
City.
Section 17. ASSIGNMENT., It is mutually understood and agreed that this
Agreement shall be binding upon the City and its successors and assigns and upon the Contractor
and its successors and assigns. The City may assign this Agreement, without obtaining the prior
consent or approval of the Contractor. The Contractor may not assign this Agreement without
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obtaining the prior written consent of the City, which written consent may be given or withheld
by the City in its sole and absolute discretion. Any assignment or attempt to assign this
Agreement by the Contractor shall be void.
Section 18. NOTICES., Communications, notices, bills, invoices or reports required
by this Agreement shall be in writing and shall be deemed to have been given when actually
delivered, if given by hand delivery or transmitted by overnight courier service, or if mailed,
three (3) business days after being deposited in the United States mail, postage prepaid, to the
address noted below:
City. Contractor
City of San Bernardino Riverside Housing Development
Attention: City Manager Corporation dba Inland Housing
300 North D Street, 6t Floor Development Corporation
San Bernardino, California 92401 Attention: Director
Phone: (909) 663-1044 4250 Brockton Ave
Fax: (909) 888-9413 Riverside, California 92501
Phone: (951) 341-0170
Fax: (951) 341-0171
Either party may change its address for receipt of written notice by notifying the other
party in writing of a new address for delivering notice to such party.
Section 19. REPRESENTATION AND WARRANTY OF CONTRACTOR. The
Contractor hereby represents and warrants to the City as follows:
(A) The Contractor is a California nonprofit corporation duly organized, existing, and
authorized to transact business in California;
(B) the corporate charter and by-laws of the Contractor authorize the Contractor to
provide the Services to the City and the governing board and membership of the Contractor have
previously taken all action necessary to authorize the execution of this Agreement by the
Contractor;
(C) the Contractor is qualified to perform the Services and shall timely perform and
complete the Services in a professional manner.
Section 20. LOAN FUNDS AND LOAN DOCUMENTS ARE THE PROPERTY
OF THE CITY. The Loan Documents for each Loan are the property and asset of the City.
The Contractor has no property interest in any such Loan Documents and the Contractor shall
not transfer, assign or pledge as collateral or claim any other security interest in any such Loan
Documents. All of the Loan Documents are the property of the City, and the Contractor shall
maintain all such Loan Documents in its possession as confidential consumer business records of
the Qualified Homeowner. All Loan Funds disbursed by the City to the Contractor for the
benefit of a Qualified Homeowner are the property of the City until paid by the Contractor to the
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General Contractor upon the completion of the Work at the Home for the account of the
Qualified Homeowner under the applicable Loan Documents.
Section 21. NON-ELIGIBILITY OF HOMEOWNER. The Qualified Homeowner must file a
Loan Application and a Grant Application with the Contractor should the Qualified Homeowner
intend to construct, to install and/or to complete the Project with both the Loan Funds and with
the Grant Funds. Once the City: (i) has approved the Loan Application for the Qualified
Homeowner and has disbursed the Loan Funds to the Contactor for the benefit of the Qualified
Homeowner under this Agreement, and (ii) has approved the Grant Application for the Qualified
Homeowner and has disbursed the Grant Funds to the Contractor for the benefit of the Qualified
Homeowner, or has rejected the Grant Application, the Qualified Homeowner now or hereafter
shall have no right to apply for and to receive any other loan or grant being offered by the City to
the general public under any loan or grant program, including, without limitation, any grant
being offered by the City under the Mobile Home Grant Program Agreement, or any other loan,
until ten (10) years after the date that the Contractor has paid the last installment of the Loan to
the City for the benefit of the Qualified Homeowner under this Agreement and until ten (10)
years after the date that the City has been paid the last of the Grant Funds to the Contractor for
the benefit of the Qualified Homeowner under this Agreement, if applicable. Further, if the
Qualified Homeowner files only a Loan Application with the Contractor and the Loan
Application is approved by the City, the Qualified Homeowner will have no right now or
hereafter to apply for and to receive any loan or grant offered by the City until ten (10) years
after the date that the Contractor has paid the Loan in full.
Section 22. GENERAL PROVISIONS., This Agreement constitutes the sole
agreement between the parties. All prior conversations, agreements or representations relating
hereto are integrated in this Agreement. No oral agreement, representation or warranty shall be
binding upon the parties. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions of this
Agreement shall not in any way be affected or impaired thereby. Failure of any party to enforce
any provision of this Agreement shall not constitute a waiver of the right to compel enforcement
of the same provision or any remaining provisions of this Agreement. Headings at the beginning
of each section or subsection are solely for the convenience of the parties and are not a part of
this Agreement. Whenever required by the context of this Agreement, the singular shall include
the plural and the masculine shall include the feminine and vice versa. This Agreement shall not
be construed as if it had been prepared by one of the parties, but rather as if all parties had
prepared the same. Unless otherwise indicated, all references to sections are to this Agreement.
All exhibits referred to in this Agreement are attached hereto and incorporated herein by this
reference. If the date on which any action is required to be performed under the terms of this
Agreement is not a business day, the action shall be taken on the next succeeding business day.
This Agreement may be executed in one or more counterparts each of which shall be an original
but all of which together shall constitute but one original Agreement. This Agreement may be
executed by facsimile signatures, and each facsimile counterpart when taken together shall be
deemed an original Agreement.
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IN WITNESS WHEREOF,the Contractor and the City have caused this Agreement to be
duly executed on the date first above written.
CITY
City of San Bernardino,
a municipal corporation
Dated: By:
Allen Parker, City Manager
Approved as to Form:
JAMES F. PENMAN, City Attorney
By:
CONTRACTOR
Riverside Housing Development Corporation dba
Inland Housing Development Corporation,
a California non-profit corporation
Date: By:
Name:
Title:
Date: By:
Name:
Title:
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EXHIBIT Ai
CITY OF SAN BERNARDINO
SINGLE FAMILY RESIDENCE REHABILITATION LOAN PROGRAM HOME
SUBRECIPIENT AGREEMENT
THIS SINGLE FAMILY RESIDENCE REHABILITATION LOAN PROGRAM HOME
SUBRECIPIENT AGREEMENT (the "Agreement") is made and entered into this 15th day of
July, 2013 (the "Effective Date"), by and between the RIVERSIDE HOUSING
DEVELOPMENT CORPORATION, dba INLAND HOUSING DEVELOPMENT
CORPORATION, a California non-profit corporation (the "Contractor") and the CITY OF SAN
BERNARDINO (the "City"), a municipal corporation. The City and the Contractor agree as
follows:
RECITALS
WHEREAS, the City administers a single family residence rehabilitation loan program
which loans funds (the "Rehabilitation Loan Program") to low-moderate income homeowners
who reside in the City of San Bernardino (the "City"), in the County of San Bernardino (the
"County"), in the State of California (the "State") to permit such homeowners to undertake
certain housing rehabilitation and correction work, including, without limitation, asbestos and
lead containing materials abatement work, handicap accessibility improvements and utility
energy improvements to single family residential dwelling units owned and occupied by such
low-moderate homeowners; and
WHEREAS, the City desires to execute a three (3) year agreement with the Contractor,
renewable annually by the City in its sole discretion and subject to the appropriation by the
United States Department of Housing and Urban Development("HUD"); and
WHEREAS, the City desires to allocate an amount not to exceed the sum of Seven
Hundred Thousand Dollars ($700,000) annually of HOME Partnership Act Funds, in accordance
with the terms, the covenants and the conditions of this Agreement, which amount may be
increased by the City in the event the minimum number of required Loans is exceeded by the
Contractor for any given year; and
WHEREAS, the Rehabilitation Loan Program promotes and expands the supply of
affordable housing in the City and fosters the elimination and prevention of blight; and
NOW, THEREFORE, IN CONSIDERATION OF THE RECITALS MENTIONED
ABOVE, THE MUTUAL PROMISES OF THE CITY AND OF THE CONTRACTOR IN THIS
AGREEMENT AND FOR OTHER GOOD AND VALUABLE CONSIDERATION, THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED BY THE
CITY AND BY THE CONTRACTOR, THE CITY AND THE CONTRACTOR AGREE AS
FOLLOWS:
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r '
Section 1. DEFINITIONS OF CERTAIN TERMS. In addition to the words and
phrases, which are defined in the Recitals of this Agreement and/or in this Agreement, the
following words and terms shall have the meaning set forth below:
"County Recorder's Office" means and refers to the County Recorder's Office for the
County of San Bernardino, State of California.
"Deed of Trust" means and refers to the Deed of Trust and Assignment of Rents securing
the obligations of the Note and encumbering the Home. The Deed of Trust must be
executed and acknowledged by the Qualified Homeowner and shall be recorded by or for
the City in the County Recorder's Office. The Deed of Trust shall be subordinate to the
Senior Deed of Trust. The Deed of Trust must be substantially similar to the Deed of
Trust attached hereto and incorporated herein by this reference as Exhibit"1".
"Environmental Laws" mean and refer to all applicable federal, state, municipal and local
laws, statutes, codes, ordinances, rules, regulations, orders and judgments relating to the
protection or clean-up of the environment, the use, treatment, storage, transportation,
generation, manufacture, processing, distribution, handling or disposal of, or emission,
discharge or other release or threatened release of hazardous substances, the preservation
or protection of waterways, groundwater, drinking water, air, wildlife, plants or other
natural resources, the health and safety of persons, or the protection of the health and
safety of employees, now or hereafter existing, as the same may be amended, modified or
supplemented from time to time, including, without limitation: the Clean Air Act, as
amended, 42 U.S.C. Section 7401 et seq.; the Federal Water Pollution Control Act, as
amended, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act
of 1976, as amended, 42 U.S.C. Section 6901 et seq.; the Comprehensive Environment
Response, Compensation and Liability Act of 1980, as amended (including the Superfund
Amendments and Reauthorization Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 et
seq.; the Toxic Substances Control Act, as amended, 15 U.S.C. Section 2601 et seq.; the
Occupational Safety and Health Act, as amended, 29 U.S.C. Section 651, the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.;
the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; the California
Health and Safety Code (Section 25100 et seq., § 25249.5 et seq., Section 39000 et seq.);
the California Water Code (Section 13000 et seq.); the California Environmental Quality
Act ("CEQA"); the California Public Resources Code; all comparable state and local
laws, laws of other jurisdictions or orders and regulations; and any and all common law
requirements, rules and bases of liability regulating, relating to or imposing liability or
standards of conduct concerning pollution or protection of human health or the
environment, as now or may at any time hereafter be in effect.
"City Manager" means and refers to the City Manager of the City and his or her
authorized representatives.
"General Contractor Agreement" means and refers to the Single Family Residence
Rehabilitation Loan Program General Contractor Agreement by and between the
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Qualified Homeowner and the contractor identified therein (the "General Contractor") as
approved, in writing, by the Contractor. The General Contractor Agreement relates,
without limitation, to the construction, the installation and the completion by the General
Contractor of the Work described in the General Contractor Agreement. The General
Contractor Agreement shall be executed by and between the Qualified Homeowner and
the General Contractor and shall be accepted, in writing, by the Contractor. The General
Contractor Agreement shall be substantially similar to the General Contractor Agreement
attached hereto and incorporated herein by this reference as "Exhibit"2".
"Grant" means and refers to a grant, now or hereafter made by the City, to the Qualified
Homeowner, to permit the Qualified Homeowner to construct, to install and/or to
complete the Grant Improvements from the use of the Grant Funds.
"Grant Application" means and refers to the application for a grant, as fully completed
and executed by the Qualified Homeowner. The Grant Application shall be submitted by
the Qualified Homeowner to the Contractor and the Contractor shall verify that the Grant
Application is complete. Each Grant Application shall contain the information relating to
the Qualified Homeowner and the proposed use of the Grant Funds by the Qualified
Homeowner together with a current preliminary report or other proof of title acceptable
to the City of the Home.
"Grant Funds" mean and refer to the grant funds disbursed, or to be disbursed, by the
City or by the Contractor, to, or for the benefit of, the Qualified Homeowner, in
connection with the Grant, to permit the Qualified Homeowner to construct, to install and
to complete the Grant Improvements.
"Grant Improvements" mean and refer to those repairs and improvements to the Home
for which the Grant Funds shall be used by or for the benefit of the Qualified
Homeowner.
"Hazardous Substances" mean and refer to any pollutant, contaminant, waste and any
toxic, carcinogenic, reactive, corrosive, ignitable, flammable or infectious chemical,
chemical compound or substance or otherwise hazardous wastes, toxic or contaminated
substances or similar materials, including, without limitation, any quantity of asbestos,
urea formaldehyde, PCBs, radon gas, lead, lead-based paint, crude oil or any fraction
thereof, all forms of natural gas, petroleum products, by-products or derivatives,
radioactive substances, methane, hydrogen sulfide or materials, pesticides, waste waters,
or sludges, any of the above of which are subject to regulation, control or remediation
under any Environmental Laws.
"Home" means and refers to the land and the single-family dwelling unit located thereon
in the Target Area within the City, owned by the Qualified Homeowner and resided in by
the Qualified Homeowner as its principal residence.
"Homeowner's Release and Waiver" means and refers to the Homeowner's Release and
Waiver, as executed by the Qualified Homeowner and the Contractor. The Homeowner's
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Release and Waiver provides, without limitation, that the Contractor shall be permitted to
display yard signs at the Qualified Homeowner's Home and that the Contractor shall be
permitted to photograph or videotape the Qualified Homeowner's Home. The
Homeowner's Release and Waiver shall be substantially similar to the Homeowner's
Release and Waiver attached hereto and incorporated herein by this reference as Exhibit
"Improvements" mean and refer to the following types of eligible improvements to the
Qualified Homeowner's Home that will be permitted under the Program: (i) roof repairs
and re-roof or overlay, (ii) exterior and interior painting, including, without limitation,
lead testing, (iii) drought tolerant landscaping (irrigation system, with hydro seeds, sod or
artificial turf), (iv) window replacement, (v) carpet replacement and/or finished flooring
replacement, (vi) HVAC system, (vii) electrical work, (viii) sewer repair or sewer
installation (the "Sewer Repairs"), (ix) termite repairs, (x) exterior concrete hardscape
such as sidewalks, driveways, curbs, gutters, hand railings or ramps, (xi) door or window
screens repairs or replacements, (xii) tub, shower, toilet repairs or replacements, (xiii)
foundation or structural repairs, (xiv) fencing or (xv) installation of alternative energy
sources, including, without limitation, solar panels. The Improvements must relate to
health and safety code violations (i.e., blown sewer lines, septic tank destruction, etc.).
In connection with each Loan Application for Sewer Repairs, the City shall have the right
to determine whether or not such Sewer Repairs shall be made from funds disbursed by
the City from Loan Funds under the Program or from grant funds disbursed by the City to
an applicant under the Single Family Beautification Grant Program, or under any other
then-existing grant program. Should the City determine that the Sewer Repairs will need
to be disbursed by the City from grant funds pursuant to the Single Family Beautification
Grant Program, or any other then-existing grant program, the Contractor shall advise the
applicant, in writing, that the applicant will need to prepare, to execute and to submit a
new grant application to the Contractor under the Single Family Beautification Grant
Program, or under any other then-existing grant program, which grant application,
without limitation, shall request the City to make a grant to the applicant to permit the
applicant to make and to complete the Sewer Repairs.
"Laws" mean and refer to all federal, state, municipal and local laws, statutes, codes,
ordinances, regulations, rules, orders or judgments, now or hereafter in effect, as
amended from time to time, including, without limitation, the Environmental Laws, all
applicable building, plumbing, mechanical, electrical and health and safety codes and
City ordinances.
"Lead Based Paint Acknowledgment" means and refers to the "Lead Based Paint
Acknowledgment of Receipt" as executed by the Qualified Homeowner and by the
General Contractor. The Lead Based Paint Acknowledgment acknowledges receipt by
the Qualified Homeowner of the Lead Based Paint Pamphlet from the General
Contractor. The Lead Based Paint Acknowledgment is attached hereto and incorporated
herein by this reference as Exhibit"4".
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"Lead Based Paint Disclosure" means and refers to the "Lead Based Paint Disclosure"by
and between the Qualified Homeowner and the General Contractor. The Lead Based
Paint Disclosure is to be executed by the General Contractor and by the Qualified
Homeowner and is attached hereto and incorporated herein by this reference as Exhibit
44513
"Loan" means and refers to each loan transaction approved, granted and made by the City
to or for the benefit of the Qualified Homeowner in accordance with this Agreement.
Each Loan shall be evidenced by a Note and secured by a Deed of Trust encumbering the
Home owned by the Qualified Homeowner to whom the Loan has been made by the City.
Each Loan made by the City to the Qualified Homeowner may not exceed the lesser of:
(i) $30,000 or (ii) twenty-five percent (25%) of the then fair market value of the Home as
determined by a licensed appraiser approved by the City (the "Loan Amount"), without
the prior written approval of the City Manager. If necessary to bring the property to
code, funding up to$50,000 may be provided with the approval of the City Manager or
designee. The Loan shall be subordinate to the Senior Loan. The Qualified Homeowner
shall pay all amounts that exceed the Loan Funds paid by the City to or for the benefit of
the Qualified Homeowner under the Program to enable the Qualified Homeowner to
complete the Improvements in connection with the Qualified Homeowner's Home. For
each year during the term of this Agreement, the Contractor will attempt to approve,
complete,process and finalize up to twenty-two (22) Loans.
"Loan Application" means and refers to the Single Family Residence Rehabilitation Loan
Program Application as fully completed and executed by the Qualified Homeowner. The
Loan Application shall be submitted by the Qualified Homeowner to the Contractor and
the Contractor shall verify that the Loan Application is complete. Each Loan Application
shall contain the information relating to the Qualified Homeowner and the proposed use
of the Loan Funds by the Qualified Homeowner together with a current preliminary title
report or other proof of title acceptable to the City for the Home. The Contractor shall
require all Qualified Homeowners to complete the Loan Application substantially similar
to the Loan Application attached hereto and incorporated by reference as Exhibit"6."
"Loan Disbursement Account" means and refers to a separate custodial deposit account,
which the Contractor shall establish with an FDIC-insured depository institution for the
receipt and disbursement of the Loan Funds in connection with the approval, granting and
making by the City to the Qualified Homeowner of the Loan under the Program in
accordance with this Agreement. Such deposit account agreement among the Contractor,
the City and such depository institution shall be in a form and substance as reasonably
satisfactory to the City. The Contractor shall create and maintain a separate Loan
Disbursement Account for each Loan approved, granted and made by the City to or for
the benefit of each Qualified Homeowner. No other funds of the Contractor shall be
deposited or co-mingled in the Loan Disbursement Account. The Contractor shall serve
as the trustee of the City in the administration of all of the Loan Funds or deposit in each
Loan Disbursement Account, including any interest as may accrue thereon.
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"Loan Documents" mean and refer to the following: (i) the Loan Application (attached
hereto as Exhibit "6"), (ii) the Loan Services Agreement (attached hereto as Exhibit "7"),
(iii) the Maintenance Agreement Covenant (attached hereto as Exhibit "8"), (iv) the
Homeowner's Release and Waiver (attached hereto as Exhibit"3", (v) the Note (attached
hereto as Exhibit "9"), (vi) the Deed of Trust (attached hereto as Exhibit "1"), (vii) the
issuance of a title policy in favor of the City in the amount of the Loan Funds approved
by the City from a title company acceptable to the City, and (viii) this Agreement and
such other agreements, documents, instruments, guarantees and/or certifications
evidencing, securing, guaranteeing, relating to or in connection with the Loan to the
Qualified Homeowner, the Loan Funds and/or the Loan Disbursement Account. The
Loan Documents shall be subordinate to the Senior Loan Documents.
"Loan Funds" mean and refer to the funds delivered by the City to or for the benefit of a
Qualified Homeowner in connection with the Loan that the City has approved and made
to the Qualified Homeowner in accordance with this Agreement. Each Loan made by the
City to the Qualified Homeowner may not exceed the Loan Amount, without the prior
written approval of the City Manager. The Qualified Homeowner shall timely pay all
amounts that exceed the Loan Funds paid by the City to or for the benefit of the Qualified
Homeowner under the Program in order to construct, install, perform and/or complete the
Improvements in connection with the Qualified Homeowner's Home.
"Loan Services Agreement" means and refers to the Single Family Residence
Rehabilitation Loan Program Loan Services Agreement by and between the Qualified
Homeowner and the Contractor. The Loan Services Agreement, without limitation,
notifies the Qualified Homeowner that the City has made, or has agreed to make, the
Loan to the Qualified Homeowner, restates and certifies the Program qualifications and
guidelines, identifies the role of the Contractor and restates the Qualified Homeowner's
duties and responsibilities under the Program. The Loan Services Agreement must be
executed by the Qualified Homeowner and by the Contractor and must be substantially
similar to the Loan Services Agreement attached hereto and incorporated herein by this
reference as Exhibit"7".
"Low-Moderate Income Housing Funds" mean and refer to the HOME Funds that the
City intends to use to make the Loan to or for the benefit of the Qualified Homeowner in
accordance with this Agreement and HOME regulation and guidelines. The City and the
Contractor will offer the Loan to a Qualified Homeowner who earns not more than 80%
of the current annual median income for the San Bernardino County area, adjusted for
family size (as those terms are defined by U. S. Department of Housing and Urban
Development("HUD") as further illustrated in Exhibit"10" of this Agreement(the"2013
Income Limits") and are subject to annual adjustments.
"Maintenance Agreement Covenant" means and refers to the "Residential Property
Maintenance Agreement Containing Covenants Affecting Real Property (Single Family
Residence Rehabilitation Loan Program) by and between the City and the Qualified
Homeowner. The Maintenance Agreement Covenant provides, without limitation, for
maintenance-related duties and obligations to be performed and completed by the
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Qualified Homeowner in connection with the Qualified Homeowner's Home. The
Maintenance Agreement Covenant shall be executed and acknowledged by and between
the City and the Qualified Homeowner, and must be in recordable form for recordation
by the Contractor or by the City in the County Recorder's Office. The Maintenance
Agreement Covenant must be substantially similar to the Maintenance Agreement
Covenant attached hereto and incorporated herein by this reference as Exhibit"8".
"Maintenance Class" means and refers to the Maintenance Class provided by and
conducted by the Contractor pursuant to the Homebuyer Education Program Agreement,
dated as of , 2013, by and between the City and the Contractor. The Qualified
Homeowner is required to attend the Maintenance Class after the City has approved the
Loan to a Qualified Homeowner. In the Maintenance Class, the Qualified Homeowner
shall learn, without limitation, to properly maintain the Qualified Homeowner's Home
and/or the Improvements to be constructed, installed,performed and completed thereon.
"Note" means and refers to the Promissory Note Secured by Deed of Trust in the amount
of the Loan made by the City to and for the benefit of the Qualified Homeowner. The
Note shall be executed by the Qualified Homeowner and the obligations of the Note shall
be secured by the Deed of Trust. The outstanding principal balance of the Note shall
accrue simple interest at the rate of three percent (3%) per annum. No periodic payments
of principal and interest, or of interest-only shall be due and payable by the Qualified
Homeowner to the City during the term of the Note. The outstanding principal amount of
the Note, all accrued and unpaid interest and all other fees, charges and amounts due
under the Note, under the Deed of Trust and under the other Loan Documents (the "Loan
Payoff') shall be payable by the Qualified Homeowner to the City on the date that: (i)
the Qualified Homeowner is in default under the Loan Documents, subject to any
applicable cure period, (ii) the Qualified Homeowner refinances the Loan, or (iii) on the
date that the Qualified Homeowner sells, conveys or transfers the Home to an
unauthorized third person in violation of the Loan Documents; provided, however, if the
Qualified Homeowner remains the fee owner of the Home for a period of ten (10) years
from the date that the Deed of Trust is recorded in the County Recorder's Office, the
Loan shall be forgiven and discharged by the City, the City shall record a reconveyance
or release of the Deed of Trust in the County Recorder's Office and the Qualified
Homeowner shall have no further duty or obligation to pay to the City the Loan Payoff.
The Note shall be substantially similar to the Note attached hereto and incorporated
herein by this reference as Exhibit"9".
"Project" means and refers to the construction, the installation and/or the completion of
the Improvements from the use of the Loan Funds and of the Grant Improvements from
the use of the Grant Funds.
"Program" means and refers to the program created, administered and maintained by or
for the City in connection with the Loan, the disbursement by the City to the Contractor
of the Loan Funds to or for the benefit of each Qualified Homeowner in accordance with
this Agreement and the performance and completion by the Contractor of the Services.
The Contractor shall offer the Program to Qualified Homeowners in the specific Target
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•
Area during the term of this Agreement. The Contractor shall offer the Program on an
as-needed, first-come, first-served basis, to Qualified Homeowners in the Target Area
within the City for the term of this Agreement. However, in case of an emergency, of an
urgent need or of a life-threatening situation, the Contractor may process a Loan
Application ahead of other Loan Applications subject to the approval by the City
Manager.
"Qualified Homeowner" means and refers to a person or household (i) which owns and
occupies its Home as its principal residence within the Target Area for at least twelve
(12) continuous months preceding the date of submission of its Loan Application to the
Contractor, (ii) has a personal or household income level, adjusted for family size, during
the twelve (12) months preceding the date of submission of its Loan Application to the
Contractor within the ranges of income for low-moderate income households, adjusted
for family size, as set forth in Exhibit "10", (iii) must complete, execute and submit the
Loan Application to the Contractor, (iv) must agree to attend the Maintenance Class
conducted by the Contractor, (v) must agree to live in its Home, as its principal residence,
for not less than ten (10) years after the recordation of the Deed of Trust and the
Maintenance Agreement Covenant in the County Recorder's Office, (vi) must execute
and acknowledge, where appropriate, all Loan Documents, (vii) must agree to agree to
maintain its Home pursuant to the Maintenance Agreement Covenant for a period of ten
(10) years following the recordation of such Maintenance Agreement Covenant in the
County Recorder's Office, and (viii) who must not have received any grant or any loan
from the City for a period of ten (10) years prior to the submission by the Qualified
Homeowner to the City and/or to the Contractor of the Loan Application. On a case-by-
case basis, the City Manager of the City, in its sole and absolute discretion, may waive
this one 12-month residency requirement.
"Senior Deed of Trust" means and refers to the senior deed of trust executed and
acknowledged by the Qualified Homeowner. The Senior Deed of Trust secures the
obligations of the Senior Promissory Note and of the Senior Loan and encumbers the
Home.
"Senior Lender" means and refers to an institutional lender, including, without limitation,
any bank, savings bank, savings and loan association, insurance company, credit union or
other lender licensed to conduct business in the State of California, approved by the City
in its sole and absolute discretion and making the Senior Loan to the Qualified
Homeowner.
"Senior Loan" means and refers to the loan made by the Senior Lender to the Qualified
Homeowner. The Senior Loan is evidenced by the Senior Promissory Note and is
secured by the Senior Deed of Trust encumbering the Home owned by the Qualified
Homeowner.
"Senior Loan Documents" mean and refer to the Senior Promissory Note, the Senior
Deed of Trust and all other instruments, documents, agreements, guarantees and/or
certificates evidencing, securing, guaranteeing or relating to the Senior Loan.
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"Senior Promissory Note" means and refers to the Senior Promissory Note executed by
the Qualified Homeowner in favor of the Senior Lender. The Senior Promissory Note is
secured by the Senior Deed of Trust, which Senior Deed of Trust encumbers the Home
owned by the Qualified Homeowner.
"Services" mean and refer, without limitation, to the Program origination, the
preparation, execution and delivery of the Loan Documents, the Loan Fund disbursement
control, related accounting, Work monitor (course of construction builder contract)
services and other services to be provided by the Contractor to or for the benefit of the
City in accordance with this Agreement. The various elements of the Services are more
fully set forth in the "Scope of Services" attached hereto as Exhibit "11." For each year
of the Agreement, the Contractor will attempt to approve, complete, process and finalize
up to ten (10) Loans to Qualified Homeowners in the Target Area.
"Target Area" means and refers to the specific area, areas, neighborhood or
neighborhoods in the City, in which the City has instructed the Contractor to offer the
Program to Qualified Homeowners to better maximize the effectiveness of the Loan
Funds. In the absence of specific direction from the City Manager, the Contractor shall
offer the Program on an as-needed, first-come, first-served basis, to Qualified
Homeowners within the Target Area. However, in the case of an emergency, of an
urgent need or of a life-threatening situation, the Contractor may process a Loan
Application subject to the approval of the City Manager.
"Work"means and refers, without limitation, to the Improvements, or any part thereof, to
be constructed, installed, performed and/or completed by a state-licensed General
Contractor on or in connection with a Home pursuant to the terms, covenants and
conditions of the General Contractor Agreement. Only the Improvements and/or the
items of Work set forth in the General Contractor Agreement shall be authorized for
payment by the Contractor, up to the maximum amount authorized under the terms of the
Program for such Improvements, or any part thereof. Any costs of Improvements and/or
of Work in excess of the maximum amount of the Program (which are not the fault of
such General Contractor) shall be paid for by the Qualified Homeowner unless approved
in writing by the City Manager.
Section 2. PERFORMANCE BY CONTRACTOR AND BY CITY. The
Contractor and the City agree to perform the terms, covenants and conditions of this Agreement.
Section 3. SCOPE OF SERVICES. The Contractor agrees to provide the Services
to the City as set forth herein, as described in the Scope of Services, attached hereto as Exhibit
11. Promptly following the date of approval of this Agreement by the governing board of the
City,the Contractor,without limitation, shall or will continue to:
(A) cause the Loan Disbursement Account to be established, or maintained, and the
general form of an FDIC - insured deposit account agreement acceptable to the City to be
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fully executed by the Contractor, by the depository institution and by the City within
thirty(30) calendar days following the date of approval of this Agreement;
(B) use the general form of the Loan Application in connection with an application by
a Qualified Homeowner for the approval by the City to the Qualified Homeowner of the
Loan under the Program in accordance with this Agreement. The applicant for the Loan
must submit to the Contractor federal and state income tax returns filed by the applicant
with the appropriate taxing authorities for the past two (2) years which tax returns must
be acceptable to the Contractor in its sole and absolute discretion;
(C) subject to the completion of the tasks described in Section 3(A) and in Section
3(B) above, continue the process of receiving and reviewing Loan Applications and
provide the Services as provided for in the Agreement. The Contractor shall offer the
Program to Qualified Homeowners in the Target Area on an as-needed, first-come, first-
served basis; provided, however, in the case of an emergency, of an urgent need or of a
life-threatening situation, the Contractor may process a Loan Application ahead of other
Loan Applications subject to the approval of the City Manager;
(D) transmit a copy of a completed set of the Loan Documents to the City Manager of
the City, together with: (i) a recommendation from the Contractor to the City to approve
the Loan Application and the Loan to the Qualified Homeowner, and (ii) a request from
the Contractor to the City for a transfer of the Loan Funds by the City for the account of
the Qualified Homeowner. The City Manager shall either authorize the funding of such
Loan or reject the request for funding on behalf of the City within ten (10) business days
of receipt from the Contractor. Any rejection of a Loan Application shall be in writing
and shall state the reasons for such action. Each acceptance of a Loan Application by the
City shall be evidenced by the signature of the Executive Director of the Loan
Documents, where designated. All Loan Documents shall be executed, acknowledged,
where designated, and completed by the Qualified Homeowner and by the Contractor,
and the disbursement of Loan Funds by the City to or for the benefit of the Qualified
Homeowner shall occur within sixty (60) calendar days following the date of submission
by the Contractor to the City Manager of the funding request, or the Loan Documents
shall be of no further force or effect;
(E) no fees, charges or expenses shall be payable by any applicant to the Contractor
or to the City for a Loan, except from the Loan Funds, nor shall the Contractor charge a
Qualified Homeowner for any cost or service in connection with the origination or
subsequent administration of the Loan during the time the Improvements and/or the Work
is constructed, installed, performed and/or completed at the Home, except for the
Maintenance Class fee payable to the Contractor, or as authorized under the Program by
the City Manager;
(F) instruct the City Manager to transfer the Loan Funds for the account of each
Qualified Homeowner to the Loan Disbursement Account as set forth in Section 3(D),
above, upon confirmation by the Contractor that the Loan Documents for the Program are
executed and complete and that the Deed of Trust and the Maintenance Agreement
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Covenant (and any other documents to be recorded in the County Recorder's Office) are
ready for recordation in the County Recorder's Office. The Contractor shall coordinate
the issuance of the policy of title insurance in favor of the City by the title insurance
company with the recordation of the Deed of Trust and of the Maintenance Agreement
Covenant;
(G) deliver a fully executed and acknowledged, where designated, original set of the
Loan Documents for each Loan (except for the Deed of Trust and for the Maintenance
Agreement Covenant which documents shall be recorded by the Contractor on behalf of
the City in the County Recorder's Office)to the City upon request of funding and transfer
of the Loan Funds for the account of the Qualified Homeowner to the Loan Disbursement
Account;
(H) verify that no Loan Funds are disbursed from the Loan Disbursement Account for
the account of a Qualified Homeowner except: (i) to pay a state-licensed General
Contractor and/or state-licensed subcontractor for the Improvements and/or for the Work
constructed, installed, performed and/or completed at the Home pursuant to the General
Contractor Agreement (less a ten percent (10%) retention pending completion of the
Improvements and/or of the Work and final executed written release of all mechanics and
materials liens from the General Contractor and/or from all subcontractors). No
disbursement of the Loan Funds from the Loan Disbursement Account shall be
authorized for any building materials or equipment items which are not physically
delivered at the Home before the date of payment of such Loan Funds to the General
Contractor and/or to the subcontractor; or (ii) to pay a Loan title fee or cost amount
expressly authorized in writing by the City Manager;
(I) prepare and maintain a Loan Funds disbursement ledger for all payments
authorized and made by the Contractor to the General Contractors and/or to the
subcontractors for the account and debit to each Qualified Homeowner under each Loan
made by the City to or for the benefit of the Qualified Homeowner in accordance with
this Agreement. Such ledger shall show each payment by date and reference the
particular Loan, the Loan Documents and the name of the Qualified Homeowner to
which it corresponds. Such ledger shall also include a monthly starting and ending
balance for the Loan Disbursement Account, a final reconciliation of the adjusted balance
of each Loan upon the completion of the Improvements and/or of the Work, and such
other accounting information as the City Manager may request. A copy of such ledger
shall be submitted to the City Manager each month with the first such monthly submittal
due on the first day of the next month following the date of the initial deposit of the Loan
Funds by the Contractor and/or the City into the Loan Disbursement Account;
(J) No Improvements and/or Work shall be authorized for payment by the Contractor
unless the Loan Documents are complete and the Contractor has received a fully
executed copy of the General Contractor Agreement by and between the General
Contractor and the Qualified Homeowner. Once the Improvements and/or the Work has
commenced on a particular Home, neither the Qualified Homeowner, the General
Contractor nor the subcontractor shall authorize an amendment or modification of such
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•
contract to include any item of Work, which is not eligible for payment using the Loan
Funds under the terms and conditions of the Loan under the Program. Each such contract
by and between the General Contractor and the Qualified Homeowner, the General
Contractor and the subcontractor, and/or the subcontractor and the Qualified Homeowner
shall include a section, which recites the words of the first two (2) sentences of this
Section 3(J).
(K) Contractor at its expense shall provide a dedicated and trained staff member to
administer the Services and the Program described in this Agreement for a minimum of 2
working days per week for the term of this Agreement; such staff member shall be
located in an City-designated and supplied work area.
(L) The Contractor represents, warrants and covenants that the Contractor shall
reserve membership on the Contractor's board of directors to one(1) or more individuals
who reside in the City of San Bernardino, County of San Bernardino, State of California,
as required by applicable Laws, City, or as necessary, for the term of this Agreement.
Section 4. TIME OF PERFORMANCE OF SERVICES. The Services to be
performed hereunder by the Contractor shall be undertaken and completed in such sequence as to
assure expeditious completion and to best carry out the purposes of the Program and this
Agreement. All Services required hereunder shall begin upon the execution of this Agreement.
Section 5. TERM OF AGREEMENT. This Agreement shall take effect upon the
approval by the governing board of the City and the complete execution by the parties (the
"Effective Date"). The Agreement shall remain in effect through June 30, 2016, subject to
annual approval by the City in its sole discretion and the appropriation by the United States
Department of Housing and Urban Development("HUD").
Section 6. COMPENSATION PAYABLE BY CITY TO CONTRACTOR.,
(A) The City shall annually compensate the Contractor for the performance of the
Services using the HOME Funds in accordance with the following schedule:
$70,000 Annual Program Administration Fee for
Contractor
$630,000 Single Family Residence Rehabilitation Loan
Program
$700,000 Total
(B) From and after the Effective Date of this Agreement, unless otherwise
revised by City, the Program Administration Fee payable by City to the Contractor as
compensation for Services performed by the Contractor under this Agreement shall be
paid directly to the Contractor upon receipt by City of a corrected invoice. City shall pay
to the Contractor the correct amount identified on the invoice within thirty (30) calendar
days after the receipt by City. The Program Administration Fee under this Agreement and
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shall not exceed Seventy Thousand Dollars ($70,000) in the aggregate, for any given
year, payable in twelve (12) equal monthly installments of$5,833.33 during the term of
this Agreement.
(C) Notwithstanding the foregoing, in the event the Contractor exceeds twenty -two
(22) Loans in any given year, additional Loan Funds will need to be procured in order to fund
any additional Loans made by the Contractor under this Agreement. The City will exercise its
reasonable efforts to amend this Agreement, in writing, and to obtain additional Loan Funds to
fund additional Loans, in excess of twenty-two (22) Loans, by the Contractor for that year. The
City makes no warranty, no representation and no covenant to the Contractor that the City will
be able to obtain any additional Loan Funds to fund any additional Loans under this Agreement.
Section 7. PERSONNEL OF CONTRACTOR. The Contractor represents that it
has, or will secure at its own expense, all personnel required to perform the Services. All of the
Services required hereunder will be performed by persons who are either employed by or under
the supervision and control of the Contractor, and all personnel engaged in the Services shall be
fully competent and qualified to perform such Services.
Section 8. INDEPENDENT CONTRACTOR. All acts of the Contractor and all
others acting on behalf of the Contractor relating to the performance of this Agreement, shall be
performed as independent contractors and not as agents, officers, or employees of the City. The
Contractor has no authority to bind or incur any obligation on behalf of the City. The Contractor
has no authority or responsibility to exercise any right or power vested in the City. No agent,
officer, or employee of the City shall be considered an agent or employee of the Contractor. It is
understood by both the Contractor and the City that this Agreement shall not under any
circumstance be construed or considered to create an employer-employee relationship or a joint
venture as between the Contractor and the City. The Contractor is and at all times during the
Term of this Agreement shall represent and conduct itself as an independent contractor and not
as an agent or employee of the City. The Contractor shall be responsible to the City only for the
requirements and results specified in this Agreement, and except as expressly provided in this
Agreement, shall not be subject to control by the City with respect to the physical action or
activities of the Contractor in fulfillment of this Agreement. The Contractor has control over the
manner and means of performing the Services under this Agreement so long as consistent with
the requirements of the Program. The Contractor is permitted to provide services to others
during the same period Services are provided to the City under this Agreement. If necessary, the
Contractor has the responsibility for employing other persons or firms to assist the Contractor in
fulfilling the terms and obligations under this Agreement. If in the performance of this
Agreement any third persons are retained as subcontractors by the Contractor, such persons shall
be entirely and exclusively under the direction, supervision, and control of the Contractor. All
terms of employment including hours, wages, working conditions, discipline, hiring, and
discharging or any other term of employment or requirements of law shall be determined by the
Contractor. The Contractor hereby agrees to indemnify, defend (if requested by City), protect
and hold the City harmless from any and all claims that may be made against the City or based
upon any contention by any employee of the Contractor or by any third party that an employer-
employee relationship or joint venture exists between any person or entity and the City, by
reason of the performance of any of the Services under this Agreement.
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Section 9. PAYMENT OF AND TRANSFER OF LOAN FUNDS TO LOAN
DISBURSEMENT ACCOUNT., The City shall promptly honor each request by the Contractor
for the City to transfer Loan Funds to the Contractor who will in turn deposit the Loan Funds to
the Loan Disbursement Account to fund each approved Loan as submitted by the Contractor to
the City under Section 3(D). Within sixty (60) calendar days following receipt of each request
for remittance of the Loan Funds, the City shall transfer by bank check to the Contractor such
Loan Funds to use as provided herein.
Section 10. COMMERCIAL GENERAL LIABILITY INSURANCE,
AUTOMOBILE INSURANCE, WORKERS' COMPENSATION INSURANCE,
EMPLOYER'S LIABILITY INSURANCE, ERRORS AND OMISSIONS AND
PROFESSIONAL LIABILITY INSURANCE.
(A) The Contractor shall obtain and keep in force during the term of this Agreement,
at its sole cost and expense, the following insurance policies: (i) a commercial general liability
policy of insurance with coverage at least as broad as "Insurance Services Office Commercial
General Liability Form (G0001)", in the amount of One Million Dollars ($1,000,000) combined
single limit per occurrence, naming the City and the City and the elected officials, officers,
employees, attorneys and agents of each of them as additional insureds (collectively, the
"Additional Insureds") with said insurance covering comprehensive general liability including,
but not limited to, contractual liability, assumed contractual liability under this Agreement, acts
of subcontractors, premises-operations, explosion, collapse and underground hazards, if
applicable, broad form property damage, and personal injury including libel, slander and false
arrest, (ii) comprehensive automobile liability insurance covering owned, non-owned and hired
vehicles by or for the Contractor, combined single limit in the amount of One Million Dollars
($1,000,000) per occurrence, naming the Additional Insureds as additional insureds on each
automobile insurance policy, (iii) workers' compensation insurance in such insurance coverage
amounts as statutorily required, or similar insurance in form and amounts required by law, and
employer's liability insurance, combined single limit in the amount of One Million Dollars
($1,000,000), and (iv) errors and omissions and professional liability, combined single limit in
the amount of One Million Dollars ($1,000,000)per occurrence.
(B) Any and all insurance policies required hereunder shall be obtained from
insurance companies admitted in the State of California and rated at least A: XII in the most
current Best's Key Rating Insurance Guide. In no event shall the Contractor be permitted or
entitled to assign to any third party rights of action, which the Contractor may have against the
City. All said insurance policies shall provide that they may not be canceled unless the City
receive written notice of cancellation at least thirty (30) calendar days prior to the effective date
of cancellation. Any and all insurance obtained by the Contractor shall be primary to and shall
not be contributing with any insurance carried by the City or by the City whose insurance shall
be considered excess insurance only. Any insurance which the City and/or City may otherwise
carry, including self insurance, for all purposes of this Agreement shall be separate and apart
from the requirements of this Agreement. Legal counsel for the City must approve each
insurance policy required in Section 10(A) of this Agreement. The Contractor waives
subrogation and agrees that the Contractor, the City are co-insured. The insurer shall have no
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right of subrogation, against the City or against any of the other Additional Insureds. The
Additional Insureds shall be named as additional insureds on each insurance policy.
(C) All insurance which the Contractor shall carry or maintain pursuant to this Section
10 shall be in such form, for such amounts, for such periods of time as the City may require or
approve.
(D) The Contractor shall deliver or cause to be delivered to the City concurrently
upon the execution of this Agreement an endorsement of the insurance policies required in this
Section 10(A) of this Agreement evidencing the existence of the insurance coverage required by
the City under Section 10(A) of this Agreement and shall also deliver, no later than thirty (30)
calendar days prior to the expiration of any insurance policy, a certificate of insurance
evidencing each renewal policy covering the same risks. The City may request the Contractor to
provide, and the Contractor shall immediately provide, additional or greater insurance, in such
amounts and with such deductibles as reasonably determined by the City, at the cost and expense
of the Contractor.
Section 11. INDEMNIFICATION.,
(A) The Contractor agrees to indemnify, defend with legal counsel reasonably
acceptable to the City, protect and hold the City and their respective elected officials, directors,
officers, members, managers, consultants, contractors, employees, agents and attorneys, and the
successors and assigns of each of them (singularly and collectively, the "Indemnified Parties"
which defined term shall also includes the City), harmless from and against all actions, causes of
action, claims, demands, liabilities, damages, losses, liabilities, obligations, judgments, suits,
costs, expenses and fees (including, without limitation, reasonable attorneys' fees, court costs
and expert fees of any nature whatsoever), now or hereafter arising from or related to: (i) any act
or omission of the Contractor and/or of any of the Contractor's directors, officers, members,
managers, consultants, contractors, subcontractors, materialmen, laborers, any other person or
entity furnishing or supplying work, services, goods, or supplies in connection with the
performance of this Agreement, employees and agents, and the successors and/or assigns of each
of them (singularly and collectively, the "Indemnifying Parties" which defined term shall also
include the Contractor), in performing, or failing to perform, its obligations hereunder, (ii) any
default by the Contractor under this Agreement, subject to any applicable cure period, (iii) any
violation by any of the Indemnifying Parties of any Laws, (iv) any warranty or representation
made by the Contractor to the City in this Agreement that is or becomes false and untrue, (v)
death, bodily injury and/or personal injury to any person, (vi) any destruction, loss or damage to
real property or personal property, (vii) the presence of any Hazardous Substances at, on, in,
above, under or about any Home owned by a Qualified Homeowner resulting, directly or
indirectly, from the acts or omissions of any Indemnifying Parties, and/or (viii) the aggravation
of any environmental condition by any Indemnifying Parties at, on, in, above, under or about any
Home owned by a Qualified Homeowner. Without limiting the Contractor's indemnification of
the Indemnified Parties, the Contractor shall provide and maintain, at its sole cost and expense
during the term of this Agreement, the insurance described in Section 10(A) of this Agreement.
Such insurance shall be provided by insurer(s) satisfactory to the City and evidence of such
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insurance satisfactory to the City shall be delivered to the City Manager no later than the
effective date of this Agreement.
(B) The City shall indemnify, defend (if requested by the Contractor) and hold
harmless the Contractor, its agents, officers, and employees, from all claims, loss, demands and
liability for damages for personal injury, bodily injury or property damage suffered by reason of
any act or omission of the City or any of its officers or employees or agents under this
Agreement except where such action or omission giving rise to such a claim is caused by or is
the result of an action, omission or request of the Contractor and/or of any of the other
Indemnifying Parties, or is alleged to arise out of the execution of this Agreement. The
provisions of Section 11(A) and Section 11(B) shall survive the execution, delivery,
performance, expiration or early termination of this Agreement.
Section 12. DEFAULTS AND BREACH - GENERAL. The failure or delay by
either party to perform any material term or provision of this Agreement shall constitute a default
hereunder; provided, however, that if the party who is otherwise claimed to be in default by the
other party commences to cure, correct or remedy the alleged default within thirty (30) calendar
days after receipt of written notice specifying such default and shall diligently complete such
cure, correction or remedy, such party shall not be deemed to be in default hereunder. A default
shall also occur under this Agreement whenever a representation and/or warranty made in this
Agreement is or becomes false or untrue. A default shall also occur under this Agreement
whenever a party files, or has filed against it, a petition in bankruptcy, is or becomes insolvent, is
unable to pay its debts as they mature, assigns its assets for the benefit of creditors, or a receiver,
trustee or custodian is appointed by a court to exercise control over all or substantially all of the
assets of the party and such receiver, trustee or custodian is not discharged by the court within
sixty (60) calendar days after said appointment date. The party which may claim that a default
has occurred shall give written notice of default to the party in default specifying the alleged
default. Delay in giving such notice shall not constitute a waiver of any default nor shall it
change the time of default; provided, however, the injured party shall have no right to exercise
any remedy for a default hereunder without delivering the written default notice as specified
herein. Any failure or delay by a party in asserting any of its rights and remedies as to any
default shall not operate as a waiver of any default or of any rights or remedies associated with a
default, and the rights and remedies of the parties are cumulative and the exercise by either party
of one or more of such rights or remedies shall not preclude the exercise by it, at the same or
different times, of any other rights or remedies for the same default or any other default by the
other party. In the event that a default of either party may remain uncured for more than thirty
(30) calendar days following written notice, as provided above, a "breach" shall be deemed to
have occurred. In the event of a breach, the party who is not in default shall be entitled to
terminate this Agreement and seek any appropriate remedy or damages by initiating legal
proceedings. If any action or proceeding is brought to enforce the terms hereof or declare rights
hereunder, it shall be brought in the Superior Court of the County of San Bernardino, San
Bernardino District, State of California. The governing law to be applied in any such action or
proceeding shall be the law of the State of California. The prevailing party in any such legal
proceedings shall be entitled to recover as an element of its costs of bringing such suit, and not as
part of its damages, its reasonable attorneys' fees, court costs, expert witness fees and consultant
fees and costs. The costs, salary and expenses of the City Attorney and members of his office in
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such action or proceeding on behalf of the City shall be considered as "attorneys' fees" for
purposes of this Section.
Section 13. NONDISCRIMINATION. During the Contractor's performance of the
Services, the Contractor shall not discriminate on the grounds of race, religion, creed, color,
national origin, age, ancestry, physical handicap, medical condition, marital status, sex, or sexual
orientation in the performance of the Services, including, without limitation, in the selection and
retention of employees, General Contractors and subcontractors and the procurement of materials
and equipment, except as provided in Section 12940 of the California Government Code.
Section 14. CONFLICT OF INTEREST. The Contractor warrants, by execution of
this Agreement, that it has no interest, present or contemplated, in the Program or in any Home
benefited thereby or Work performed on any Home using the Loan and the Loan Funds. The
Contractor further warrants that it owns or possesses no interest in real property, business
interests or owner of income (other than such amounts of compensation payable by the City to
the Contractor for the Services under this Agreement) that will be affected by the Program or,
alternatively, if such interest exists or arises the Contractor will promptly file with the City an
affidavit disclosing any such interest.
Section 15. AMENDMENTS., All amendments to this Agreement shall be subject to
the approval of both parties in the sole discretion of each of them, mutual and in writing. The
City Manager of the City is authorized to make non-substantive changes, clarifications,
corrections to the Agreement, including budget line item adjustments, provided such actions are
approved by legal counsel for the City and do not increase the City's monetary annual
appropriation to the Contractor as approved by the governing board of the City.
Section 16. TERMINATION.
(A) This Agreement may be terminated for any reason by either party who is not then
in default upon ten (10) calendar days prior written notice to the other party. In such event, the
Contractor shall be entitled to receive compensation for Services pro-rated through the date of
such termination,provided that the Services have been rendered.
(B) In the event of a termination of the Agreement as a result of a breach, the rights
and duties of the parties shall be as set forth in Section 12.
(C) In the event of any termination of this Agreement, the Contractor shall promptly
return all Loan Funds that have been disbursed by the City to the Contractor with the exception
of any Loan Funds that have been properly disbursed by the Contractor to or for the benefit of
one or more Qualified Homeowners under this Agreement, without charge or expense to the
City.
Section 17. ASSIGNMENT. It is mutually understood and agreed that this
Agreement shall be binding upon the City and its successors and assigns and upon the Contractor
and its successors and assigns. The City may assign this Agreement, without obtaining the prior
consent or approval of the Contractor. The Contractor may not assign this Agreement without
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obtaining the prior written consent of the City, which written consent may be given or withheld
by the City in its sole and absolute discretion. Any assignment or attempt to assign this
Agreement by the Contractor shall be void.
Section 18. NOTICES. Communications, notices, bills, invoices or reports required
by this Agreement shall be in writing and shall be deemed to have been given when actually
delivered, if given by hand delivery or transmitted by overnight courier service, or if mailed,
three (3) business days after being deposited in the United States mail, postage prepaid, to the
address noted below:
City_ Contractor
City of San Bernardino Riverside Housing Development
Attention: City Manager Corporation dba Inland Housing
300 North D Street, 6t Floor Development Corporation
San Bernardino, California 92401 Attention: Director
Phone: (909) 663-1044 4250 Brockton Ave
Fax: (909) 888-9413 Riverside, California 92501
Phone: (951) 341-0170
Fax: (951) 341-0171
Either party may change its address for receipt of written notice by notifying the other
party in writing of a new address for delivering notice to such party.
Section 19. REPRESENTATION AND WARRANTY OF CONTRACTOR. The
Contractor hereby represents and warrants to the City as follows:
(A) The Contractor is a California nonprofit corporation duly organized, existing, and
authorized to transact business in California;
(B) the corporate charter and by-laws of the Contractor authorize the Contractor to
provide the Services to the City and the governing board and membership of the Contractor have
previously taken all action necessary to authorize the execution of this Agreement by the
Contractor;
(C) the Contractor is qualified to perform the Services and shall timely perform and
complete the Services in a professional manner.
Section 20. LOAN FUNDS AND LOAN DOCUMENTS ARE THE PROPERTY,
OF THE CITY. The Loan Documents for each Loan are the property and asset of the City.
The Contractor has no property interest in any such Loan Documents and the Contractor shall
not transfer, assign or pledge as collateral or claim any other security interest in any such Loan
Documents. All of the Loan Documents are the property of the City, and the Contractor shall
maintain all such Loan Documents in its possession as confidential consumer business records of
the Qualified Homeowner. All Loan Funds disbursed by the City to the Contractor for the
benefit of a Qualified Homeowner are the property of the City until paid by the Contractor to the
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General Contractor upon the completion of the Work at the Home for the account of the
Qualified Homeowner under the applicable Loan Documents.
Section 21. NON-ELIGIBILITY OF HOMEOWNER. The Qualified Homeowner must file a
Loan Application and a Grant Application with the Contractor should the Qualified Homeowner
intend to construct, to install and/or to complete the Project with both the Loan Funds and with
the Grant Funds. Once the City: (i) has approved the Loan Application for the Qualified
Homeowner and has disbursed the Loan Funds to the Contactor for the benefit of the Qualified
Homeowner under this Agreement, and (ii) has approved the Grant Application for the Qualified
Homeowner and has disbursed the Grant Funds to the Contractor for the benefit of the Qualified
Homeowner, or has rejected the Grant Application, the Qualified Homeowner now or hereafter
shall have no right to apply for and to receive any other loan or grant being offered by the City to
the general public under any loan or grant program, including, without limitation, any grant
being offered by the City under the Mobile Home Grant Program Agreement, or any other loan,
until ten (10) years after the date that the Contractor has paid the last installment of the Loan to
the City for the benefit of the Qualified Homeowner under this Agreement and until ten (10)
years after the date that the City has been paid the last of the Grant Funds to the Contractor for
the benefit of the Qualified Homeowner under this Agreement, if applicable. Further, if the
Qualified Homeowner files only a Loan Application with the Contractor and the Loan
Application is approved by the City, the Qualified Homeowner will have no right now or
hereafter to apply for and to receive any loan or grant offered by the City until ten (10) years
after the date that the Contractor has paid the Loan in full.
Section 22. GENERAL PROVISIONS. This Agreement constitutes the sole
agreement between the parties. All prior conversations, agreements or representations relating
hereto are integrated in this Agreement. No oral agreement, representation or warranty shall be
binding upon the parties. If any provision of this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining portions of this
Agreement shall not in any way be affected or impaired thereby. Failure of any party to enforce
any provision of this Agreement shall not constitute a waiver of the right to compel enforcement
of the same provision or any remaining provisions of this Agreement. Headings at the beginning
of each section or subsection are solely for the convenience of the parties and are not a part of
this Agreement. Whenever required by the context of this Agreement, the singular shall include
the plural and the masculine shall include the feminine and vice versa. This Agreement shall not
be construed as if it had been prepared by one of the parties, but rather as if all parties had
prepared the same. Unless otherwise indicated, all references to sections are to this Agreement.
All exhibits referred to in this Agreement are attached hereto and incorporated herein by this
reference. If the date on which any action is required to be performed under the terms of this
Agreement is not a business day, the action shall be taken on the next succeeding business day.
This Agreement may be executed in one or more counterparts each of which shall be an original
but all of which together shall constitute but one original Agreement. This Agreement may be
executed by facsimile signatures, and each facsimile counterpart when taken together shall be
deemed an original Agreement.
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2013-215
IN WITNESS WHEREOF, the Contractor and the City have caused this Agreement to be
duly executed on the date first above written.
CITY
City of San Bernardino,
a municipal corporation
Dated: %� BBy: o7---a-,-04/
A n Parker, City Manager
Approved as to Form:
JAMES F. PENMAN, City Attorney
By:
CONTRACTOR
Riverside Housing Development Corporation dba
Inland Housing Development Corporation,
a California non-profit corporation
Date:
7/23k By:
Name:
Title: 4ecc,74.vd- A•v./a/-,
Date: By:
Name:
Title:
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P:\Agendas\Agenda Attachments\Agenda Attachments\Agrmts-Amend 2010\7.19.10 IHDC Rehab Loan Program Agreement