HomeMy WebLinkAbout05.E- City Manager RESOLUTION (ID # 3740) DOC ID: 3740 A
CITY OF SAN BERNARDINO — REQUEST FOR COUNCIL ACTION
Agreement/Contract
From: Allen Parker M/CC Meeting Date: 03/16/2015
Prepared by: Brandon Mims, (909) 384-
5122
Dept: City Manager Ward(s): All
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing
the Execution of a Home Investment Partnership Loan Agreement Between the City of
San Bernardino and Val 9 Housing Partners, L.P. for the Development of the Valencia
and 9Th Project. (#3740)
Current Business Registration Certificate: Not Applicable
Financial Impact:
Account Budgeted Amount: $2,310,000
Account No.: 117-100-0014-5504
Account Description: Construction
Balance as of 1/20/15: $1,500,000
Balance after approval of this item: $0
Motion: Adopt the Resolution.
Synopsis of Previous Council Action:
On June 16, 2014 the City Council approved allocating $1,500,000 of Home Investment
Partnership (HOME) funds to the Valencia and 9th Project.
Background:
The Warterman Gardens Project is a joint effort between the City of San Bernardino,
National Community Renaissance of California (CORE), San Bernardino County
Housing and Community Development Department and Housing Authority of the County
of San Bernardino to redevelop Waterman Gardens. The complete project entails
demolishing 252 existing units and constructing over four hundred affordable and
market rate units at the Waterman Gardens site. The first phase of the Waterman
Gardens Project, "Val 9," will consist of the construction of 76 units which will be used to
house existing Waterman Gardens tenants during the rehabilitation of their units. The
project is being constructed by Val 9 Housing Partners, L.P.
The City of San Bernardino Planning Commission approved the entitlements for
Waterman Gardens in November 2013 followed by the City Council in February 2014. In
December 2013 CORE was awarded an allocation of RAD (Rental Assistance
Demonstration) program funding for the first 252 units, which set into motion entitlement
and financing efforts for Val 9 Apartments (Val 9) and a second phase that will apply for
9% tax credits in March 2015.
Updated: 3/12/2015 by Georgeann "Gigi" Hanna A Packet Pg. 61
3740
As mentioned above, Val 9, which will be constructed at the northwest corner of
Valencia Avenue and 9th Street, south of the Waterman Gardens main campus, will
serve as the first 76 unit phase of the Waterman Gardens Master Plan. Following is a
summary of the Key Financial Terms for the development of Val 9 Apartments as of the
date of this report:
Total Development Costs
Total Construction Costs $17,732,689 ($233,325/Unit)
Total other indirect Costs $7,657,879 ($100,761/Unit)
Total Land Costs $500,000 ($6,579/Unit)
Total Development Costs $25,890,568 ($340,665/Unit)
Sources
9% Tax Credit Equity $ 12,416,920
Perm Loan $ 9,195,265 PNC 221(d)(4)
County HOME $ 810,000
City HOME $ 1,500,000
Housing Authority $ 1,000,000
Deferred Developer Fee $ 993,383
Total Gap Financing Sources $25,915,568
Statement of the Issue
Final Council approval is needed to execute the HOME Loan Document and authorize
the Finance Director to release payment to the County according to the terms of the
loan agreement.
Financial Impact
During the development of the 2014-2015 Action Plan and 2014-2015 Fiscal Year
Budget i +„ F. 117-100-001 n F F it f r+ ., n
Budget. staff allocated funds in account number -r-�J -r ioi this purpvac.
Recommendation
Approve the attached Resolution
City Attorney Review:
Yes
Supporting Documents:
Val 9 HOME Loan Resolution 3-16-2015(DOC)
agrmt 3740 (PDF)
Home Loan Exhibits A-E (PDF)
Va19 City HOME Loan Agreement(PDF)
Home Loan Exhibits G-J (PDF)
Updated: 3/12/2015 by Georgeann "Gigi" Hanna A Packet Pg.62
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I RESOLUTION NO.
2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A HOME
3 INVESTMENT PARTNERSHIP LOAN AGREEMENT BETWEEN THE CITY OF
4 SAN BERNARDINO AND VAL 9 HOUSING PARTNERS, L.P. FOR THE
DEVELOPMENT OF THE VALENCIA AND 9TH PROJECT
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WHEREAS, the Valencia Avenue and 9th Street (Val 9) housing project is a joint d
6 effort between the City of San Bernardino, National Community Renaissance of California a,
(CORE), San Bernardino County Housing and Community Development Department and a
7 Housing Authority of the County of San Bernardino to redevelop Waterman Gardens; and o
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WHEREAS, the complete project entails demolishing 252 existing units and M
9 constructing over four hundred affordable and market rate units on the actual Waterman i
Gardens site; and c
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11 WHEREAS, the Val 9 project is the first phase of the Waterman Gardens projects
consisting of construction of 76 units which will be used to house existing Waterman Gardens o
12 tenants during the rehabilitation of their units; and CL
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13 WHEREAS, on June 16, 2014 the City Council approved loaning $1,500,000 of It
14 Home Investment Partnership (HOME) funds to Val 9 Partners, Inc. for the development of
the Val 9 Project, LO
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NOW THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
16 COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: M
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Section 1. The Mayor and Common Council of the City of San Bernardino do hereby 2
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18 authorize and direct the City Manager to execute and fulfill the terms of the
attached HOME loan agreement between the City and Val 9 Housing Partners,
19 L.P. for the construction of affordable housing, also known as the Valencia
Avenue and 9th Street Project Val 9 a co W
20 j ( ), copy of which is attached and
incorporated herein by reference as fully as though set forth at length. E
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Section 2. The Mayor and Common Council of the City of San Bernardino do hereby
22 authorize and direct the City Manager to execute any additional documents or >
23 agreements necessary to effectuate the loan of $1.5 million to Val 9 Housing a
Partners, including amendments to the attached HOME loan agreement, E
24 subordination agreements, recording documents, or regulatory agreements, so 0
long as the additional documents or agreements do not increase the amount of Q
25 the loan or substantially change any other term of the loan and are approved as
26 to form by the City Attorney or his designee.
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5.E.a
I RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE EXECUTION OF A HOME
2 INVESTMENT PARTNERSHIP LOAN AGREEMENT BETWEEN THE CITY OF
SAN BERNARDINO AND VAL 9 HOUSING PARTNERS, L.P. FOR THE
3 DEVELOPMENT OF THE VALENCIA AND 9TH PROJECT
4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
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Common Council of the City of San Bernardino at a meeting thereof,
held on the day of , 2015, by the following vote, to wit:
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Council Members: AYES NAYS ABSTAIN ABSENT 0
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9 MARQUEZ 0
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10 BARRIOS
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11 VALDIVIA >
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12 SHORETT a
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NICKEL
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JOHNSON o
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16 MULVIHILL M
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18 Georgeann Hanna, City Clerk
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20 The foregoing resolution is hereby approved this day of , 2015. w
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22 R. Carey Davis, Mayor
23 City of San Bernardino
24 Approved as to form: y
25 Gary D. Saenz, City Attorney Q
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27 By:
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5.E:b
HOME INVESTMENT PARTNERSHIPS ACT LOAN AGREEMENT
(Waterman Gardens- Valencia 9)
This HOME Investment Partnerships Act Loan Agreement(the "Agreement") is dated
March_, 2015 (the 'Effective Date"), and is between the City of San Bernardino, a charter city
of the State of California(the "City"), and Val 9 Housing Partners, L.P., a California limited
partnership("Borrower").
RECITALS
A. Defined terms used but not defined in these recitals are as defined in Article 1 of r
this Agreement.
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B. The City has received Home Investment Partnerships Act funds from the United
States Department of Housing and Urban Development("HUD") pursuant to the Cranston- Q
Gonzales National Housing Act of 1990 ("HOME Funds"). The HOME Funds must be used by c
the City in accordance with 24 C.F.R. Part 92. -'
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C. The Borrower is or concurrently herewith will become the fee owner of the real =
property located at the northwest corner of Valencia Avenue and 91h Street, in the City of San
Bernardino, County of San Bernardino, State of California, as more particularly described in c
Exhibit A (the "Pro ert "). Borrower intends to construct a Seventy-Six (76)unit multifamily
affordable housing development(including one manager's unit) (the "Improvements"). The L
Improvements and the Property are referred to as the "Development." a
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D. Borrower desires to borrow from the City and the City desires to Iend Borrower
One Million Five Hundred Thousand Dollars ($1,500,000) of HOME Funds (the "Loan"). The
Loan will be evidenced by the Note and secured by the Deed of Trust,as defined below. o
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E. The Loan is being made to finance construction costs associated with the
Development in order to help achieve financial feasibility for the Development. The a�
Development will increase the supply of affordable rental housing in the City of San Bernardino.
Due to the assistance provided Borrower pursuant to this Agreement, the City has classified C
seven(7) units as HOME-assisted units (each such unit a "City-Assisted Unit"), which Units are E
"floating" Units as defined in 24 C.F.R. 92.2520). The City-Assisted Units are required to be
one(1)one-bedroom Unit and six (6)three-bedroom Units and are to be intermingled throughout Q
the Development and of comparable quality to all other Units and must meet the Uniform
Federal Accessibility Standards and Section 3.8(f) below.
F. The City has prepared a Mitigated Negative Declaration under the California
Environmental Quality Act (Public Resources Code Sections 21000 et sec .) ("CEQA")
requirements, pursuant to 14 CCR Section 15070. The City considered the environmental effects
of the Development as show in the Mitigated Negative Declaration and determined that no
further CEQA analysis is required pursuant to 14 California Code of Regulations Section 15162.
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G. In accordance with the National Environmental Policy Act of 1969, as amended
(42 U.S.C. 4321-4347) ("NEPA"), the City has completed and approved all applicable
environmental review for the activities proposed to be undertaken under this Agreement and
issued a Finding of No Significant Impact.
The Parties therefore agree as follows:
AGREEMENT
ARTICLE 1. DEFINITIONS AND EXHIBITS
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Section 1.1 Definitions. E
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The following terms have the following meanings:
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(a) "Agreement"means this HOME Investment Partnerships Act Loan 0
Agreement.
(b) "AHP Loan" has the meaning set forth in Section 2.9. _
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(c) "Annual Payment" has the meaning set forth in Section 2.7(b). o
(d) "Approved Development Budget" means the proforma development o
budget, including sources and uses of funds,as approved by the City, and attached hereto and Q
incorporated herein as Exhibit B as such may be modified pursuant to Section 3.15. a
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(e) "Approved Financing"means all of the following loans,grants and equity M
obtained by Borrower and approved by the City for the purpose of financing the Development:
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(i) An unsecured construction bridge loan from Wells Fargo Bank,
National Association in the approximate amount of Nine Million Five Hundred Thousand E
Dollars ($9,500,000) (the "Construction Loan"); 0
(ii) A HUD/FHA 221(d)(4) loan from PNC Bank,National
Association in the approximate amount of Ten Million Five Hundred Thousand Dollars
($10,500,000) (the "PNC Loan"); ;g
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(iii) A loan from the Housing Authority of the County of San
Bernardino(the "Housing Authority")of up to One Million Dollars ($1,000,000) (the "Housing
Authority Loan");
(iv) Low Income Housing Tax Credit investor limited partner capital
contribution in the approximate amount of Twelve Million Four Hundred Twenty-Four
Thousand Two Hundred Twenty-Three Dollars ($12,424,223) (the "Tax Credit Investor
Equity");
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(v) A HOME Investment Partnership Act loan from the County of San
Bernardino, made pursuant to the Sub-Recipient Agreement, of approximately Eight Hundred
Ten Thousand Dollars ($810,000)(the "County HOME Loan"); and
(vi) Deferred Developer Fees in an approximate amount of Nine
Hundred Ninety-Three Thousand Eight Hundred Eighty-Three Dollars ($993,883) (the "Deferred
Developer Fee") as described in Section 3.16(c).
(f) "Bid Package" means the package of documents Borrower's general
contractor is required to distribute to potential bidders as part of the process of selecting
subcontractors for the Development. The Bid Package is to include the following: (i) an Y
invitation to bid; (ii) copy of the proposed construction contract; and (iii) all Construction Plans.
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(g) "Borrower" has the meaning set forth in the first paragraph of this a�
Agreement. Q
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(h) "CEQA" has the meaning set forth in Paragraph F of the Recitals. 0
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(i) "Certificate of Occupancy" means the certificate of occupancy or p
equivalent document issued by the City to certify completion of the construction of the =
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Development. -_
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(}) "CHDO"means a certified Community Housing Development
Organization as defined in 24 C.F.R. 92.300. For the purposes of this Agreement,the certified o
CHDO is National Community Renaissance of California, as may be substituted pursuant to C
Section 4.6(c) of this Agreement.
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(k) "City" has the meaning set forth in the first paragraph of this Agreement.
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(1) "Commencement of Construction" has the meaning set forth in ti
Section 3.6. "'
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(m) "Completion Component"has the meaning set forth in Section 2.6. 0
(n) "Completion Date"means the date that all of the following have occurred:
(i) a final certificate of occupancy,or equivalent document is issued by the City to certify
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completion of the construction of the Development; (ii)the final disbursement of HOME funds
for the Development has been made; (iii)the City has verified the Development complies with Q
the property standards set forth in 24 CFR 92.251; and (iv)all project completion information
has been entered by the County into the Integrated Disbursement and Information System (IDIS).
(o) "Completion of Construction"has the meaning set forth in Section 3.7.
(p) "Construction Closing" means the date that all deeds of trust associated
with Approved Financing necessary for the construction of the Development as shown on the
Approved Development Budget are recorded against the Property.
10 (q) "Construction Contract" has the meaning set forth in Section 3.3.
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5.E.b
(r) "Construction Plans" means all construction documentation upon which
Borrower and the General Contractor rely in constructing the Development on the Property
(including the units in the Development, landscaping,parking, and common areas) as approved
by the City, as applicable,and includes,but is not Iimited to, final architectural drawings,
landscaping plans and specifications, final elevations,building plans and specifications, and
scope of construction working drawings.
(s) "County" means the County of San Bernardino, a political subdivision of
the State of California.
(t) "City-Assisted Units" has the meaning set forth in Paragraph E of the
Recitals.
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(u) "Deed of Trust" means the Deed of Trust with Assignment of Rents,
Security Agreement, and Fixture Filing among Borrower,as Trustor, a trustee approved by the Q
City, and the City, as beneficiary,that will encumber the Property to secure repayment of the c
Loan and performance of the covenants of the Loan Documents. A copy of the form of Deed of
Trust is attached as Exhibit E. w
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(v) "Default Rate"has the meaning set forth in Section 6.2(d).
(w) "Developer Fee" has the meaning set forth in Section 3.16 and.includes o
the Deferred Developer Fee defined in subsection (e) above.
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(x) "Development" has the meaning set forth in Paragraph C of the Recitals. Q
(y) "Escrow" means the escrow account established by the Borrower for the
closing of Development financing with an another escrow company satisfactory to the City.
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(z) "Event of Default" has the meaning set forth in Section 6.1.
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(aa) "Final Cost Certification" has the meaning set forth in Section 4.1. E
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(bb) "Final Development Cost" means the total of the cost of acquisition,
development and construction (including soft costs) of the Development as shown on the Final E
Cost Certification. -�
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(cc) "General Contractor" has the meaning set forth in Section 3.3. Q
(dd) "Hazardous Materials" has the meaning set forth in Section 4.7.
(ee) "Hazardous Materials Claims"has the meaning set forth in Section 4.7.
(ff) "Hazardous Materials Law" has the meaning set forth in Section 4.7.
(gg) "HOME" means the HOME Investment Partnerships Act Program
pursuant to the Cranston-Gonzales National Affordable Housing Act of 1990 (42 U.S.C. 12705
et s�g.), as amended.
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5.E.b
(hh) "HOME Funds" has the meaning set forth in Paragraph B of the Recitals.
(ii) "HOME Term" means the period beginning on the date of this Agreement
and ending on the twentieth (20th) anniversary of the Completion Date.
0j) "Housing Authority"means the Housing Authority of the County of San
Bernardino.
(kk) "HUD" has the meaning set forth in Paragraph B of the Recitals.
(11) "Improvements" has the meaning set forth in Paragraph C of the Recitals.
(mm) "Investor Limited Partner" means Wells Fargo Affordable Housing E
Community Development Corporation or a permitted transferee. L
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(nn) "Loan" has the meaning set forth in Paragraph D of the Recitals. R
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(oo) "Loan Documents" means this Agreement, the Note,the Regulatory w
Agreement, and the Deed of Trust.
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(pp) "Marketing Plan" has the meaning set forth in Section 3.17(x). CD
(qq) "NEPA" has the meaning set forth in Paragraph G of the Recitals. 0
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(rr) "Net Proceeds of Permanent Financing" means the amount by which Q.
Permanent Financing exceeds the Final Development Costs. Q
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(ss) "Note" means the Promissory Note that evidences Borrower's obligation to ti
repay the Loan. A copy of the form of Note is attached as Exhibit D.
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(tt) "Notice of Completion" means the Notice of Completion executed by M
Borrower in the form specified in California Civil Code Section 3093. E
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(uu) "Partnership Agreement" means the Agreement of Limited Partnership
executed by the partners of Borrower,to be amended and restated upon admittance of the tax
credit investor limited partner to the partnership, and as may be further amended pursuant to the E
requirements of Section 4.13(c)(ii) hereof. U
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(vv) "Permanent Closing" means the date that all deeds of trust(or assignments
of deeds of trust) associated with Approved Financing necessary for the permanent financing of
the Development as shown on the Approved Development Budget that have been recorded
against the Property are converted to permanent loans deeds of trust(which for the PNC Loan
shall be deemed to occur on the date amortizing payments on the PNC Loan begin), which shall
also be referenced as the "Conversion Date".
(ww) "Permanent Financing" means the sum of the following amounts: (i)the
PNC Loan (ii)the County HOME Loan,(iii) the Housing Authority Loan; (iv)the AHP Loan (if
applicable); (v)the Loan; and(vi) any future additional HOME Loans made by City.
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(xx) "Permitted Limited Partner" has the meaning set forth in Section 6.5.
(yy) "Permitted Transfer"has the meaning set forth in Section 4.13.
(zz) "Predevelopment Component I " has the meaning set forth in Section 2.6.
(aaa) "Predevelopment Component II "has the meaning set forth in Section 2.6.
(bbb) "Property" has the meaning set forth in Paragraph C of the Recitals.
(ccc) "Regulatory Agreement" means the Regulatory Agreement and
Declaration of Restrictive Covenants between the City and Borrower related to the Loan,to be c
recorded against the Property. A copy of the form of Regulatory Agreement is attached as E
Exhibit F. a0i
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(ddd) "Residual Receipts" has the meaning set forth in Section 2.7(a)(vi). c
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(eee) "Schedule of Performance" means the schedule for performance of various W
tasks and obligations under this Agreement that is attached as Exhibit C, as such may be 2
modified pursuant to Section 3.1. z
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(fff) "Senior Lender" has the meaning set forth in Section 2.5. o
(ggg) "Services Budget"has the meaning set forth in Section 3.18. o
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(hhh) "Services Plan" has the meaning set forth in Section 3.18. Q
(iii) "Sub-Recipient Agreement" means that certain HOME Investment ti
Partnership Program (HOME) Sub-Recipient Agreement,dated as of February 2, 2015, by and
between the City and the County. v°
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0jj) "TCAC" means the California Tax Credit AIlocation Committee. E
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(kkk) "Tenant" means the tenant household that occupies a unit in the
Development.
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(11I) "Term"means the period of time that commences on the date of this
Agreement, and expires, unless sooner terminated in accordance with this Agreement, on the a
fifty-fifth (55th) anniversary of the Completion Date.
(mmm)"Transfer" has the meaning set forth in Section 4.13.
Section 1.2 Exhibits.
The following exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A: Legal Description of the Property
Exhibit B: Approved Development Budget
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Exhibit C: Schedule of Performance
Exhibit D: Form of Promissory Note
Exhibit E: From of Deed of Trust
Exhibit F: Form of Regulatory Agreement
Exhibit G: Certification of Continuing Program Compliance
Exhibit H: Section 3 Compliance
Exhibit 1: Project Deliverables
Exhibit J: Statement of Residual Receipts
ARTICLE 2. LOAN PROVISIONS
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Section 2.1 Loan.
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The City shall lend to Borrower the Loan for the purposes set forth in Section 2.3 of this
Agreement. Borrower's obligation to repay the Loan is evidenced by the Note. Q
Section 2.2 Interest.
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(a) Subject to the provisions of Subsection(b) below, simple interest will
accrue on the outstanding principal balance of the Loan at a per annum rate of interest equal to
three percent(3%) commencing on the date of each disbursement. w
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(b) Upon the occurrence of an Event of a Default, interest on the Loan will >
begin to accrue,beginning on the date of such occurrence and continuing until the date the Loan Q
is repaid in full or the Event of Default is cured, at the Default Rate.
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Section 2.3 Use of Loan Funds. °ter
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(a) Borrower shall use the Loan to fund the predevelopment, construction and e
permanent financing of the Development consistent with the Approved Development Budget. M
Borrower shall use the Loan only to fund costs associated with the residential portions of the
Development. a,
(b) No portion of the Loan shall be used to fund costs incurred more than
twenty-four(24)months prior to the Effective Date or for any costs not allowed under 24 C.F.R. s
92.206.
(c) Borrower may not use the Loan proceeds for any other purposes without Q
the prior written consent of the City.
Section 2.4 Security.
Borrower shall secure its obligation to repay the Loan, as evidenced by the Note, by
executing the Deed of Trust, and causing or permitting it to be recorded as a lien against the
Property in second (2'd) lien priority to the deed of trust securing the Approved Financing in the
following order: the PNC Loan,the Loan,the Housing Authority Loan,and the County HOME
C J Loan subject to Section 2.5 below. Borrower shall also cause or permit the Regulatory
Agreement to be recorded against the Property.
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Section 2.5 Subordination.
Any agreement by the City to subordinate the Deed of Trust and/or Regulatory
Agreement to an encumbrance securing and/or evidencing Approved Financing(each such
Approved Financing, a "Senior Loan"),will be subject to the satisfaction of each of the
following conditions:
(a) All of the proceeds of the proposed Senior Loan, less any transaction
costs, are used to provide acquisition,construction and/or permanent financing for the
Development. .
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(b) The proposed lender of a Senior Loan (each a "Senior Lender") is a state E
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or federally chartered financial institution, a nonprofit corporation or a public entity that is not
affiliated with Borrower or any of Borrower's affiliates, other than as a depositor or a lender,
except as may otherwise be pennitted by the City, at its sole and absolute discretion. o
(c) Borrower demonstrates to the City's satisfaction that subordination of the UJ
Deed of Trust and the Regulatory Agreement is necessary to secure adequate acquisition, _
construction and/or permanent financing to ensure the viability of the Development, including
the operation of the Development as affordable housing, as required by the Loan Documents. To
satisfy this requirement, Borrower must provide to the City, in addition to any other information 0
"""+► reasonably required by the City, evidence demonstrating that the proposed amount of the Senior o
Loan is necessary to provide adequate acquisition, construction and/or permanent financing to a
ensure the viability of the Development,and adequate financing for the Development would not Q
be available without the proposed subordination. "
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(d) The subordination agreement(s) is structured to minimize the risk that the
Deed of Trust and the Regulatory Agreement will be extinguished as a result of a foreclosure by
the Senior Lender or other holder of the Senior Loan. To satisfy this requirement, the C-1
subordination agreement must provide the City with adequate rights to cure any defaults by E
Borrower, including: (i)providing the City or its successor with copies of any notices of default
at the same time and in the same manner as provided to Borrower; and (ii) providing the City
with a cure period of at least sixty(60)days to cure any default.
(e) The subordination(s) of the Loan is effective only during the original term Y
of the Senior Loan and any extension of its term that is approved in writing by the City. a
(f) The subordination does not limit the effect of the Deed of Trust and the
Regulatory Agreement before a foreclosure,nor require the consent of the Senior Lender prior to
the City exercising any remedies available to the City under the Loan Documents.
(g) Upon a determination by the City Manager that the conditions in this
Section have been satisfied,the City Manager will be authorized to execute the approved
subordination agreement without the necessity of any further action or approval by the Mayor
and Common Council. Execution of any subordination agreement will evidence and constitute
the determination of the City that all requirements of this Section 2.5 have been satisfied or
waived. Notwithstanding anything to the contrary, the City Manager shall have the authority to
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execute that certain Subordination Agreement Form HUD-92420M or such other form
subordination agreement required by HUD.
Section 2.6 Conditions Precedent to Disbursement of Loan Funds.
The disbursements made pursuant to this Section 2.6 may not exceed the amount of the
Loan. The City shall disburse the Loan into Escrow in three components: (i) a "Predevelopment
Component I" in the amount of One Million Two Hundred Thirty Thousand Dollars
($1,230,000); (ii) a"Predevelopment Component 11" in the amount of One Hundred Twenty
Thousand Dollars ($120,000); and (iii)a "Completion Component" in the amount of One
Hundred Fifty Thousand Dollars($150,000). The division of the Loan between the
Predevelopment Component I,the Predevelopment Component 11 and the Completion m
Component may be readjusted by the City Manager on behalf of the City without the need for Q
formal amendment of this Agreement. The County will disburse the the Predevelopment E.
Component 1 at Construction Closing subject to the conditions precedent setforth in subsection a
(a) below,the Predevelopment Component 11 subject to the conditions precedent setforth in c
subsection(b) below (but in no event before the Construction Closing),and the Completion —J
Component at Permanent Closing subject to the conditions precedent setforth in subsection (c). r-
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(a) Predevelopment Component I. The City is not obligated to make a
disbursement of the Predevelopment Component I at Construction Closing, or to take any other
action under the Loan Documents unless the following conditions precedent are satisfied: °
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(i) There exists no Event of Default nor any act, failure, omission or Q.
condition that would constitute an Event of Default under this Agreement; Q
(ii) Borrower holds good and marketable fee title to the Property or is n
acquiring title to the Property;
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(iii) Borrower has delivered to the City a copy of Borrower's M
organizational documents and a corporate authorizing resolution authorizing Borrower's
execution of the Loan Documents and the transactions contemplated by the Loan Documents; a,
(iv) There exists no material adverse change in the financial condition
of Borrower from that shown by the financial statements and other data and information =
furnished by Borrower to the City prior to the date of this Agreement;
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(v) Borrower has furnished the City with evidence of the insurance
coverage meeting the requirements of Section 4.14 below;
(vi) Borrower has caused to be executed and delivered to the City the
Loan.Documents and any other instruments, and policies required under the Loan Documents;
(vii) The Deed of Trust and the Regulatory Agreement have been
recorded against the Property in the Office of the Recorder of the County of San Bernardino;
(viii) Borrower is in compliance with the Schedule of Performance;
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Packet Pg. 73
(ix) All environmental review necessary for the construction of the
Development has been completed, and Borrower has provided the City evidence of compliance
with all CEQA and NEPA mitigation measures;
(x) The City has determined the undisbursed proceeds of the Loan,
together with other funds or firm commitments for funds that Borrower has obtained in
connection with the acquisition and construction of the Development, are not less than the
amount the City determines is necessary to pay for the acquisition and construction of the
Development and to satisfy all of the covenants contained in this Agreement and the.Regulatory
Agreement;
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(xi) Borrower has obtained all permits and approvals necessary for the Q
construction of the Development, as required by Section 3.2, provided however the Borrower
may satisfy this requirement with regards to the building permit, if the Borrower obtains a permit
ready letter from the City Building Department; Q
(xii) Borrower has submitted a certification from the architect certifying �
that the plans and specifications and design documents for the Development ensure that the City- W
Assisted Units are in compliance with Section 3.8(f)of this Agreement. _
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(xiii) The City has received a copy of the General Contractor's
Construction Contract as required pursuant to Section 3.3 below; 0
(xiv) The City has received and approved the labor and material °
Q
(payment)bonds as required pursuant to Section 3.5 below; _-
(xv) A title insurer reasonably acceptable to the City is unconditionally d°
and irrevocably committed to issuing an LP-10 2006 ALTA Lender's Policy of title insurance
insuring the priority of the Deed of Trust in the amount of the Loan, subject only to such
exceptions and exclusions as may be reasonably acceptable to the City,and containing such M
endorsements as the City may reasonably require. The Borrower shall provide whatever E
documentation (including an indemnification agreement),deposits or surety is reasonably a,
required by the title company in order for the City's Deed of Trust to be senior in lien priority to
any mechanics liens in connection with any start of construction that has occurred prior to the
recordation of the Deed of Trust against the Property in the Office of the Recorder of the County E
of San Bernardino; U
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(xvi) Borrower has executed a Partnership Agreement approved by the
City, with the Investor Limited Partner, in which the tax credit equity investor is obligated to
provide Borrower the Tax Credit Investor Equity;
(xvii) Borrower has closed,or is concurrently closing, on the
construction financing including Construction Loan and the County HOME Loan and is eligible
to receive the proceeds of those loans and has received the amount of Tax Credit Investor Equity
stated as the a first installment in the Partnership Agreement(estimated to be approximately Two
Million Four Hundred Eight Four Thousand Eight Hundred Forty-Five Dollars($2,484,845);
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Packet Pg. 74
5,E.b
(xviii) The City has received a written draw request from Borrower,
including(1) certification that the condition set forth in Section 2.6(a)(i) continues to be
satisfied, (2) certification that the proposed uses of funds consistent with the Approved
Development Budget, (3) the amount of funds needed, and, (4) where applicable, a copy of the
bill or invoice covering a cost incurred or to be incurred. When a disbursement is requested to
pay any contractor in connection with improvements on the Property,the written request must be
accompanied by (i) certification by the Borrower's architect reasonably acceptable to the City
that the work for which disbursement is requested has been completed(although the City
reserves the right to inspect the Property and make an independent evaluation); and(ii) lien
releases and/or mechanics lien title insurance endorsements reasonably acceptable to the City.
(b) Predevelopment Component 11. The City is not obligated to make a
disbursement of the Predevelopment Component 1I, or to take any other action under the Loan
Documents unless the following conditions precedent are satisfied:
L
(i) All requirements set forth in Section 2.6(a) have been and continue Q
to be satisfied and there exists no Event of Default nor any act, failure, omission or condition that o
would constitute an Event of Default under this Agreement; w
(ii) Any substitution of the sole and managing general partner allowed =
pursuant to Section 4.6 have been completed; s
4-
(iii) Borrower has complied with the requirements of Section 2.9 0
below; and ,'o_
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(iv) The Borrower's sole member and managing general partner, or the Q
sole member of the general partner, meets the legal and organizational characteristics described o
in 24 C.F.R. 92.2 and has been and continues to be annually recertified as a CHDO by the City M
of San Bernardino for the entire HOME Term; o
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(v) There exists no Event of Default nor any act, failure,omission or
condition that would constitute an Event of Default under this Agreement; and L
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(vi) The City has received a written draw request from Borrower,
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including (1) certification that the condition set forth in Section 2.6(a) continue to be satisfied, E
(2)certification that the proposed use of funds is consistent with the Approved Development
Budget, (3) the amount of funds needed, and, (4) where applicable, a copy of the bill or invoice Q
covering a cost incurred or to be incurred. Notwithstanding anything to the contrary, if the
conditions set forth in this subsection(b)have been satisfied by the Construction Closing,
Borrower shall be eligible to draw down the Predevelopment Component II simultaneously with
the Construction Closing.
(vii) If and to the extent that the sole general partner or the sole member
of the general partner, does not meet the requirements of Section 4.6(c)hereof,the City shall
have no obligation to disburse any of the proceeds of the Predevelopment II Component.
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Packet Pg. 75
5
(c) Completion Component. The City is not obligated.to make a
disbursement of the Completion Component at Permanent Closing, or to take any other action
under the Loan Documents unless the following conditions precedent are satisfied:
(i) All requirements set forth in Section 2.6(a) and 2.6(b) have been
and continue to be satisfied and there exists no Event of Default nor any act, failure, omission or
condition that would constitute an Event of Default under this Agreement;
(ii) The Borrower has been issued a Certificate of Completion for the
Development by City;
(iii) The Borrower has been issued a Certificate of Occupancy for the
Development by City; m
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(iv) The City has received satisfactory evidence that the City-Assisted Q
Units are rented to eligible tenants at the required rents in compliance with the requirements of
this Agreement and the Regulatory Agreement; °
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(v) The Borrower has satisfied all conditions for the receipt of the p
third installment of the Tax Credit Investor Equity, consistent with Borrower's Partnership
Agreement;
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(vi) The City has received from Borrower current evidence of the
insurance coverage meeting the requirements of Section 4.14 below; o
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(vii) The City has received an approved a report setting forth: (l) the a
income, household size, race, and ethnicity of Tenants of the City-Assisted Units; (2)the unit
size, rent amount and utility allowance for all City-Assisted Units; and(3) the accessible units in
the Development pursuant to Section 3.8(0; c
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(viii) The City has received a draft of the Final Cost Certification for the
Development from Borrower showing all uses and sources; E
(ix) The City has received from Borrower and approved a form of
Tenant lease; E
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(x) The City has received from Borrower and approved the Marketing y
Plan;
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(xi) The City has received from Borrower and approved a copy of the
Services Plan for the provision of service to residents;
(xii) The City has received from Borrower all relevant contract activity
information, including compliance with Section 3 (including items included in Exhibit H of this
Agreement, incorporated herein by this reference) and MBE/WBE requirements;
(xiii) Borrower has submitted a certification from the architect certifying
that the City-Assisted Units have been constructed in compliance with Section 3.8(f) of this
Agreement;
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Packet Pg. 76
5.E.b
(xiv) The City has received from Borrower a copy of the management
agreement and contact information for the property manager of the Development and the name
and phone number of the on-site property manager;
(xv) If Borrower is required to pay prevailing wages under the Davis-
Bacon Act(40 U.S.C. 3141-3148),the Borrower has submitted copies of all certified payrolls to
the City, and any identified payment issues have been resolved, or Borrower is working
diligently to resolve any such issues; and
(xvi) The City has received a written draw request from Borrower,
including(1)certification that the condition set forth in Section 2.6(a)and 2.6(b)continue to be Y
satisfied, (2) certification that the proposed use of funds is consistent with the Approved a=i
Development Budget, (3)the amount of funds needed,and, (4) where applicable, a copy of the
bill or invoice covering a cost incurred or to be incurred; and
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(xvii) If and to the extent that the sole managing general partner does not c
meet the requirements of Section 4.6(c) hereof,the City shall have no obligation to disburse any _J
of the proceeds of the Completion Component. r-
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(d) The Borrower hereby agrees and acknowledges that the City will have not
less than seventy (70) days from the date the City receives a completed draw request to disburse
4.
funds under this Section 2.6.
(e) All funds to be disbursed pursuant to this Agreement shall be available to °
be disbursed to a Senior Lender, if and to the extent,the Senior Lender takes over the Q
construction of the Development,the Senior Lender agrees to be bound to the terms hereof and
the Senior Lender has cured any Default of the Borrower.
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Section 2.7 Repayment Schedule.
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(a) Special Definitions. The following definitions apply to this Section 2.7: E
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G) "Annual Operating Expenses"means for each calendar year, the
following costs reasonably and actually incurred for operation and maintenance of the C
Development, and subject to the limits contained in the Approved Development Budget: E
(1) property taxes and assessments imposed on the a
Development;
(2) debt service and associated fees currently due on a non-
optional basis (excluding debt service due from residual receipts or surplus cash of the
Development) on loans associated with development of the Development and approved by the
County;
(3) bond monitoring fee, issuer fees,trustee's fees and other
fees and cost payable to a trustee and/or issuer in connection with tax-exempt bonds issued as
part of Approved Financing;
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Packet Pg.77
(4) property management fees and reimbursements (including
deferred payments of previously approved property management fees),on—site property
management office expenses, and salaries of property management and maintenance personnel
payable to a property manager approved by the City pursuant to the Regulatory Agreement, not
to exceed amounts that are standard in the industry and pursuant to a management contract
approved by the City pursuant to the Regulatory Agreement;
(5) the fee in an amount not to exceed Twenty-One Thousand
Six Hundred Dollars($21,600) subject to an annual increase that is equal to the greater of three
percent(3%)or the percentage increase in the Consumer Price Index for All Urban Consumers,
U.S. Urban Wage Earners and Clerical Workers (Los Angeles CMSA, CA, for All items (1982-
84 = l 00))(the "CPl"), as published by the Bureau of Labor Statistics of the United States
Department of Labor, payable to a service provider approved by the City pursuant to the 4)
Regulatory Agreement, for the provision of on-site social services for Tenants which amount 2
shall be consistent with the Services Budget approved by the City,and pursuant to a Services ¢
Plan approved by the City in accordance with Section 3.18;
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(6) the Partnership Asset Management Fee; w
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(7) fees for accounting, audit, and legal services incurred by
Borrower's general partner in the management of the Development,not to exceed amounts that
4-
are standard in the industry and to the extent not included in the Partnership Asset Management 0
Fee; o
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(8) premiums for property damage and liability insurance;
(9) utility services not paid for directly by Tenants, including
water, sewer, and trash collection;
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(10) maintenance and repair; M
(1 l) any annual license or certificate of occupancy fees required
for operation of the Development;
(12) security services; E
(13) advertising and marketing;
(14) cash deposited into an operating reserve in an amount
sufficient to replenish the operating reserve to the amount required by the Partnership Agreement
approved by the City (approximately Five Hundred One Thousand Three Hundred Forty-Five
Dollars ($501,345) or the amount required in connection with the permanent financing (or any
greater amount approved in writing by the City)but with the operating reserve capped at six (6)
months gross rent from the Development(as such rent may vary from time to time);
(15) payment of any previously unpaid portion of the Developer
Fee (with interest at the applicable federal rate)due,not to exceed a cumulative Developer Fee in
the maximum amount set forth in Section 3.16 below;
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Packet Pg.78
(16) Fees or charges due on a non-optional basis on loans
associated with the construction of the Development and approved by the City, including but not
limited to inspection fees or compliance monitoring fees;
(17) Deposits to a replacement reserve account of$550 per unit
per annum;
(18) extraordinary operating costs specifically approved in
writing by the City;
(19) payments of deductibles in connection with casualty
insurance claims not normally paid from reserves, the amount of uninsured losses actually
replaced, repaired or restored, and not normally paid from reserves, and other ordinary and E
reasonable operating expenses approved in writing by the City and not listed above.
Q
Annual Operating Expenses do not include the following: depreciation,
amortization,depletion or other non-cash expenses, any amount expended or withdrawn from °
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any reserve account, and any capital cost associated with the Development, as determined by the w
accountant for Borrower. O
(ii) "City Prorata Percentage" means the percentage resulting from
dividing the Loan funds disbursed to Borrower in accordance with this Agreement;by the sum of o
such Loan funds and the County HOME Loan and the Housing Authority Loan funds disbursed
to Borrower. °
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(iii) "Gross Revenue" means for each calendar year, all revenue, a
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income, receipts,and other consideration actually received from operation and leasing of the
Development. Gross Revenue includes, but is not limited to:
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(1) all rents, fees and charges paid by Tenants; M
(2) Section 8 payments or other rental subsidy payments a�
received for the dwelling units (excluding any such payments applicable to a pre-occupancy
period and donated to the Housing Authority prior to occupancy of the Development);
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(3) deposits forfeited by Tenants;
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(4) all cancellation fees; Q
(5) price index adjustments and any other rental adjustments to
leases or rental agreements;
(6) net proceeds from vending and laundry room machines;
(7) the proceeds of business interruption or similar insurance
not paid to Senior Lenders;
(8) the proceeds of casualty insurance not used to rebuild the
Development and not paid to Senior Lenders; and
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Packet Pg. 79
(9) condemnation awards for a taking of part or all of the
Development for a temporary period.
Gross Revenue does not include Tenants' security deposits, loan proceeds; capital
contributions or similar advances.
(iv) "Lenders' Share of Residual Receipts" means fifty percent (50%)
of the Residual Receipts, inclusive of any Residual Receipts payment due under the County
HOME Loan and the Housing Authority Loan.
(v) "Partnership Asset Management Fee" means the total of the annual
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partnership management fees and asset management fees payable to the limited partner or general
partner of Borrower pursuant to Borrower's Partnership Agreement, in an amount not to exceed E
Twenty Four Thousand Dollars ($24,000)per year, subject to an annual increase that is equal to
the greater of three percent(3%)or the percentage increase in CPI,for the fifteen (15)-year Q
compliance period as described in Section 42(i)(1) of the Internal Revenue Code of 1986, as o
amended,and in an amount to be approved by the County at the end of such compliance period _J
for the remainder of the Term. W
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(vi) "Residual Receipts" means for each calendar year, the amount by
which Gross Revenue exceeds Annual Operating Expenses.
0
(vii) "Statement of Residual Receipts" means an itemized statement of
Residual Receipts, in the form attached here to as Exhibit.I, incorporated herein by this 0
reference. The first Statement of Residual Receipts will cover the period that begins on the CL
Completion Date and ends on December 315 of that same year. Subsequent statements of Q
Residual Receipts will cover the twelve-month period that ends on December 31 of each year.
M
(b) Annual Payments. Commencing on April I st of the year following the
Completion Date, and on April lst of each year thereafter during the Term, Borrower shall make
a Loan payment in an amount equal to the City's Prorata Percentage of Lenders' Share of
Residual Receipts (each, an "Annual .Payment"). The City shall apply all Annual Payments as 0
follows: (1) first,to accrued interest,and (2) second,to principal. On or prior to the date that t4
Borrower pays its Annual Payment, Borrower shall submit the following to the City:
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(i) The Statement of Residual Receipts for the relevant period, for the
subject property; w
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(ii) A statement from the independent public accountant that audited
the Borrower's financial records for the relevant period, which statement must confirm that
Borrower's calculation of the Lenders'Share of Residual Receipts is accurate based on Gross
Revenue and Annual Operating Expenses; and
(iii) Any additional documentation reasonably required by the City to
substantiate Borrower's calculation of Lenders' Share of Residual Receipts.
(c) Special Repayment From Net Proceeds. Subject to the rights of Senior
Lenders and subject to HUD approval, and to the extent additional subordinate loan proceeds,
16
Packet Pg. 80
5.E.b
equity or surplus development sources following a cost certification, Surplus Cash or other non-
Project Assets are available,no later than ten (10) days after the date Borrower receives its final
Tax Credit Investor Equity contribution, Borrower shall pay to the City one-hundred percent
(100%) of the Net Proceeds of Permanent Financing, as a special repayment of the Loan. No
later than one hundred twenty(120)days following completion of construction of the
Development,Borrower shall submit to the City for its review a preliminary calculation of the
Net Proceeds of Permanent Financing and a draft of the Final Cost Certification as defined
Section 4.1 below. The City shall approve or disapprove Borrower's determination of the
amount of the Net Proceeds of Permanent Financing in writing within thirty(30) days of receipt.
If Borrower's determination is disapproved by the City, Borrower shall re-submit documentation
to the City until the City approval is obtained. Notwithstanding anything to the contrary,the
Borrower may request a deduction from the Net Proceeds of Permanent Financing to reduce the
outstanding balance of the County Loan, the Housing Authority Loan, or Deferred Developer
Fee (subject to the restrictions in Section 3.16 hereof) upon approval from the City and the a
County,which approval shalt not be unreasonably withheld.
R
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(d) Special Repayment For Un-leased Units. As required under 24 C.F.R. _J
92.252, if Borrower fails to lease any one of the City-Assisted Units within eighteen (18) months E
of the Completion of Construction of the Development, the Borrower shall pay to the City a =
proportionate share of the indebtedness of Borrower to the City under this Agreement and the s
Note attributable to each of the City-Assisted Units that has remained un-leased for the entire o
eighteen (18)month period, together with any accrued interest thereon calculated pursuant to 0
Section 2.2,which amount shall be immediately due and payable. Amounts required to be repaid 'o
pursuant to this subsection (d)that are not immediately repaid as required hereunder a result of
the limitations set forth in subsection(g) shall be added to the outstanding principal of the Loan Q
and become part of the secured obligation of the Borrower. o
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(e) Payment in Full. Borrower shall pay all outstanding principal and accrued
interest on the Loan, in full, on the earliest to occur of: (i) an Event of Default, and (ii)the
expiration of the Term.
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(f) Prepayment. Borrower may prepay the Loan at any time without premium
or penalty. However, the Regulatory Agreement and the Deed of Trust will remain in effect for
the entire Term, regardless of any prepayment.
(g) Notwithstanding anything to the contrary in this Agreement, so long as the a
Secretary of Housing and Urban Development("HUD") or his/her successor or assigns, are the
insurers or holders of the first mortgage on the Waterman Gardens—Valencia 9,FHA Project
No. 143-35130, payments on the Loan shall be payable only from the 75%of"Surplus Cash" or
from non-Project Assets, as the terms "Surplus Cash" and "Project Assets" are defined in the
Regulatory Agreement for Multifamily Projects (the "HUD Regulatory Agreement") between
HUD and Borrower. The restrictions on payment imposed by the previous sentence shall not
excuse any default caused by the failure of the Borrower to pay the indebtedness evidenced by
the Note or this Agreement. Additionally, that Borrower's obligation to indemnify and hold the
City harmless shal I be limited to available Surplus Cash of the Borrower or non-Project assets of
the Borrower, or available liability insurance proceeds.
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Packet Pg.81
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5.E.b
Section 2.8 Non-Recourse.
Except as provided below,upon recordation of the Deed of Trust against the Property,
neither Borrower, nor any partner of Borrower,will have any direct or indirect personal liability
for payment of the principal of, and interest on,the Loan or the performance of the covenants of
Borrower under the Deed of Trust. Following recordation of the Deed of Trust,the sole recourse
of the City with respect to the principal of, or interest on,the Note and defaults by Borrower in
the performance of its covenants under the Deed of Trust will be to the property described in the
Deed of Trust;provided, however,that nothing contained in the foregoing limitation of liability
limits or impairs the enforcement of all the rights and remedies of the City against all such
security for the Note, or impairs the right of City to assert the unpaid principal amount of the
Note as demand for money within the meaning and intendment of Section 431.70 of the d
California Code of Civil Procedure or any successor provision thereto. The foregoing limitation
of liability is intended to apply only to the obligation to repay the principal of, and payment of
interest on the Note and the performance of Borrower's obligations under the Deed of Trust. Q
Except as hereafter set forth; nothing contained herein is intended to relieve Borrower of its o
obligation to indemnify the City under Sections 3.8,4.6,4.7, and 7.4 of this Agreement, or -J
liability for(i) loss or damage of any kind resulting from waste,fraud or willful W E
misrepresentation; (ii)the failure to pay taxes, assessments or other charges which may create 0
x
liens on the Property that are payable or applicable prior to any foreclosure under the Deed of
Trust(to the full extent of such taxes, assessments or other charges); (iii) the fair market value of 5
any personal property or fixtures removed or disposed of by Borrower other than in accordance °
with the Deed of Trust; and (iv)the misappropriation of any proceeds under any insurance c
policies or awards resulting from: (A)condemnation or the exercise of the power of eminent c`.
domain; or(B)by reason of damage, loss or destruction to any portion of the Property. Q
CO
Section 2.9 Other Financing. ti
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(a) The Borrower is required to apply for and utilize,to the extent available,
Affordable Housing Program Funds ("AHP Loan") administered by the Federal Home Loan M
Bank and other sources of permanent financing to partially finance the Development. E
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(b) AHP Loan. The Borrower shall submit a timely and complete application w
for the AHP Loan which is subject to a competitive application process implemented by the
Federal Home Loan Bank of San Francisco and its member institutions. To satisfy the .�
requirements of this Section,the Borrower shall submit a timely and complete AHP Loan
application for Affordable Housing Program's 2015 Round A Application due no later than the a
March 9, 2015 Round A application deadline. If the Borrower does not receive an AHP Loan in
the 2015 Round A Application cycle,then the Borrower shall submit a timely and complete
application for the 2015 Round B Application cycle. if the Borrower does not receive an AHP
Loan Commitment in the 2015 Round B Application cycle,then the Agency may confer with the
Borrower in good faith for a period not to exceed sixty(60)days to determine if the Borrower
should submit a further application for an AHP Loan in a subsequent application round or if a
feasible and mutually acceptable alternate arrangement can be made to finance the construction
of the Development. Any agreement that is reached between the parties regarding an alternative
financing plan for the Development shall be memorialized in an amendment to this Agreement.
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Packet Pg. 82
Submitting a timely and complete application for an AHP Loan shall be a condition precedent to
the Agency's obligation to disburse the Predevelopment Component I1.
(c) If and to the extent the Borrower receives an AHP Loan or additional
sources of permanent financing,the Ioan proceeds of the AHP Loan and the additional
permanent financing, may,pursuant to Section 2.7(c), be used: (1) first to make mandatory
prepayments of the Housing Authority Loan until such loan is fully repaid; (2)the remaining
funds will be split equally and shall be used to make a mandatory prepayment of the Loan and to
reduce the outstanding balance of the Deferred Developer Fee.
ARTICLE 3. CONSTRUCTION OF THE DEVELOPMENT d
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Section 3.1 Schedule of Performance.
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Borrower shall perform the tasks described in the Schedule of Performance no later than R
the dates set forth in the Schedule of Performance, subject to Section 7.15. The Schedule of
Performance may be modified in writing by the City Manager on behalf of the City without the w
need for formal amendment of this Agreement or further approval by the Mayor and Common O
Council. _
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Section 3.2 Permits and Approvals. o
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Borrower shall obtain all permits and approvals necessary for the construction of the 0
Development no later than the date set forth in the Schedule of Performance. C
Section 3.3 Construction Contract.
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(a) Not later than thirty(30) days prior to the proposed Commencement of c
Construction, Borrower shall submit to the City for its approval a draft of the proposed M
construction contract for the Development(the "Construction Contract") with Borrower's general 2
contractor(the "General Contractor"). All construction work and professional services are to be E
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performed by persons or entities licensed or otherwise authorized to perform the applicable M
construction work or service in the State of California. The Construction Contract is to provide
that at least ten percent(I0%) of the costs incurred will be payable only upon completion of the E
construction, or such other amount that may be allowed under a Senior Loan subject to written
approval by the City. The Construction Contract must include all applicable HOME a
requirements set forth in Section 4.6 below. The City's approval of the construction contract
may not be deemed to constitute approval of or concurrence with any tenn or condition of the
construction contract except as such term or condition may be required by this Agreement.
Borrower shall use its best efforts to coordinate with the local County Workforce
Development Department(WDD), and all other applicable County requirements,to maximize
the practicable opportunity to participate in the construction of the Development. Borrower
shall, at a minimum, make contact with the County WDD and provide project information for
local hire opportunities. Documentation of such notifications must be maintained by Borrower
and available to the City as requested.
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Packet Pg.83
5.E.b.
Section 3.4 Bid Package.
The Borrower shall cause Borrower's General Contractor to provide the Bid Package to
all subcontractors.
Section 3.5 Construction Bonds.
Not later than thirty(30)days prior to the proposed Commencement of Construction
Borrower shall deliver to the City copies of labor and material bonds and performance bonds for
the construction of the Development in an amount equal to one hundred percent(100%)of the
scheduled cost of the construction of the Development. Such bonds must name the City as a co-
obligee.
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Section 3.6 Commencement of Construction.
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Borrower shall cause the Commencement of Construction of the Development no later
than the date set forth in the Schedule of Performance, which in no event shall be any later than 0
twelve (12)months from the Effective Date. For the purposes of this Agreement, LU
"Commencement of Construction"means the date set for the start of construction of the p
Development in the notice to proceed issued by Borrower to Borrower's general contractor.
Section 3.7 Completion of Construction. o
For purposes of this Agreement, "Completion of Construction" means the following: o
CL
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(a) Borrower shall diligently prosecute construction of the Development to Q
completion, and shall cause the completion of the construction of the Development no later than CD
the date set forth in the Schedule of Performance.
(b) Borrower shall record a Notice of Completion within ten (10)days of ti
completion of construction of the Development and provide the County a copy of the recorded
Notice of Completion. E
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(c) Borrower shall provide the City Manager a copy of the Certificate of
Occupancy, or other evidence of completion of the Development within ten(10)days of receipt
from the City.
Section 3.8 Construction Pursuant to Plans and Laws; Prevailing Wages; Q
Accessibility.
(a) Borrower shall construct the Development in conformance with the
Construction.Plans approved by the City's Building Department. Borrower shall notify the City
in a timely manner of any changes in the work required to be performed under this Agreement,
including any additions, changes, or deletions to the Construction Plans. A written change order
authorized by the City must be obtained before any of the following changes, additions, or
deletions in work for the Development may be performed: (i) any change in the work the cost of
which exceeds Seventy-Five Thousand Dollars ($75,000); or(ii) any set of changes in the work
the cost of which cumulatively exceeds One Hundred Twenty-Five Thousand Dollars
($125,000). Consent to any additions,changes,or deletions to the work do not relieve or release
20
Packet Pg.84
Borrower from any other obligations under this Agreement, or relieve or release Borrower or its
surety from any surety bond.
(b) Borrower shall cause all work performed in connection with the
Development to be performed in compliance with:
(i) all applicable laws, ordinances, rules and regulations of federal,
state, county or municipal governments or agencies now in force or that may be enacted
hereafter, including without limitation and to the extent applicable,the prevailing wage
provisions of the federal Davis-Bacon Act and implementing rules and regulations, as further set
forth in subsection (c)below, and state prevailing wages pursuant to California Labor Code
Section 1770 et sM., and the regulations pursuant thereto, as further set forth in subsection (d)
below; E
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(ii) the property standards set out in 24 C.F.R. 5.701 et seq. and 24 a
C.F.R. 92.251 or adopted by the City in conformance therewith; and
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(iii) all directions, rules and regulations of any fire marshal,health W
officer, building inspector,or other officer of every governmental agency now having or r-
0
hereafter acquiring jurisdiction. The work will proceed only after procurement of each permit, _
license, or other authorization that may be required by any governmental agency having
jurisdiction,and Borrower shall be responsible to the City for the procurement and maintenance o
thereof, as may be required of Borrower and all entities engaged in work on the Development.
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(c) The Borrower shall cause construction of the Development to be in a
compliance with the prevailing wage requirements of the federal Davis-Bacon Act(40 U.S.C. aC
3141-3148) and the attached labor compliance provisions in the attached Exhibit H incorporated
herein by this reference. Borrower shall indemnify, hold harmless and defend (with counsel y
reasonably acceptable to the City)the City against any claim for damages, compensation, fines, o
penalties or other amounts arising out of the failure or alleged failure of any person or entity M
(including Borrower, its contractor and subcontractors)to pay prevailing wages as determined
pursuant to the prevailing wage provisions of the federal Davis-Bacon Act and implementing E
rules and regulations in connection with the construction of the Development or any other work
undertaken or in connection with the Property. The requirements in this Subsection survive
repayment of the Loan and the reconveyance of the Deed of Trust. Borrower agrees and E
acknowledges that the City and County will monitor compliance with federal Davis-Bacon Act
requirements, and will make best efforts to coordinate with HUD. a
(d) The Borrower shall pay and shall cause the contractor and subcontractors
to pay prevailing wages in the construction of the Development as those wages are determined
pursuant to California Labor Code Section 1720 et seq.,to employ apprentices as required by
California Labor Code Sections 1777.5 et sN., and the implementing regulations of the
Department of Industrial Relations (the "DIR"). Borrower shall and shall cause the contractor
and subcontractors to comply with the other applicable provisions of California Labor Code
Sections 1720 et seq., 1777.5 et seg.,and implementing regulations of the DIR. Borrower shall
and shall cause the contractor and subcontractors to keep and retain such records as are necessary
to determine if such prevailing wages have been paid as required pursuant to California Labor
,%wool Code Section 1720 et sic ., and apprentices have been employed are required by California Labor
21
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5:E.b
Code Section 1777.5 et sue. Copies of the currently applicable current per diem prevailing
wages are available from DIR. During the construction of the Development, Borrower shall or
shall cause the contractor to post at the Property the applicable prevailing rates of per diem
wages. Borrower shall indemnify, hold harmless and defend (with counsel reasonably
acceptable to the City)the City against any claim for damages, compensation, fines, penalties or
other amounts arising out of the failure or alleged failure of any person or entity (including
Borrower, its contractor and subcontractors)to pay prevailing wages as determined pursuant to
California Labor Code Section 1720 et seq., to employ apprentices pursuant to California Labor
Code Section 1777.5 et seq., and implementing regulations of the DIR or to comply with the
other applicable provisions of California Labor Code Sections 1720 et seq., 1777.5 et M., and
the implementing regulations of the DIR in connection with the construction of the Development
or any other work undertaken or in connection with the Property. The requirements in this
Subsection survive the repayment of the Loan, and the reconveyance of the Deed of Trust.
L
(e) The general contractor and all Subcontractors shall be required to pay their Q
laborers and mechanics employed under this Contract, a wage not less than minimum wage c
classification, as specified in the applicable Federal law when the Contract amount for the Prime —j
contract exceeds $2,000. The General Contractor is responsible for ensuring Subcontractor r-
compliance with Davis-Bacon and Related Act Requirements. Federal Labor Standards o
Provisions (HUD 4010) apply to this Development. Certified payroll submitted to the City are
required during the term of construction, and Borrower shall copy the County on all such
submissions. Payment of disbursement components may be delayed when certified payrolls are °
not properly submitted. o
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(f) In compliance with Section 504 of the Rehabilitation Act of 1973 (29 C
U.S.C. 794,et sec .), a minimum of four(4) units in the Development shall be constructed to be
readily accessible and usable by households with a mobility impaired member and a minimum of ti
two (2) units shall be constructed and to be readily accessible and usable by households with a
hearing or visually impaired member. All City-Assisted Units in the Development shall also be
built to comply with the Uniform Federal.Accessibility Standards under 49 C.F.R. 31528, M
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Section 3.9 Equal Opportunity.
During the construction of the Development discrimination on the basis of race, color,
creed, religion, age, sex, sexual orientation, marital status, national origin, ancestry,or disability E
in the hiring, firing, promoting, or demoting of any person engaged in the construction work.is
not allowed. Q
Section 3.10 Minority and Women-Owned Contractors.
Borrower shall use its best efforts to afford minority-owned and women-owned business
enterprises the maximum practicable opportunity to participate in the construction of the
Development. Borrower shall, at a minimum, notify applicable minority-owned and women-
owned business firms located in San Bernardino County of bid opportunities for the construction
of the Development. A listing of minority owned and women owned businesses located in the
County and neighboring counties is available from the County. Documentation of such
notifications must be maintained by Borrower and available to the City as requested..
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Packet Pg. 86
Section 3.11 Progress Reports.
Until such time as Borrower has received a Certificate of Occupancy from the City for
the Development, Borrower shall provide the City with quarterly progress reports regarding the
status of the construction of the Development, including a certification that the actual
construction costs to date conform to the Approved Development Budget, as it may be amended
from time to time pursuant to Section 3.15 below.
Section 3.12 Construction Responsibilities.
(a) Borrower is responsible for the coordination and scheduling of the work to
be performed so that commencement and completion of the construction of the Development
will take place in accordance with this Agreement. m
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(b) Borrower is solely responsible for all aspects of Borrower's conduct in Q
connection with the Development, including(but not limited to)the quality and suitability of the
plans and specifications,the supervision of construction work,and the qualifications, financial 0
condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, W
consultants, and property managers. Any review or inspection undertaken by the City with o
reference to the Development is solely for the purpose of determining whether Borrower is
properly discharging its obligations to the City, and may not be relied upon by Borrower or by
any third parties as a warranty or representation by the City as to the quality of the design or c
construction of the Development. >
Section 3.13 Mechanics Liens, Stop Notices, and Notices of Completion. Q
(a) If any claim of lien is filed against the Property or a stop notice affecting d°
the Loan is served on the City or any other lender or other third party in connection with the
Development,then Borrower shall, within twenty (20) days after such filing or service, either
pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by M
delivering to the City a surety bond in sufficient form and amount, or provide the City with other
assurance satisfactory to the City that the claim of lien or stop notice will be paid or discharged. a,
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(b) If Borrower fails to discharge any lien, encumbrance, charge, or claim in
the manner required in this Section,then in addition to any other right or remedy, the City may E
(but is under no obligation to) discharge such lien, encumbrance, charge, or claim at Borrower's
expense. Alternately,the City may require Borrower to immediately deposit with the City the Q
amount necessary to satisfy such lien or claim and any costs,pending resolution thereof. The
City may use such deposit to satisfy any claim or lien that is adversely determined against
Borrower.
(c) Borrower shall file a valid notice of cessation or notice of completion
upon cessation of construction work on the Development for a continuous period of thirty (30)
days or more, and take all other steps necessary to forestall the assertion of claims of lien against
the Property. Borrower authorizes the City,but the City has no obligation, to record any notices
of completion or cessation of labor, or any other notice that the City deems necessary or
desirable to protect its interest in the Development and Property.
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Packet Pg. 87
5.E.b
Section 3.14 Inspections.
Borrower shall permit and facilitate, and shall require its contractors to permit and
facilitate,observation and inspection at the Development, during construction and after
completion of construction, by the City (or the County on City's behalf) and by any public
authorities during reasonable business hours for the purposes of determining compliance with
this Agreement. Borrower agrees and acknowledges that the City must conduct or cause to be
conducted on-site inspections, consistent with the requirements of 24 C.F.R. 92.504(d), to
determine compliance with the property standards set forth in 24 C.F.R. 92.251, at least once
every three (3) years after the completion of construction of the Development.
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After the completion of an inspection the City shall deliver a copy of the inspection d
report to the Borrower. If the City determines as a result of such inspection that there are any E
life-threatening health and safety related deficiencies, Borrower has the obligation to correct
such deficiencies immediately, in accordance with 24 C.F.R. 92.251. if the City determines as a Q
result of the inspection that there are any deficiencies for any of the inspectable items in the o
Development,the Borrower shall correct such deficiencies within fifteen (15) days from the
delivery of the inspection report or if a period longer than fifteen (15)days is reasonably
necessary to correct the deficiency,then Borrower must begin to correct the deficiency within o
fifteen (15) days and correct the deficiency as soon as reasonably possible. In addition,the s
Borrower acknowledges that the City may re-inspect the Development to verify all deficiencies 4
have been corrected or rely on third party documentation submitted by the Borrower for non- 'a
hazardous deficiencies in conformance with 24 C.F.R. 92.504(d).
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Section 3.15 Approved Development Budget; Revisions to Budget. 4
As of the date of this Agreement, the City has approved the Approved Development n
Budget set forth in Exhibit B. Borrower shall submit any proposed or required amendments to
the Approved Development Budget, along with evidence that the changes to the Approved
Development Budget are reasonable and necessary, to the City for approval within five (5) days M
of the date Borrower receives information indicating that actual costs of the Development vary or E
will vary from the costs shown on the Approved Development Budget,which approval shall not
be unreasonably withheld or delayed. Written consent of the City will be required to amend the
Approved Development Budget. The City will make best efforts to respond in writing within
seven (7) days after receipt of a proposed amendment to the Approved Development Budget.
Section 3.16 Developer Fee. Q
(a) The maximum cumulative Developer Fee that may be paid to any entity or
entities providing development services to the Development,whether paid up-front or on a
deferred basis, may not exceed Two Million Dollars ($2,000,000), of which approximately Nine
Hundred Ninety-Three Thousand Eight Hundred Eighty-Three Dollars($993,883) shall be
deferred subject to subsection (c) below, and in no event may exceed the amount allowed by
TCAC and as approved by the City. For the purposes of this Agreement"Developer Fee" has the
meaning set forth in California Code of Regulations, Title 4, Section 10302. Except for the
Developer Fee, no compensation from any source shall be received by or be payable to the
Borrower or any affiliate of the Borrower in connection with the provision of development and
construction management services for the acquisition and construction of the Development.
24
Packet Pg. 88
(b) The Development is contemplated to be the first of a multi-phase, mixed
income,mixed use redevelopment of the Waterman Gardens neighborhood. In an effort to
facilitate new housing,infrastructure,human capital, educational,retail and commercial
development in the identified target areas and to benefit the construction and operation of the
Development. National Community Renaissance of California(the "Developer Fee Recipient")
shall perform the items listed in Exhibit I, incorporated herein by this reference (the"Project
Deliverables'').
(c) Cost savings at completion. Pursuant to Section 2.7(c),the Borrower may
request to reduce the outstanding balance of the Deferred Developer Fee subject to the City's
reasonable approval.
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Section 3.17 Marketing Plan. E
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(a) No later than six (6)months prior to the projected date of the Completion a
of Construction of the Improvements,Borrower shall submit to the City for approval its plan for R
marketing the Development to income-eligible households as required pursuant to the �
Regulatory Agreement, including information on affirmative marketing efforts and compliance W
5.
with fair housing laws and 24 C.F.R. 92.351(a)(the "Marketing Plan").
(b) Upon receipt of the Marketing Plan,the City will promptly review the r
Marketing Plan and will approve or disapprove it within fifteen (15) days after submission. If o
the Marketing Plan is not approved, Borrower shall submit a revised Marketing Plan within
fifteen(15)days. Borrower shall follow this procedure for resubmission of a revised Marketing a
Plan until the Marking Plan is approved by the City. Q
(c) If after five(5)months after the Completion of Construction any Coity-
Assisted Unit remains unoccupied,the Developer shall submit a detail report of the ongoing
marketing efforts, and if deemed appropriate by the City, any necessary amendments or updates
to the Marketing Plan aimed at ensuring any unoccupied City-Assisted Unit is promptly leased. M
If any of the City-Assisted Units remain unoccupied eleven (11) months after the Completion of
Construction,the Developer shall submit a detailed report of the ongoing marketing efforts and a,
submit to the City an update to the Marketing Plan. Failure to lease all of the City-Assisted
Units to an eligible tenant within eighteen (18) months of Completion of Construction shall
trigger the special repayment pursuant to Section 23(d). E
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Section 3.18 Tenant Services Plan and Budget. Q
(a) Borrower will be providing on-site services to all tenants in the
Development(the "Tenant Services"). No later than six (6) months prior to the projected date of
the Completion of Construction of the Improvements, Borrower shall submit to the City for
approval a proposed services plan which shall include written guidelines or procedures for
providing the Tenant Services(the "Services Plan"), and a proposed budget for the provision of
Tenant Services (the "Services Budget").
(b) The Services Plan shall include the types of Tenant Services provided,
AF A staffing levels(including caseload and hours of employment), and overall coordination of the
Tenant Services.
25
Packet Pg. 89
5.E.b
(c) The Services Budget shall show required expenditures from Annual
Operating Expenses in an approximate amount of Twenty One Thousand Six Hundred Dollars
($21,600)($1,800 per Month) subject to an annual increase that is equal to the greater of three
percent (3%)or the percentage increase in CPI to fund Tenant Services.
(d) Upon receipt of the proposed Services Plan and Services Budget,the City
shall promptly review the proposed Services Plan and Services Budget and shall approve or
disapprove them within thirty(30) days after submission. If either the Services Plan or Services
Budget is not approved, the Borrower shall submit a revised Services Plan and/or Services
Budget within thirty(30) days following the Borrower's receipt of the City's written disapproval.
If the City does not approve the revised Services Plan and/or Services Budget because the
Borrower fails to make specific revisions requested by the City,the Borrower shall be in default
hereunder.
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(e) It is currently anticipated that the Borrower will provide additional social Q
services to Tenants in the Development in excess of those payable from Annual Operating c
Expenses. The Borrower hereby agrees to make best efforts to apply for and obtain social —J
services funding to fund approximately Nine Thousand Dollars ($9,000) of additional Tenant 2
Services at the Development, subject to an annual increase that is equal to the greater of three 0
percent (3%)or the percentage increase in CPI. To the extent that the Developer obtains such
funding, such funding shall be excluded from Operating Income and shall instead be dedicated to
paying for the additional Tenant Services. If Borrower is unable to obtain additional funds for °
Tenant Services or to the extent the Developer receives less than the amount necessary to fund o
the additional social services actually provided to Tenants of the Development approved under Q.
the Services Plan and Services Budget,the City hereby agrees that Borrower shall be allowed to Q
accrue such amounts and be paid for such services from future Operating Income. c
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ARTICLE 4. LOAN REQUIREMENTS v
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Section 4.1 Financial Accountin sg and Post-Completion Audits. E
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(a) No later than ninety (90) days following issuance of the Certificate of
Occupancy for the Development, Borrower shall provide to the City for its review and approval a
financial accounting of all sources and uses of funds for the Development. .�
(b) No later than one hundred fifty(150)days following Completion of a
Construction of the Development, Borrower shall submit an audited financial report showing the
sources and uses of all funds utilized for the Development. This requirement may be satisfied by
providing the Final Cost Certification to the City. "Final Cost Certification" means the Final
Cost Certification Sources and Uses of Funds prepared by Borrower for the Development that:
(i) Borrower submits to TCAC; and (ii)has been prepared using generally accepted accounting
procedures in effect in the United States from time to time, consistently applied.
Section 4.2 Annual Operating Budget.
At the beginning of each year of the Term, Borrower shall provide to the City an annual
budget for the operation of the Development. Unless rejected by the City in writing within
26
Packet Pg. 90
fifteen (15)days after receipt of the budget,the budget will be deemed accepted. If rejected by
the City in whole or in part,Borrower shall submit a new or corrected budget within thirty(30)
calendar days of notification of the City's rejection and the reasons therefor. The provisions of
this Section relating to time periods for resubmission of new or corrected budgets will continue
to apply until such budget has been approved by the City.
Section 4.3 Information.
Borrower shall provide any information reasonably requested by the City in connection
with the Development, including(but not limited to) any information required by HUD in
connection with Borrower's use of the Loan funds,
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Section 4.4 Records. E
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(a) Borrower shall keep and maintain at the Development,or elsewhere with
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the City's written consent, full, complete and appropriate books,records and accounts relating to C
the Development, including all such books,records and accounts necessary or prudent to 0
evidence and substantiate in full detail Borrower's calculation of Residual Receipts, and W
disbursements of Residual Receipts. Books, records and accounts relating to Borrower's p
compliance with the terms, provisions,covenants and conditions of this Agreement are to be kept =
and maintained in accordance with generally accepted accounting principles consistently applied,
and are to be consistent with requirements of this Agreement. All such books, records, and o
accounts are to be open to and available for inspection and copying by HUD, the City, its
auditors or other authorized representatives at reasonable intervals during normal business hours. a
Copies of all tax returns and other reports that Borrower may be required to furnish to any Q
governmental agency are to be open for inspection by the City at all reasonable times at the place
that the books, records and accounts of Borrower are kept. Borrower shall preserve such records
for a period of not less than five (5) years after the creation of such records in compliance with
all HUD records and accounting requirements. If any litigation, claim, negotiation, audit �
exception, monitoring, inspection or other action relating to the use of the Loan is pending at the
end of the record retention period stated herein,then Borrower shall retain the records until such E
action and all related issues are resolved. The records are to include all invoices, receipts, and
other documents related to expenditures from the Loan funds. Borrower shall cause records to
be accurate and current and in such a form as to allow the City to comply with the record aa)
keeping requirements contained in 24 C.F.R. 92.508. Such records are to include but are not
limited to: m
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(i) Records providing a full description of the activities undertaken
with the use of the Loan funds.
(ii) Records demonstrating compliance with City and HUD property
standards and lead-based paint requirements, including, as applicable;the Uniform Physical
Conditions Standards established by HUD pursuant to 24 C.F.R. 5.703;
(iii) Records documenting compliance with the fair housing, equal
opportunity, and affirmative fair marketing requirements;
27
Packet Pg.91
(iv) Financial records as required by 24 C.F.R. 92.505, and OMB
Circular A-110 (24 C.F.R. Part 84);
(v) Records demonstrating compliance with the Tenant Selection Plan
requirements pursuant to 24 C.F.R. 92.253(d),and HOME affordability and income
requirements;
(vi) Records demonstrating compliance with MBE/WBE requirements;
(vii) Records demonstrating compliance with 24 C.F.R. Part 135 which
implements Section 3 of the Housing Development Act of 1968 (including those in Exhibit H of
this Agreement); _
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(viii) Records demonstrating compliance with applicable relocation L
requirements,which must be retained for at Ieast five (5) years after the date by which persons a
displaced from the property have received final payments;
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(ix) Records demonstrating compliance with labor requirements w
including certified payrolls from Borrower's General Contractor evidencing that applicable p
prevailing wages have been paid. _
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(x) Records demonstrating compliance with 24 C.F.R. 8.20. c
(b) The City shall notify Borrower of any records it deems insufficient. o
Borrower has fifteen (15) calendar days after the receipt of such a notice to correct any Q
deficiency in the records specified by the City in such notice, or if a period longer than fifteen a
(15) days is reasonably necessary to correct the deficiency, then Borrower must begin to correct
the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible.
Section 4.5 City Audits.
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(a) Each year, Borrower shall provide the City with a copy of Borrower's E
annual audit, which is to include information on all of Borrower's activities, in addition the
Borrower's general partners shall submit audited financial statements and the Borrower and the
Borrower's general partners shall submit all other financial information reasonably requested by
the City determined by the City as necessary for compliance with the requirements of 24 C.F.R.
504(4). Borrower shall also follow audit requirements of the Single Audit Act and OMB
Circulars A-122 and 110. `t
(b) In addition, the City or any designated agent or employee of the City at
any time is entitled to audit the Residual Receipts of the Development, and all of Borrower's
books, records, and accounts pertaining thereto. Such audit is to be conducted during normal
business hours at the principal place of business of Borrower and other places where records are
kept. Immediately after the completion of an audit,the City shall deliver a copy of the results of
the audit to Borrower. If it is determined as a result of such audit that there has been a deficiency
in a loan repayment to the City, then such deficiency will become immediately due and payable
with interest at the Default Rate from the date the deficient amount should have been paid. In
addition, if any audit conducted pursuant to this Section 4.5 determines that Residual Receipts
28
Packet Pg.92
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have been understated for any fiscal year by more than five percent(5%), then the Borrower
shall pay, in addition to the amounts set forth above, all of the costs and expenses incurred by the
City in connection with the audit and review of Borrower's accounts or records.
Section 4.6 HOME Requirements.
(a) Borrower shall comply with all applicable laws and regulations governing
the use of the HOME Loan funds as set forth in 24 C.F.R. Part 92, including the requirements of
the Regulatory Agreement. In the event of any conflict between this Agreement and applicable
laws and regulations governing the use of the Loan funds, the applicable laws and regulations
govern. During the HOME Term, these requirements are federal requirements, implemented by
the City; thereafter, these requirements are deemed local City requirements.
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(b) The Iaws and regulations governing the use of the Loan funds include (but ;v
are not limited to)the following:
c
(i) Eligible Project Costs. Restrictions on funding only eligible �
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project costs as defined under 24 C.F.R. 92.206 (subject to Section 2.3 above). W
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(ii) Environmental and Historic Preservation. 24 C.F.R. Part 50 and =
24 C.F.R. Part 58, which prescribe procedures for compliance with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4361),and the additional laws and authorities listed at 24 0
C.F.R. 58.5. >
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(iii) Applicability of OMB Circulars. The applicable policies, a
guidelines, and requirements of OMB Circulars Nos. A-87,A-102, Revised, A-11.0, A-122, and
A-133.
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(iv) Debarred, Suspended or Ineligible Contractors. The prohibition on e
the use of debarred, suspended, or ineligible contractors set forth in 24 C.F.R. Part 24. M
(v) Civil Rights, Housing and Community Development, and Agee a�
Discrimination Acts. The Fair Housing Act(42 U.S.C. 3601 et seq.)and implementing
regulations at 24 C.F.R. Part 100; Title VI of the Civil Rights Act of 1964 as amended; Title VIII
of the Civil Rights Act of 1968 as amended; Section 104(b) and Section 109 of Title I of the E
Housing and Community Development Act of 1974 as amended; Section 504 of the Construction
Act of 1973 (29 USC 794, et seq.); the Age Discrimination Act of 1975 (42 USC 6101, et 5N.); Q
Executive Order 1 l 063 as amended by Executive Order 12259 and implementing regulations at
24 C.F.R. Part 107;.Executive Order 11246 as amended by Executive Orders 11375, 12086,
11478, 12107; Executive Order 11625 as amended by Executive Order 12007; Executive Order
12432; Executive Order 12138 as amended by Executive Order 12608, Executive Order 13672
concerning Gender Identity.
(vi) Lead-Based Paint. The requirement of the Lead-Based Paint
Poisoning Prevention Act, as amended (42 U.S.C. 4821 et sec.),the Residential Lead-Based
Paint Hazard Reduction Act(42 U.S.C. 4851 et sue.), and implementing regulations at 24 C.F.R.
Part 35.
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Packet Pg.93
(vii) Relocation. The requirements of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970(42 U.S.C. 4601, et M.), and
implementing regulations at 49 C.F.R. Part 24;24 C.F.R. 570.606; Section 104(d)of the
Housing and Community Development Act of 1974 and implementing regulations at 24 C.F.R.
42 et se .;24 C.F.R. 92.353;and California Government Code Section 7260 et seg. and
implementing regulations at 25 California Code of Regulations Sections 6000 et seg. If and to
the extent that development of the Development results in the permanent or temporary
displacement of residential tenants,homeowners,or businesses,then Borrower shall comply with
all applicable local, state, and federal statutes and regulations with respect to relocation planning,
advisory assistance, and payment of monetary benefits. Borrower shall prepare and submit a
relocation plan to the City for approval. Borrower is solely responsible for payment of any
relocation benefits to any displaced persons and any other obligations associated with complying
with such relocation laws. Borrower shall indemnify, defend (with counsel reasonably chosen
by the City), and hold harmless the City against all claims that arise out of relocation obligations
to residential tenants, homeowners, or businesses permanently or temporarily displaced by the Q
Development. o
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(viii) Discrimination against the Disabled. The requirements of the Fair 2
Housing Act(42 U.S.C. 3601 et seg.) and implementing regulations at 24 C.F.R.Part 100; O
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),the Uniform Federal Accessibility
Standards(24 C.F.R. 8.20,et sue. 8.5 1) and federal regulations issued pursuant thereto, which
prohibit discrimination against the disabled in any federally assisted program, the requirements °
of the Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157)and the applicable requirements o
of Title 11 and/or Title III of the Americans with Disabilities Act of 1990 (42 U.S.C. 12131 et a
and federal regulations issued pursuant thereto. Q
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(ix) Clean Air and Water Acts. The Clean Air Act, as amended, 42 ti
U.S.C. 7401 et sN.,the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
M., and the regulations of the Environmental Protection Agency with respect thereto, at 40
C.F.R. Part 1500,as amended from time to time. Cl)
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(x) Uniform Administrative Requirements. The provisions of 24
C.F.R. 92.505 regarding cost and auditing requirements.
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(xi) Training_Opportunities. The requirements of Section 3 of the E
Housing and Urban Development Act of 1968, as amended, 1.2 U.S.C. 1701u ("Section 3") and U
implementing regulations 24 C.F.R. 135 et seq., requiring that to the greatest extent feasible Q
opportunities for training and employment be given to lower income residents of the project area
and agreements for work in connection with the project be awarded to business concerns which
are located in, or owned in substantial part by persons residing in, the areas of the project.
Borrower agrees to include the following language in all subcontracts executed under this
Agreement:
(1) The work to be performed under this contract is subject to
the requirements of Section 3 of the Housing and Urban Development Act of 1968,as amended,
12 U.S.C. 1701u. The purpose of Section 3 is to ensure that employment and other economic
opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3, shall,
30
Packet Pg.94
to the greatest extent feasible,be directed to low- and very low-income persons,particularly
persons who are recipients of HUD assistance for housing.
(2) The parties to this contract agree to comply with HUD's
regulations in 24 C.F.R. Part 135,which implement Section 3. As evidenced by their execution
of this contract,the parties to this contract certify that they are under no contractual or other
impediment that would prevent them from complying with the Part 135 regulations.
(3) The contractor agrees to send to each labor organization or
representative of workers with which the contractor has a collective bargaining agreement or
other understanding, if any,a notice advising the labor organization or workers'representative of
the contractor's commitments under this Section 3 clause; and will post copies of the notice in =
a�
conspicuous places at the work site where both employees and applicants for training and E
employment positions can see the notice. The notice shall describe the Section 3 preference; d
shall set forth minimum number and job titles subject to hire; availability of apprenticeship and
training positions; the qualifications for each; the name and location of the person(s)taking cc
applications for each of the positions; and the anticipated date the work shall begin. �
W
(4) The contractor agrees to include this Section 3 clause in p
every subcontract subject to compliance with regulations in 24 C.F.R. Part 135, and agrees to =
take appropriate action, as provided in an applicable provision of the subcontract or in this
Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 0
C.F.R. Part 135. The contractor will not subcontract with any subcontractor where the contractor
has notice or knowledge that the subcontractor has been found in violation of the regulations in 0 CL
24 C.F.R. Part 135. Q
CD
(5) The contractor will certify that any vacant employment
positions, including training positions,that are filled(1)after the contractor is selected but before
the contract is executed, and (2)with persons other than those to whom the regulations of 24
C.F.R. Part 135 require employment opportunities to be directed, were not filled to circumvent
M
the contractor's obligations under 24 C.F.R. Part 135.
E
0
(6) Noncompliance with HUD's regulations in 24 C.F.R. Part Cu
135 may result in sanctions,termination of this contract for default, and debarment or suspension w
from future HUD assisted contracts. E
(7) With respect to work performed in connection with Section Q
3 covered Indian housing assistance, section 7(b)of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 450e)also applies to the work to be performed under this contract.
Section 7(b)requires that to the greatest extent feasible (i)preference and opportunities for
training and employment shall be given to Indians, and (ii) preference in the award of contracts
and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises.
Parties to this contract that are subject to the provisions of Section 3 and section 7(b) agree to
comply with Section 3 to the maximum extent feasible,but not in derogation of compliance with
section 7(b).
(xii) Labor Standards. The labor requirements set forth in 24 C.F.R.
92.354; the prevailing wage requirements of the Davis-Bacon Act and implementing rules and
31
Packet Pg. 95
vIM'
regulations(40 U.S.C. 3141-3148);the Copeland "Anti-Kickback" Act (40 U.S.C. 276(c))which
requires that workers be paid at least once a week without any deductions or rebates except
permissible deductions;the Contract Work Hours and Safety Standards Act—CWHSSA(40
U.S.C. 3701-3708)which requires that workers receive "overtime" compensation at a rate of I-
112 times their regular hourly wage after they have worked forty (40) hours in one (1) week; and
Title 29, Code of Federal Regulations, Subtitle A, Parts 1, 3 and 5 are the regulations and
procedures issued by the Secretary of Labor for the administration and enforcement of the Davis-
Bacon Act, as amended.
(xiii) Drug Free Workplace. The requirements of the Drug Free
Workplace Act of 1988 (P.L. 100-690) and implementing regulations at 24 C.F.R. Part 24.
m
(xiv) Anti-Lobbying; Disclosure Requirements. The disclosure
requirements and prohibitions of 31 U.S.C. 1352 and implementing regulations at 24 C.F.R. a,
Part 87. Q
0
0
(xv) Historic Preservation. The historic preservation requirements set _J
forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. Section 470) and 5:
the procedures set forth in 36 C.F.R. Part 800. If archeological, cultural, or historic period 0
resources are discovered during construction, all construction work must come to a halt and
Borrower shall immediately notify the City. Borrower shall not shall alter or move the ,
discovered material(s) until all appropriate procedures for"post-review discoveries" set forth in 0
Section 106 of the National Historic Preservation Act have taken place, which include, but are >
0
not limited to, consultation with the California State Historic Preservation Officer and evaluation 0.
of the discovered material(s) by a qualified professional archeologist. Q
(xvi) Flood Disaster Protection. The requirements of the Flood Disaster
Protection Act of 1973 (P.L. 93-234)(the "Flood Act"). No portion of the assistance provided
under this Agreement is approved for acquisition or construction purposes as defined under
Section 3(a) of the Flood Act,for use in an area identified by HUD as having special flood M
hazards which is not then in compliance with the requirements for participation in the national E
flood insurance program pursuant to Section 201(d) of the Flood Act. The use of any assistance
provided under this Agreement for such acquisition or construction in such identified areas in
communities then participating in the National Flood Insurance Program is subject to the
mandatory purchase of flood insurance requirements of Section 102(a)of the Flood Act. If the
Property is located in an area identified by HUD as having special flood hazards and in which 0
the sale of flood insurance has been made available under the National Flood Insurance Act of
1968, as amended. 42 U.S.C. 4001 et sec., the property owner and its successors or assigns must
obtain and maintain, during the ownership of the Property, such flood insurance as required with
respect to financial assistance for acquisition or construction purposes under-Section 102(s) of
the Flood Act. Such provisions are required notwithstanding the fact that the construction on the
Property is not itself funded with assistance provided under this Agreement.
(xvii) Religious Organizations. If the Borrower is a religious
organization, as defined.by the HOME requirements,the Borrower shall comply with all
conditions prescribed by HUD for the use of HOME funds by religious organizations, including
Ord the First Amendment of the United States Constitution regarding church/state principles and the
applicable constitutional prohibitions set forth in 24 C.F.R. 92.257.
32
Packet Pa.96
(xviii) HUD Regulations. Any other HUD regulations present or as may
be amended,added, or waived in the future pertaining to the Loan funds.
(c) To be eligible to receive disbursements of the Predevelopment Component
11 and the Completion Component,the Borrower's sole and managing general partner,or its sole
member,must meet the legal and organizational characteristics described in 24 C.F.R. 92.2 and
must have been and continues to be annually certified as a CHDO by the City. The City hereby
acknowledges and agrees that Borrower may request to substitute the sole member of its sole and
managing general partner, or the sole member of the general partner, for the purpose of
complying with the requirements of this subsection (c)at any time prior to the disbursement of
the Predevelopment Component II and Completion Component. Any time prior to the
Construction Closing, the Borrower may request in writing to substitute the sole member of its
sole and managing general partner, and the City hereby agrees to such substitution so long as the
entity substituted entity meets the requirements hereof and expressly agrees to assume the a,
obligations of the Borrower's sole and managing general partner hereunder. Notwithstanding a
anything to the contrary, if at any time after the execution of this document,the City determines c
that the Borrower's sole and managing general partner does not satisfy the conditions hereunder,
the City may at its sole and absolute discretion choose not to disburse the Predevelopment 5;
Component 11 and the Completion Component. O
x
a�
Section 4.7 Hazardous Materials,
4-
0
(a) Borro,%ver shall keep and maintain the Property in compliance with, and o
may not cause or permit the Property to be in violation of any federal, state or local laws, a
ordinances or regulations relating to industrial hygiene or to the environmental conditions on, :z
Q
under or about the Property including, but not limited to, soil and ground water conditions. o
Borrower may not use, generate, manufacture, store or dispose of on,under, or about the
Property or transport to or from the Property any flammable explosives, radioactive materials,
hazardous wastes, toxic substances or related materials, including without limitation, any
substances defined as or included in the definition of"hazardous substances," hazardous wastes," M
"hazardous materials," or "toxic substances" under any applicable federal or state laws or E
regulations (collectively referred to hereinafter as "Hazardous Materials") except such of the
cc
foregoing as may be customarily used in construction of projects like the Development or kept c
and used in and about residential property of this type.
E
(b) Borrower shall immediately advise the City in writing if at any time it
receives written notice of(i) any and all enforcement, cleanup,removal or other governmental or Q
regulatory actions instituted, completed or threatened against Borrower or the Property pursuant
to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous
Materials, ("Hazardous Materials Law"), (ii) all claims made or threatened by any third party
against Borrower or the Property relating to damage, contribution, cost recovery compensation,
loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i)and (ii)
above are hereinafter referred to as "Hazardous Materials Claims"), and(iii) Borrower's
discovery of any occurrence or condition on any real property adjoining or in the vicinity of the
Property that could cause the Property or any part thereof to be classified as "border-zone
property" (as defined in California Health and Safety Code Section 25117.4) under the provision
of California Health and Safety Code, Section 25220 et sec., or any regulation adopted in
33
Packet Pg. 97
accordance therewith,or to be otherwise subject to any restrictions on the ownership, occupancy,
transferability or use of the Property under any Hazardous Materials Law.
(c) The City has the right to join and participate in,as a party if it so elects,
any legal proceedings or actions initiated in connection with any Hazardous Materials Claims
and to have its reasonable attorneys'fees in connection therewith paid by Borrower. Borrower
shall indemnify and hold harmless the City and its board members, supervisors, directors,
officers, employees, agents, successors and assigns from and against any loss, damage, cost,
expense or liability directly or indirectly arising out of or attributable to the use, generation,
storage, release, threatened release, discharge,disposal, or presence of Hazardous Materials on,
under, or about the Property including without limitation: (i) all foreseeable consequential
damages, (ii)the costs of any required or necessary repair,cleanup or detoxification of the
Property and the preparation and implementation of any closure, remedial or other required E
plans, and (iii) all reasonable costs and expenses incurred by the City in connection with clauses 2
(i) and (ii), including but not limited to reasonable attorneys'fees and consultant's fees. This Q
indemnification applies whether or not any government agency has issued a cleanup order. o
Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision -J
include, but are not limited to: (1) losses attributable to diminution in the value of the Property, W
(2) loss or restriction of use of rentable space on the Property, (3) adverse effect on the marketing 0
of any rental space on the Property, and (4)penalties and fines levied by, and remedial or
enforcement actions of any kind issued by any regulatory agency (including but not limited to
the costs of any required testing, remediation,repair, removal, cleanup or detoxification of the °
Property and surrounding properties). This obligation to indemnify will survive termination of c
this Agreement. P CL
Q.
a
(d) Without the City's prior written consent,which will not be unreasonably c
withheld, Borrower may not take any remedial action in response to the presence of any
Hazardous Materials on, under or about the Property, nor enter into any settlement agreement,
consent decree, or other compromise in respect to any Hazardous Material Claims, which
remedial action, settlement, consent decree or compromise might, in the City's judgment, impair M
the value of the City's security hereunder; provided, however,that the City's prior consent is not E
necessary in the event that the presence of Hazardous Materials on, under, or about the Property M
either poses an immediate threat to the health, safety or welfare of any individual or is of such a c
nature that an immediate remedial response is necessary and it is not reasonably possible to
obtain the City's consent before taking such action,provided that in such event Borrower shall
notify the City as soon as practicable of any action so taken. The City agrees not to withhold its r
consent, where such consent is required hereunder, if(i) a particular remedial action is ordered a
by a court of competent jurisdiction,(ii) Borrower will or may be subjected to civil or criminal
sanctions or penalties if it fails to take a required action, (iii) Borrower establishes to the
satisfaction of the City that there is no reasonable alternative to such remedial action which
would result in less impairment of the City's security hereunder, or (iv)the action has been
agreed to by the City.
(e) Borrower hereby acknowledges and agrees that(i)this Section is intended
as the City's written request for information (and Borrower's response) concerning the
environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5, and (ii) each representation and warranty in this Agreement (together with any
34
Packet Pg.98
5.E.b
indemnity obligation applicable to a breach of any such representation and warranty)with
respect to the environmental condition of the Property is intended by the Parties to be an
"environmental provision" for purposes of California Code of Civil Procedure Section 736.
(f) In the event that any portion of the Property is determined to be
"environmentally impaired" (as that term is defined in California Code of Civil Procedure
Section 726.5(e)(3)) or to be an "affected parcel" (as that term is defined in California Code of
Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the
City's or the trustee's rights and remedies under the Deed of Trust,the City may elect to exercise
its rights under California Code of Civil Procedure Section 726.5(a)to(i) waive its lien on such
environmentally impaired or affected portion of the Property and (ii)exercise (1)the rights and
remedies of an unsecured creditor, including reduction of its claim against Borrower to
E
judgment, and (2) any other rights and remedies permitted by law. For purposes of determining W
the City's right to proceed as an unsecured creditor under California Code of Civil Procedure Q
Section 726.5(a), Borrower will be deemed to have willfully permitted or acquiesced in a release
or threatened release of Hazardous Materials,within the meaning of California Code of Civil o
Procedure Section 726.5(d)(1), if the release or threatened release of Hazardous Materials was J
w
knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion E.
of the Property and Borrower knew or should have known of the activity by such lessee, z
occupant, or user which caused or contributed to the release or threatened release. All costs and =
expenses, including (but not limited to) attorneys' fees, incurred by the City in connection with o
any action commenced under this paragraph, including any action required by California Code of
Civil Procedure Section 726.5(b)to determine the degree to which the Property is o
environmentally impaired, plus interest thereon at the lesser of ten percent (10%) and the
maximum rate permitted by law, until paid, will be added to the indebtedness secured by the Q
Deed of Trust and is due and payable to the City upon its demand made at any time following the
conclusion of such action. M
Section 4.8 Maintenance and Damage.
M
(a) During the course of both construction and operation of the Development, E
L
Borrower shall maintain the Development and the Property in good repair and in a neat, clean
and orderly condition. If there arises a condition in contravention of this requirement, and if
Borrower has not cured such condition within thirty(30)days after receiving written notice from
the City of such a condition, then in addition to any other rights available to the City,the City
may perform all acts necessary to cure such condition, and to establish or enforce a lien or other
encumbrance against the Property, subject to the provisions provided in subsection (b) below. Q
(b) Subject to the requirements of Senior Lenders, and if economically
feasible in the City's judgment after consultation with Borrower, if any improvement now or in
the future on the Property is damaged or destroyed, then Borrower shall, at its cost and expense,
diligently undertake to repair or restore such improvement consistent with the plans and
specifications approved by the City with such changes as have been.approved by the City. Such
work or repair is to be commenced no later than the later of one hundred twenty(120)days, or
such longer period approved by the City in writing, after the damage or loss occurs or thirty (30)
days following receipt of the insurance proceeds, and is to be complete within one(1)year
thereafter. Any insurance proceeds collected for such damage or destruction are to be applied to
the cost of such repairs or restoration and, if such insurance proceeds are insufficient for such
35
Packet Pg.99
purpose, then Borrower shall make up the deficiency. If Borrower does not promptly make such
repairs then any insurance proceeds collected for such damage or destruction are to be promptly
delivered by Borrower to the City as a special repayment of the Loan, subject to the rights of the
Senior Lenders, if any.
Section 4.9 Fees and Taxes.
Borrower is solely responsible for payment of all fees,assessments; taxes, charges, and
levies imposed by any public authority or utility company with respect to the Property or the
Development, and shall pay such charges prior to delinquency. However, Borrower is not
required to pay and discharge any such charge so long as (i)the legality thereof is being
contested diligently and in good faith and by appropriate proceedings, and (ii) if requested by the
City, Borrower deposits with the City any funds or other forms of assurance that the City in good E
faith from time to time determines appropriate to protect the City from the consequences of the
contest being unsuccessful.
c
Section 4.10 Notice of Litigation.
W
Borrower shall promptly notify the City in writing of any Iitigation that has the potential p
to materially affect Borrower or the Property and of any claims or disputes that involve a
material risk of such litigation. r
0
Section 4.11 Operation of Development as Affordable Housing.
(a) Promptly after completion of construction Borrower shall operate the Q.
Development as an affordable housing development consistent with (i)HUD's requirements for Q
use of the HOME Funds, (ii) the Regulatory Agreement,and (iii)any other regulatory
requirements imposed on Borrower including but not limited to regulatory agreements associated
with the County Loan,the Housing Authority Loan,the AHP Loan and Low Income Housing o
Tax Credits provided by TCAC. M
w
(b) Before leasing any City-Assisted Unit in the Development Borrower shall E
a�
submit its proposed form of lease agreement for the City's review and approval. The Lease must
not contain any provision which is prohibited by 24 C.F.R. 92.253(b)and any modifications
thereto. The term of the lease for any unit in the Development is to be for no less than one (1) E
year, except by mutual agreement between Borrower and the Tenant. Any Borrower termination
of a lease agreement for any unit in the Development or refusal to renew must be in conformance Q
with 24 C.F.R. 92.253(c), and must be preceded by not less than sixty(60) days written notice to
the Tenant by Borrower specifying the grounds for the action.
(c) Before leasing any City-Assisted Unit in the Development, Borrower shall
provide the City, for its review and approval, with Borrower's written tenant selection plan (the
"Tenant Selection Plan"), which plan shall be in compliance with the requirements of 24 C.F.R.
92.253(d), and the Marketing Plan.
(d) Borrower shall evaluate the income eligibility of each Tenant household in
City-Assisted Units pursuant to the City's approved Tenant certification procedures within sixty
36
Packet Pg. 100
i
(60) days before the household's expected occupancy of one of the City-Assisted Units.
Borrower shall certify each Tenant household's income on an annual basis.
(e) Borrower shall maintain all documents setting forth the household income
of each household occupying a City-Assisted Unit, and the total amount for rent, utilities, and
related services charged to each household occupying the Development, as prescribed by the
Regulatory Agreement.
Section 4.12 Nondiscrimination.
(a) Borrower covenants by and for itself and its successors and assigns that
there will be no discrimination against or segregation of a person or of a group of persons on W
account of race, color, religion, creed, age (except for lawful senior housing in accordance with E
state and federal law), familial status, disability, sex, sexual orientation, marital status, ancestry
or national origin in the sale, lease, sublease, transfer, use, occupancy,tenure or enjoyment of the Q
Property,nor may Borrower or any person claiming under or through Borrower establish or o
permit any such practice or practices of discrimination or segregation with reference to the _J
selection, location, number,use or occupancy of tenants, lessees, subtenants, sublessees or M
vendees in the Property. The foregoing covenant will run with the land. _
d
Section 4.1.3 Transfer.
0
(a) Definition. For purposes of this Agreement, "Transfer" means any sale, >
assignment, or transfer,whether voluntary or involuntary, of(i) any rights and/or duties under P
this Agreement, and/or(ii) any interest in the Development, including(but not limited to)a fee
Q
simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a
security interest, or an interest evidenced by a land contract by which possession of the ti
Development is transferred and Borrower retains title. The term "Transfer" excludes the leasing
of any single unit in the Development to an occupant in compliance with the Regulatory
Agreement. The City Manager is authorized to execute assignment and assumption agreements Cn
on behalf of the City to implement any approved Transfer. E
L
0)
ca
(b) Prohibition. No Transfer is pen-nitted without the prior written consent of
the City,which the City may withhold in its sole discretion. The Loan will automatically W
accelerate and be due in full upon any Transfer made without the prior written consent of the s
City. R
Q
(c) Permitted Transfers. The following are permitted Transfers approved by
the City(each a "Permitted Transfer"):
(i) The grant of the security interests in the Development for
Approved Financing.
(ii) The Borrower anticipates syndicating the low income housing tax
credits that will be generated by the Development. The City hereby approves the admission of
an investor limited partner into the partnership,provided that: (1) all documents associated with
the admission of an investor limited partner for purposes of the low income housing tax credit
syndication of the Development, including the Partnership Agreement,are submitted to the City
37
Packet Pg. 101 `
for review and approval, which approval shall not be unreasonably withheld or delayed; (2)that
the Partnership Agreement and other partnership documents are consistent with and do not
conflict with the Loan Documents and the approved Development Budget; and(3)the
partnership documents provide for capital contributions by the investor limited partner in the
Partnership in amounts not less than those set forth in the Approved Development Budget or as
otherwise approved by the City in its reasonable discretion.
(iii) In the event the Developer syndicates low income housing tax
credits generated by the Development, the City hereby approves future Transfers of the limited
partner interest in the Partnership provided that: (1) such Transfers do not affect the timing and
amount of the limited partner capital contributions provided for in the Partnership Agreement
last approved by the City pursuant to Section 2.6(b)(x) or Section 4.1.3(c)(ii); and; (2) in W
subsequent Transfers, a wholly owned affiliate of the initial limited partner retains a membership
or partnership interest and serves as a managing member or managing general partner of the
successor limited partner; and (3) in subsequent Transfers the initial limited partner remains Q
liable for all unpaid capital contributions. Notwithstanding anything to the contrary, once all c
capital contributions provided for in the Partnership Agreement have been made,the limited —i
partner interest in the Partnership may be transferred with prior written notice to the City. g
0
(iv) The removal, or withdrawal in lieu of removal, of Borrower's
general partner for cause pursuant to the Partnership Agreement shall not require the City's
consent or constitute a default under this Agreement. Notwithstanding anything to the contrary, o
in the event that the general partner Borrower is removed by the limited partner of Borrower, or >
withdraws in lieu of being removed, for cause following default under the Borrower's P CL
Partnership Agreement, the City hereby approves the transfer of the general partner interest to a
Q
501(c)(3)tax-exempt nonprofit public benefit corporation that is selected by the limited partner c
and approved in advance and in writing by the City, which approval shall not be unreasonably n
withheld,provided that: (1)all documents associated with the removal of the general partner,
including the Partnership Agreement, are submitted to the City for review and approval, which
approval shall not be unreasonably withheld or delayed; (2) that the Partnership Agreement and M
other partnership documents are consistent with and do not conflict with the Loan Documents E
and the approved Development Budget.
(v) The substitution of the sole and managing general partner of the aa)
Borrower, or the sole member of the general partner, in place of the current sole and managing s
general partner of the Borrower, or the sole member of the general partner, as allowed under a
Section 4.6(c) of this Agreement and for purposes of complying with 24 C.F.R. 300 an 24 C.F.R. a
92.2.
(d) During the term of the City Loan Borrower will not refinance, re-
syndicate,take out a line of credit or otherwise further encumber the property or restructure the
debt without prior notification and approval of the City. Notwithstanding anything to the
contrary, Borrower shall be required to provide written notification to the City at least one
hundred twenty(120)days prior to submittal of applications for refinancing, tax credits, lines
of credit and any other application in which the property may be used as security.
38
Packet;Pg. 102
5.E.b
Section 4.14 Insurance Requirements.
(a) Borrower shall maintain the following insurance coverage throughout the
Term of the Loan written by insurers authorized to do business in the State of California and
with a minimum "Best" Insurance Guide rating of"A-VII". If the Borrower uses existing
coverage to comply with these requirements and that coverage does not meet the specified
requirements, the Borrower agrees to amend, supplement, or endorse the existing coverage to do
so. The type(s)of insurance required is determined by the scope of the contract services.
i
(b) Without in anyway affecting the indemnity herein provided and in
addition thereto, the Borrower shall secure and maintain throughout the contract term the
following types of insurance with limits as shown:
a�
(i) Workers' Compensation/Employers Liability.
Q
(1) Workers' Compensation A program of Workers'
Compensation insurance or a state-approved, self-insurance program in an amount and form to �
meet all applicable requirements of the Labor Code of the State of California, including W
Employer's Liability with $250,000 limits covering all persons including volunteers providing
services on behalf of the Borrower and all risks to such persons under this Agreement.
(2) If Borrower has no employees, it may certify or warrant to 0
the City that it does not currently have any employees or individuals who are defined as
"employees" under the Labor Code and the requirement for Workers' Compensation coverage Q.
will be waived by the City Manager. Q
(3) With respect to borrowers that are non-profit corporations CD
organized under California or federal law, volunteers for such entities are required to be covered
by Workers'Compensation insurance.
(ii) Comprehensive General Liability. General Liability Insurance
covering all operations performed by or on behalf of Borrower providing coverage for bodily
injury and property damage with a combined single limit of not less than One Million Dollars
($1,000,000), per occurrence. The policy coverage must include:
E
(1) Premises operations and mobile equipment.
r
(2) Products and completed operations.
(3) Broad form property damage (including completed
operations).
(4) Explosion, collapse, and underground hazards.
(5) Personal injury.
(6) Contractual liability.
(7) $2,000,000 general aggregate limit.
39
Packet Pg.,103
(iii) Comprehensive Automobile Liability.
(1) Primary insurance coverage must be written on ISO
Business Auto coverage form for all owned,hired and non-owned automobiles or symbol I (any
auto).
(2) The policy must have a combined single limit of not less
than One Million Dollars ($1,000,000) for bodily injury and property damage, per occurrence.
(3) If the Borrower is transporting one or more non-employee
passengers in performance of contract services;the automobile liability policy must have a
combined single limit of Two Million Dollars ($2,000,000) for bodily injury and property
CD
damage per occurrence. aEi
d
L
(4) If the Borrower owns no autos, a non-owned auto
endorsement to the General Liability policy described above is acceptable. C
0
J
(iv) Builders' Risk/Property Insurance. Builders' Risk insurance during w
the course of construction, and upon completion of construction,property insurance covering the 5;
0
Development, in form appropriate for the nature of such property, covering all risks of loss, _
excluding earthquake, for one hundred percent(100%)of the replacement value, with deductible, ��,,
if any, acceptable to the City, naming the City as a Loss Payee, as its interests may appear. c
Flood insurance must be obtained if required by applicable federal regulations.
0
(v) Commercial Crime. Commercial crime insurance covering all a
officers and employees, for loss of Loan proceeds caused by dishonesty, in an amount approved
by the City, naming the City a Loss Payee, as its interests may appear. Co
ti
M
(c) Borrower shall cause any general contractor, agent,or subcontractor c
working on the Development under direct contract with Borrower or subcontract to maintain
insurance of the types and in at least the minimum amounts described in subsections (i), (ii), and r
(iii)above, meeting all of the general requirements of subsections (e) and (f) below and naming a�
the City as an additional insured. The Borrower agrees to monitor and review all such coverage
and assumes all responsibility ensuring that such coverage is provided as required here.
E
(d) An umbrella(over primary)or excess policy may be used to comply with
limits or other primary coverage requirements. When used,the umbrella policy must apply to Q
bodily injury/property damage, personal injury/advertising injury and must include a
"dropdown" provision providing primary coverage for any liability not covered by the primary
policy. The coverage must also apply to automobile liability.
(e) The required insurance must be provided under an occurrence form, and
Borrower shall maintain the coverage described in subsections (a) continuously throughout the
Term. Should any of the required insurance be provided under a form of coverage that includes
an annual aggregate limit or provides that claims investigation or legal defense costs be included
in such annual aggregate limit, such annual aggregate limit must be three times the occurrence
Iimits specified above.
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Packet Pg. 104
NON—
(f) Comprehensive General Liability and Comprehensive Automobile
Liability insurance policies must be endorsed to narne as an additional insured the City and its
I elected officials, officers, agents, and employees.. The additional insured endorsements must not
limit the scope of coverage for the City to vicarious liability but must allow coverage for the City
to the full extent provided by the policy. Such additional insured coverage must be at least as
broad as Additional Insured(Form B) endorsement form ISO,CG 2010.11 85.
(g) All policies and bonds are to contain (i)the agreement of the insurer to
give the City at Ieast thirty(30) days notice prior to cancellation (including, without limitation,
for non-payment of premium) or any material change in said policies; (ii) an agreement that such
policies are primary and non-contributing with any insurance that may be carried by the City;
(iii) a provision that no act or omission of Borrower shall affect or limit the obligation of the
insurance carrier to pay the amount of any loss sustained;and (iv)a waiver by the insurer of all CD
rights of subrogation against the City and its authorized parties in connection with any loss or Q
damage thereby insured against.
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(h) Construction contracts for projects over Three Million Dollars —'
($3,000,000) and less than Five Million Dollars ($5,000,000)require limits of not less than Five 2
Million Dollars ($5,000,000) in General Liability and Auto Liability coverage. _
m
(i) The Borrower shall require the carriers of required coverage's to waive all
rights of subrogation against the City, its elected officials,officers, employees, agents, 0
volunteers, contractors and subcontractors.All general or auto Iiability insurance coverage o
provided shall not prohibit the Borrower and Borrower's employees or agents from waiving the Q.
right of subrogation prior to a loss or claim. The Borrower hereby waives all rights of Q
subrogation against the City.
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(j) All policies required herein are to be primary and non-contributory with
any insurance or self-insurance programs carried or administered by the City.
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(k) The Borrower shall furnish Certificates of Insurance to the City E
evidencing the insurance coverage prior to the close of Escrow, additional endorsements, as 9
required shall be provided prior to the commencement of performance of services hereunder,
which certificates shall provide that such insurance shall not be terminated or expire without
thirty(30)days written notice to the City, and Borrower shall maintain such insurance from the
time Borrower commences performance of services hereunder until the completion of such
services. Within fifteen (15) days following the close of Escrow,the Borrower shall furnish a Q
copy of the Declaration page for all applicable policies and will provide complete certified
copies of the policies and endorsements immediately upon request.
(1) The Borrower agrees to ensure that coverage provided to meet these
requirements is applicable separately to each insured and there will be no cross liability
exclusions that preclude coverage for suits between the Borrower and the City or between the
City and any other insured or additional insured under the policy.
(m) Any and all deductibles or self-insured retentions in excess of Ten
Thousand Dollars ($10,000) shall be declared to and approved by the City Manager.
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Packet„Pg. 105
(n) In the event that any policy of insurance required in this Section does not
comply with the requirements, is not procured, or is canceled and not replaced,the City has the
right but not the obligation or duty to obtain such insurance it deems necessary and any
premiums paid by the City will be promptly reimbursed by Borrower or City disbursements to
Borrower will be reduced to pay for the City purchased insurance.
(o) Insurance requirements are subject to periodic review by the City. The
City Manager is authorized, but not required,to reduce, waive or suspend any insurance
requirements whenever the City Manager determines that any of the required insurance is not
available, is unreasonably priced,or is not needed to protect the interests of the City. In addition,
if the City determines that heretofore unreasonably priced or unavailable types of insurance
coverage or coverage limits become reasonably priced or available,the City Manager is
authorized,but not required, to change the above insurance requirements to require additional
types of insurance coverage or higher coverage limits,provided that any such change is
reasonable in light of past claims against the City, inflation, or any other item reasonably related
to the City's risk. Any change requiring additional types of insurance coverage or higher o
coverage limits must be made by amendment to this Agreement. Borrower agrees to execute any w
such amendment within thirty(30)days of receipt. Any failure, actual or alleged, on the part of E
the City to monitor or enforce compliance with any of the insurance and indemnification =
requirements will not be deemed as a waiver of any rights on the part of the City.
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Section 4.15 Anti-Lobbying Certification. 0 0
0
Borrower certifies,to the best of Borrower's knowledge or belief, that: a
a
(a) No Federal appropriated funds have been paid or will be paid, by or on c
behalf of it,to any person for influencing or attempting to influence an officer or employee of M
any agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with the awarding of any Federal contract, the making of any ti
Federal grant,the making of any Federal loan,the entering into of any cooperative agreement,
and the extension, continuation,renewal, amendment, or modification of any Federal contract, E
grant, loan, or cooperative agreement;
(b) If any funds other than Federal appropriated funds have been paid or will (D
be paid to any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress,or an employee of a r
Member of Congress in connection with the awarding of any Federal contract, grant, loan, or Q
cooperative agreement, it will complete and submit Standard Form-LLL, Disclosure Form to
Report Lobbying, in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed
when this Agreement was made or entered into. Submission of this certification is a prerequisite
for making or entering into this Agreement imposed by Section 1352,Title 31, U.S. Code. Any
person who fails to file the required certification shall be subject to a civil penalty of not less
than Ten Thousand Dollars ($10,000)and no more than One Hundred Thousand Dollars
($100,000)for such failure.
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Packet Pg. 106
Section 4.16 Covenants Regarding Approved Financing
(a) Borrower shall promptly pay the principal and interest when due on any
Approved Financing.
(b) Borrower shall promptly notify the City in writing of the existence of any
default under any documents evidencing Approved Financing whether or not a default has been
declared by the lender and provide the City copies of any notice of default.
(c) Borrower may not amend, modify, supplement, cancel or terminate any of
the documents evidencing Approved Financing without the prior written consent of the City.
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(d) Borrower may not incur any indebtedness of any kind other than E
(D
Approved Financing or encumber the Development with any liens(other than liens for Approved
Financing approved by the City)without the prior written consent of the City. Q
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Section 4.17 Affordability and Project Monitoring.
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(a) Throughout the Term;the Borrower shall comply with all applicable p
record keeping and monitoring requirements set forth in (24 C.F.R. Section 92.508) of the =
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HOME Regulations and shall annually complete and submit to City a Certification of Continuing
Program Compliance in the form attached hereto as Exhibit G, and incorporated herein. o
(b) Representatives of the City shall be entitled to enter the Property upon at o
least twenty-four(24) hours' notice at reasonable times to monitor compliance with this a
Agreement, to inspect the records of the Development with respect to the Affordable Units, and Q
to conduct an independent audit of such records. The Borrower agrees to cooperate with the City
in making the Property available for such inspection. If for any reason the City is unable to
obtain the Borrower's consent to such an inspection,the Borrower understands and agrees that o
the City may obtain, at the Borrower's expense, an administrative inspection warrant or other M
appropriate legal order to obtain access to and search the Property. The Borrower agrees to
maintain records in a business-like manner and to make such records available to the City upon
twenty-four(24)hours' notice at reasonable times. Unless the City otherwise approves, such
records shall be maintained for the most recent five years until five years after the HOME Term.
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(c) Throughout the Term,the Borrower grants the City inspection rights as set
forth in Section 3.14 above, and Borrower shall make best efforts to allow the City to comply Q
with all applicable physical monitoring requirements set forth in (24 C.F.R. Section 92.504(d)
and 24 C.F.R. 92.251) of the HOME Regulations.
(d) The City will enforce a per-unit affordability monitoring charge on all
HOME assisted developments. HOME assisted developments will be charged as follows:
• 1-20 assisted units=$35.00 per unit/annually
• 20+assisted units = $25.00 per unit/annually
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Packet Pg. 107
(e) The County and the City shall make best efforts to coordinate P �h ysical
inspections of the Development. The City will enforce a physical inspection charge on all
HOME assisted developments. The inspection charge for HOME assisted development will be
the lesser of: (1)Five Thousand Dollars ($5,000)per inspection; or(2)the actual costs incurred
by the City to secure a qualified third party, independent of the Borrower,to conduct the physical
inspections in accordance with the requirements set forth in this Agreement, and any related
staffing costs incurred by the City in association therewith. Notwithstanding anything to the
contrary,the Borrower will not be required to pay the physical inspection charge to the City if
the County conducts the required physical inspection and allows the City to rely on said
inspection and so long as the County's inspections are materially consistent with the City's
requirements under this Agreement.
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(f) The Borrower shall pay such charge within seven (7) days of receipt of an
invoice from the City. Q
(g) The City reserves the right to waive or defer a portion of the monitoring o
charge if a development is unable to pay these costs. All waivers must be submitted in writing, J
with adequate supporting financial documentation, for review by the City Manager. 2
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Section 4.18 Crime-Free Multi-Housing Unit Program Participation. s
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(a) Property owners and managers shall be required to participate in the San °
Bernardino Police Department's Crime Free Multi-Housing Program,wherein specialized c
training and other resources are provided to multi-family property owners and managers to Q
reduce the potential for onsite criminal activity. Completion of the Department's training and Q
designation as a Certified Crime-Free Property shall be achieved and maintained by the c
owner/representative and onsite property manager. ti
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ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF BORROWER M
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Section 5.1 Representations and Warranties.
Borrower hereby represents and warrants to the City as follows and acknowledges, d
understands, and agrees that the representations and warranties set forth in this Article 5 are E
deemed to be continuing during all times when any or all of the Loan remains outstanding. The
Borrower shall immediately advise the City in writing if there is any change relating to any Q
matters set forth or referenced in the items set forth below:
(a) Organization. Borrower is duly organized, validly existing and in good
standing under the laws of the State of California and has the power and authority to own its
property and carry on its business as now being conducted. Copies of the documents evidencing
the organization of the Borrower delivered to the City are true and correct copies of the originals.
(b) CHDO Certification. Borrower's sole and managing general partner, or its
sole member, meets the legal and organizational characteristics described in 24 C.F.R. 92.2 and
has been and continues to be certified as a CHDO by the City for the entire HOME Term.
44
Packet Pg. 108
(c) Authority of Borrower. Borrower has full power and authority to execute
and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to
execute and deliver the Loan Documents and all other documents or instruments executed and
delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and
observe the terms and provisions of all of the above.
(d) Authority of Persons Executing Documents. This Agreement and the
Loan Documents and all other documents or instruments executed and delivered, or to be
executed and delivered, pursuant to this Agreement have been executed and delivered by persons
who are duly authorized to execute and deliver the same for and on behalf of Borrower, and all
actions required under Borrower's organizational documents and applicable governing law for
the authorization, execution, delivery and performance of this Agreement and the Loan
Documents and all other documents or instruments executed and delivered, or to be executed and
delivered, pursuant to this Agreement, have been duly taken. a,
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(e) Valid Binding Agreements. This Agreement and the Loan Documents and
all other documents or instruments which have been executed and delivered pursuant to or in
connection with this Agreement constitute or, if not yet executed or delivered.will when so g
executed and delivered constitute, legal, valid and binding obligations of Borrower enforceable =
against it in accordance with their respective terms.
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(f) No Breach of Law or Agreement. Neither the execution nor delivery of c
this Agreement and the Loan Documents or of any other documents or instruments executed and o
delivered,or to be executed or delivered, pursuant to this Agreement, nor the performance of any 0
provision,condition, covenant or other term hereof or thereof,will conflict with or result in a Q
breach of any statute,rule or regulation, or any judgment, decree or order of any court, board,
commission or agency whatsoever binding on Borrower,or any provision of the organizational ,CD,
documents of Borrower,or will conflict with or constitute a breach of or a default under any
agreement to which Borrower is a party, or will result in the creation or imposition of any lien
upon any assets or property of Borrower, other than liens established pursuant hereto. M
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(g) Compliance with Laws; Consents and Approvals. The construction of the
Development will comply with all applicable laws, ordinances, rules and regulations of federal,
state and local governments and agencies and with all applicable directions, rules and regulations 4)
of the fire marshal, health officer, building inspector and other officers of any such government =
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or agency.
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(h) Pending Proceedings. Borrower is not in default under any law or
regulation or under any order of any court, board,commission or agency whatsoever, and there
are no claims,actions, suits or proceedings pending or,to the knowledge of Borrower,threatened
against or affecting Borrower or the Development, at law or in equity,before or by any court,
board, commission or agency whatsoever which might, if determined adversely to Borrower,
materially affect Borrower's ability to repay the Loan or impair the security to be given to the
City pursuant hereto.
(i) Title to Land. At the time of recordation of the Deed of Trust, :Borrower
will have good and marketable fee title to the Development and there will exist thereon or with
respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever
45
Packet Pg. 109
other than liens for current real property taxes and liens ancillary to the Approved Financing and
liens in favor of the City or approved in writing by the City.
0) Financial Statements. The financial statements of Borrower and other
financial data and information furnished by Borrower to the City fairly and accurately present the
information contained therein. As of the date of this Agreement, there has not been any material
adverse change in the financial condition of Borrower from that shown by such financial
statements and other data and information.
(k) Sufficient Funds. Borrower holds or reasonably expects to receive firm
financial commitments for sufficient funds to complete the acquisition of the Property and the
construction of the Development in accordance with the plans and specifications approved by the
City.
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(1) Taxes. Borrower and its subsidiaries have filed all federal and other
material tax returns and reports required to be filed, and have paid all federal and other material c
taxes, assessments, fees and other governmental charges levied or imposed upon them or their —'
income or the Property otherwise due and payable, except those which are being contested in
good faith by appropriate proceedings and for which adequate reserves have been provided in =
accordance with generally accepted accounting principles. There is no proposed tax assessment
against Borrower or any of its subsidiaries that could, if made, be reasonably expected to have a ,
material adverse effect upon the Property, liabilities (actual or contingent), operations, condition °
(financial or otherwise) or prospects of Borrower and its subsidiaries,taken as a whole, which >
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would be expected to result in a material impairment of the ability of Borrower to perform under Q
any Loan Document to which it is a party, or a material adverse effect upon the legality, validity, Q
binding effect or enforceability against Borrower of any Loan Document. c
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ARTICLE 6. DEFAULT AND REMEDIES
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Section 6.1 Events of Default. E
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Each of the following constitutes an "Event of Default" by Borrower under this
Agreement:
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(a) Failure to Construct. Failure of Borrower to obtain permits, commence, o
and prosecute to completion,construction of the Development within the times set forth in the Q
Schedule of Performance.
(b) Failure to Make Payment. Failure to repay the principal and any interest
on the Loan when such payment is due pursuant to the Loan Documents.
(e) Breach of Covenants. Failure by Borrower to duly perform, comply with,
or observe any of the conditions, terms, or covenants of any of the Loan Documents (other than
obligations described in subsections (a) and(b) above),and Borrower fails to cure such default
within thirty (30) days after receipt of written notice thereof from the City to Borrower;
provided, however, that if a different period or notice requirement is specified under any other
section of this Article 6, the specific provisions shall control.
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Packet Pg. 110
(d) Default Under Other Loans. A default is declared under any other
financing for the Development by the lender of such financing and such default remains uncured
following any applicable notice and cure period.
(e) Insolvency. A court having jurisdiction makes or enters any decree or
order (i) adjudging Borrower to be bankrupt or insolvent, (ii)approving as properly filed a
petition seeking reorganization of Borrower, or seeking any arrangement for Borrower under the
bankruptcy law or any other applicable debtor's relief law or statute of the United States or any
state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of Borrower
in bankruptcy or insolvency or for any of their properties, (iv) directing the winding up or
liquidation of Borrower if any such decree or order described in clauses (i) to (iv), inclusive, is
unstayed or undischarged for a period of ninety(90) calendar days; or(v) Borrower admits in W
writing its inability to pay its debts as they fall due or will have voluntarily submitted to or filed d
a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive. The a,
occurrence of any of the Events of Default in this paragraph will act to accelerate automatically, a
without the need for any action by the City; the indebtedness evidenced by the Note. c
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(f) Assignment; Attachment. Borrower assigns its assets for the benefit of its �
creditors or suffers a sequestration or attachment of or execution on any substantial part of its 0
property, unless the property so assigned, sequestered, attached or executed upon is returned or
released within ninety(90) calendar days after such event or, if sooner, prior to sale pursuant to 0
such sequestration, attachment,or execution. The occurrence of any of the events of default in
this paragraph shall act to accelerate automatically, without the need for any action by the City, o
the indebtedness evidenced by the Note. a
a
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(g) Suspension; Termination. Borrower voluntarily suspends its business or, c
the partnership is dissolved or tenninated, other than a technical termination of the partnership
for tax purposes.
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(h) Liens on Property and the Development. Any claim of lien (other than M
liens approved in writing by the City) is filed against the Development or any part thereof, or any E
interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of M
the Loan and the continued maintenance of said claim of lien or notice to withhold for a period
of twenty (20)days, without discharge or satisfaction thereof or provision therefor(including,
without limitation, the posting of bonds) satisfactory to the City.
1 (i) Condemnation. The condemnation, seizure,or appropriation of all or the a
substantial part of the Property and the Development, except that condemnation by the County or
City-shall cause the Loan to accelerate but shall not be a Default.
0) Unauthorized Transfer. Any Transfer other than as permitted pursuant to
Section 4.13.
(k) Representation or Warranty Incorrect. Any Borrower representation or
warranty contained in this Agreement, or in any application, financial statement, certificate, or
report submitted to the City in connection with any of the Loan Documents, proves to have been
incorrect in any material respect when made.
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Packet Pg. 111
5.E.b
(1) Failure to Timely Lease. Failure of Borrower to lease all of the City-
Assisted Units within eighteen (18)months of the Completion of Construction of the
Development.
(m) Applicability to General Partner. The occurrence of any of the events set
forth in subsection (e), subsection (f), or subsection (g) in relation to Borrower's managing
general partner.
Section 6.2 Remedies.
Upon the occurrence of an Event of Default and following the expiration of all applicable
notice and cure periods the City(i) is relieved of any obligation to make or continue the Loan
and (ii) has the right to proceed with any and all remedies set forth in this Agreement and the E
Loan Documents, including but not limited to the following:
Q
(a) Acceleration of Note. The City may cause all indebtedness of Borrower to
the City under this Agreement and the Note, together with any accrued interest thereon, to �
become immediately due and payable. Borrower waives all right to presentment, demand, W
protest or notice of protest or dishonor. The City may proceed to enforce payment of the
indebtedness and to exercise any or all rights afforded to the City as a creditor and secured party
under the law including the Uniform Commercial Code, including foreclosure under the Deed of
Trust. Borrower is liable to pay the City on demand all reasonable expenses, costs and fees o
(including, without limitation, reasonable attorney's fees and expenses)paid or incurred by the >
City in connection with the collection of the Loan and the preservation, maintenance, protection, °
sale, or other disposition of the security given for the Loan. �-
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(b) Specific Performance. The City has the right to mandamus or other suit. CD
action or proceeding at law or in equity to require Borrower to perform its obligations and
covenants under the Loan Documents or to enjoin acts on things that may be unlawful or in
violation of the provisions of the Loan Documents. M
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(c) Termination. The City has the right to terminate this Agreement and, at its a,
sole option, to seek any remedies at law or equity available hereunder.
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(d) Right to Cure at Borrower's Expense. The City has the right(but not the E
1 obligation)to cure any monetary default by Borrower under a loan other than the Loan.
Borrower shall reimburse the City for any funds advanced by the City to cure a monetary default Q
by Borrower upon demand therefor,together with interest thereon at the lesser of the maximum
rate permitted by law and ten percent (10%)per annum (the "Default Rate") from the date of
expenditure until the date of reimbursement.
Section 6.3 Right of Contest.
Borrower may contest in good faith any claim, demand, levy, or assessment the assertion
of which would constitute an Event of Default hereunder. Any such contest is to be prosecuted
diligently and in a manner unprejudicial to the City or the rights of the City hereunder.
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Packet Pg. 112
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Section 6.4 Remedies Cumulative.
No right, power, or remedy given to the City by the terms of this Agreement or the Loan
Documents is intended to be exclusive of any other right, power, or remedy; and each and every
such right,power, or remedy will be cumulative and in addition to every other right, power, or
remedy given to the City by the terms of any such instrument,or by any statute or otherwise
against Borrower and any other person. Neither the failure nor any delay on the part of the
County to exercise any such rights and remedies will operate as a waiver thereof, nor does any
single or partial exercise by the City of any such right or remedy preclude any other or further
exercise of such right or remedy, or any other right or remedy.
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Section 6.5 Limited Partner Cure Rights d
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The City agrees to provide any limited partner of Borrower who has requested written
notice from the City ('Permitted Limited Partner") a duplicate copy of all notices of default that Q
the City may give to or serve in writing upon Borrower pursuant to the terms of the Loan
Documents, at the address provided to the City,provided, the City shall have no liability to the
Permitted Limited Partner for its failure to do so. The Permitted Limited Partner shall have the W
right, but not the obligation, to cure any Default of Borrower set forth in such notice, during any
applicable cure period described in the Loan Documents, and the City will accept tender of such
cure as if delivered by Borrower.
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0 ARTICLE 7. GENERAL PROVISIONS 0 CL
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Section 7.1 Relationship of Parties. Q
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Nothing contained in this Agreement is to be interpreted or understood by any of the
Parties, or by any third persons, as creating the relationship of employer and employee, principal o
and agent, limited or general partnership, or joint venture between the City and Borrower or its M
agents, employees or contractors, and Borrower will at all times be deemed an independent E
contractor and to be wholly responsible for the manner in which it or its agents, or both, perform a,
the services required of it by the terms of this Agreement. Borrower has and retains the right to `M
exercise full control of employment, direction, compensation, and discharge of all persons
assisting in the performance of services under the Agreement. In regards to the construction and s
operation of the Development, Borrower is solely responsible for all matters relating to payment R
of its employees, including compliance with Social Security, withholding, and all other laws and Q
regulations governing such matters, and must include requirements in each contract that
contractors are solely responsible for similar matters relating to their employees. Borrower is
solely responsible for its own acts and those of its agents and employees.
Section 7.2 No Claims.
Nothing contained in this Agreement creates or justifies any claim against the City by any
person that Borrower may have employed or with whom Borrower may have contracted relative
to the purchase of materials, supplies or equipment, or the furnishing or the performance of any
work or services with respect to the purchase of the Property,the construction or operation of the
49
Packet Pg. 113
Development, and Borrower shall include similar requirements in any contracts entered into for
the construction or operation of the Development.
Section 7.3 Discretion Retained By City.
The City's execution of this Agreement in no way limits the discretion of the City in the
permit and approval process in connection with the construction of the Development.
Section 7.4 Indemnification.
The Borrower agrees to indemnify, defend(with counsel reasonably approved by City)
and hold harmless the City and its elected officials, authorized officers, employees, agents and
volunteers ("Indemnitees") from any and all claims, actions,losses, damages, and/or liability
arising out of this contract from any cause whatsoever, including the acts, errors or omissions of E
any person and for any costs or expenses incurred by the City on account of any claim except
where such indemnification is prohibited by law. This indemnification provision shall apply
regardless of the existence or degree of fault of Indemnities. The Borrower's indemnification c
obligation applies to the City's "active" as well as "passive" negligence but does not apply to the
City's "sole negligence" or "willful misconduct" within the meaning of Civil Code Section 2782. E
This indemnification provision is not intended to and does not limit, negate, modify,nullify, or O
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change the nonrecourse provisions of this Agreement or any other agreement, document, _
instrument, certificate or covenant executed by Borrower. The provisions of this Section will
survive the expiration of the Term and the reconveyance of the Deed of Trust. The Borrower's —0
0
duty to indemnify the City shall be limited to available surplus cash and/or residual receipts of o
the Borrower or non-Project assets of the Borrower. a
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Section 7.5 Non-Liability of City Officials, Employees and Agents. o
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No member, official, employee or agent of the County is personally liable to Borrower in
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the event of any default or breach by the City or for any amount that may become due to ti
Borrower or its successor or on any obligation under the terms of this Agreement. 42
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Section 7.6 No Third Party Beneficiaries.
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There are no third party beneficiaries to this Agreement. E
Section 7.7 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person
described in Section 7.7(b) below who exercises or has exercised any functions or
responsibilities with respect to the activities funded pursuant to this Agreement or who is in a
position to participate in a decision-making process or gain inside information with regard to
such activities, may obtain a financial interest or financial benefit from the activity, or have an
interest in any contract, subcontract or agreement with respect thereto, or the proceeds
thereunder, either for themselves or those with whom they have family or business ties, during,
or at any time after, such person's tenure. Borrower shall exercise due diligence to ensure that
the prohibition in this Section 7.7(a)is followed.
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Packet Pg. 114
(b) The conflict of interest provisions of Section 7.7(a) above apply to any
person who is an employee,agent, consultant, officer, or any immediate family member of such
person, or any elected or appointed official of the City, or any person related within the third
(3rd)degree of such person.
(c) In accordance with California Government Code Section 1090 and the
Political Reform Act, California Government Code section 87100 et secs., no person who is a
director, officer,partner,trustee or employee or consultant of Borrower, or immediate family
member of any of the preceding, may make or participate in a decision, made by the City or a
City board,commission or committee, if it is reasonably foreseeable that the decision will have a
material effect on any source of income, investment or interest in real property of that person or
Borrower. Interpretation of this section is governed by the definitions and provisions used in the
Political Reform Act, California Government Code Section 87100 et seq., its implementing E
regulations manual and codes,and California Government Code Section 1090. a,
(d) Borrower shall comply with the conflict of interest provisions set forth in
24 C.F.R. 92.356.
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Section 7.8 Notices Demands and Communications. O
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All notices required or permitted by any provision of this Agreement must be in writing
and sent by registered or certified mail,postage prepaid, return receipt requested, or delivered by o
express delivery service, return receipt requested, or delivered personally, to the principal office o
of the Parties as follows: Q.
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City: City Manager Q
City of San Bernardino
300 N "D" Street, Sixth Floor
San Bernardino, CA 92418 Q
Attn: Housing Director
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Borrower: Val 9 Housing Partners, L.P. 0
9421 Haven Avenue
Rancho Cucamonga, CA 91730
Attn: Chief Financial Officer
With a copy to: Q
Law Offices of Edward A. Hopson
655A No. Mountain Avenue
Upland, CA 91786
Attn: Edward A. Hopson
With a copy to:
Wells Fargo Community Lending & Investment
Wells Fargo Bank Affordable Housing
Community Development Corporation
301 South College Street, 17"' Floor
MAC D1053-170
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Packet Pg. 115
Charlotte,NC 28288
With a copy to:
Kutak Rock
1650 Farnam Street
Omaha,NE 68102
Attn: Robert Coon
Such written notices, demands and communications may be sent in the same manner to such
other addresses as the affected Party may from time to time designate by mail as provided in this
Section. Receipt will be deemed to have occurred on the date shown on a written receipt as the
date of delivery or refusal of delivery (or attempted delivery if undeliverable).
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Section 7.9 Amendments.
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No alteration or variation of the terms of this Agreement is valid unless made in writing
by the Parties. The City Manager is authorized to execute on behalf of the City amendments to
the Loan Documents or amended and restated Loan Documents as long as any material change in W
2
the amount or terms of this Agreement is approved by the Mayor and Common Council. _
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Section 7.10 City Approval.
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The City has authorized the City Manager to execute the ancillary Loan documents and
deliver such approvals or consents as are required by this Agreement, and to execute estoppel °
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certificates concerning the status of the Loan and the existence of Borrower defaults under the Q
Loan Documents, including subordination agreements substantially consistent with the terms of
Section 2.5 above.
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Section 7.11 Applicable Law. e
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This Agreement is governed by the laws of the State of California.
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Section 7.12 Parties Bound.
Except as otherwise limited herein, this Agreement binds and inures to the benefit of the E
parties and their heirs, executors, administrators, legal representatives, successors,and assigns.
This Agreement is intended to run with the land and to bind Borrower and its successors and r
assigns in the Property and the Development for the entire Term, and the benefit hereof is to a
inure to the benefit of the City and its successors and assigns.
Section 7.13 Attorneys' Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing
Party will have the right to recover its reasonable attorneys' fees and costs of suit from the other
Party.
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Section 7.14 Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable,the remainder of the provisions will continue in full force and effect
unless the rights and obligations of the Parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
Section 7.15 Force Majeure.
In addition to specific provisions of this Agreement, performance by either Party will not
be deemed to be in default where delays or defaults are due to war, insurrection, strikes, lock-
outs, riots, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of
transportation, or court order. An extension of time for any cause will be deemed granted if E
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notice by the Party claiming such extension is sent to the other within ten (10) days from the
commencement of the cause and such extension of time is not rejected in writing by the other Q
Party within ten (10) days of receipt of the notice. In no event will the City be required to agree o
to cumulative delays in excess of ninety(90) days. -J
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Section 7.16 Waivers. 0
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Any waiver by the City of any obligation or condition in this Agreement must be in E
writing. No waiver will be implied from any delay or failure by the City to take action on any o
breach or default of Borrower or to pursue any remedy allowed under this Agreement or
applicable law. Any extension of time granted to Borrower to perform any obligation under this Q.
Agreement does not operate as a waiver or release from any of its obligations under this Q
Agreement. Consent by the City to any act or omission by Borrower may not be construed to be
consent to any other or subsequent act or omission or to waive the requirement for the City's
written consent to future waivers.
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Section 7.17 Title of Parts and Sections. M
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Any titles of the sections or subsections of this Agreement are inserted for convenience of a,
reference only and are to be disregarded in interpreting any part of the Agreement's provisions.
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Section 7.18 Entire Understanding of the Parties E
The Loan Documents constitute the entire agreement of the Parties with respect to the Q
Loan.
Section 7.19 Multiple Originals; Counterpart.
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts.
[Signature Page Follows]
53
Packet Pg. 117
.-
WHEREAS,this Agreement has been entered into by the undersigned as of the Effective
Date.
BORROWER:
Val 9 Housing Partners, L.P.,a California limited partnership
Date:
By: Val 9 MGP, LLC, a California limited liability company,
its sole general partner
By: National Community Renaissance of California,
its sole member and manager
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By: E
Tracy Thomas, Chief Financial Officer
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CITY: Q
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CITY OF SAN BERNARDINO, a charter city of the State of California J
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Date: �r-
By: _
Allen Parker, City Manager
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Georgeann Hanna Q
City Clerk
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APPROVED AS TO FORM: E
Gary D. Saenz v
City Attorney Q
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The undersigned accepts and acknowledges the provisions of Section 3.16 as set forth herein.
DEVELOPER FEE RECIPIENT:
NATIONAL COMMUNITY RENAISSANCE OF
CALIFORNIA, a California nonprofit public benefit
corporation
By: r
Tracy Thomas, Chief Financial Officer
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10 EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
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EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA,AND IS DESCRIBED AS FOLLOWS:
A PORTION OF LOT 7,BLOCK 42 OF RANCHO SAN BERNARDINO ACCORDING TO THE OFFICIAL MAP
RECORDED IN BOOK 7, PAGE 2, IN THE CITY OF SAN BERNARDINO, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AND MORE E
PARTICULARLY DESCRIBED AS FOLLOWS: a,
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BEGINNING AT A POINT ON THE NORTH LINE OF NINTH ST. 1,774.70 FEET EAST FROM THE CENTER =
LINE OF WATERMAN AVENUE; THENCE NORTHERLY PARALLEL TO THE WEST LINE OF SAID LOT 7 0
A DISTANCE OF 602.75 FEET;THENCE EASTERLY PARALLEL TO THE SOUTH LINE OF SAID LOT 7 TO A J
POINT 50.00 FEET FROM THE EAST LINE OF SAID LOT 7; THENCE SOUTHERLY PARALLEL TO THE W
SAID EAST LINE OF LOT 7 TO THE SOUTH LINE OF SAID LOT 7; THENCE WESTERLY ALONG THE SAID 0
SOUTH LINE OF LOT 7 OF THE TRUE POINT OF BEGINNING. _
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SAID LAND IS ALSO SHOWN AS PARCEL 1 OF CERTIFICATE OF COMPLIANCE FOR LOT LINE o
ADJUSTMENT NO. 88-30 RECORDED SEPTEMBER 29, 1989 AS INSTRUMENT NO. 89-365668 OF OFFICIAL E
RECORDS. o
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APN(s): 147-191-12 Q
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EXHIBIT B
APPROVED DEVELOPMENT BUDGET
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Va19 Loan Agreement Exhibit B
DEVELOPMENT COSTS
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EXHIBIT C
SCHEDULE OF PERFORMANCE
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Val9 Loan Agreement
Exhibit C—Schedule of Performance
Schedule of Performance
Val 9 Apartments
950 N.Valencia Avenue,San Bernardino,92410
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Milestone Date Key-Prerequisite d
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Milestone m
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Receive Entitlements/Environmental Clearance 4/14/2014 Submit Entitlements Q
Apply for 9%Tax Credits 7/1/2014 Receive Entitlements
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Receive 9%Tax Credit Reservation 9/24/2014 Apply for 9%Credits
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Select Tax Credit Investor 10/20/2014 Receive CTCAC Award =
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Submit plans and applications for plan check "-
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and building permit 10/20/2014 Receive CTCAC Award
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Obtain Approval of Construction Plans March 2015 No later than 180-day CTCAC deadline Q
(March 23,2015) Q
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Obtain FHA/HUD Loan Commitment March 2015 No later than 180-day CTCAC deadline d
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(March 23,2015) M
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Final Construction Contract March 2015 No later than 180-day CTCAC deadline Q
(March 23,2015) r
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Pay impact fees and obtain construction permits March 2015 No later than 180-day CTCAC deadline W
(March 23,2015)
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Begin Construction March 2015 No later than 180-day CTCAC deadline J
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Management Plan May 2016
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Complete construction August 2016 s
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100%Occupied November 2016 Q
Permanent Loan Closng I December 2016
Packet Pg. 125
5.E.c
EXHIBIT D
FORM OF PROMISSORY NOTE
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PROMISSORY NOTE
SECURED BY DEED OF TRUST
(Waterman Gardens- Valencia 9 Apartments)
$1,500,000 San Bernardino, California
March , 2015
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FOR VALUE RECEIVED,the undersigned Val 9 Housing Partners, L.P., a E
California limited partnership("Borrower") hereby promises to pay to the order of the City of
San Bernardino, a charter of the State of California("Holder"), the principal amount of up to One
Million Five Hundred Thousand Dollars ($1,500,000), subject to Section 2.6 of the Loan c
Agreement, plus interest thereon pursuant to section 2 below. -J
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1. Borrower's Obligation. This Promissory Note Secured by Deed of Trust(the =
"Note") evidences Borrower's obligation to repay Holder the principal amount of up to One
Million Five Hundred Thousand Dollars ($1,500,000) for the funds loaned to Borrower by c
Holder to finance the construction of the Development pursuant to the 140ME Investment �
Partnerships Act Loan Agreement between Borrower and Holder of even date herewith (the o
"Loan Agreement"). All capitalized terms used but not defined in this Note have the meanings a
set forth in the Loan Agreement. Q
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2. Interest. M
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(a) Subject to the provisions of subsection (b) below, simple interest a
will accrue on the outstanding principal balance of the Loan at a per annum rate of interest equal
to three percent(3%), commencing on the date of disbursement until full repayment of the x
principal of the Loan. w
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(b) If an Event of Default occurs, interest will accrue on all amounts -'
due under this Note at the Default Rate until such Event of Default is cured by Borrower or o
waived by Holder. _
3. Term and Repayment Requirements. The unpaid principal balance hereunder, E
together with accrued interest thereon, is due and payable no later than the date that is the fifty-
fifth (55t") anniversary of the Completion Date (as defined in the Loan Agreement), but in no
event will the Loan mature prior to the maturity of any HUD insured senior loan approved by the
City. This Note is due and payable as set forth in Section 2.7 of the Loan Agreement.
4. No Assumption. This Note is not assumable by the successors and assigns of
Borrower without the prior written consent of Holder, except as provided in the Loan
Agreement.
5. Security. This Note, with interest, is secured by the Deed of Trust. Upon
execution, the Deed of Trust will be recorded in the official records of San Bernardino County,
California. Upon recordation of the Deed of Trust,this Note will become nonrecourse to
1
Packet,Pg. 127
Borrower,pursuant to and except as provided in Section 2.8 of the Loan Agreement which
section is hereby incorporated into this Note. The teens of the Deed of Trust are hereby
incorporated into this Note and made a part hereof.
6. Terms of Payment.
(a) Borrower shall make all payments due under this Note in currency
of the United States of America to Holder at Office of the City Manager, City of San Bernardino,
340 N "D" Street, Sixth Floor, San Bernardino, CA 92418, Attn: Housing Director, or to such
other place as Holder may from time to time designate.
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(b) All payments on this Note shall be without expense to Holder, and
Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable Q
attorney's fees of Holder, incurred in connection with the payment of this Note and the release of
any security hereof.
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(c) Notwithstanding any other provision of this Note, or any 0
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instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever,
the payment of any sums by Borrower pursuant to the terms of this Note would result in the ,
payment of interest that exceeds the amount that Holder may legally charge under the laws of the 0
State of California,then the amount by which payments exceed the lawful interest rate will 'o
automatically be deducted from the principal balance owing on this Note, so that in no event is Q
Borrower obligated under the terms of this Note to pay any interest that would exceed the lawful a
rate. c
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(d) The obligations of Borrower under this Note are absolute and w
Borrower waives any and all rights to offset, deduct or withhold any payments or charges due
under this Note for any reason whatsoever, r
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(e) Borrower may prepay the amounts due under this Note at any time w
without premium or penalty. o
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7. Event of Default; Acceleration. E
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(a) Upon the occurrence of an Event of Default, the entire unpaid
principal balance,together with all interest thereon, and together with all other sums then
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payable under this Note and the Deed of Trust will, at the option of Holder, become immediately
due and payable without further demand.
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(b) Holder's failure to exercise the remedy set forth in subsection 7(a)
above or any other remedy provided by law upon the occurrence of an Event of Default does not
constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the
same or any other Event of Default. The acceptance by Holder of any payment that is less than
the total of all amounts due and payable at the time of such payment does not constitute a waiver
of the right to exercise any of the foregoing remedies or options at that time or at any subsequent
time,or nullify any prior exercise of any such remedy or option, without the express consent of
Holder, except as and to the extent otherwise provided by law.
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8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and
demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment
of this Note. Borrower expressly agrees that this Note or any payment hereunder may be
extended from time to time, and that Holder may accept further security or release any security
for this Note, all without in any way affecting the liability of Borrower.
(b) Any extension of time for payment of this Note or any installment
hereof made by agreement of Holder with any person now or hereafter liable for payment of this
Note must not operate to release, discharge, modify, change or affect the original liability of E
Borrower under this Note, either in whole or in part. L
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9. Miscellaneous Provisions.
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(a) All notices to Holder or Borrower shall be given in the manner and w
at the addresses set forth in the Loan Agreement, or to such addresses as Holder and Borrower 0
may therein designate.
(b) Borrower promises to pay all costs and expenses, including 0
reasonable attorney's fees, incurred by Holder in the enforcement of the provisions of this Note, o
regardless of whether suit is filed to seek enforcement. a
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(c) This Note may not be changed orally,but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change, modification or M
discharge is sought, w
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(d) This Note shall be governed by and construed in accordance with
the laws of the State of California.
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(e) The times for the performance of any obligations hereunder are to CU
be strictly construed, time being of the essence.
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(f) The Loan Documents, of which this Note is a part, contain the =
entire agreement between the parties as to the Loan. This Note may not be modified except upon
the written consent of the parties.
(g) So long as the Secretary of Housing and Urban Development or
his/her successors or assigns, are the insurers or holders of the first mortgage on the Waterman
Gardens—Valencia 9, FHA Project No. 143-35130, payments due under this soft note shall be
payable only from 75% of available surplus cash of said project, as the term surplus cash is
defined in the Regulatory Agreement for Multifamily Projects dated March_, 2015 between
HUD and the Borrower. The restriction on payment imposed by this paragraph shall not excuse
any default caused by the failure of the maker to pay the indebtedness evidenced by this soft
note.
[Signature Page Follows]
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IN WITNESS WHEREOF, Borrower has executed this Promissory Note as of the day
and year first above written.
BORROWER:
Val 9 Housing Partners, L.P., a California limited partnership
By: Val 9 MGP, LLC, its sole and managing general partner
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By: National Community Renaissance of California, its E
sole and managing member
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Tracy Thomas,Chief Financial Officer
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EXHIBIT E
FORM OF DEED OF TRUST
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Office of the City Manager
City of San Bernardino
300 N"D" Street, Sixth Floor
San Bernardino, CA 92418
Attn: Housing Director
No fee for recording pursuant to
Government Code Section 27383
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DEED OF TRUST WITH ASSIGNMENT OF RENTS, ca
SECURITY AGREEMENT, AND FIXTURE FILING �
(Waterman Gardens- Valencia 9 Apartments) W
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THIS DEED OF TRUST WITH ASSIGNMENT OF RENTS, SECURITY
AGREEMENT,AND FIXTURE FILING("Deed of Trust") is made as of March_, 2015, by o
and among Val 9 Housing Partners, L.P., a California limited partnership ("Trustor"), Fidelity 0
National Title Insurance Company Name ( as "Trustee"), and the City of San Bernardino, a o
political subdivision of the State of California(as 'Beneficiary"). Q
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FOR GOOD AND VALUABLE CONSIDERATION, including the indebtedness herein o
recited and the trust herein created, the receipt of which is hereby acknowledged, Trustor hereby
irrevocably grants, transfers, conveys and assigns to Trustee, IN TRUST, WITH POWER OF W
SALE, for the benefit and security of Beneficiary, under and subject to the terms and conditions Q
hereinafter set forth, Trustor's fee interest in the property located in the County of San
Bernardino, State of California, that is described in the attached Exhibit A, incorporated herein
by this reference (the "Propert y"}, w
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TOGETHER WITH all interest, estates or other claims,both in law and in equity which 0
Trustor now has or may hereafter acquire in the Property and the rents;
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TOGETHER WITH all easements, rights-of-way and rights used in connection therewith =
or as a means of access thereto, including (without limiting the generality of the foregoing) all a
tenements,hereditaments and appurtenances thereof and thereto; E
TOGETHER WITH any and all buildings and improvements of every kind and Q
description now or hereafter erected thereon, and all property of the Trustor now or hereafter
affixed to or placed upon the Property;
TOGETHER WITH all building materials and equipment now or hereafter delivered to
said property and intended to be installed therein;
TOGETHER WITH all right, title and interest of Trustor, now owned or hereafter
acquired, in and to any land lying within the right-of-way of any street,open or proposed,
1 Packet Pg. 132
adjoining the Property, and any and all sidewalks, alleys and strips and areas of land adjacent to
or used in connection with the Property;
TOGETHER WITH all estate, interest, right,title, other claim or demand, of every
nature, in and to such property, including the Property, both in law and in equity,including, but
not limited to, all deposits made with or other security given by Trustor to utility companies,the
proceeds from any or all of such property, including the Property, claims or demands with
respect to the proceeds of insurance in effect with respect thereto, which Trustor now has or may
hereafter acquire, any and all awards made for the taking by eminent domain or by any
proceeding or purchase in lieu thereof of the whole or any part of such property, including
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without limitation, any awards resulting from a change of grade of streets and awards for E
severance damages to the extent Beneficiary has an interest in such awards for taking as
provided in Paragraph 4.1 herein; a
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TOGETHER WITH all of Trustor's interest in all articles of personal property or fixtures
now or hereafter attached to or used in and about the building or buildings now erected or w
hereafter to be erected on the Property which are necessary to the complete and comfortable use
and occupancy of such building or buildings for the purposes for which they were or are to be a)
erected, including all other goods and chattels and personal property as are ever used or
furnished in operating a building, or the activities conducted therein, similar to the one herein 0
described and referred to, and all renewals or replacements thereof or articles in substitution >
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therefor, whether or not the same are, or will be, attached to said building or buildings in any a
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manner; and Q
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TOGETHER WITH all of Trustor's interest in all building materials, fixtures, equipment, M
work in process and other personal property to be incorporated into the Property; all goods,
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materials, supplies, fixtures, equipment, machinery, furniture and furnishings, signs and other
personal property now or hereafter appropriated for use on the Property, whether stored on the U)
Property or elsewhere, and used or to be used in connection with the Property; all rents, issues
and profits, and all inventory, accounts, accounts receivable, contract rights, general intangibles, w
chattel paper, instruments, documents,notes drafts, letters of credit, insurance policies, insurance r-
and condemnation awards and proceeds, trade names, trademarks and service marks arising from 0
or related to the Property and any business conducted thereon by Trustor; all replacements, E
additions,accessions and proceeds; and all books, records and files relating to any of the x0
foregoing.
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All of the foregoing, together with the Property, is herein referred to as the "Security." E
To have and to hold the Security together with acquittances to the Trustee, its successors and
assigns forever. a
FOR THE PURPOSE OF SECURING THE FOLLOWING OBLIGATIONS
(collectively,the "Secured Obligations"):
A. Payment to Beneficiary of all sums at any time owing under or in connection with
the Note(defined in Section 1.4 below)until paid or cancelled and any other amounts owing
under the Loan Documents (defined in Section 1.3 below). Said principal and other payments
are due and payable as provided in the Note or other Loan Documents, as applicable. The Note
2 Packet"Pg. 133
and all its terms are incorporated herein by reference, and this conveyance secures any and all
extensions thereof,however evidenced;
B. Payment of any sums advanced by Beneficiary to protect the Security pursuant to
the terms and provisions of this Deed of Trust following a breach of Trustor's obligation to
advance said sums and the expiration of any applicable cure period, with interest thereon as
provided herein;
C. Performance of every obligation, covenant or agreement of Trustor contained
herein and in the Loan Documents; and
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D. All modifications, extensions and renewals of any of the Secured Obligations
(including without limitation, (i)modifications, extensions or renewals at a different rate of a
interest, or(ii) deferrals or accelerations of the required principal payment dates or interest
payment dates or both, in whole or in part),however evidenced, whether or not any such 0
modification, extension or renewal is evidenced by a new or additional promissory note or notes. W
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AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR =
COVENANTS AND AGREES:
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ARTICLE 1 0
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DEFINITIONS C
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In addition to the terms defined elsewhere in this Deed of Trust, the following terms have ti
the following meanings in this Deed of Trust:
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Section 1.1 The term "Loan" means the loan made by the Beneficiary to the Trustor in y
the amount up to One Million Five Hundred Thousand Dollars ($1,500,000), subject to Section c
2.6 of the Loan Agreement. x
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Section 1.2 The term "Loan Agreement" means that certain HOME Investment o
Partnerships Act Loan Agreement between Trustor and Beneficiary, dated March 3,2015, as W
such may be amended from time to time, providing for the Beneficiary to loan.to Trustor up to 0
One Million Five Hundred Thousand Dollars ($1,500,000), subject to Section 2.6 of the Loan =
Agreement.
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Section 1.3 The term "Loan Documents" means this Deed of Trust, the Note, the Loan
Agreement, and the Regulatory Agreement, and any other debt, loan or security instruments Q
between Trustor and the Beneficiary relating to the Loan.
Section 1.4 The term "Note"means the Promissory Note in the principal amount of up
to One Million Five Hundred Thousand Dollars ($1,500,000)of even date herewith, executed by
Trustor in favor of the Beneficiary,the payment of which is secured by this Deed of Trust. (A
copy of the Note is on file with the Beneficiary and terms and provisions of the Note are
incorporated herein by reference.)
3 Packet,Pg. 134
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Section 1.5 The term "Principal" means the amount required to be paid under the
Note.
Section 1.6 The term "Regulatory Agreement" means the Regulatory Agreement and
Declaration of Restrictive Covenants of even date herewith by and between the Beneficiary and
the Trustor.
ARTICLE 2
MAINTENANCE AND MODIFICATION OF THE PROPERTY
AND SECURITY E
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Section 2.1 Maintenance and Modification of the Property by Trustor. Q
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The Trustor agrees that at all times prior to full payment and performance of the Secured 0
Obligations, the Trustor will, at the Trustor's own expense,maintain, preserve and keep the W
Security or cause the Security to be maintained and preserved in good condition. The Trustor o
will from time to time make or cause to be made all repairs, replacements and renewals deemed
proper and necessary by it. The Beneficiary has no responsibility in any of these matters or for Y
the making of improvements or additions to the Security, o
Trustor agrees to pay fully and discharge (or cause to be paid fully and discharged) all °
claims for labor done and for material and services furnished in connection with the Security, a
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diligently to file or procure the filing of a valid notice of cessation upon the event of a cessation Co
of labor on the work or construction on the Security for a continuous period of thirty(30) days or ti
more, and to take all other reasonable steps to forestall the assertion of claims of lien against the
Security or any part thereof. Trustor irrevocably appoints, designates and authorizes Beneficiary w
as its agent (said agency being coupled with an interest) with the authority, but without any N
obligation, to file for record any notices of completion or cessation of labor or any other notice
that Beneficiary deems necessary or desirable to protect its interest in and to the Security or the w
Loan Documents; provided,however, that Beneficiary exercises its rights as agent of Trustor
only in the event that Trustor fails to take, or fails to diligently continue to take those actions as °
hereinbefore provided.
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Upon demand by Beneficiary, Trustor shall make or cause to be made such demands or =
claims as Beneficiary specifies upon laborers, materialmen, subcontractors or other persons who
have furnished or claim to have furnished labor, services or materials in connection with the E
Security. Nothing herein contained requires Trustor to pay any claims for labor, materials or
services which Trustor in good faith disputes and is diligently contesting provided that Trustor Q
shall, within thirty(30) days after the filing of any claim of lien,record in the Office of the
Recorder of San Bernardino County, a surety bond in an amount 1 and 1/2 times the amount of
such claim item to protect against a claim of lien, or provide other form of security acceptable to
the Beneficiary at the Beneficiary's sole and absolute discretion.
Section 2.2 Granting of Easements.
Trustor may not grant easements, licenses, rights-of-way or other rights or privileges in
the nature of easements with respect to any property or rights included in the Security except
4 Packet Pg. 135
5.E.c
those required or desirable for installation and maintenance of public utilities including, without
limitation, water, gas, electricity, sewer, telephone and telegraph, or those required by law,and
as approved, in writing, by Beneficiary.
Section 2.3 Assignment of Rents.
Subject to the rights of any approved senior mortgage lender,as part of the consideration
for the indebtedness evidenced by the Note, Trustor hereby absolutely and unconditionally
assigns and transfers to Beneficiary all the rents and revenues of the Property including those
now due,past due, or to become due by virtue of any lease or other agreement for the occupancy
or use of all or any part of the Property,regardless of to whom the rents and revenues of the E
Property are payable. Trustor hereby authorizes Beneficiary or Beneficiary's agents to collect the a)
aforesaid rents and revenues and hereby directs each tenant of the Property to pay such rents to a
Beneficiary or Beneficiary's agents; provided,however, that prior to written notice given by a
Beneficiary to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the _J�
Loan Documents, Trustor shall collect and receive all rents and revenues of the Property as W
trustee for the benefit of Beneficiary and Trustor to apply the rents and revenues so collected to O
the Secured Obligations with the balance, so long as no such breach has occurred, to the account
of Trustor, it being intended by Trustor and Beneficiary that this assignment of rents constitutes 4-
an absolute assignment and not an assignment for additional security only. Upon delivery of °
written notice by Beneficiary to Trustor of the breach by Trustor of any covenant or agreement o
of Trustor in the Loan Documents, and without the necessity of Beneficiary entering upon and a
taking and maintaining full control of the Property in person, by agent or by a court-appointed Q
receiver, Beneficiary shall immediately be entitled to possession of all rents and revenues of the
Property as specified in this Section 2.3 as the same becomes due and payable, including but not
limited to, rents then due and unpaid, and all such rents will immediately upon delivery of such w
notice be held by Trustor as trustee for the benefit of Beneficiary only;provided,however, that Q
the written notice by Beneficiary to Trustor of the breach by Trustor contains a statement that
Beneficiary exercises its rights to such rents. Trustor agrees that commencing upon delivery of
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such written notice of Trustor's breach by Beneficiary to Trustor, each tenant of the Property w
shall make such rents payable to and pay such rents to Beneficiary or Beneficiary's agents on Cu
Beneficiary's written demand to each tenant therefor, delivered to each tenant personally, by mail �
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or by delivering such demand to each re ntal unit, without any liability on the art of said tenant
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to inquire further as to the existence of a default by Trustor. °x
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Subject to the rights of any approved senior mortgage lender,Trustor hereby covenants
that Trustor has not executed any prior assignment of said rents, that Trustor has not performed,
and will not perform, any acts or has not executed and will not execute, any instrument which r
would prevent Beneficiary from exercising its rights under this Section 2.3, and that at the time Q
of execution of this Deed of Trust, there has been no anticipation or prepayment of any of the
rents of the Property for more than two(2)months prior to the due dates of such rents. Trustor
covenants that Trustor will not hereafter collect or accept payment of any rents of the Property
more than two (2) months prior to the due dates of such rents. Trustor further covenant that
Trustor will execute and deliver to Beneficiary such further assignments of rents and revenues of
the Property as Beneficiary may from time to time request.
5 r Packet Pg. 136
5.E.c
Upon Trustor's breach of any covenant or agreement of Trustor in the Loan Documents,
Beneficiary may in person, by agent or by a court-appointed receiver, regardless of the adequacy
of Beneficiary's security, enter upon and take and maintain full control of the Property in order to
perform all acts necessary and appropriate for the operation and maintenance thereof including,
but not limited to, the execution, cancellation or modification of leases,the collection of all rents
and revenues of the Property, the making of repairs to the Property and the execution or
termination of contracts providing for the management or maintenance of the Property, all on
such terms as are deemed best to protect the security of this Deed of Trust. In the event
Beneficiary elects to seek the appointment of a receiver for the Property upon Trustor's breach of
any covenant or agreement of Trustor in this Deed of Trust, Trustor hereby expressly consents to
the appointment of such receiver. Beneficiary or the receiver will be entitled to receive a E
reasonable fee for so managing the Property.
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All rents and revenues collected subsequent to delivery of written notice by Beneficiary o
to Trustor of the breach by Trustor of any covenant or agreement of Trustor in the Loan
Documents are to be applied first to the costs, if any, of taking control of and managing the
Property and collecting the rents including, but not limited to attorney's fees receiver's fees
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premiums on receiver's bonds, costs of repairs to the Property,premiums on insurance policies, _
taxes, assessments and other charges on the Property, and the costs of discharging any obligation o
or liability f Trustor as lessor or landlord of the Property and then to the sums secured b this —
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deed of Trust. Beneficiary or the receiver is to have access to the books and records used in the o
operation and maintenance of the Property and will be liable to account only for those rents Q
actually received. Beneficiary is not liable to Trustor, anyone claiming under or through Trustor Q
or anyone having an interest in the Property by reason of anything done or left undone by
Beneficiary under this Section 2.3.
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If the rents of the Property are not sufficient to meet the costs, if any, of taking control of
and managing the Property and collecting the rents, any funds expended by Beneficiary for such
purposes will become part of the Secured Obligations pursuant to Section 3.3 hereof Subject to x
Section 2.8 of the Loan Agreement, unless Beneficiary and Trustor agree in writing to other w
terms of payment, such amounts are payable by Trustor to Beneficiary upon notice from o
Beneficiary to Trustor requesting payment thereof and will bear interest from the date of _J
disbursement at the rate stated in Section 3.3. P
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If the Beneficiary or the receiver enters upon and takes and maintains control of the
Property, neither that act nor any application of rents as provided herein will cure or waive any E
default under this Deed of Trust or invalidate any other right or remedy available to Beneficiary
under applicable law or under this Deed of Trust. This assignment of rents of the Property will Q
terminate at such time as this Deed of Trust ceases to secure the Secured Obligations.
ARTICLE 3
TAXES AND INSURANCE; ADVANCES
Section 3.1 Taxes, Other Governmental Charges and Utility Charges.
6 Packet Pg. 137
Trustor shall pay, or cause to be paid,prior to the date of delinquency, all taxes,
assessments,charges and levies imposed by any public authority or utility company that are or
may become a lien affecting the Security or any part thereof;provided, however, that Trustor is
not required to pay and discharge any such tax, assessment,charge or levy so long as (a) the
legality thereof is promptly and actively contested in good faith and by appropriate proceedings,
and (b) Trustor maintains reserves adequate to pay any liabilities contested pursuant to this
Section 3.1. With respect to taxes, special assessments or other similar governmental charges,
Trustor shall pay such amount in full prior to the attachment of any lien therefor on any part of
the Security; provided,however, if such taxes, assessments or charges can be paid in
installments, Trustor may pay in such installments. Except as provided in clause (b) of the first
sentence of this paragraph,the provisions of this Section 3.1 may not be construed to require that E
Trustor maintain a reserve account, escrow account, impound account or other similar account
for the payment of future taxes, assessments, charges and levies.
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In the event that Trustor fails to pay any of the items required by this Section to be paid
by Trustor, Beneficiary may (but is under no obligation to) pay the same, after the Beneficiary w
5.
has notified the Trustor of such failure to pay and the Trustor fails to fully pay such items within o
seven(7) business days after receipt of such notice. Any amount so advanced therefor by
Beneficiary,together with interest thereon from the date of such advance at the maximum rate „.
permitted by law,will become part of the Secured Obligations secured hereby, and Trustor 0
agrees to pay all such amounts. o
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Section 3.2 Provisions Respecting Insurance. a
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Trustor agrees to provide insurance conforming in all respects to that required under the M
Loan Documents during the course of construction and following completion, and at all times
until all amounts secured by this Deed of Trust have been paid, all Secured Obligations secured w
hereunder have been fulfilled, and this Deed of Trust has been reconveyed. N
All such insurance policies and coverages are to be maintained at Trustor's sole cost and w
expense. Certificates of insurance for all of the above insurance policies, showing the same to be =
in full force and effect, are to be delivered to the Beneficiary upon demand therefor at any time 0
prior to Trustor's satisfaction of the Secured Obligations. CD
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Section 3.3 Advances. _
_
In the event the Trustor fails to maintain the full insurance coverage required by this E
Deed of Trust or fails to keep the Security in accordance with the Loan Documents, the
Beneficiary, after at least seven (7) days prior notice to Trustor, may (but is under no obligation a
to) (i)take out the required policies of insurance and pay the premiums on the same, and (ii)
make any repairs or replacements that are necessary and provide for payment thereof. All
amounts so advanced by the Beneficiary will become part of the Secured Obligations (together
with interest as set forth below) and will be secured hereby,which amounts the Trustor agrees to
pay on the demand of the Beneficiary, and if not so paid, will bear interest from the date of the
advance at the lesser of ten percent(10%)per annum or the maximum rate permitted by law.
7 Packet Pg. 138
ARTICLE 4
DAMAGE, DESTRUCTION OR CONDEMNATION
Section 4.1 Awards and Damages.
All judgments, awards of damages, settlements and compensation made in connection
with or in lieu of(1)the taking of all or any part of or any interest in the Property by or under
assertion of the power of eminent domain, (2) any damage to or destruction of the Property or
any part thereof by insured casualty, and(3) any other injury or damage to all or any part of the
Property (collectively, the "Funds") are hereby assigned to and are to be paid to the Beneficiary E
by a check made payable to the Beneficiary. The Beneficiary is authorized and empowered (but
1 not required) to collect and receive any Funds and is authorized to apply them in whole or in part
to any indebtedness or obligation secured hereby, in such order and manner as the Beneficiary o
determines at its sole option. The Beneficiary is entitled to settle and adjust all claims under J
insurance policies provided under this Deed of Trust and may deduct and retain from the
proceeds of such insurance the amount of all expenses incurred by it in connection with any such 0
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settlement or adjustment. All or any part of the amounts so collected and recovered by the =
Beneficiary may be released to Trustor upon such conditions as the Beneficiary may impose for o
its disposition. Application of all or any part of the Funds collected and received by the 0
Beneficiary or the release thereof will not cure or waive any default under this Deed of Trust. o
The rights of the Beneficiary under this Section 4.1 are subject to the rights of any senior CL
0.
mortgage lender. The Beneficiary shall release the Funds to Trustor to be used to reconstruct the a
improvements on the Property provided that Beneficiary reasonably determines that Trustor
(taking into account the Funds) has sufficient funds to rebuild the improvements in substantially
the form that existed prior to the casualty or condemnation. w
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ARTICLE 5 s
AGREEMENTS AFFECTING THE PROPERTY; FURTHER w
ASSURANCES; PAYMENT OF PRINCIPAL AND INTEREST
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Section 5.1 Other Agreements Affecting Property.
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The Trustor shall duly and punctually perform all terns, covenants, conditions and
agreements binding upon it under the Loan Documents and any other agreement of any nature E
whatsoever now or hereafter involving or affecting the Security or any part thereof.
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Section 5.2 Agreement to Pay Attorneys' Fees and Expenses. Q
In the event of any Event of Default(as defined in Section 7.1)hereunder, and if the
Beneficiary employs attorneys or incurs other expenses for the collection of amounts due
hereunder or the enforcement of performance or observance of an obligation or agreement on the
part of the Trustor in this Deed of Trust,the Trustor agrees that it will, on demand therefor,pay
to the Beneficiary the reasonable fees of such attorneys and such other reasonable expenses so
incurred by the Beneficiary. Any such amounts paid by the Beneficiary will be added to the
Secured Obligations, and will bear interest from the date such expenses are incurred at the lesser
of ten percent(10%)per annum or the maximum rate permitted by law.
8 1 Packet,Pg. 139
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Section 5.3 Payment of the Principal.
The Trustor shall pay to the Beneficiary the Principal and any other payments as set forth
in the Note in the amounts and by the times set out therein.
Section 5.4 Personal Property.
To the maximum extent permitted by law,the personal property subject to this Deed of
Trust is deemed to be fixtures and part of the real property and this Deed of Trust constitutes a
fixtures filing under the California Commercial Code. As to any personal property not deemed
or permitted to be fixtures, this Deed of Trust constitutes a security agreement under the
California Commercial Code.
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Section 5.5 Financing Statement. a
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The Trustor shall execute and deliver to the Beneficiary such financing statements J
pursuant to the appropriate statutes, and any other documents or instruments as are required to �
convey to the Beneficiary a valid perfected security interest in the Security. The Trustor shall =
perform all acts that the Beneficiary reasonably requests so as to enable the Beneficiary to L
maintain a valid perfected security interest in the Security in order to secure the payment of the o
Note in accordance with its terms. The Beneficiary is authorized to file a copy of any such
financing statement in any jurisdiction(s)as it deems appropriate from time to time in order to 0
protect the security interest established pursuant to this instrument. Q
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Section 5.6 aeration of the Security. o
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The Trustor shall operate the Security (and, in case of a transfer of a portion of the w
Security subject to this Deed of Trust,the transferee shall operate such portion of the Security) in Q
full compliance with the Loan Documents. r
Section 5.7 Inspection of the Security. w
At any and all reasonable times upon forty-eight(48)hours'notice, the Beneficiary and o
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its duly authorized agents, attorneys, experts, engineers,accountants and representatives, may
inspect the Security, without payment of charges or fees. 0
Section 5.8 Nondiscrimination.
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The Trustor herein covenants by and for itself, its heirs, executors, administrators, and
assigns, and all persons claiming under or through them, that there will be no discrimination Q
against or segregation of, any person or group of persons on account of race, color, creed,
religion, age, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the Security, nor will the Trustor itself
or any person claiming under or through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees in the Security. The foregoing covenants
run with the land.
9
Packet Pg. 140
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ARTICLE 6
HAZARDOUS WASTE
Trustor shall keep and maintain the Property in compliance with, and shall not cause or
permit the Property to be in violation of any federal, state or local laws, ordinances or regulations
relating to industrial hygiene or to the environmental conditions on,under or about the Property
including, but not limited to, soil and ground water conditions. Trustor shall not use, generate,
manufacture, store or dispose of on,under, or about the Property or transport to or from the
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Property any flammable explosives, radioactive materials,hazardous wastes, toxic substances or a
related materials, including without limitation, any substances defined as or included in the E
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definition of"hazardous substances," hazardous wastes,„ "hazardous materials,” "toxic
toxic
substances" under any applicable federal or state laws or regulations(collectively referred to Q
hereinafter as "Hazardous Materials")except such of the foregoing as may be customarily used o
in construction or operation of a multi-family residential development. _J
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Trustor shall immediately advise Beneficiary in writing if at any time it receives written =
notice of (i)any and all enforcement,cleanup, removal or other governmental or regulatory s
actions instituted, completed or threatened against Trustor or the Property pursuant to any o
applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous 0
Materials, ("Hazardous Materials Law"); (ii) all claims made or threatened by any third party L
against Trustor or the Property relating to damage, contribution, cost recovery compensation, Q
loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) a
above axe hereinafter referred to as "Hazardous Materials Claims"); and (iii) Trustor's discovery
of any occurrence or condition on any real property adjoining or in the vicinity of the Property
that could cause the Property or any part thereof to be classified as "border-zone property" (as w
defined in California Health and Safety Code Section 25117.4) under the provision of California Q
Health and Safety Code Section 25220 et seq., or any regulation adopted in accordance
therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, X
transferability or use of the Property under any Hazardous Materials Law. w
Beneficiary has the right to join and participate in, as a party if it so elects, any legal �
proceedings or actions initiated in connection with any Hazardous Materials Claims and to have E
its reasonable attorneys' x
fees in connection therewith paid by Trustor. Trustor shall indemnify °
and hold harmless Beneficiary and its elected officials, supervisors, directors, officers, c
employees, agents, successors and assigns from and against any loss, damage, cost, expense or E
liability directly or indirectly arising out of or attributable to the use, generation, storage, release,
threatened release, discharge, disposal, or presence of Hazardous Materials on, under,or about r
the Property including without limitation: (a) all foreseeable consequential damages; (b)the Q
costs of any required or necessary repair, cleanup or detoxification of the Property and the
preparation and implementation of any closure, remedial or other required plans;and(c) all
reasonable costs and expenses incurred by Beneficiary in connection with clauses (a)and (b),
including but not limited to reasonable attorneys' fees and consultant's fees. This
indemnification applies whether or not any government agency has issued a cleanup order.
Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision
include,but are not limited to: (1) losses attributable to diminution in the value of the Property;
(2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the
10 1 Packet Pg. 141
marketing of any rental space on the Property; and (4)penalties and fines levied by, and remedial
or enforcement actions of any kind issued by any regulatory agency (including but not limited to
the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the
Property and surrounding properties).
Without Beneficiary's prior written consent, which may not be unreasonably withheld,
Trustor may not take any remedial action in response to the presence of any Hazardous Materials
on, under or about the Property,nor enter into any settlement agreement, consent decree, or other
compromise in respect to any Hazardous Material Claims, which remedial action, settlement,
consent decree or compromise might, in Beneficiary's reasonable judgment, impairs the value of
the Beneficiary's security hereunder;provided, however,that Beneficiary's prior consent is not E
necessary in the event that the presence of Hazardous Materials on, under, or about the Property L
either poses an immediate threat to the health, safety or welfare of any individual or is of such a ¢
nature that an immediate remedial response is necessary and it is not reasonably possible to
obtain Beneficiary's consent before taking such action, provided that in such event Trustor 0
notifies Beneficiary as soon as practicable of any action so taken. Beneficiary agrees not to LU
withhold its consent, where such consent is required hereunder, if: (i) a particular remedial action p
is ordered by a court of competent jurisdiction; (ii) Trustor will or may be subjected to civil or
criminal sanctions or penalties if it fails to take a required action; (iii) Trustor establishes to the
reasonable satisfaction of Beneficiary that there is no reasonable alternative to such remedial
action which would result in less impairment of Beneficiary's security hereunder; or (iv)the o
action has been agreed to by Beneficiary. a
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The Trustor hereby acknowledges and agrees that: (i)this Article is intended as the a
Beneficiary's written request for information(and the Trustor's response) concerning the ti
environmental condition of the Property as required by California Code of Civil Procedure
Section 726.5,and(ii)each representation and warranty in this Deed of Trust or any of the other a
Loan Documents (together with any indemnity applicable to a breach of any such representation Y
and warranty) with respect to the environmental condition of the property is intended by the s
Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code w
of Civil Procedure Section 736. _
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In the event that any portion of the Property is determined to be "environmentally d
impaired" (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or 0
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to be an "affected parcel" (as that term is defined in California Code of Civil Procedure Section =
726.5(e)(1)),then,without otherwise limiting or in any way affecting the Beneficiary's or the
Trustee's rights and remedies under this Deed of Trust,the Beneficiary may elect to exercise its E
rights under California Code of Civil Procedure Section 726.5(a) to (1)waive its lien on such
environmentally impaired or affected portion of the Property and (2)exercise (a)the rights and a
remedies of an unsecured creditor, including reduction of its claim against the Trustor to
judgment, and(b)any other rights and remedies permitted by law. For purposes of determining
the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil
1 Procedure Section 726.5(a), the Trustor will be deemed to have willfully permitted or acquiesced
in a release or threatened release of hazardous materials,within the meaning of California Code
of Civil Procedure Section 726.5(d)(1), if the release or threatened release of hazardous materials
was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any
portion of the Property and the Trustor knew or in the exercise of reasonable diligence should
11
Packet PQ7 142
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'5.E.c
have known of the activity by such lessee,occupant, or user which caused or contributed to the
release or threatened release. All costs and expenses, including (but not limited to) attorneys'
fees, incurred by the Beneficiary in connection with any action commenced under this paragraph,
including any action required by California Code of Civil Procedure Section 726.5(b)to
determine the degree to which the Property is environmentally impaired, plus interest thereon at
the default rate specified in the Loan Agreement until paid, will be added to the indebtedness
secured by this Deed of Trust and will be due and payable to the Beneficiary upon its demand
made at any time following the conclusion of such action.
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ARTICLE 7 E
EVENTS OF DEFAULT AND REMEDIES L
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Section 7.1 Events of Default. o
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The following are events of default following the expiration of any applicable notice and E
cure periods (each an "Event of Default"): (i) failure to make any payment to be paid by Trustor =
under the Loan Documents; (ii) failure to observe or perform any of Trustor's other covenants, _
agreements or obligations under the Loan Documents, including,without limitation,the o
provisions concerning discrimination; (iii) failure to make any payment or observe or perform -
any of Trustor's other covenants, agreements, or obligations under any Secured Obligations, L
which default is not cured within the times and in the manner provided therein; and (iv) failure to Q
make any payments or observe or perform any of Trustor's other covenants, agreements or Q
obligations wider any other debt instrument or regulatory agreement secured by the Property,
which default is not cured within the time and in the manner provided therein.
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Section 7.2 Acceleration of Maturity. Q
If an Event of Default has occurred and is continuing, then at the option of the
Beneficiary, the amount of any payment related to the Event of Default and all unpaid Secured w
Obligations are immediately due and payable, and no omission on the part of the Beneficiary to
exercise such option when entitled to do so may be construed as a waiver of such right. 0
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Section 7.3 The Beneficiary's Right to Enter and Take Possession.
If an Event of Default has occurred and is continuing,the Beneficiary may:
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(a) Either in person or by agent, with or without bringing any action or
proceeding, or by a receiver appointed by a court, and without regard to the adequacy of its Q
security, enter upon the Property and take possession thereof(or any part thereof) and of any of
the Security, in its own name or in the name of Trustee, and do any acts that it deems necessary
or desirable to preserve the value or marketability of the Property, or part thereof or interest
therein, increase the income therefrom or protect the security thereof. The entering upon and
taking possession of the Security will not cure or waive any Event of Default or Notice of Sale
(as defined in Section 7.3(c), below) hereunder or invalidate any act done in response to such
Event of Default or pursuant to such Notice of Sale, and, notwithstanding the continuance in
possession of the Security, Beneficiary will be entitled to exercise every right provided for in this
12 1 Packet Pg. 143
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Deed of Trust, or by law upon occurrence of any Event of Default, including the right to exercise
the power of sale;
(b) Commence an action to foreclose this Deed of Trust as a mortgage,
appoint a receiver, or specifically enforce any of the covenants hereof,
(c) Deliver to Trustee a written declaration of an Event of Default and
demand for sale, and a written notice of default and election to cause Trustor's interest in the
Security to be sold ("Notice of Sale"), which notice Trustee or Beneficiary shall cause to be duly
filed for record in the Official Records of San Bernardino County; or
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(d) Exercise all other rights and remedies provided herein, in the instruments a
by which the Trustor acquires title to any Security, or in any other document or agreement now Q
or hereafter evidencing, creating or securing the Secured Obligations. c
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Section 7.4 Foreclosure By power of Sale. o
Should the Beneficiary elect to foreclose by exercise of the power of sale herein
contained,the Beneficiary shall deliver to the Trustee the Notice of Sale and shall deposit with
Trustee the Note which is secured hereby (and the deposit of which will be deemed to constitute
evidence that the Secured Obligations are immediately due and payable), and such receipts and 'o
evidence of any expenditures made that are additionally secured hereby as Trustee may require. Q
(a) Upon receipt of the Notice of Sale from the Beneficiary, Trustee shall
cause to be recorded,published and delivered to Trustor such Notice of Sale as is then required M
by law and by this Deed of Trust. Trustee shall, without demand on Trustor, after the lapse of w
that amount of time as is then required by law and after recordation of such Notice of Sale as Q
required by law, sell the Security, at the time and place of sale set forth in the Notice of Sale,
whether as a whole or in separate lots or parcels or items, as Trustee deems expedient and in
such order as it determines, unless specified otherwise by the Trustor according to California W
Civil Code Section 2924g(b), at public auction to the highest bidder, for cash in lawful money of M
the United States payable at the time of sale. Trustee shall deliver to such purchaser or
purchasers thereof its good and sufficient deed or deeds conveying the property so sold,but E
without any covenant or warranty, express or implied. The recitals in such deed or any matters =
of facts will be conclusive proof of the truthfulness thereof. Any person, including, without
limitation, Trustor,Trustee or Beneficiary, may purchase at such sale.
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(b) After deducting all reasonable costs, fees and expenses of Trustee,
including costs of evidence of title in�connection with such sale, Trustee shall apply the proceeds Q
of sale to payment of. (i) the unpaid Principal amount of the Note; (ii) all other Secured
Obligations owed to Beneficiary under the Loan Documents; (iii) all other sums then secured
hereby; and (iv)the remainder, if any,to Trustor.
(c) Trustee may postpone sale of all or any portion of the Property by public
announcement at such time and place of sale, and from time to time thereafter, and without
further notice make such sale at the time fixed by the last postponement, or may, in its discretion,
give a new Notice of Sale.
13 Packet Pg. 144
Section 7.5 Receiver.
If an Event of Default occurs and is continuing, Beneficiary, as a matter of right and
without further notice to Trustor or anyone claiming under the Security, and without regard to
the then value of the Security or the interest of Trustor therein,may apply to any court having
jurisdiction to appoint a receiver or receivers of the Security (or a part thereof), and Trustor
hereby irrevocably consents to such appointment and waives further notice of any application
therefor. Any such receiver or receivers will have all the usual powers and duties of receivers in
like or similar cases, and all the powers and duties of Beneficiary in case of entry as provided a
herein, and will continue as such and exercise all such powers until the date of confinnation of d
sale of the Security, unless such receivership is sooner terminated.
Section 7.6 Remedies Cumulative. M
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No right, power or remedy conferred upon or reserved to the Beneficiary by this Deed of W
Trust is intended to be exclusive of any other right, power or remedy, but each and every such =
right,power and remedy will be cumulative and concurrent and will be in addition to any other
right,power and remedy given hereunder or now or hereafter existing at law or in equity.
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Section 7.7 No Waiver. c°
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(a) No delay or omission of the Beneficiary to exercise any right, power or 0.
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remedy accruing upon any Event of Default will exhaust or impair any such right, power or
remedy, and may not be construed to be a waiver of any such Event of Default or acquiescence
therein; and every right, power and remedy given by this Deed of Trust to the Beneficiary may
be exercised from time to time and as often as may be deemed expeditious by the Beneficiary. Q
Beneficiary's express or implied consent to breach, or waiver of, any obligation of the Trustor
hereunder will not be deemed or construed to be a consent to any subsequent breach, or further
waiver, of such obligation or of any other obligations of the Trustor hereunder. Failure on the w
part of the Beneficiary to complain of any act or failure to act or to declare an Event of Default, _
irrespective of how long such failure continues,will not constitute a waiver by the Beneficiary of 0
its right hereunder or impair any rights, power or remedies consequent on any Event of Default
by the Trustor. 0
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(b) If the Beneficiary(i) grants forbearance or an extension of time for the
payment or performance of any Secured Obligation, (ii) takes other or additional security or the E
payment of any sums secured hereby, (iii) waives or does not exercise any right granted in the
Loan Documents, (iv) releases any part of the Security from the lien of this Deed of Trust, or Q
otherwise changes any of the terms, covenants, conditions or agreements in the Loan Documents,
(v) consents to the granting of any easement or other right affecting the Security, or (vi) makes or
consents to any agreement subordinating the lien hereof, any such act or omission will not
release, discharge, modify, change or affect the original liability under this Deed of Trust, or any
other obligation of the Trustor or any subsequent purchaser of the Security or any part thereof, or
any maker, co-signer, endorser, surety or guarantor (unless expressly released); nor will any such
act or omission preclude the Beneficiary from exercising any right,power or privilege herein
granted or intended to be granted in any Event of Default then made or of any subsequent Event
14 1 Packet Pg. 145
5.E.c
of Default, nor,except as otherwise expressly provided in an instrument or instruments executed
by the Beneficiary,will the lien of this Deed of Trust be altered thereby.
Section 7.8 Suits to Protect the Security.
The Beneficiary has the power to (a) institute and maintain such suits and proceedings as
it may deem expedient to prevent any impairment of the Security and the rights of the
Beneficiary as may be unlawful or any violation of this Deed of Trust, (b)preserve or protect its
interest (as described in this Deed of Trust) in the Security, and(c) restrain the enforcement of or
compliance with any legislation or other governmental enactment,rule or order that may be c
unconstitutional or otherwise invalid, if the enforcement for compliance with such enactment, E
rule or order would impair the Security thereunder or be prejudicial to the interest of the L
Beneficiary. a
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Section 7.9 Trustee May File Proofs of Claim. 0
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In the case of any receivership, insolvency, bankruptcy,reorganization, arrangement, p
adjustment, composition or other proceedings affecting the Trustor, its creditors or its property, _
the Beneficiary, to the extent permitted by law,will be entitled to file such proofs of claim and Y
other documents as may be necessary or advisable in order to have the claims of the Beneficiary c
allowed in such proceedings and for any additional amount that becomes due and payable by the 'o
Trustor hereunder after such date. Q
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Section 7.1 Q Waiver.
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The Trustor waives presentment, demand for payment, notice of dishonor, notice of
protest and nonpayment, protest,notice of interest on interest and late charges, and diligence in w
taking any action to collect any Secured Obligations or in proceedings against the Security, in N
connection with the delivery, acceptance, performance, default, endorsement or guaranty of this
Deed of Trust. x
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ARTICLE 8
MISCELLANEOUS E
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Section 8.1 Amendments.
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This Deed of Trust cannot be waived, changed, discharged or terminated orally, but only
by an instrument in writing signed by Beneficiary and Trustor. Q
Section 8.2 Reconveyance by Trustee.
Upon written request of Beneficiary stating that all Secured Obligations have been paid
or forgiven, and all obligations under the Loan Documents have been performed in full, and
upon surrender of this Deed of Trust to Trustee for cancellation and retention, and upon payment
by Trustor of Trustee's reasonable fees, Trustee shall reconvey the Security to Trustor, or to the
person or persons legally entitled thereto.
15 Packet Pg. 146
Section 8.3 Notices.
If at any time after the execution of this Deed of Trust it becomes necessary or
convenient for one of the parties hereto to serve any notice, demand or communication upon the
other party, such notice, demand or communication must be in writing and is to be served
personally or by depositing the same in the registered United States mail, return receipt
requested,postage prepaid and (1) if intended for Beneficiary is to be addressed to:
Office of the City Manager
City of San Bernardino
300 N"D" Street, Sixth Floor E
San Bernardino, CA 92418
Attn: Housing Director Q
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and (2) if intended for Trustor is to be addressed to: �
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Val 9 Housing Partners, L.P. _
9421 Haven Avenue =
Rancho Cucamonga, CA 91730
Attn: Chief Financial Officer 0
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Any notice, demand or communication will be deemed given, received, made or communicated
on the date personal delivery is effected or, if mailed in the manner herein specified, on the
delivery date or date delivery is refused by the addressee, as shown on the return receipt. Either
party may change its address at any time by giving written notice of such change to Beneficiary W
or Trustor as the case may be, in the manner provided herein, at least ten (10) days prior to the q
date such change is desired to be effective. Trustor's limited partner shall have all the notice and cure
rights set forth in the Loan Agreement.
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Section 8.4 Successors and Joint Trustors.
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Where an obligation created herein is binding upon Trustor, the obligation also applies to 0
and binds any transferee or successors in interest. Where the terms of the Deed of Trust have the 0
effect of creating an obligation of the Trustor and a transferee, such obligation will be deemed to =
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be a joint and several obligation of the Trustor and such transferee. Where Trustor is more than
one entity or person, all obligations of Trustor will be deemed to be a joint and several obligation E
of each and every entity and person comprising Trustor. r
Section 8.5 Captions.
The captions or headings at the begimling of each Section hereof are for the convenience
of the parties and are not a part of this Deed of Trust.
Section 8.6 Invalidity of Certain Provisions.
Every provision of this Deed of Trust is intended to be severable. In the event any term
or provision hereof is declared to be illegal or invalid for any reason whatsoever by a court or
16 Packet Pg. 147
other body of competent jurisdiction, such illegality or invalidity will not affect the balance of
the terms and provisions hereof, which terms and provisions will remain binding and
enforceable. If the lien of this Deed of Trust is invalid or unenforceable as to any part of the
debt, or if the lien is invalid or unenforceable as to any part of the Security, the unsecured or
partially secured portion of the debt, and all payments made on the debt, whether voluntary or
under foreclosure or other enforcement action or procedure,will be considered to have been first
paid or applied to the full payment of that portion of the debt that is not secured or partially
secured by the lien of this Deed of Trust.
Section 8.7 Governing Law.
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This Deed of Trust is governed by the laws of the State of California. L
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Section 8.8 Gender and Number. C
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In this Deed of Trust the singular includes the plural and the masculine includes the w
feminine and neuter and vice versa,if the context so requires. p
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Section 8.9 Deed of Trust, Mortgage.
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Any reference in this Deed of Trust to a mortgage also refers to a deed of trust and any
reference to a deed of trust also refers to a mortgage. 0
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Section 8.1 Q Actions. a
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Trustor shall appear in and defend any action or proceeding purporting to affect the Cn
Security. w
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Section 8.11 Substitution of Trustee. y
Beneficiary may from time to time substitute a successor or successors to any Trustee w
named herein or acting hereunder to execute this Trust. Upon such appointment,and without C
conveyance to the successor trustee, the latter will be vested with all title, powers, and duties 0
conferred upon any Trustee herein named or acting hereunder. Each such appointment and 0
substitution is to be made by written instrument executed by Beneficiary, containing reference to 0
this Deed of Trust and its place of record,which, when duly recorded in the proper office of the
county or counties in which the Property is situated, will be conclusive proof of proper E
appointment of the successor trustee.
Section 8.12 Statute of Limitations.
The pleading of any statute of limitations as a defense to any and all,obligations secured
by this Deed of Trust is hereby waived to the full extent permissible by law.
Section 8.13 Acceptance by Trustee.
Trustee accepts this Trust when this Deed of Trust, duly executed and acknowledged, is
made public record as provided by law. Except as otherwise provided by law, the Trustee is not
1.7 Packet Pg. 148
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obligated to notify any party hereto of a pending sale under this Deed of Trust or of any action or
IL proceeding in which Trustor, Beneficiary, or Trustee is a party unless brought by Trustee.
Section 8.14 Tax Credit Provisions.
Notwithstanding anything to the contrary contained herein or in any documents secured
by this Deed of Trust or contained in any subordination agreement, and to the extent applicable,
the Beneficiary acknowledges and agrees that in the event of a foreclosure or deed-in-lieu of
foreclosure (collectively, "Foreclosure")with respect to the Security encumbered by this Deed of
Trust, the following rule contained in 26 U.S.C. Section 42(h)(6)(E)(ii), as amended, applies:
E
For a period of three (3)years from the date of Foreclosure,with respect to any unit that L
had been regulated by the Regulatory Agreement with the California Tax Credit Allocation Q
Committee: (i) none of the tenants occupying those units at the time of Foreclosure may be W
evicted or their tenancy terminated (other than for good cause); (ii) nor may any rent be �
increased except as otherwise permitted under Section 42 of the Internal Revenue Code. W
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Section 8.15 Subject to RAD Program Requirements.
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This Deed of Trust is made subject and subordinate to: (i) that certain Rental Assistance >
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Demonstration(RAD)Use Agreement between the U.S. Department of Housing and Urban a
Development(HUD) and Trustor, recorded contemporaneously herewith in the Official Records a
of San Bernardino County; (ii)that certain RAD Conversion Commitment(HUD Form—52624) C)
executed by Trustor and Beneficiary with respect to conversion of public housing units to RAD
units; and (iii)the requirements governing the RAD program set forth in the Consolidated and w
Further Continuing Appropriations Act of 2012 and HUD Notice PIH-2012-32(H) Rev-1 (July 2, a
2012), as may be further amended, (collectively, the "RAD Requirements"). If there is a conflict y
between a provision of this Deed of Trust or any Loan Document that affects the Security and
any of the RAD Requirements,then the RAD Requirements shall govern, except as such RAD W
Requirement may have been expressly waived in writing by HUD or the Beneficiary, as M
appropriate. �
[Signature Page Follows] E
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1.8 Packet Pg. 149
IN WITNESS WHEREOF,Trustor has executed this Deed of Trust as of the day and year first
above written.
TRUSTOR:
Val 9 Housing Partners, L.P., a California limited partnership
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By: Val 9 MGP, LLC, a California limited liability company, E
its sole general partner
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By: National Community Renaissance of California, its o
sole member and manager
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By: _
Tracy Thomas, Chief Financial Officer
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A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
JON attached, and not the truthfulness, accuracy,or validity of that document.
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STATE OF CALIFORNIA } c
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COUNTY OF )
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On ,before me, ,Notary Public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within W
instrument and acknowledged to me that he/she/they executed the same in his/her/their O
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authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument. ,
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1 certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct. °
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WITNESS my hand and official seal. Q
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Name:
Name: Notary Public
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5.E.c
EXHIBIT A
LEGAL DESCRIPTION
The land is situated in the State of California, County of San Bernardino, City of San
Bernardino and is described as follows:
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5.E.c
EXHIBIT F
FORM OF REGULATORY AGREEMENT
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Office of the City Manager
City of San Bernardino
300 N "D" Street, Sixth Floor
San Bernardino, CA 92418
Attn: Housing Director
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No fee for recording pursuant to
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Government Code Section 27383
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REGULATORY AGREEMENT AND w
DECLARATION OF RESTRICTIVE COVENANTS
(Waterman Gardens- Valencia 9 Apartments)
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This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement") o
is dated March_. 2015 and is between the City of San Bernardino, a charter city of the State of
California(the "C "), and Val 9 Housing Partners, L.P., a California limited partnership 0 CL
("Borrowe r"). a
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RECITALS
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A. Defined Terms used but not defined in these recitals are as defined in Article 1 of
this Agreement.
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B. Borrower owns or is acquiring real property located at the northwest corner of U"
Valencia Avenue and 9t" Street, in the City of San Bernardino, County of San Bernardino, State o
of California, as more particularly described in Exhibit A (the "Propert y"). Borrower intends to d
construct on the Property a Seventy-Six (76)unit multifamily affordable housing development o
(including one manager's unit) (the "Improvements"). The Improvements and the Property are =
referred to as the "Development".
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C. Pursuant to a HOME Investment Partnerships Act Loan Agreement by and
between the City and Borrower, dated as of March , 2015(the "Loan Agreement"), the City
has made a loan of up to One Million Five Hundred Thousand ($1,500,000) of HOME
Investment Partnerships Act funds ("HOME Funds") to fund costs associated with the
acquisition and construction of the Improvements(the "Loan"). The City has the authority to
loan the HOME Funds pursuant to 24 C.F.R. 92.205.
D. The City has agreed to make the Loan on the condition that the Development be
maintained and operated in accordance with restrictions concerning affordability, operation, and
maintenance that are set forth in this Agreement and in the related documents evidencing the
Loan.
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5.E.c
E. In consideration of receipt of the Loan at an interest rate substantially below the
1 market rate,Borrower agrees to observe all the terms and conditions set forth below.
The parties therefore agree as follows.
ARTICLE 1
DEFINITIONS; EXHIBITS
1.1 Definitions.
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The following tenns have the following meanings: a
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(a) "Actual Household Size" means the actual number of persons in the
applicable household. 0
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(b) "Adjusted Income"means the total anticipated annual income of all o
persons in the Tenant household as calculated pursuant to 24 C.F.R. 92.203(b)(1). Adjusted
income includes income from all persons in the household, including nonrelated individuals.
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(c) "Agreement" has the meaning set forth in the first paragraph of this c
Agreement. a
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0 (d) "County"means the County of San Berardino, a political subdivision of o
the State of California. ti
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(e) "Completion Date" means the date that all of the following have occurred: w
(i) a final certificate of occupancy,or equivalent document is issued by the City to certify N
completion of the construction of the Development; (ii) the final disbursement of HOME funds
for the Development has been made; (iii) the City has verified the Development complies with w
the property standards set forth in 24 C.F.R. 92.251; and(iv) all project completion information c
has been entered by the City into the Integrated Disbursement and Information System (IDIS).
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(f) "Completion of Construction" means the date the construction of the o
Development is completed as evidenced by the issuance of a certificate of occupancy or _
equivalent document issued by the City,to certify completion of the construction of the
Development. E
(g) "City-Assisted Units"means the seven(7) Units within the Development Q
designated as assisted by the City pursuant to this Agreement, which Units are "floating" Units
as defined in 24 C.F.R. 92.2520).
(h) "Deed of Trust"means the Deed of Trust with Assignment of Rents,
Security Agreement and Fixture Filing of even date herewith by and among Borrower, as trustor,
Fidelity National Title Insurance Company, as trustee, and the City, as beneficiary, that will
encumber the Property to secure repayment of the Loan and Borrower's performance of the
covenants set forth in the documents evidencing the Loan.
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Packet Pg. 155
(i) "Development" has the meaning set forth in Paragraph B of the Recitals.
(j} "High HOME Rent"means a monthly Rent amount not exceeding the
maximum rent published by HUD for a Low Income Household for the applicable bedroom size
as set forth in 24 C.F.R. 92.252(a).
(k) "HOME"means Home Investment Partnerships Act Program funded
pursuant to the Cranston-Gonzales National Housing Act of 1990.
(1) "HOME Funds" has the meaning set forth in Paragraph C of the Recitals.
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(m) "HOME Regulations" means the regulations set forth in 24 C.F.R. Part 92. a
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(n) "HOME Term" means the period beginning on the date of this Agreement
and ending on the twentieth (20th) anniversary of the date of this Agreement. _J
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(o) "HUD" means the United States Department of Housing and Urban O
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Development. s
(p) "Loan" has the meaning set forth in Paragraph C of the Recitals. 0
0
(q) "Loan Agreement" has the meaning set forth in Paragraph C of the Q
Recitals. Q
(r) "Loan Documents" means the documents executed by Borrower M
evidencing the Loan including this Agreement, the Note, Deed of Trust, and Loan Agreement. w
(s) "Low HOME Rent" means a monthly Rent amount not exceeding the
maximum rent published by HUD for a Very Low Income Household for the applicable bedroom
size or as otherwise set forth in 24 C.F.R. 92.252(b). w
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(t) "Low Income Household" means a Tenant household with an Adjusted �
Income that does not exceed eighty percent(80%) of Median Income,with adjustments for E
smaller and larger families, except that HUD may establish income ceilings higher or lower than 0
x
eighty percent (80%) of Median Income on the basis of HUD findings that such variations are
necessary because of prevailing levels of construction costs or fair market rents, or unusually
high or low family incomes, as such definition may be amended pursuant to 24 C.F.R. Section
92.2. An individual who is a student that is ineligible to receive Section 8 assistance under 24 ?
C.F.R. 5.612, and thus ineligible to receive any type of HOME assistance, shall not qualify as a Q
Low Income Household.
(u) "Management Agent" has the meaning set forth in Section 5.2.
(v) "Median Income" means the median gross yearly income, adjusted for
Actual Household Size as specified herein, in the County of San Bernardino, California, as
published from time to time by HUD. In the event that such income determinations are no
longer published, or are not updated for a period of at least eighteen (18)months, the City shall
3
Packet Pg.-156
i 5.E.c
provide Borrower with other income detenninations that are reasonably similar with respect to
methods of calculation to those previously published by HUD.
(w) "Note" means the promissory note of even date herewith that evidences
Borrower's obligation to repay the Loan, as such may be amended form time to time.
(x) "Property" has the meaning set forth in Paragraph B of the Recitals.
(y) "Rent" means the total monthly payments by the Tenant of a Unit for the
following: (i) use and occupancy of the Unit and land and associated facilities, including
parking; (ii)any reasonable and customary separately charged fees or service charges assessed
by Borrower which are required of all Tenants which meet the requirements under 24 C.F.R.
92.214(b)(3), other than security deposits; (iii)the City-approved utility allowance, calculated
pursuant to 24 C.F.R. 92.252(d), for the cost of an adequate level of service for utilities paid by o
the Tenant,including garbage collection, sewer, water, electricity, gas and other heating, cooking w
and refrigeration fuel,but not telephone service or cable TV; and (iv) any other interest, taxes, o
fees or charges for use of the land or associated facilities and assessed by a public or private z
entity other than Borrower, and paid by the Tenant. In no event shall the Rent of a City-Assisted s
Unit exceed the amount approved by the City pursuant to Section 2.2 hereof. o
(z) "Service Provider" has the meaning set forth in Section 5.6. o
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(aa) "Tenant" means the tenant household that occupies a Unit in the a
Development.
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(bb) "Tenant Services" has the meaning set forth in Section 5.6. w
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(cc) "Tern" means the teen of this Agreement which commences as of the
date of this Agreement, and unless sooner terminated pursuant to the terms of this Agreement, x
expires on the date fifty-five(55) years from the Completion Date. w
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cc
(dd) "Unit(s)" means one(1) or more of the units in the Development.
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(ee) "Very Low Income Household" means a household with an Adjusted =
Income that does not exceed fifty percent (50%) of Median Income, with adjustments for smaller
and larger families, except that HUD may establish income ceilings higher or lower than fifty
percent (50%) of Median Income on the basis of HUD findings that such variations are necessary
because of prevailing levels of construction costs or fair market rents, or unusually high or low Q
family incomes, as set forth in 24 C.F.R. Section 92.2. An individual who is a student that is
ineligible to receive Section 8 assistance under 24 C.F.R. 5.612, and thus ineligible to receive
any type of HOME assistance, shall not qualify as a Very Low Income Household.
(ft) "Very Low Income Units" means the Units which, pursuant to Section
2.1(a) below, are required to be occupied by Very Low Income Households.
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Packet Pg. 157
1.2 Exhibits
t
The following exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
Exhibit A: Legal Description of the Property
Exhibit B: Schedule of HOME Rents
Exhibit C: Certificate of Continuing Program Compliance
Exhibit D: Form of Certification of Tenant Eligibility
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ARTICLE 2
AFFORDABILITY AND OCCUPANCY COVENANTS Q
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2.1 Occupancy Requirements.
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(a) Very Low Income Units. During the Term, Borrower shall rent seven (7) _
City-Assisted Units, and ensure that these Units are occupied or, if vacant, available for
occupancy,by Very Low Income Households. o
(b) Intermingling,of Units. The City-Assisted Units are required to be one(1) 'o
one-bedroom Unit and six (6) three-bedroom Units and are to be intermingled throughout the Q
Development and of comparable quality to all other Units. All Tenants must have equal access to Q
and enjoyment of all common facilities in the Development.
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(c) Disabled Persons Occupanc . Borrower shall cause the Development to w
be operated at all times in compliance with the provisions of: (1)the Unruh Act, (ii)the
California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of
1973, (iv)the United States Fair Housing Act, as amended, and (v) the Americans With
Disabilities Act of 1990, which relate to disabled persons access. Borrower shall indemnify, w
protect,hold harnlless and defend (with counsel reasonably satisfactory to the City) the City, and o
its elected officials, officers and employees, from all suits, actions, claims, causes of action,
costs, demands,judgments and liens arising out of Borrower's failure to comply with applicable E
legal requirements related to housing for persons with disabilities. The provisions of this =0
subsection will survive expiration of the Term or other termination of this Agreement, and
remain in full force and effect.
2.2 Allowable Rent.
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(a) Very Low Income Rent. Subject to the provisions of Section 2.3 below,
the Rent paid by Tenants of Very Low Income Units may not exceed the Low HOME Rent
provided annually by the City.
(b) No Additional Fees. Borrower may not charge any fee, other than Rent, to
any Tenant of the City-Assisted Units for any housing or other services provided by Borrower.
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Packet Pg. 158
5.E.c
2.3 Rent Increases; Increased Income of Tenants.
(a) Rent Increases. The proposed initial Rents and subsequent Rents for all
City-Assisted Units shall be provided to the Borrower by the City prior to initial or subsequent
occupancy and prior to a rent increase, and shall be subject to the HOME Regulations. A
schedule of current HOME rents is attached as Exhibit B. Borrower may not impose any Rent
increases on City-Assisted Units, without prior submission to the City of any proposed Rent
increases and without written approval from the City of the proposed Rent increases. The Rent
for such City-Assisted Units may be increased no more than once annually based upon the
annual income certification described in Article 3 and in no event shall any increase exceed three a
(3%)percent. Tenants shall be given at least sixty(60) days written notice prior to any Rent a)
increase. The City will provide Borrower with a schedule of maximum permissible Rents for the
City-Assisted Units annually. Q
0
(b) Non-Qualifying Household. If,upon the annual certification of the income J
a Tenant of a City-Assisted Unit, Borrower determines that the income of a Very Low Income
Household has increased above the qualifying limit for a Low Income Household, such Tenant =
shall be permitted to retain the Unit and upon expiration of the Tenant's lease and upon sixty(60) �
days written notice, the Rent must be increased to the lesser of one-twelfth (1/121") of thirty c
percent(30%)of the actual Adjusted Income of the Tenant,or fair market rent (subject to 24
C.F.R. 92.252(i)(2) regarding low income housing tax credit requirements), and Borrower shall 0
rent the next available Unit to a Very Low Income Household or Low Income Household as Q
applicable to comply with the requirements of Section 2.1 above, at a Rent not exceeding the Q
maximum Rent specified in Section 2.2,or re-designate another comparable Unit in the
Development with a Very Low Income Household or Low Income Household as applicable as a
City-Assisted Unit, to meet the requirements of Section 2.1 above. Upon renting the next w
available Unit in accordance with Section 2.1 or re-designating another Unit in the Development Q
as a City-Assisted Unit, the Unit with the over-income Tenant will no longer be considered a
City-Assisted Unit.
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(c) Termination of Occupanu. Upon tennination of occupancy of a City- c
Assisted Unit by a Tenant, such Unit will be deemed to be continuously occupied by a household -'
of the same income level as the initial income level of the vacating Tenant, until such Unit is o
reoccupied or another Unit is re-designated as a City-Assisted Unit, at which time categorization =
of the Unit will be established based on the occupancy requirements of Section 2.1.
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2.4 Units Available to the Disabled. Borrower shall construct the Development in
compliance with all applicable federal and state disabled persons accessibility requirements Q
including but not limited to the Federal Fair Housing Act; Section 504 of the Rehabilitation Act
of 1973; Title 11 and/or Title III of the Americans with Disabilities Act; and Title 24 of the
California Code of Regulations. In compliance with Section 504 of the Rehabilitation Act,
Borrower shall construct a minimum of four(4)units in the Development shall be constructed to
be readily accessible and usable by households with a mobility impaired member and a minimum
of two (2) units shall be constructed and to be readily accessible and usable by households with a
hearing or visually impaired member.
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Packet Pg. 159
arrrrrr- +�..
e,^ *, ARTICLE 3
INCOME CERTIFICATION AND REPORTING
3.1 Income Certification. Borrower shall obtain., complete, and maintain on file,
immediately prior to initial occupancy and annually thereafter, income certifications from each
Tenant renting any of the City-Assisted Units. Borrower shall cause each Tenant in a City-
Assisted Unit to execute a Certification of Tenant Eligibility in the form attached as Exhibit D.
Borrower shall fill out the "Development Owner" portion of the Certification of Tenant
Eligibility and provide it to the City along with supporting documentation collected by Borrower.
Borrower shall make a good faith effort to verify the accuracy of the income provided by all
applicants or all members of the occupying household, as the case may be, in the income E
certification. To verify the information Borrower shall take two or more of the following steps: a,
(i) obtain pay stubs for the most recent two months; (ii) obtain an income tax return for the most Q
recent tax year; (iii) conduct a credit agency or similar search; (iv) obtain an income verification o
form from the applicant's current employer verifying employment for the last two months; (v) w
obtain an income verification form from the Social Security Administration and/or the California o
Department of Social Services if the applicant receives assistance from either of such agencies, _
verifying assistance for the last two months; or(vi) if the applicant is unemployed and does not s
have a tax return, obtain another form of independent verification. Copies of the Certifications o
of Tenant Eligibility and accompanying documentation must be submitted to the City annually
for each of the City-Assisted Units. o
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3.2 Reporting Requirements. Borrower shall submit to the City (a)not later than the Q
forty-fifth (45`h) day after the close of each calendar year, or such other date as may be requested
by the City, a signed copy of the Certification of Program Compliance in the form attached as
Exhibit C. and (b) within fifteen(15) days after receipt of a written request, any other w
information or completed forms requested by the City in order to comply with reporting
requirements of HUD, the State of California, and the City.
3.3 Additional Information. Borrower shall provide any additional information w
reasonably requested by the City. co
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3.4 Records. Borrower shall maintain complete, accurate and current records
pertaining to the Development, and shall permit any duly authorized representative of the City to 0
inspect records,including records pertaining to income and household size of Tenants and Rent r
charged to such Tenants. All Tenant lists, applications and waiting lists relating to the
Development are to be at all times: (i) separate and identifiable from any other business of
Borrower, (ii) maintained as required by the City, in a reasonable condition for proper audit, and
(iii) subject to examination during business hours by representatives of the City. Borrower shall Q
retain copies of all materials obtained or produced with respect to occupancy of the units for a
period of at least five (5) years. The City may audit, examine and make copies of all books,
records or other documents of Borrower that pertain to the Development.
3.5 HOME Record Requirements. For the period of the HOME Term all records
maintained by Borrower pursuant to Sections 3.2 and 3.4 above are to be (i)maintained in
compliance with all applicable HUD records and accounting requirements, and(ii) open to and
available for inspection and copying by HUD and its authorized representatives at reasonable
Packet Pg. 160
intervals during normal business hours;provided however, records pertaining to Tenant income
verifications, Rents, and Development physical inspections must be kept for the most recent
five(5) year period and are subject to HUD inspection for five(5) years after expiration of the
HOME Tenn. Borrower is subject to the audit requirements set forth in 24 CFR 92.505 during
the HOME Term.
3.6 On-Site Inspection. The City may perform, or cause to be performed, an on-site
inspection of the Development(including Units, subject to the rights of Tenants) at least one (1)
time per year upon twenty-four(24)hours notice during normal business hours to monitor
compliance with this Agreement. Borrower shall cooperate in making the Property available for
such inspection. Borrower agrees and acknowledges that the City must conduct on-site E
inspections, consistent with the requirements of 24 C.F.R. 92.504(d),to determine compliance
with the property standards set forth in 24 C.F.R. 92.251, at least once every three(3) years after a
the completion of construction of the Development. c
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After the completion of an inspection the City shall deliver a copy of the inspection
report to the Borrower. If the City determines as a result of such inspection that there are any O
life-threatening health and safety related deficiencies, Borrower has the obligation to correct
such deficiencies immediately, in accordance with 24 C.F.R. 92.251. If the City determines as a
result of the inspection that there are any deficiencies for any of the inspectable items in the 0
Development, the Borrower shall correct such deficiencies within fifteen (15)days from the 'o
delivery of the inspection report or if a period longer than fifteen (15) days is reasonably Q
necessary to correct the deficiency, then Borrower must begin to correct the deficiency within a
fifteen(15) days and correct the deficiency as soon as reasonably possible. In addition,the C1
Borrower acknowledges that the City may re-inspect the Development to verify all deficiencies
have been corrected or rely on third party documentation submitted by the Borrower for non- w
hazardous deficiencies in conformance with 24 C.F.R 92.504(d). Q
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ARTICLE 4 w
OPERATION OF THE DEVELOPMENT
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4.1 Residential Use. Borrower shall operate the Development for residential use only E
and such ancillary uses permitted at the Development as approved by the City. No part of the =
Development may be operated as emergency shelters(including shelters for disaster victims)or
facilities such as nursing homes, convalescent homes,hospitals, residential treatment facilities, E
correctional facilities,halfway houses,housing for students, or dormitories (including
farmworker dormitories). y
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4.2 Compliance with Loan Documents and Program Requirements. Borrower's
actions with respect to the Property shall at all times be in full conformity with: (i) all
requirements of the Loan Documents; (ii) all requirements imposed on projects assisted with
HOME Funds as contained in 42 U.S.C. Section 12701, et seq., 24 C.F.R. Part 92, and other
implementing rules and regulations, as such may be amended or supplemented from time to time,
and (iii) any other regulatory requirements imposed on Borrower.
4.3 Taxes and Assessments. Borrower shall pay all real and personal property taxes,
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Packet Pg. 1,61
assessments and charges and all franchise, income, employment, old age benefit,withholding,
sales, and other taxes assessed against it, or payable by it,at such times and in such manner as to
prevent any penalty from accruing,or any lien or charge from attaching to the Property;
provided,however, that Borrower may apply for a property tax exemption for the Property under
any provision of law except California Revenue and Taxation Section 214(8)or contest in good
faith, any such taxes, assessments, or charges. In the event Borrower exercises its right to
contest any tax, assessment, or charge against it, Borrower, on final determination of the
proceeding or contest,will immediately pay or discharge any decision or judgment rendered
against it,together with all costs, charges and interest.
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4.4 Property Tax Exemption. Borrower shall not without the prior written consent of E
the City apply for a property tax exemption for the Property under any provision of law except d
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California Revenue and Taxation Section 214(g). Q
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ARTICLE 5 2
PROPERTY MANAGEMENT,MAINTENANCE AND TENANT SERVICES
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5.1 Management Responsibilities. Borrower is responsible for all management o
functions with respect to the Development, including without limitation the selection of Tenants
in accordance with the requirements of 24 C.F.R. 92.253(d), certification and recertification of o
household size and income, evictions, collection of rents and deposits, maintenance, landscaping, a
routine and extraordinary repairs, replacement of capital items, and security. The City has no Q
responsibility for management of the Development. Borrower shall retain a professional property
management company approved by the City in its reasonable discretion to perform Borrower's
management duties hereunder. An on-site property manager is also required. w
5.2 Management Agent. Borrower shall cause the Development to be managed by an r
experienced management agent reasonably acceptable to the City,with a demonstrated ability to
operate residential facilities like the Development in a manner that will provide decent, safe, and w
sanitary housing (the "Management Agent"). The City pre-approves the National Community o
Renaissance of California as the initial Management Agent. Borrower shall submit for the City's _J
approval the identity of any proposed subsequent Management Agent. Borrower shall also E
submit such additional information about the background, experience and financial condition of =
any proposed Management Agent as is reasonably necessary for the City to determine whether
the proposed Management Agent meets the standard for a qualified Management Agent set forth E
above. If the proposed Management Agent meets the standard for a qualified Management
Agent set forth above,the City shall approve the proposed Management Agent by notifying a
Borrower in writing. Unless the proposed Management Agent is disapproved by the City within
thirty(30)days,which disapproval is to state with reasonable specificity the basis for
disapproval, it shall be deemed approved.
5.3 Periodic Performance Review. The City reserves the right to conduct an annual
(or more frequently, if deemed necessary by the City)review of the management practices and
financial status of the Development. The purpose of each periodic review will be to enable the
City to determine if the Development is being operated and managed in accordance with the
requirements and standards of this Agreement. Borrower shall cooperate with the City in such
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Packet Pg. 162
reviews.
5.4 Replacement of Management Agent. If, as a result of a periodic review,the City
determines in its reasonable judgment that the Development is not being operated and managed
in accordance with any of the material requirements and standards of this Agreement,the City
shall deliver notice to Borrower of its intention to cause replacement of the Management Agent,
including the reasons therefor. Within fifteen (15) days after receipt by Borrower of such written
notice, the City staff and Borrower shall meet in good faith to consider methods for improving
the financial and operating status of the Development, including,without limitation,replacement
of the Management Agent. HUD and Senior Lender (which for the purposes of this Section shall a
be PNC Bank,National Association) and the Investor Limited Partner(as defined in Section 1.1 E
a)
of the Loan Agreement) will receive an opportunity to participate in all meetings required under
this Section. Q
If, after such meeting, City staff recommends in writing the replacement of the _J
Management Agent, Borrower shall.promptly dismiss the then-current Management Agent, and w
shall appoint as the Management Agent a person or entity meeting the standards for a 0
management agent set forth in Section 5.2 above and approved by the City pursuant to Section
5.2 above, and subject to the rights of HUD,the Senior Lender and the Investor Limited Partner. o
Any contract for the operation or management of the Development entered into by 'o
Borrower shall provide that the Management Agent may be dismissed and the contract a
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��"*► terminated as set forth above. Failure to remove the Management Agent in accordance with the Q
provisions of this Section constitutes a default under this Agreement, and the City may enforce
this provision through legal proceedings as specified in Section 6.7 below.
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5.5 Approval of Management Policies. Borrower shall submit its written a
management policies with respect to the Development to the City for its review, and shall amend r
such policies in any way necessary to ensure that such policies comply with the provisions of this
Agreement. w
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5.6 Tenant Services Provider.
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(a) The Borrower will be providing on-site services which Borrower will =
make available to all Tenants in the Development (the "Tenant Services"). The Borrower shall
submit to the City for approval the name and qualifications of any proposed services provider
(the "Services Provider"). _
(b) The Services Provider shall have demonstrated the ability to provide Q
Tenant Services in residential facilities like the Development in an effective manner. The
Borrower shall submit such additional information about the background, experience and
financial condition of any proposed Services Provider as is reasonably necessary for the City to
determine whether the proposed Services Provider meets the standards for a qualified Services
Provider of developments of this type.
(c) If the proposed Services Provider meets the standard for a qualified
Services Provider set forth above, the City shall approve the proposed Services Provider by
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Packet Pg.163
notifying Borrower in writing. Unless the proposed Services Provider is disapproved by the City
within thirty(30) days,which disapproval is to state with reasonable specificity the basis for
disapproval, it shall be deemed approved. The City hereby approves Hope Through Housing
Foundation as the initial Services Provider for the Development.
5.7 Property Maintenance. Borrower shall maintain, for the entire Term of this
Agreement, all interior and exterior Improvements, including landscaping, on the Property in
good condition and repair(and, as to landscaping, in a healthy condition) and in accordance with
all applicable laws, rules, ordinances, orders and regulations of all federal, state, county,
municipal, and other governmental agencies and bodies having or claiming jurisdiction and all
their respective departments,bureaus, and officials, and in a decent, safe, sanitary condition and
in good repair pursuant to the Uniform Physical Conditions Standards established by HUD
pursuant to 24 C.F.R. 5.703 and as required under 24 C.F.R. 92.251. Q
0
The City places prime importance on quality maintenance to protect its investment and to J
ensure that all City and City-assisted affordable housing projects within the City are not allowed o
to deteriorate due to below-average maintenance. Normal wear and tear of the Development will z
be acceptable to the City assuming Borrower agrees to provide all necessary improvements to
assure the Development is maintained in good condition. Borrower shall make all repairs and o
replacements necessary to keep the improvements in good condition and repair.
0
In the event that Borrower breaches any of the covenants contained in this section and a
such default continues for a period of five (5) days after written notice from the City with respect
to graffiti, debris, waste material, and general maintenance or thirty (30) days after written notice
from the City with respect to landscaping and building improvements, then the City, in addition
to whatever other remedy it may have at law or in equity,has the right to enter upon the Property w
and perform or cause to be performed all such acts and work necessary to cure the default. a
Pursuant to such right of entry, the City is permitted(but is not required) to enter upon the
Property and to perform all acts and work necessary to protect,maintain, and preserve the k
improvements and landscaped areas on the Property, and to attach a lien on the Property, or to w
assess the Property,in the amount of the expenditures arising from such acts and work of CU
0
protection, maintenance, and preservation by the City and./or costs of such cure, which amount J
shall be promptly paid by Borrower to the City upon demand. E
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5.8 Crime Prevention Program. During the Tenn of this Agreement Borrower agrees c
to participate in the San Bernardino Police Department's Crime Free Multi-Housing program (the E
"Crime Prevention Program"). The City's periodic review of the management of the
Development pursuant to Section 5.3 will include an evaluation of Borrower's participation in a
the Crime Prevention Program.
ARTICLE 6
MISCELLANEOUS
6.1 Lease Provisions. In leasing the Units within the Development,Borrower shall
use a form of written lease approved by the City. The lease must not contain any provision
which is prohibited by 24 C.F.R. Section 92.253(b) and any amendments thereto. The form of
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Packet Pg. 1,64
lease must comply with all requirements of this Agreement, the other Loan Documents and must,
among other matters:
(a) provide for termination of the lease for failure to: (i) provide any
information required under this Agreement or reasonably requested by Borrower to establish or
recertify the Tenant's qualification, or the qualification of the Tenant's household, for occupancy
in the Development in accordance with the standards set forth in this Agreement, or(ii) qualify
as a Very Low Income Household or Low Income Household as a result of any material
misrepresentation made by such Tenant with respect to the income computation.
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(b) be for an initial term of not less than one (1) year, unless by mutual E
agreement between the Tenant and Borrower, and provide for no increase in Rent during such
year. After the initial year of tenancy,the lease may be month-to-month by mutual agreement of Q
Borrower and the Tenant. Notwithstanding the above, any rent increases are subject to the o
requirements of Section 2.3 (a) above. _J
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(c) include a provision which requires a Tenant who is residing in a Unit =
required to be accessible pursuant to Section 2.4 and who is not in need of an accessible Unit to =
move to a non-accessible Unit when a non-accessible Unit becomes available and another Tenant o
or prospective Tenant is in need of an accessible Unit. —a
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6.2 Lease Termination. Any termination of a Iease or refusal to renew a lease for a a
City-Assisted Unit within the Development must be in conformance with 24 C.F.R. 92.253(c), Q
and must be preceded by not less than sixty(60) days written notice to the Tenant by Borrower
specifying the grounds for the action.
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6.3 Nondiscrimination. Q
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(a) All of the Units must be available for occupancy on a continuous basis to s
members of the general public who are income eligible. Except as provided in subsection (b) w
below, Borrower may not give preference to any particular class or group of persons in renting or M
selling the Units, except to the extent that the Units are required to be leased to income eligible �
households pursuant to this Agreement. Borrower herein covenants by and for Borrower, W
assigns, and all persons claiming under or through Borrower, that there exist no discrimination °
against or segregation of, any person or group of persons on account of race, color, creed,
religion, sex, sexual orientation,marital status,national origin, source of income (e.g., SSI),
ancestry, or disability,in the leasing, subleasing, transferring,use,occupancy,tenure, or
enjoyment of any unit nor will Borrower or any person claiming under or through Borrower, Y
establish or permit any such practice or practices of discrimination or segregation with reference a
to the selection, location, number, use, or occupancy, of tenants, lessees, sublessees, subtenants,
or vendees of any unit or in connection with the employment of persons for the construction,
operation and management of any unit.
(b) Borrower shall accept as Tenants, on the same basis as all other
prospective Tenants, persons who are recipients of federal certificates for rent subsidies pursuant
to the existing housing program under Section 8 of the United States Housing Act, or its
successor. Borrower may not apply selection criteria to Section 8 certificate or voucher holders
12
Packet Pg. 165
that is more burdensome than criteria applied to all other prospective Tenants, nor will Borrower
apply or pen-nit the application of management policies or lease provisions with respect to the
Development which have the effect of precluding occupancy of units by such prospective
Tenants.
6.4 Term. The provisions of this Agreement apply to the Property for the entire Term
even if the Loan is paid in full prior to the end of the Term. This Agreement binds any
successor, heir or assign of Borrower,whether a change in interest occurs voluntarily or
involuntarily,by operation of law or otherwise, except as expressly released by City. City is
making the Loan on the condition, and in consideration of,this provision, and would not do so W
otherwise.
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6.5 Notice of Expiration of Term.
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(a) At least six (6) months prior to the expiration of the Term, Borrower shall _J
provide by first-class mail, postage prepaid, a notice to all Tenants containing: (i)the anticipated 2
date of the expiration of the Term.; (ii) any anticipated increase in Rent upon the expiration of the =
Term; (iii) a statement that a copy of such notice will be sent to the City; and(iv) a statement that
a public hearing may be held by the City on the issue and that the Tenant will receive notice of
0
the hearing at least fifteen (15) days in advance of any such.hearing. Borrower shall also file a a
copy of the above-described notice with the City Manager. o
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Q.
(b) In addition to the notice required above, Borrower shall comply with the Q
requirements set forth in California Government Code Sections 65863.10 and 65863.11. Such 01
notice requirements include: (i) a twelve (12) month notice to existing tenants,prospective
tenants and Affected Public Agencies (as defined in California Government Code Section w
65863.10(a)) prior to the expiration of the Tenn, (ii) a six (6)month notice requirement to Q
existing tenants,prospective tenants and Affected Public Agencies prior to the expiration of the
Term; (iii) a notice of an offer to purchase the Development to "qualified entities" (as defined in t
California Government Code Section 65863.11(d)), if the Development is to be sold within five w
(5) years of the end of the Tenn; (iv) a notice of right of first refusal within the one hundred o
eighty(180) day period that qualified entities may purchase the Development.
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6.6 Covenants to Run With the Land. The City and Borrower hereby declare their z°
express intent that the covenants and restrictions set forth in this Agreement run with the land,
and bind all successors in title to the Property,provided,however,that on the expiration of the E
Term of this Agreement said covenants and restrictions expire. Each and every contract,deed or
other instrument hereafter executed covering or conveying the Property or any portion thereof,is Q
to be held conclusively to have been executed, delivered and accepted subject to the covenants
and restrictions,regardless of whether such covenants or restrictions are set forth in such
contract, deed or other instrument, unless the City expressly releases such conveyed portion of
the Property from the requirements of this Agreement.
I6.7 Enforcement b The he City. If Borrower fails to perform any obligation under this
Agreement, and fails to cure the default within thirty (30) days after the City has notified
Borrower in writing of the default or,if the default cannot be cured within thirty(30) days, fails
to commence to cure within thirty (30) days and thereafter diligently pursue such cure and
13
Packet Pg. 166
complete such cure within ninety(90) days, the City may enforce this Agreement by any or all of
the following actions, or any other remedy provided by law:
(a) Calling the Loan. The City may declare a default under the Note,
accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the Deed
of Trust.
(b) Action to Compel Performance or for Damages. The City may bring an
action at law or in equity to compel Borrower's performance of its obligations under this
Agreement, and may seek damages.
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(c) Remedies Provided Under Loan Documents. The City may exercise any
other remedy provided under the Loan Documents.
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6.8 Attorneys' Fees and Costs. In any action brought to enforce this Agreement, the
prevailing party must be entitled to all costs and expenses of suit, including reasonable attorneys' 5;
fees. This section must be interpreted in accordance with California Civil Code Section 1717 =
and judicial decisions interpreting that statute.
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6.9 Recording and Filing. The City and Borrower shall cause this Agreement, and all
amendments and supplements to it, to be recorded in the Official Records of the County of San o
Bernardino. 0.
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6.10 Governing Law. This Agreement is governed by the laws of the State of Cp
California.
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6.11 Waiver of Requirements. Any of the requirements of this Agreement may be a
expressly waived by the City in writing,but no waiver by the City of any requirement of this
Agreement extends to or affects any other provision of this Agreement, and may not be deemed
to do so. x
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6.12 Amendments. This Agreement may be amended only by a written instrument 0
executed by all the parties hereto or their successors in title that is duly recorded in the official E
records of the County of San Bernardino, o
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6.13 Notices. Any notice requirement set forth herein will be deemed to be satisfied d
three(3) days after mailing of the notice first-class United States certified mail,postage prepaid,
addressed to the appropriate party as follows:
a
City: Office of the City Manager
City of San Bernardino
300 N "D" Street, Sixth Floor
San Bernardino, CA 92418
Attn: Housing Director
14
Packet Pg. 167
Borrower: Val 9 Housing Partners, L.P.
9421 Haven Avenue
Rancho Cucamonga, CA 91730
Attn: Chief Financial Officer
With a copy to:
Law Offices of Edward A. Hopson
655A No. Mountain Avenue
Upland, CA 91786
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With a copy t0: �
Wells Fargo Community Lending & Investment ¢
Wells Fargo Bank Affordable Housing o
Community Development Corporation
301 South College Street, 17th Floor
MAC D 1053-170 =
Charlotte,NC 28288 s
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With a copy to:
Kutak Rock 0
1650 Farnam Street a
Omaha,NE 681.02 Q
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Attn: Robert Coon
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Such addresses may be changed by notice to the other party given in the same manner as w
provided above. ¢
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6.14 Severability. If any provision of this Agreement is determined by a court of x
competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and w
enforceability of the remaining portions of this Agreement will not in any way be affected or c
impaired thereby.
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6.15 Multiple Originals; Countemarts. This Agreement may be executed in multiple =
originals,each of which is deemed to be an original, and may be signed in counterparts.
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6.16 Revival of Agreement after Foreclosure. In the event there is a foreclosure of the
Property, this Agreement will revive according to its original terms if,during the Term, the Q
owner of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes
the former owner or those with whom the former owner has or had family or business ties,
obtains an ownership interest in the Development or Property.
6.1.7 HUD Rider. The HUD Rider is attached to this Agreement as Exhibit E, and
incorporated into this Agreement by this reference.
[Remainder of Page Left Intentionally Blank]
15
Packet Pg. 168
WHEREAS, this Agreement has been entered into by the undersigned as of the Effective
Date.
BORROWER:
Date: VAL 9 HOUSING PARTNERS, L.P., a California limited ,
partnership
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By: Val 9 MGP, LLC, a California limited liability
company, its sole general partner Q
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By: National Community Renaissance of
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CITY:
CITY OF SAN BERNARDINO
By:
Allen Parker, City Manager
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Date:
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APPROVED AS TO FORM: Q
Gary D. Saenz o
City Attorney
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5.E.c
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
'^ attached, and not the truthfulness, accuracy,or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF ) �'
On , before me, ,Notary Public, o
personally appeared , who proved to me on the J
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within r-
instrument and acknowledged to me that he/she/they executed the same in his/her/their =
authorized capacity(ies), and that by his/her/their signature(s)on the instrument the person(s), or s
the entity upon behalf of which the person(s) acted, executed the instrument. o
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct. °
WITNESS my hand and official seal Q
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Name:
Name: Notary Public x
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A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy,or validity of that document.
STATE OF CALIFORNIA }
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COUNTY OF )
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On ,before me, ,Notary Public, a
personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within 2
instrument and acknowledged to me that he/she/they executed the same in his/her/their o
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or (D
the entity upon behalf of which the person(s) acted, executed the instrument. o
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct. °
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WITNESS my hand and official seal. Q
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EXHIBIT A
LEGAL DESCRIPTION
The land is situated in the State of California, County of San Bernardino, City of San Bernardino
and is described as follows:
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EXHIBIT B
HOME PROGRAM RENTS
The attached HOME Rents reflect the current HOME rents as of the Effective Date. The initial
Rents and subsequent Rents for all City-Assisted Units must be provided to the Borrower by the
City prior to occupancy and arc subject to the HOME Regulations. The City will provide
Borrower with a schedule of maximum permissible Rents for the City-Assisted Units annually.
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B-1 Packet Pg. 174
EXHIBIT C
INITIAL CERTIFICATE OF
PROGRAM COMPLIANCE
Val 9 Housing Partners,L.P.,a California limited partnership ("Owner"), hereby certifies that it will
comply with all applicable, ongoing HOME Program requirements for the Property's Affordability
Period which has been determined to be fifty-five (55) years from the date of issuance of the
Certificate of Occupancy for the above-described Project. Affordability shall be maintained as
follows: a
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During the term of the Regulatory Agreement the Owner will rent seven (7) City-Assisted Units, o
and ensure that these units are occupied or, if vacant, available for occupancy, by Very Low w
income Households. 2
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Property owners and managers have participated in the San Bernardino Police Department's
Crime Free Multi-Housing Program, wherein specialized training and other resources are o
provided to multi-family property owners and managers to reduce the potential for onsite
criminal activity. Completion of the Department's program has been achieved and will be o
maintained by the owner/representative and/or regional/-onsite property manager. C
Owner is maintaining and attaching the following records and reports in order to assist the City in Iq
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meeting its record keeping and reporting requirements under the HOME Program:
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1. Files on the annual review and certification of tenant income; N
2. All infonnation on the qualification of affordable rents;
3. Terms and conditions of all signed leases between Tenants and Owner.; x
4. All other reports and records requested by City pursuant to the Loan W
Documents.
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OWNER:
Val 9 Housing Partners, L.P., a California limited partnership
By: Val 9 MGP, LLC, a California limited liability company, its
sole general partner a
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sole member and manager Q
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C-2 Packet P9. 176
ANNUAL CERTIFICATION OF
CONTINUING PROGRAM COMPLIANCE
Val 9 Housing Partners, L.P., a California limited partnership ("Owner"), hereby certifies that it will
comply with all applicable, ongoing HOME Program requirements for the Property's Affordability
Period which has been detennined to be fifty-five (55) years from the date of issuance of the
Certificate of Occupancy for the above-described Project. Affordability shall be maintained as
follows:
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[Insert project description]. E
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During the term of the Regulatory Agreement the Owner will rent four (4) City-Assisted Units, a
and ensure that these units are occupied or, if vacant, available for occupancy, by Very Low o
Income Households.
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Property owners and managers have participated in the San Bernardino Police Department's =
Crime Free Multi-Housing Program, wherein specialized training and other resources are
provided to multi-family property owners and managers to reduce the potential for onsite o
criminal activity. Completion of the Department's program has been achieved and will be
maintained by the owner/representative and/or regional/-onsite property manager. o
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Owner is maintaining and attaching the following records and reports in order to assist the City in a
meeting its record keeping and reporting requirements under the HOME Program:
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1. Files on the annual review and certification of tenant income; w
2. All information on the qualification of affordable rents; a
3. Terms and conditions of all signed leases between Tenants and Owner;
4. All other reports and records requested by City pursuant to the Loan x
Documents. w
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Dated:
OWNER:
Val 9 Housing Partners, L.P., a California limited partnership
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sole general partner
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Tracy Thomas, Chief Financial Officer =
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C-2 Packet Pg. 178
a CERTIFICATE OF
CONTINUING PROGRAM COMPLIANCE
The following information with respect to Val 9 Apartments (the "Development"), is being
provided by Val 9 Housing Partners, L.P., a California limited partnership (the "Owner") to the
City of San Bernardino, (the "City"), pursuant to that certain HOME Investment Partnerships
Act Loan Agreement dated as of March _, 2015 and the Regulatory Agreement dated as of
March`, 2015 with respect to the Development:
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(A) The total number of residential units which are completed and available for occupancy
is
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The total number of such units occupied is o
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(B) The following residential units (identified by unit number) have been designated City- n
Assisted Units, as described in the Regulatory Agreement(for a total of } _
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(C) The following residential units which are included in (B) above, have been designated as c
City-Assisted Units since 20 , the date on which the last
"Certificate of Continuing Program Compliance" was filed with the City by o
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Previous Designation of a
Unit Number Unit (if any) Replacing Unit Number CD
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If a floating unit was substituted, please attach any information on unit substitutions and 0
filling of vacancies to evidence maintenance of required unit mix and income targeting.) a)
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(D) The following residential units are considered to be occupied by Very Low Income
Households and Low Income Households based on the information set forth below:
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Date of Persons Total Monthly
Number Adjusted Initial Rental a
Unit Name of Tenant Residing
of Unit No. in Unit Gross Occupancy Amount
Income
Attach a Separate Sheet if Necessary
C-3 Packet Pg. 179
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(E) In renting the residential units in the Development, Owner has not given preference to
any particular group or class of persons not allowed under the Regulatory Agreement
(except for persons who qualify as qualified Very Low Income Households). All of the
residential units in the Development have been rented pursuant to a written lease and
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the term of each lease is at least 12 months. A copy of the fornxi lease for City-Assisted
Units is attached.
(F) Property owners and managers have participated in the San Bernardino Police
Department's Crime Free Multi-Housing Program, wherein specialized training and other
resources are provided to multi-family property owners and managers to reduce the
potential for onsite criminal activity. Completion of the Department's program has been E
achieved and is being maintained by the owner/representative and/or regional/-onsite
property manager.
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(G) Each building in the Development and all City-Assisted Units in the Development are -'
suitable for occupancy and comply with all applicable State and local health, safety and o
other applicable codes, ordinances, and requirements and the ongoing property =
standards, as specified in Section of the 5.7 of the Regulatory Agreement.
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(H) The information provided in this "Certificate of Continuing Program Compliance" is
accurate and complete, and no matters have come to the attention of Owner which would o
indicate that any of the information provided herein, or in any "Certification of Tenant a
Eligibility obtained from the tenants narned herein, is inaccurate or incomplete in any Q
respect.
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IN WITNESS WHEREOF, I have hereunto affixed my signature, on behalf of Owner, on this W
_day of , 20�.
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OWNER: x
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Val 9 Housing Partners, L.P., a California limited partnership
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By: Val 9 MGP, LLC, a California limited liability company, its =
sole general partner c
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By: National Community Renaissance of California,its
sole member and manager Q
By:
Tracy Thomas, Chief Financial Officer
C-4 Packet Pg. 180
EXHIBIT D
FORM OF CERTIFICATION OF TENANT ELIGIBILITY
Rental Unit
Street Address Unit No
City Zip Code
d
I/We, the undersigned, being first duly sworn, state that I/we have read and answered fully and
truthfully each of the following questions for all persons who are to occupy the unit in the above
Development for which application is made, all of whom are listed below: c
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1. 2. 3. 4. 5. 2
Name of Members Relationship to Place of =
in the Household Head of Household Age Ethnicity Employment
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Ethnicity: ❑ White ❑ Black or African American ❑ Asian ❑ Asian &White ❑
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❑ Native Hawaiian or Other Pacific Islander ❑ American Indian or Alaska Native &White
❑ Black or African American & White ❑ American Indian or Alaska Native&Black or
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❑ Other Multi Race ❑ Hispanic c
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Date of Occupancy of Rental Unit by Tenant: E
Date of Lease Signed for Rental Unit by Tenant: _
Amount of Rent Paid Per Month:
Certification Date (Earlier of Date of Occupancy or Date Lease signed): E
5. Anticipated Annual Income. The anticipated total annual income from all sources of Q
each person listed in 1 for the twelve (12) month period beginning on the Certification
Date listed above, including income described in (a) below, but excluding all income
described in (b) below, is $
(a) The amount set forth above includes all of the following income (unless such
income is described in (b) below): all wages and salaries, overtime pay,
commissions, fees, tips and bonuses before payroll deductions; net income from
the operation of a business or profession or from the rental of real or personal
property (without deducting expenditures for business expansion or amortization
D-1 Packet Pg. 181
of capital indebtedness or any allowance for depreciation of capital assets);
interest and dividends (including income from assets as set forth in item 7(b)
below); full amount of periodic payments received from Social security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits and
other similar types of periodic receipts; payments in lieu of earnings, such as
unemployment and disability compensation, worker's compensation and
severance pay; the maximum amount of public assistance available to the above
persons; periodic and determinable allowances, such as alimony and child
support payments and regular contributions and gifts received from persons not
residing in the dwelling; all regular pay, special pay and allowances of a member
of the Anned Forces (whether or not living in the dwelling) who is the head of the
household or spouse; and any earned income tax credit to the extent it exceeds
income tax liability. `t
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(b) The following income is excluded from the amount set forth above: casual, w
sporadic or irregular gifts; amounts that are specifically for or in reimbursement
of medical expenses; lump sum additions to family assets, such as inheritances, _
insurance payment (including payments under health and accident insurance and
worker's compensation), capital gains and settlement for personal or property o
losses; amounts of educational scholarships paid directly to student or
educational institution, and amounts paid by the government to a veteran for 0
use in meeting the costs of tuition, fees, books and equipment, but in either case a
only to the extent used for such purposes; hazardous duty pay to a member of
the household in the armed forces who is away from home and exposed to
hostile fire; relocation payments under Title II of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970; income from W
employment of children (including foster children) under the age of eighteen
(18) years; foster child care payments; the value of coupon allotments under the
Food Stamp Act of 1977; payments to volunteers under the Domestic Volunteer x
Service Act of 1973; payments received under the Alaska Native Claims w
Settlement Act; income derived from certain submarginal land of the United o
States that is held in trust for certain Indian tribes; payments on allowances a
made under the Department of Health and Human Services' Low-Income Home E
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Energy Assistance Program; and payments received from the Job Partnership =
Training Act.
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7. Net Family Assets. If any of the persons described in item 1 above (or any person
whose income or contributions were included in item 6) has any savings, stocks, bonds, Q
equity in real property or other form of capital investment (excluding interests in Indian
trust lands), provide:
(a) the total value of all such assets owned by all such persons: $
and
(b) the amount of income expected to be derived from such assets
D-2 Packet Pg. 182
in the twelve (12)month period commencing this date: $
8. Students
(a) Will any of the persons listed in item 1 above be or have they been full-time
students during five (S) calendar months of this calendar year at an educational
institution (other than a correspondence school) with regular faculty and
students?
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Yes No
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(b) (Complete only if the answer to Question 8(a) is "Yes"). Is any such person Q
(other than nonresident aliens) married and eligible to file a joint federal income 0
tax return, a veteran of the U.S. military? -'
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Yes No =
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The above information is full, true, and complete to the best of my knowledge. I have no 0
objections to inquiries being made for the purpose of verifying the statements made herein.
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Signature: Date
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A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy,or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF }
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On ,before me, ,Notary Public, o
personally appeared , who proved to me on the -'
basis of satisfactory evidence to be the person(s) whose name(s)is/are subscribed to the within 2
instrument and acknowledged to me that he/she/they executed the same in his/her/their =
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s),or
the entity upon behalf of which the person(s) acted, executed the instrument. c
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct. °
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WITNESS my hand and official seal. Q
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Name: Notary Public x
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D-4 Packet Pg. 184
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FOR COMPLETION BY DEVELOPMENT OWNER ONLY:
A. Calculation of eligible income:
(1) Enter amount entered for entire household in 6 above: $
(2) If the amount entered in 7(a) above is greater than $5,000, enter $
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(i) the product of the amount entered in 7(a) above multiplied
by the current passbook savings rate as determined by HUD: $ a�
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(ii) the amount entered in 7(b) above: $ o
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(iii) enter the greater of line (i) or line(ii): $ o
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(3) TOTAL ELIGIBLE INCOME (Line A(1) plus line A(2)(iii)): $ o
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B. Enter number of family members listed in item I above: Q
QC. The amount entered in A(3) (Total Eligible Income) is: $
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Less than $ of median income for the area in which the Development w
is located, which is the maximum income at which a household may be N
determined to be a qualifying tenant as that term is defined in the Agreement.
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More than the above-mentioned amount. w
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D. Number of units assigned: J
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E. Monthly rent: $ X
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F. This unit (was/was not) last occupied for a period of thirty-one (31) consecutive days E
by a person or persons whose adjusted income, as certified in the above manner, was
equal to or less than the amount at which a person would have qualified as a qualifying Q
tenant under the terms of the Agreement.
G. Applicant:
Qualifies as a qualifying tenant.
Does not qualify as a qualifying tenant.
D-5 Packet Pg. 185
EXHIBIT D
HUD RIDER
This RIDER TO RESTRICTIVE COVENANTS is made as of March 2015,by VAL 9
HOUSING PARTNERS, L.P., a California limited partnership ("Borrower") and THE CITY OF
SAN BERNARDINO, a public body, corporate and politic("Agency").
WHEREAS,Borrower has obtained financing from PNC Bank, National Association
("Lender") for the benefit of the project known as Waterman Gardens--Valencia 9,FHA No.
143-35130 ("Project"), which loan is secured by a Multifamily Deed of Trust, Assignment of E
Rents and Security Agreement("Security Instrument") dated as of March 2015 and
recorded in the Recorder's Office of San Bernardino County, California ("Records") on March
2015 as Document Number , and is insured by the United States m
Department of Housing and Urban Development ("HUD"); �
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WHEREAS,Borrower has received a loan from the Agency, which Agency is requiring o
certain restrictions be recorded against the Project; and
WHEREAS, HUD requires as a condition of its insuring Lender's financing to the o
Project, that the lien and covenants of the Restrictive Covenants be subordinated to the lien,
covenants, and enforcement of the Security Instrument; and °
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WHEREAS, the Agency has agreed to subordinate the Restrictive Covenants to the lien Q
of the Mortgage Loan in accordance with the terms of this Rider.
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NOW, THEREFORE, in consideration of the foregoing and for other consideration the w
receipt and sufficiency of which are hereby acknowledged,the parties hereby agree as follows: Q
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(a) In the event of any conflict between any provision contained elsewhere in the
Restrictive Covenants and any provision contained in this Rider, the provision contained in this w
Rider shall govern and be controlling in all respects as set forth more fully herein. r_
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(b) The following tenns shall have the following definitions: W
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"Code" means the Internal Revenue Code of 1986, as amended. _
"HUD" means the United States Department of Housing and Urban Development.
"HUD Regulatory Agreement" means the Regulatory Agreement between Borrower and HUD
with respect to the Project, as the same may be supplemented, amended or modified from time to Q
time.
"Lender" means PNC Bank,National Association, its successors and assigns.
"Mortgage Loan"means the mortgage loan made by Lender to the Borrower pursuant to the
Mortgage Loan Documents with respect to the Project.
"Mortgage Loan Documents" means the Security Instrument,the HUD Regulatory Agreement
and all other documents required by HUD or Lender in connection with the Mortgage Loan.
E-1 Packet Pg. 186
"National Housing Act" means the National Housing Act of 1934, as amended.
"Program Obligations"has the meaning set forth in the Security Instrument.
"Residual Receipts"has the meaning specified in the HUD Regulatory Agreement.
"Security Instrument" means the mortgage or deed of trust from Borrower in favor of Lender, as
the same may be supplemented, amended or modified.
"Surplus Cash" has the meaning specified in the HUD Regulatory Agreement, r
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(c) Notwithstanding anything in the Restrictive Covenants to the contrary, the E
provisions hereof are expressly subordinate to (i) the Mortgage Loan Documents,including L
without limitation, the Security Instrument, and (ii) Program Obligations (the Mortgage Loan
Documents and Program Obligations are collectively referred to herein as the "HUD
Requirements"). Borrower covenants that it will not take or permit any action that would result �
in a violation of the Code, HUD Requirements or Restrictive Covenants. In the event of any w
conflict between the provisions of the Restrictive Covenants and the provisions of the HUD o
Requirements, HUD shall be and remains entitled to enforce the HUD Requirements.
Notwithstanding the foregoing,nothing herein limits the Agency's ability to enforce the terms of ,
the Restrictive Covenants,provided such terms do not conflict with statutory provisions of the 0
National Housing Act or the regulations related thereto. The Borrower represents and warrants o
that to the best of Borrower's knowledge the Restrictive Covenants impose no terms or a
requirements that conflict with the National Housing Act and related regulations. Q
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(d) In accordance with 26 U.S.C. 42(h)(6)(E)(1)(1),in the event of foreclosure (or M
deed in lieu of foreclosure),the Restrictive Covenants (including without limitation, any and all
land use covenants and/or restrictions contained herein) shall automatically terminate, with the w
exception of the requirements of 26 U.S.C. 42 h 6 E ii above to the extent applicable, or as N
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otherwise approved by HUD.
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(e) Borrower and the Agency acknowledge that Borrower's failure to comply with the
covenants provided in the Restrictive Covenants does not and shall not serve as a basis for
default under the HUD Requirements, unless a default also arises under the HUD Requirements. W
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(f) Except for the Agency's reporting requirement, in enforcing the Restrictive
Covenants the Agency will not file any claim against the Project, the Mortgage Loan proceeds,
any reserve or deposit required by HUD in connection with the Security Instrument or HUD =
Regulatory Agreement, or the rents or other income from the property other than a claim against: w
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i. Available surplus cash, if the Borrower is a for-profit entity;
ii. Available distributions of surplus cash and residual receipts authorized for release
by HUD, if the Borrower is a limited distribution entity; or
iii. Available residual receipts authorized by HUD, if the Borrower is a non-profit
entity or
E-2 Packet Pg. 187
iv. A HUD-approved collateral assignment of any HAP contract.
(g) For so long as the Mortgage Loan is outstanding, Borrower and Agency shall not
further amend the Restrictive Covenants, with the exception of clerical errors or administrative
correction of non-substantive matters, without HUD's prior written consent.
(h) Subject to the HUD Regulatory Agreement,the Agency may require the Borrower
to indemnify and hold the Agency harmless from all loss, cost,damage and expense arising from
any claim or proceeding instituted against Agency relating to the subordination and covenants set
forth in the Restrictive Covenants,provided,however, that Borrower's obligation to indemnify
and hold the Agency harmless shall be limited to available surplus cash and/or residual receipts d
of the Borrower or non-Project assets of the Borrower.
Q
(i) The Restrictive Covenants are additionally made subject and subordinate to: (i) o
that certain Rental Assistance Demonstration (RAD)Use Agreement between the U.S. _J
Department of Housing and Urban Development(HUD) and Borrower, recorded 2
contemporaneously herewith in the Official Records of San Bernardino County; (ii)that certain =
RAD Conversion Commitment(HUD Form— 52624)executed by Borrower with respect to
conversion of public housing units to RAD units; and (iii) the requirements governing the RAD o
program set forth in the Consolidated and Further Continuing Appropriations Act of 2012 and
HUD Notice PIH-2012-32(H) Rev-1 (July 2, 2012), as may be further amended, (collectively, L
the "RAD Requirements"). if there is a conflict between a provision of the Restrictive a
Covenants that affects the Security and any of the RAD Requirements, then the RAD Q
Requirements shall govern, except as such RAD Requirement may have been expressly waived
in writing by HUD.
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5.E.d
EXHIBIT G
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EXHIBIT G
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INITIAL CERTIFICATION OF CONTINUING PROGRAM COMPLIANCE
Val 9 Housing Partners, L.P.
Val 9 Apartments
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Val 9 Housing Partners,L.P. hereby certifies that it will comply with all applicable, ongoing
HOME program requirements for the Property's Affordability Period which has been determined to Q
twenty (20) years under HUD HOME Regulations, and an additional County imposed Affordability c
Period of thirty-five (35) years, for a total affordability term of fifty-five(55) years from the date of _J
recordation of the Notice of Completion for the above-described project as follows: r-
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Four(4)units being made available to income qualifying households earning fifty percent(45%) or (D
less than the AMI. -�
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Borrower will maintain the following records and reports in order to assist the County in o
meeting its record keeping and reporting requirements: a
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1. Files on the annual review and certification of tenant income; �
2. All information on the qualification of affordable rents;
3. Terms and conditions of all signed leasehold agreements between tenants and -,
Borrower; c�
4. All legal reports and records required by County.
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Val 9 Housing Partners,L.P.
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By: Val 9 MGP, LLC
Its sole and general partner a
By: National Community Renaissance of California
Its sole member
By:
Tracy Thomas, CFO
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162010811613256.6 Packet'Pg. 190
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Packet Pg. 191
EXHIBIT H
SECTION 3 COMPLIANCE
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EXHIBIT "H"
SECTION 3 PLAN
This document serves as the Section 3 Plan for the Valencia Gardens Apartments(Val 9) in compliance
with the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended
(12. U.S.C. 1701u) (Section 3), to ensure that training, employment and other economic opportunities c
generated by certain HUD financial assistance, to the greatest extent feasible, and consistent with E
existing Federal, State and Local Iaws and regulations, be directed to low- and very low-income i
persons, particularly those who are recipients of government assistance for housing, and to business a'
concerns, which provide economic opportunities to low- and very low-income persons.
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I. SECTION 3 PLAN w
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The contractor, subcontractor, developer and/or Sub-Recipient will develop a Section 3 Action Plan to
identify the goals, objectives, and actions that will be implemented to ensure compliance with the w
requirements of Section 3. A sample format is included as Attachment A. o
II. PREFERENCE FOR SECTION 3 RESIDENTS IN TRAINING AND EMPLOYMENT °
OPPORTUNITIES C
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In providing training and employment opportunities, generated from the expenditure of Section 3 M
activities to Section 3 residents,the following order of preference will be followed:
7
A. Highest Priority: Low-and very-low income residents certified as Section 3 eligible residing in N
the neighborhood where the project is located.
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B. Second Priority: Participants of public and social service programs funded by City of San W
Bernardino HUD funding.
C. Third Priority: Other low-and very-low income residents throughout the City certified as
Section 3 eligible.
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III. NUMERICAL GOALS FOR TRAINING AND EMPLOYMENT OPPORTUNITIES
as
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The City, contractor, subcontractor, developer and/or Sub-Recipient will, to the greatest extent
feasible, when awarding contracts or providing training and/or employment opportunities for activities Q
or projects subject to the requirements of Section 3, strive to comply with the goals established in this
section.
The numerical goals established in this section represent minimum numerical targets.
Training and employment opportunities will be made available to Section 3 residents as follows:
Packet Pg. 193
D
30 percent of the aggregate number of new hires/training opportunities resulting from funds
awarded for FY and continuing thereafter. Number of Section 3 jobs/training opportunities
anticipated for this project is: << >>
IV. LIST OF STRATEGIES TO BE ADOPTED FOR COMPLIANCE WITH THE
STATED EMPLOYMENT,TRAINING AND CONTRACTING GOALS
The contractor, subcontractor, developer and/or Sub-Recipient must submit a current list of employees as of
the date the Section 3 Plan is submitted for approval along with anticipated new hires. A list of Y
employees can be submitted on the"Worker Utilization Form" included as Attachment B or an official
company form that includes the same information requested on the Worker Utilization Form. The E
contractor, subcontractor, developer and/or Sub-Recipient must also develop a list of strategies to be
adopted for compliance with the stated employment,training and contracting goals. Q
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V. NUMERICAL GOALS FOR CONTRACTING ACTIVITIES �
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These goals apply to contract awards in excess of$100,000 in connection with a Section 3 eligible =
project, and it applies to contractors, subcontractors, developers, and/or Sub-Recipients. The =
contractor, subcontractor, developer and/or Sub-Recipient commits to award to Section 3 business „.
concerns: 0
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A. At least 10 percent of the total dollar amount of all Section 3 covered contracts for building Q
trades work arising in connection with housing rehabilitation,housing construction and other Q
public construction; and
B. At least 3 percent of the total dollar amount of all other Section 3 covered contracts.
C. In the event that the contractor, subcontractor,developer and/or Sub-Recipient is unable to 7
reach the goals stated above, they will be required to contribute the difference between 10%of N
the covered contract amount (3%for non-construction related covered contracts)and the
amount provided to Section 3 business concerns and/or in the employment of Section 3 w
residents in to the City's Section 3 Implementation Fund.
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VI. PREFERENCE FOR SECTION 3 BUSINESS CONCERNS
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The following order of preference will be followed when providing contracting opportunities to
Section 3 businesses: d
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A. First priority will be given to Section 3 business concerns that provide economic opportunities w
for Section 3 residents in the service area or neighborhood in which the Section 3 covered
project is located.
B. Second priority will be given to Section 3 business concerns selected to carry out HUD funded
Programs.
C. Third priority will be given to Section 3 business concerns that provide economic opportunities
for Other Section 3 Residents located outside the service area or neighborhood in which the
Section 3 covered project is located.
VII. SECTION 3 CLAUSE
Packet Pg. 194
All Section 3 covered contracts shall include the following clause (referred to as the "Section 3
Clause"):
A. The work to be performed under this contract is subject to the requirements of Section 3 of the
Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (section 3). The
purpose of section 3 is to ensure that employment and other economic opportunities generated
by HUD assistance or HUD-assisted projects covered by section 3, shall,to the greatest extent
feasible, be directed to low-and very low-income persons,particularly persons who are
recipients of HUD assistance for housing.
B. The parties to this contract agree to comply with HUD's regulations in 24 CFR Part 135, which Q
implement section 3. As evidenced by their execution of this contract,the parties to this
contract certify that they are under no contractual or other impediment that would prevent them 0
from complying with the part 135 regulations. w
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C. The contractor agrees to send to each labor organization or representative of workers with a=i
which the contractor has a collective bargaining agreement or other understanding, if any, a o
notice advising the labor organization or workers' representative of the contractor's
commitments under this section 3 clause, and will post copies of the notice in conspicuous o
places at the work site where both employees and applicants for training and employment CL
positions can see the notice. The notice shall describe the section 3 preference, shall set forth
minimum number and job titles subject to hire,availability of apprenticeship and training ti
positions,the qualifications for each;and the name and location of the person(s)taking
applications for each of the positions; and the anticipated date the work shall begin.
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D. The contractor agrees to include this section 3 clause in every subcontract subject to
compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action,as w
provided in an applicable provision of the subcontract or in this section 3 clause, upon a finding o
that the subcontractor is in violation of the regulations in 24 CFR Part 135. The contractor will —'
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not subcontract with any subcontractor where the contractor has notice or knowledge that the o
subcontractor has been found in violation of the regulations in 24 CFR Part 135. _
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E. The contractor will certify that any vacant employment positions, including training positions, s
that are filled(1)after the contractor is selected by before the contract is executed, and (2) with r
persons other than those to whom the regulations of 24 CFR part 135 require employment
opportunities to be directed, were not filled to circumvent the contractors obligations under 24
CFR part 135.
F. Noncompliance with HUD's regulations in 24 CFR part 135 may result in sanctions,
termination of this contract for default, and debarment or suspension from future HUD assisted
contracts.
G. With respect to work performed in connection with section 3 covered Indian housing
Packet Pg. 195
S.E.d
assistance, section 7(b)of the Indian Self-Determination and Education Assistance Act(25
U.S.C. 450e)also applies to the work to be performed under this contract, Section 7(b)requires
that to the greatest extent feasible(i)preference in the award of contracts and subcontracts shall
be given to Indian organizations and Indian-owned Economic Enterprises. Parties to this
contract that are subject to the provisions of section 3 and section 7(b) agree to comply with
section 3 to the maximum extent feasible, but not in derogation of compliance with section
7(b).
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VIII. REPORTING E
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The contractor, subcontractor, developer and/or Sub-Recipient will submit fully documented Section 3 Q
Summary Reports to the City, that provide a comprehensive review of all Section 3 employment, training, and
contracting that occurred during the previous 12 months. The Section 3 report is due to the City by July 31"of �
each covered year. W
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Attachment A
SECTION 3 PLAN
(OWNER/DEVELOPER
AND
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GENERAL CONTRACTOR) a
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For O
(Name of Development) _
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Submitted by: 0 CL
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Name of Owner/Developer:
Address:
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General Statement
as the owner, and , as the
general contractor are committed to comply with the Section 3 act, the Section 3 regulations, and the
City of San Bernardino ("City") Section 3 Guidelines. It is our desire to work together to ensure
compliance, to the greatest extent feasible, through the awarding of contracts for work and services to
Section 3 companies, and to provide employment and training to Section 3 residents. We commit to
include the Section 3 clause in the construction contract and all subcontracts in excess of $1 00,
000,000. All subcontractors interested in submitting bids for contracts will be informed of the Section
3 requirements and goals. We agree to provide the City with copies of all bids received in response to c
the invitation to bid and copies of all contracts awarded in excess of$100,000.00.
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Goals as
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To demonstrate compliance with Section 3 regulations, it is desirous to award at least 10 percent of the w
total dollar amount of all Section 3 covered contracts for building trades work, and, at least 3 percent p
of the total dollar amount of all other Section 3 covered contracts(i.e.,professional services)to Section =
3 business concerns.
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3% $ a
0 These goals are affirmed: Initials:
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If we do not feel it is feasible to meet the minimum goals set forth above, we will be prepared to 7
demonstrate why it was not possible. We understand failure to follow our Section 3 Plan could result in 0
the Secretary of Housing and Urban Development ("HUD") finding us non-compliant with the Section s
3 regulations.
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Employment and Training:
To demonstrate compliance with Section 3 regulations, it is desirous to employ Section 3 residents as _j
30 percent of the aggregate number of new hires, and to provide training to those new hires. We agree E
to provide information regarding existing employees and hiring needs as a part of this plan. _0
Any goal established in this plan must be met. If we fail to do so, we agree to provide an explanation
and documentation as to why the goal was not met.
Packet Pg. 198
Outreach
We are committed to conduct an aggressive outreach campaign to make Section 3 Businesses and
Section 3 Residents aware of contracting and possible hiring opportunities in connection with this
Section 3 Covered Project. Efforts will include, but not be limited to, publication of opportunities in
the local newspapers, use of signage at the project site, flyers posted in the neighborhood and
surrounding areas, notification of local housing authorities, contractor and trade organizations,
employment agencies, career centers and local Youthbuild chapters.
Project Neighborhood Area
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The project neighborhood area is:
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This area will be the primary focus of all outreach attempts.
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Section 3 Coordinator
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Name:
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Contact Information:
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This person will serve as the main point of contact for all Section 3 related issues on behalf of the 16
owner, general contractor, and the subcontractor. o
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Reporting Q
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We agree to submit a Master Subcontractor List on the 20`h day of each month after construction of the
Section 3 Covered Project has commenced.d. We a gree to submit a final report o
rt to the City on HUD �
Form 60002 at completion of construction of the Section 3 Covered Project. We agree to immediately
report any changes in this plan, including but not limited to, changes in the dollar amount of contracts Y
awarded and staffing needs of the subcontractors. -2
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Attachments c
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The following attachments are incorporated into and made a part of this Section 3 Plan:
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Section 3 Clause that will be included in all contracts
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Contracting Plan
Outreach to Solicit Bids from Section 3 Businesses E
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Permanent Employee Listing for the Owner/Developer
Permanent Employee Listing for the General Contractor Q
Workforce Needed for Section 3 Covered Project for the Owner/Developer
Workforce Needed for Section 3 Covered Project for the General Contractor
Packet Pg. 199
We agree to provide to the City the following documentation as soon as the information is available to
us:
• Outreach to Solicit Bids from Section 3 Businesses (updated)
• New Hires for the Owner/Developer
• New Hires for the General Contractor
• Section 3 New Hires Trained for the Owner/Developer
• Section 3 New Hires Trained for the General Contractor
• HUD 60002 Final Report
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Submitted to the City of San Bernardino
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GENERAL CONTRACTOR: -�
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Packet`Pg.200
5.E.d
SECTION 3 PLAN
(SUBCONTRACTOR
WITH
CONTRACT IN EXCESS OF $1009000)
For a
(Dame of Development)
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General Statement
as the subcontractor is committed to comply with the
Section 3 act, the Section 3 regulations, and the City of San Bernardino ("City") Section 3 Guidelines.
It is our desire to work together with the Owner and the General Contractor to ensure compliance, to
the greatest extent feasible, through the awarding of contracts for work and services to Section 3
companies, and to provide employment and training to Section 3 residents. We commit to include the
Section 3 clause in all subcontracts. We have been informed of the Section 3 requirements and goals
set forth by the Owner and the General Contractor. Our submission of this document shall also be our
agreement to follow the Section 3 Plan submitted to City by the Owner/Developer and the General E
Contractor. ;v
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Emuloyment and Training
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To demonstrate compliance with Section 3 regulations, it is desirous to employ Section 3 residents as LU
30 percent of the aggregate number of new hires, and to provide training to those new hires. We agree p
to provide information regarding existing employees and hiring needs as a part of this plan. _
Any goal established in this plan must be met, or proof provided as to why the goal was not met. o
Attachments 0
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The following attachments are incorporated into and made a part of this Section 3 Plan:
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Section 3 Clause that will be included in all contracts
Permanent Employee Listing for the Subcontractor
Workforce Needed for Section 3 Covered Project for the Subcontractor
We agree to provide to the owner the following documentation as soon as the information is available x
to us: w
• New Hires for the Subcontractor
• Section 3 New Hires Trained for the Subcontractor E
• HUD 60002 Final Report =
We agree to immediately report any changes in this plan, including but not limited to, changes in the
dollar amount of contracts awarded and staffing needs.
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CONTRACTING PLAN WORKSHEET
Instruction for completing this worksheet
A. List each contract or trade anticipated (including those in excess of $100,000) in connection
with this project and describe the type of work they will be performing
B. Approximate dollar value of each contract
C. List whether the service is Construction (C)or Professional (P)
D. Indicate whether this contract will be awarded to a Section 3 business concern.
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(C) Section 3 a,
Contract or Trade Dollar Value (P) Business Q
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OUTREACH TO SOLICIT BIDS FROM SECTION 3 BUSINESSES
General Contractor
Project Name
Period Covered
Date Submitted
Indicate the efforts that will be made to notify Section 3 business concerns of contracting opportunities r
generated by HUD financial assistance for housing and community development programs, to the
greatest extent feasible (use additional pages if necessary). All efforts must be documented. After the E
contracts are awarded, attach copies of all publications, notices, pictures of posted notices, and any
other outreach material utilized, along with a list of all Section 3 business concerns that responded to Q
your outreach efforts. M
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PERMANENT EMPLOYEE LISTING
(OWNER/DEVELOPER)
Name of Company
Project Name
Period Covered
Date Submitted
NOTE:A computer generated employee registry can be submitted as long as it lists the employee name c
and job category. E
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Name of Employee Job Category
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5.E.d a
PERMANENT EMPLOYEE LISTING
(GENERAL CONTRACTOR)
Name of Company
Project Name
Period Covered
Date Submitted
NOTE:A computer generated employee registry can he submitted as long as it lists the employee name
and job category. E
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PERMANENT EMPLOYEE LISTING
(SUB CONTRACTOR)
Name of Company
Project Name
Period Covered
Date Submitted
NOTE:A computer generated employee registry can be submitted as long as it lists the employee name
and job category. E
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Name of Employee Job Category
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5.E.d
WORKFORCE NEEDED FOR SECTION 3 COVERED PROJECT
(OWNER/DEVELOPER-ESTIMATED)
Name of Company
Project Name
Period Covered
Date Submitted
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Positions Positions to be
Total Estimated Occupied by Number of Filled with �0
Positions Needed Permanent Positions Not Section 3 W
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WORKFORCE NEEDED FOR SECTION 3 COVERED PROJECT
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WORKFORCE NEEDED FOR SECTION 3 COVERED PROJECT
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Name of Company
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Employment Employment in 3 New 3 New
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NEW HIRES
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SECTION 3 NEW HIRES TRAINED
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Date Submitted
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SECTION 3 NEW HIRES TRAINED
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5.E.d
CERTIFICATION FOR RESIDENT SEEKING SECTION 3 PREFERENCES IN
TRAINING AND EMPLOYMENT:
Section 3 Covered Proiect:
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I, , am a legal resident of the City of a
County of State of California, and meet the
income eligibility guidelines for a low- or very-low-income person as set out in the most current
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I have attached the following documentation as evidence of my status:
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Copy of Lease(if with public Copy of receipt of public assistance C
housing authority) Other evidence: Please state
Copy of Evidence of participation
in a public assistance program
Proof of Household Income
(last W-2s or tax returns with (D
social security numbers blacked out) r
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A Section 3 resident seeking the preference in training and employment provided by this part must W
submit evidence to the general contractor or subcontractor, that the person is a Section 3 resident, as o
defined in Section 135.5.
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1 hereby certify the information provided by me to be true and correct, and understand any falsification =
of any of the information could subject me to punishment under the law.
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SECTION 3 CLAUSE/AFFIRMATIVE ACTION
Every applicant, recipient, contracting part, contractor and subcontractor shall incorporate, or cause to be
incorporated, in all contracts for work in connection with a Section 3 covered project, the following clause
(referred to as a Section 3 clause):
The work to be performed under this contract is on a project assisted under a program providing direct Federal
.financial assistance from the Department of Housing and Urban Development and is subject to the requirements
of Section 3 of the Housing and Urban Development act of 1968, as amended, 12 U.S.C. 1701n. Section 3
requires that to the greatest extent feasible opportunities for training and employment be given to lower income
residents of the project area and contracts for work in connection with the project be awarded to business
concerns which are located in, or owned in substantial part by persons residing in the area of the project. E
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The parties to this contract certify and agree that they are under no contractual or other disability which would Q
prevent them from complying with these requirements. _
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The contractor will send to each labor organization or representative of workers with which he has a collective J
bargaining agreement or other contract or understanding, if any, a notice advising the said labor organization or g
workers representative of his commitments under this Section 3 clause and shall post copies of the notice in 0
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conspicuous places available to employees and applicants for employment and training. m
The contractor will include this Section 3 clause in every subcontract for work in connection with the project o
and will, at the direction of the applicant for, or recipient of Federal financial assistance,take appropriate action >
pursuant to the subcontract upon a finding that the subcontractor is in violation of regulations issued by the Q
Secretary of Housing and Urban Development, 24 CFR 135. The contractor will not subcontract with any C
subcontractor where it has notice or knowledge that the latter has been found in violation of regulations under 24
CFR 135 and will not let any subcontract unless the subcontractor has first provided it with a preliminary
statement of ability to comply with the requirements of these regulations. M
Compliance with the provisions of Section 3, the regulations set forth in 24 CFR 135, and all applicable rules
and orders of the Department issued there under prior to the execution of the contract, shall be a condition of the Y
Federal financial assistance provided to the project, binding upon the applicant or recipient, its contractors and
subcontractors,its successors, and assigns to those sanctions specified by the grant or loan agreement or contract x
though which Federal Assistance is provided and to such sanctions as are specified by 24 CFR 135. W
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CONTRACTOR CERTIFICATION �
As the contractor for this renovation, I hereby certify that, if I do not have one, I will comply with the E
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community's Affirmative Action PIan which includes executive order 1 1246 and Section 3 listed above. During 0
the term of this contract I intend to hire employees and will be residents of the community.
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COUNTY 0 F
SAA BERNARDINO
COMMUNITY DEVELOPMENT AND HOUSING
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CONSTRUCTION CONTRACT a
LABOR COMPLIANCE PROVISIONS
(Attachment)
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NOTICE TO BIDDERS
COUNTYWIDE VISION:
The project(s) implemented with these funds assist in meeting an element of the Countywide Vision for
sustainable infrastructures and housing as adopted by the County Board of Supervisors and SANBAG on June
30, 2011.
FUNDING OF PROJECTS AND FEDERAL AND STATE REQUIREMENTS
Bidders are advised that federal funds are being used for this project and that as a result, certain requirements
are to be imposed, depending upon the source of the federal funds. Sources may include: Community E
Development Block Grant funds (CDBG), Neighborhood Stabilization Program funds (NSP) or HOME 1?'
Investment Partnerships Program funds (HOME). The use of any of these federal funds on a project will
require the payment of federal prevailing wages under the Davis-Bacon and Related Acts ("DBRA") (40 USC
§3142, 40 USC §§ 276a-276a-7, 29 CFR Part 5, which will be enforced when the contract amount for the 0
Prime Contract exceeds $2,000. The Prime Contractor is responsible for ensuring all Subcontractor(s) and w
lower-tier Subcontractor(s) compliance with the DBRA. The Federal Labor Standards Provisions (HUD 4010) 2
apply to this project and are attached. _
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For HOME and NSP funded projects, the Prime Contractor, all Subcontractors and all lower-tier
Subcontractors are required to pay their laborers and mechanics employed under the contract, a wage not less o
than the locally prevailing wages (including fringe benefits) listed in a David Bacon wage determination fora
classification, as specified in the Federal Wage Determination. If other funding is used on a project, California o
state prevailing wages (as specified in the State Wage Determination) may be triggered. If that occurs, then the higher Q
of the two applicable wage classifications (federal or state) will be enforced for all work under the contract. For Q
CDBG-funded projects, the Prime Contractor, all Subcontractors and all lower-tier Subcontractors are required
to pay their laborers and mechanics providing work under the contract, a wage not Less than the locally M
prevailing wages (including fringe benefits), as specified in both the Federal and State Wage Determinations
for the project.
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The higher of the two applicable wage classifications, either the Federal Prevailing Wage or, State :'
Prevailing Wage will be enforced for all work under this Contract.
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Notice of Requirement for Affirmative Action to Ensure Equal Employment Opportunity - The r-
bidder's attention is called to the "Equal Opportunity Clause" and "Standard Federal Equal
Employment Specifications" contained in the bid package. Goals and timetables for minority and
female participation, expressed in percentage terms for the Contractor's aggregate workforce in each o
trade on all construction work in the covered area, is 19% for minorities and 6.9% for women. _
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TABLE OF CONTENTS
• CONSTRUCTION CONTRACT PROVISIONS- DEFINITIONS..............................................................1
• LABOR COMPLIANCE REQUIREMENTS .............................................................................................2
• REQUIRED DOCUMENTS.....................................................................................................................4
• FEDERAL LABOR STANDARDS PROVISIONS....................................................................................5
• SECTION 3 CLAUSE .............................................................................................................................9 �
• AFFIRMATIVE ACTION COMPLIANCE GUIDELINES FOR CONSTRUCTION AND NON-
CONSTRUCTIONCONTRACTORS ....................................................................................................10
• EQUAL OPPORTUNITY CLAUSES.....................................................................................................14 Q
• CERTIFICATION OF COMPLIANCE WITH AIR AND WATER ACTS ..................................................22 0
• DAVIS-BACON WAGE DETERMINATION............................................................................. ..23 —J
............
• SAMPLE DOCUMENTS.......................................................................... ..........................24 2
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CONSTRUCTION CONTRACT PROVISIONS - DEFINITIONS
The following are definitions of state and federal previsions/documents for federally-assisted projects. Please refer to
the"Required Documents Checklist"for any documents to be completed and submitted for this project,
Affirmative Action Compliance Guidelines for Construction or Non-Construction Contractors - Generally,
affirmative action requirements apply to contracts and subcontracts in excess of $10,000. This document provides
guidelines to help Contractors meet affirmative action and equal employment opportunity requirements set forth in
federal regulations 41 CFR 60.
Bid Bond -A bid guarantee of at least 10% of the contract price is required from each bidder and must be submitted
with the Bid.
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Certificate of Owner's Attorney -This certificate is to be completed by the owner's attorney when applicable. E
°Certification of Bidder Regarding Equal Employment Opportunity This certification is required by Federal law(41
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CFR 60)and must completed by the Prime Contractor. Q
Certification of Compliance with Air and Water Acts - The prime Contractor and all Subcontractors must comply
with this certification when the contract exceeds $100,000. o
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Certification by Proposed Subcontractor Regarding Equal Employment Opportunity - This certification must be w
completed by all Subcontractors and every lower-tier Subcontractor and submitted to the Prime Contractor. 0
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Contractor's Certification of Compliance with Davis-Bacon and Related Acts - This certification is required by t
federal law(29 CFR 5) and must be completed by the Prime Contractor.
Equal Employment Opportunity Clauses/Equal Employment Opportunity Construction Contract Provisions - c
These provisions are to be inserted in all applicable federally-assisted contracts and subcontracts.
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Federal Labor Standards Provisions (HUD 4010 form)-These provisions set forth the federal labor requirements for a
contractors working on federally-assisted construction projects in which the prime contract exceeds $2,000. The Prime Q
Contractor and all Subcontractors and every lower-tier subcontractor are required to pay their laborers and mechanics
working onsite a wage as specified in the FEDERALLY FUNDED PROJECTS section of this provision. The Prime c
Contractor is responsible to include the Labor Compliance Contract Addendum in all executed Subcontractor M
contracts for this project.
7
Federal Prevailing Wage Decision - The Federal Wage Decision contains the federal wage rates for construction 0
projects within the County of San Bernardino. A copy of the Wage Decision is included in the bid package and can also 0
be found at https://www,sam.gov/portallpublic/SAM/ or http://www.wdol,gov/dba.aspx The wage decision that applies to
the project is the one in effect ten days prior to the bid opening date,
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Labor and Materials Bond -This payment bond guarantees that employees/Subcontractors, and suppliers are paid for c
services rendered and materials supplied. The Labor and Materials Bond must be at least 100% of the contract price 0
and must be submitted to the CITY/COUNTY upon award of the contract.
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Performance Bond - This bond guarantees the Contractor's performance under the terms of the construction contract p
and must be at least 100%of the contract price and submitted to the CITY/COUNTY following award of the contract. _
Section 3 -This law applies to construction contracts exceeding $100,000 on projects funded by the U.S. Department o=,
of Housing and Urban Development (HUD). To the greatest extent feasible, Contractor(s) and Subcontractor(s) must E
attempt to become a Section 3 business. A Section 3 business is one owned by a low-income person, a business of
which 30% of the workforce is comprised of low-income individuals, or a business that contracts 25% of its work to
Section 3 businesses. Q
Created on 3/11/2014
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LABOR COMPLIANCE REQUIREMENTS
Davis-Bacon and Related Acts:
The Prime Contractor is responsible for ensuring all Subcontractor(s) and lower-tier Subcontractor(s)
compliance with all requirements of Davis-Bacon and Related Acts (DBRA). The Federal Labor Standards
Provisions (HUD 4010) apply to this project and are attached.
A copy of the Federal Prevailing Wage Decision, (and upon request the State Wage Decision) the date of
which reflects the latest applicable modification at the time of this bid advertisement, is included in the a
Contract Documents and Specifications. Bidders shall be notified, via Addendum, of modifications, if any, E
which supersede that modification included herein, up until a minimum of ten. days prior to the actual Bid L
Opening for this project.
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A weekly Certified Payroll Report (CPR) is required during the term of construction on the project. o
Payment(s) of invoice(s) for this project may be delayed when CPRs are not submitted weekly. The w
CITY/COUNTY shall make progress payments on any properly completed payment request submitted by the r-
Prime Contractor. The payment request shall not be approved unless all CPRs for the project submitted =
through LCPtracker have been approved and accepted for each week worked during the time period covered
by said payment request.
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LCPtracker: >
As permitted by the Department of Labor (DOL), The Department of Housing and Urban Development a
(HUD), and Title 8, section 16404 of the California Code of Regulations, the Prime Contractor and each a
Subcontractor and every lower-tier Subcontractor subject to DBRA are allowed to submit CPRs electronically
via LCPtracker
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LCPtracker is a web-based system.. The Prime Contractor and Subcontractors and lower-tier Subcontractors
will receive an email from LCPtracker providing their toy on identification and temporary password. . The t�
Contractors will need to follow the instructions in the email to set-up their permanent password and activate r
their account. Once their account is setup, LCPtracker Inc. provides two convenient training options:
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Option 1: Computer-Based Training Courses: Pre-recorded videos can be viewed at any time by c
logging into the LCPtracker website and following these simple steps: -'
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• Enter user name/password E
• Select the"eTraining" link located at the top of the page. _
• Select "Contractor Training Videos"
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Option 2: Web-Based Training Sessions: Online training sessions facilitated by members of
LCPtracker's customer support team are available several times per week. All that is needed to
participate is a computer with Internet access, an email address and access to a phone. 4
• Enter user name/password
• Select "Book Now" on the "Projects" tab and register for the Online training sessions.
2 of 24
Packet Pg. 228
eDocuments:
__. In order to meet labor compliance requirements, all contractors will be required to complete eDocuments
which are accessed, submitted and approved through LCPtracker. All eDocuments are required to be signed
by an owner/officer or authorized signer. Prior to the contractor being allowed by the system to certify CPRs,
all eDocuments must be submitted to, and approved by, the County.
Other Required Documentation:
One of the documents that will be required to be uploaded in LCPtracker as part of the eDocuments, is a City
business license or a letter stating the reasons why no business license is required. All contractors
performing work on a project site located within an incorporated city must possess or obtain that city's E
business license. However, if the project is located in an unincorporated area of the County, and the
contractor's business is located in an incorporated city, the contractor must possess or obtain a business a
license within the city where their business is located. Exception to business license requirement: A letter
explaining the exception to the business license requirement will be required if the contractor's business and o
the project work site are both located in the unincorporated area of the County. J
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Electronic Submission of Certified Payrolls:
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Use of LCPtracker may require data entry in order to certify weekly payroll(s). Data entry includes information w
regarding employee identification, labor classification, total hours worked on the project, wage and benefit °
rates paid etc. Contractors currently using a payroll software system may be capable of interfacing with o
LCPtracker. Submission of electronic CPRs will be required by every lower-tier Subcontractor. a.
The Prime Contractor and each Subcontractor and every lower-tier Subcontractor and any Vendors
subject to this provision shall comply with Title 8, Section 16404 of the California Code of
Regulations.
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REQUIRED DOCUMENTS
REQUIRED PRIOR TO CONTRACT AWARD
1. Bid Package signed by Contractor or letter stating that the project specifications document is part of the
contract
2. Signed Partnership Agreement (if applicable)
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REQUIRED PRIOR TO PRECONSTRUCTION CONFERENCE L
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3. Executed Contract/Purchase Order NOTE: The Labor Compliance Contract Addendum (LCCA) which o
includes the HUD Form 4010 and the Federal prevailing wage determination for the project must be _J
attached to contract w
4. Prime Contractor Information Form O
5. Bonds (performance/payment or labor and material bonds) _
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REQUIRED PRIOR TO CONSTRUCTION o
6. Contractor's Certification of Compliance with Davis-Bacon and Related Act Requirements (Exhibit Al)* >
7. Sub-Contractor's Certification of Compliance with Davis-Bacon and Related Act Requirements (Exhibit Q
A-1)* Q-
8. Certification of Bidder Regarding Equal Employment Opportunity(Exhibit B)* Q
9. Certification by Proposed Sub-Contractor Regarding Equal Employment Opportunity(Exhibit C)*
10. Affirmative Action Compliance Form for Construction Contracts Over $10,000 (Exhibit D)*
11. A Copy of all executed Sub-Contractor contracts NOTE: The Labor Compliance Contract Addendum
(LCCA) which includes the HUD Form 4010 and the prevailing wage determination for the project must
be attached to contract w
12. City Business License/Exception Letter
13. Certificate of Understanding and Authorization Form (Exhibit E)* x
14. Fringe Benefit Statement Form (Exhibit F)* J
15. Authorization for Payroll Deduction (Exhibit G)* o
16. DOL Registered Apprentice Program* -'
17. DOL Apprenticeship Certification* E
18. Apprenticeship Program Appendix A* _
19. Project Wage Rate Sheet*
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REQUIRED DURING CONSTRUCTION
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20. Weekly Certified Payrolls (see"Electronic Submission of Certified Payrolls" section)
*Note: These forms are located on the LCPtracker online database discussed in "Electronic Submission of
Certified Payrolls" section and will be discussed by County CDH staff at the preconstruction conference.
Page 4 of 24
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U.S. Department of Housing
Federal Labor Standards Provisions and Urban Development
Office of Labor Relations
1.Applicability
The project or program to which the construction work covered by appropriate), a report of the action taken shall be sent by HUD or
this contract pertains is being assisted by the United States of its designee to the Administrator of the Wage and Hour Division,
America and the following Federal Labor Standards Provisions are Employment Standards Administration, U.S. Department of Labor,
included in this Contract pursuant to the provisions applicable to Washington, D.C. 20210. The Administrator, or an authorized
such federal assistance. representative, will approve, modify, or disapprove every additional
A. 1.(1)Minimum Wages.All laborers and mechanics employed or classification action within 30 days of receipt and so advise HUD
working upon the site of the work will be paid unconditionally and or its designee or will notify HUD or its designee within the 30-day
not less often than once a week, and without subsequent deduction period that additional time is necessary. (Approved by the Office
or rebate on any account (except such payroll deductions as are of Management and Budget under OMB control number 1215-
permitted by regulations issued by the Secretary of Labor under the 0140.)
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Copeland Act (29 CFR Part 3), the full amount of wages and bona (c) In the event the Contractor, the laborers or mechanics to be E
fide fringe benefits (or cash equivalents thereof) due at time of employed in the classification or their representatives, and HUD or y
payment computed at rates not less than those contained in the its designee do not agree on the proposed classification and wage
wage determination of the Secretary of Labor which is attached rate (including the amount designated for fringe benefits, where Q
hereto and made a part hereof, regardless of any contractual appropriate), HUD or its designee shall refer the questions,
relationship which may be alleged to exist between the Contractor including the views of all interested parties and the J
and such laborers and mechanics. Contributions made or costs recommendation of HUD or its designee, to the Administrator for
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determination. The Administrator, or an authorized representative,reasonably anticipated for bona fide fringe benefits under Section P 2
I(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics will issue a determination within 30 days of receipt and so advise O
are considered wages paid to such laborers or mechanics, subject HUD or its designee or will notify HUD or its designee within the 30- _
to the provisions of 29 CFR 5.5(a)(1)(iv); also, regular contributions day period that additional time is necessary. (Approved by the _
made or costs incurred for more than a weekly period (but not less Office of Management and Budget under OMB Control Number o
often than quarterly) under plans, funds, or programs, which cover 1215-0140.) _
the particular weekly period, are deemed to be constructively made (d) The wage rate (including fringe benefits where appropriate)
or incurred during such weekly period. determined pursuant to subparagraphs (1) (ii)(b) or (c) of this o
Such laborers and mechanics shall be paid the appropriate wage paragraph, shall be paid to all workers performing work in the Q
classification under this contract from the first day on which work is
e and fringe benefits on the wage determination for the Y Q
ssif+cation of work actually performed, without regard to skill, performed in the classification.
_accept as provided in 29 CFR 5.5(a)(4). Laborers or mechanics (iii) Whenever the minimum wage rate prescribed in the contract
performing work in more than one classification may be for a class of laborers or mechanics includes a fringe benefit which v
compensated at the rate specified for each classification for the is not expressed as an hourly rate, the Contractor shall either pay
time actually worked therein: Provided that the employer's payroll the benefit as stated in the wage determination or shall pay
records accurately set forth the time spent in each classification in another bona fide fringe benefit or an hourly cash equivalent thereof.
which work is performed. The wage determination (including any (iv) If the Contractor does not make payments to a trustee or t�
additional classification and wage rates conformed under 29 CFR other third person, the Contractor may consider as part of the
5.5(a)(1)(ii) and the Davis-Bacon poster(WH-1321) shall be posted wages of any laborer or mechanic the amount of any costs w
at all times by the Contractor and its Subcontractors at the site of reasonably anticipated in providing bona fide fringe benefits under
the work in a prominent and accessible, place where it can be a plan or program, provided, that the Secretary of Labor has found,
easily seen by the workers. upon the written request of the Contractor, that the applicable 0
(ii)(a)Any class of laborers or mechanics which is not listed in the standards of the Davis-Bacon Act have been met. The Secretary 4)
wage determination and which is to be employed under the of Labor may require the Contractor to set aside in a separate E
contract shall be classified in conformance with the wage account assets for the meeting of obligations under the plan or =
determination. HUD shall approve an additional classification and program. (Approved by the Office of Management and Budget r
wage rate and fringe benefits therefore only when the following under OMB Control Number 1215-0140.)
criteria have been met: 2. Withholding. HUD or its designee shall upon its own action or E
(1) The work to be performed by the classification requested is not upon written request of an authorized representative of the
performed by a classification in the wage determination; and Department of Labor withhold or cause to be withheld from the cYc
(2) The classification is utilized in the area by the construction Contractor under this contract or any other federal contract with Q
industry; and the same prime Contractor, or any other federally-assisted
(3) The proposed wage rate, including any bona fide fringe contract subject to Davis-Bacon prevailing wage requirements,
benefits, bears a reasonable relationship to the wage rates which is held by the same prime Contractor so much of the
contained in the wage determination. accrued payments or advances as may be considered necessary
(b) If the Contractor and the laborers and mechanics to be to pay laborers and mechanics, including apprentices, trainees
employed in the classification (if known), or their representatives, and helpers, employed by the Contractor or any Subcontractor the
and HUD or its designee agree on the classification and wage rate full amount of wages required by the contract. In the event of
(including the amount designated for fringe benefits where failure to pay any laborer or mechanic, including any apprentice,
trainee or helper, employed or working on the site of the work, all
or part
Previous edition is obsolete Page 1 of 4 HUD-4010(0612009)
ref.Handbook 1344,1
Page 5 of 24
Packet Pg. 232
5.E.d
of the wages required by the contract, HUD or its designee may, records, without weekly submission to HUD or its designee.
-fter written notice to the Contractor, sponsor, applicant, or owner, (Approved by the Office of Management and Budget under OMB
s such action as may be necessary to cause the suspension of Control Number 1215-0149.)
y further payment, advance, or guarantee of funds until such (b) Each payroll submitted shall be accompanied by a"Statement
violations have ceased. HUD or its designee may, after written of Compliance,"signed by the Contractor or Subcontractor or his or
notice to the Contractor, disburse such amounts withheld for and her agent who pays or supervises the payment of the persons
on account of the Contractor or Subcontractor to the respective employed under the contract and shall certify the following:
employees to whom they are due. The Comptroller General shall (1) That the payroll for the payroll period contains the information
make such disbursements in the case of direct Davis-Bacon Act required to be provided under 29 CFR 5.5 (a)(3)(ii), the
contracts. appropriate information is being maintained under 29 CFR
3. (i) Payrolls and basic records. Payrolls and basic records 5.5(a)(3)(i)and that such information is correct and complete;
relating thereto shall be maintained by the Contractor during the (2) That each laborer or mechanic (including each helper,
course of the work preserved for a period of three years thereafter apprentice, and trainee) employed on the contract during the
for all laborers and mechanics working at the site of the work. payroll period has been paid the full weekly wages earned, c
Such records shall contain the name, address, and social security without rebate, either directly or indirectly, and that no deductions E
number of each such worker, his or her correct classification, have been made either directly or indirectly from the full wages a)
hourly rates of wages paid(including rates of contributions or costs earned, other than permissible deductions as set forth in 29 CFR
anticipated for bona fide fringe benefits or cash equivalents thereof Part 3; Q
of the types described in Section I (b)(2)(B) of the Davis-bacon (3) That each laborer or mechanic has been paid not less than c
Act), daily and weekly number of hours worked, deductions made the applicable wage rates and fringe benefits or cash equivalents p
and actual wages paid. Whenever the Secretary of Labor has for the classification of work performed, as specified in the —�
found under 29 CFR 5.5 (a)(1)(iv)that the wages of any laborer or applicable wage determination incorporated into the contract, w
mechanic include the amount of any costs reasonably anticipated in
providing benefits under a plan or program described in Section (c) The weekly submission of a properly executed certification set 0
l(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain forth on the reverse side of Optional Form WH-347 shall satisfy the =
records which show that the commitment to provide such benefits requirement for submission of the "Statement of Compliance" w
is enforceable, that the plan or program is financially responsible, required by subparagraph A.3.(ii)(b),
and that the plan or program has been communicated in writing to (d) The falsification of any of the above certifications may subject O
the laborers or mechanics affected, and records which show the the Contractor or Subcontractor to civil or criminal prosecution
costs anticipated or the actual cost incurred in providing such under Section 1001 of Title 18 and Section 231 of Title 31 of the o
benefits. Contractors employing apprentices or trainees under United States Code. a
'oroved programs shall maintain written evidence of the (iii) The Contractor or Subcontractor shall make the records Q
stration of apprenticeship programs and certification of trainee required under subparagraph A.3.(i) available for inspection,
ugrams,the registration of the apprentices and trainees, and the copying, or transcription by authorized representatives of HUD or °�
ratios and wage rates prescribed in the applicable programs. its designee or the Department of Labor, and shall permit such M
(Approved by the Office of Management and Budget under OMB representatives to interview employees during working hours on
Control Numbers 1215-0140 and 1215-0017.) the job. If the Contractor or Subcontractor fails to submit the
(ii) (a) The Contractor shall submit weekly for each week in which required records or to make them available, HUD or its designee 0
any contract work is performed a copy of all payrolls to HUD or its may, after written notice to the Contractor, sponsor, applicant or in
designee if the agency is a party to the contract, but if the agency is owner, take such action as may be necessary to cause the -2
not such a party, the Contractor will submit the payrolls to the suspension of any further payment, advance, or guarantee of x
applicant sponsor, or owner, as the case may be, for transmission funds. Furthermore, failure to submit the required records upon w
to HUD or its designee. The payrolls submitted shall set out request or to make such records available may be grounds for
accurately and completely all of the information required to be debarment action pursuant to 29 CFR 5.12. J
maintained under 29 CFR 5.5(a)(3)(i) except that full social 4.Apprentices and Trainees o
security numbers and home addresses shall not be included on (i)Apprentices. Apprentices will be permitted to work at less than E
weekly transmittals. Instead the payrolls shall only need to include the predetermined rate for the work they performed when they are
an individually identifying number for each employee(e.g.,the last employed pursuant to and individually registered in a bona fide
four digits of the employee's social security number. The required apprenticeship program registered with the U.S. Department of r_
weekly payroll information may be submitted in any form desired. Labor, Employment and Training Administration, Office of E
Optional Form WH-347 is available for this purpose from the Apprenticeship Training, Employer and Labor Services, or with a
Wage and Hour Division Web site at State Apprenticeship Agency recognized by the Office, or if a
littp://,A,-v,,,w.dol.gov/wlid/fori-ns/`",h347instr.litm or its successor site. person is employed in his or her first 90 days of probationary Q
The prime Contractor is responsible for the submission of copies employment as an apprentice in such an apprenticeship program,
of payrolls by all Subcontractors. Contractors and subcontractors who is not individually registered in the program, but who has been
shall maintain the full social security number and current address certified by the Office of Apprenticeship Training, Employer and
of each covered worker, and shall provide them upon request to Labor Services or a State Apprenticeship Agency (where
HUD or its designee if the agency is a party to the contract, but if appropriate) to be eligible for probationary employment as an
the agency is not such a party,the sponsor, or owner, as the case apprentice. The allowable ratio of apprentices to journeymen on
may be, for transmission to HUD or its designee,the contractor, or the job site in any craft classification shall not be greater than the
the Wage and Hour Division of the Department of Labor for ratio permitted to the Contractor as to the entire work force under
purposes of an investigation or audit of compliance with prevailing the registered program. Any worker listed on a payroll at an
le requirements. It is not a violation of this subparagraph for a apprentice wage rate,who is not registered or otherwise employed
ne contractor to require a subcontractor to provide addresses as stated above, shall be paid not less than the applicable wage
and social security numbers to the prime contractor for its own rate on the wage determination for the classification of work
Previous edition is obsolete Page 2 of 4 HUD-4010(06/2009)
ref.Handbook 1344.1
Page 6 of 24
.:Packet Pg. 233 '
actually performed. In addition, any apprentice performing work on 5. Compliance with Copeland Act requirements. The
''ie job site in excess of the ratio permitted under the registered Contractor shall comply with the requirements of 29 CFR Part 3
)gram shalt be paid not less than the applicable wage rate on the which are incorporated by reference in this contract.
age determination for the work actually performed. Where a 6. Subcontracts. The Contractor or Subcontractor will insert in
Contractor is performing construction on a project in a locality other any subcontracts the clauses contained in subparagraphs 1
than that in which its program is registered, the ratios and wage through 11 of this paragraph A and such other clauses as HUD or
rates (expressed in percentages of the journeyman's hourly rate) its designee may by appropriate instructions require,and a copy of
specified in the Contractor's or Subcontractor's registered program the applicable prevailing wage decision, and also a clause
shall be observed. Every apprentice must be paid at not less than requiring the Subcontractors to include these clauses in any lower
the rate specified in the registered program for the apprentice's tier subcontracts. The prime Contractor shall be responsible for the
level of progress, expressed as a percentage of the journeymen compliance by any Subcontractor or lower tier Subcontractor with
hourly rate specified in the applicable wage determination. all the contract clauses in this paragraph.
Apprentices shall be paid fringe benefits in accordance with the 7. Contract termination; debarment. A breach of the contract
provisions of the apprenticeship program. If the apprenticeship clauses in 29 CFR 5.5 may be grounds for termination of the
program does not specify fringe benefits, apprentices must be paid contract and for debarment as a Contractor and a Subcontractor m
the full amount of fringe benefits listed on the wage determination as provided in 29 CFR 5.12. E
for the applicable classification. If the Administrator determines that g.Compliance with Davis-Bacon and Related Act Requirements. L
a different practice prevails for the applicable apprentice All rulings and interpretations of the Davis-Bacon and Related Acts Q
classification, fringes shall be paid in accordance with that contained in 29 CFR Parts 1, 3, and 5 are herein incorporated by
determination, In the event the Office of Apprenticeship Training, reference in this contract
Employer and Labor Services, or a State Apprenticeship Agency g Disputes concerning labor standards. Disputes arising out of
recognized by the Office, withdraws approval of an apprenticeship the labor standards provisions of this contract shall not be subject W
program, the Contractor will no longer be permitted to utilize to the general disputes clause of this contract Such disputes shall 2
.
apprentices at less than the applicable predetermined rate for the O
work performed until an acceptable program is approved. be resolved in accordance with the procedures of the Department =
of Labor set forth in 29 CFR Parts 5, 6, and 7. Disputes within the a>
(ii) Trainees. Except as provided in 29 CFR 5.16,trainees will not meaning of this clause include disputes between the Contractor(or
be permitted to work at less than the predetermined rate for the any of its Subcontractors) and HUD or its designee, the U.S. p
work performed unless they are employed pursuant to and Department of Labor,or the employees or their representatives. R
individually registered in a program which has received prior 10. (i)Certification of Eligibility. By entering into this contract the p
approval, evidenced by formal certification by the U.S. Department Contractor certifies that neither it(nor he or she)nor any person or a
of Labor, Employment and Training Administration. The ratio of firm who has an interest in the Contractor's firm is a person or firm 0.
�inees to journeymen on the job site shall not be greater than ineligible to be awarded Government contracts by virtue of Section Q
miffed under the plan approved by the Employment and 3(a) of the Davis-Bacon Act or 29 CFR 5.12(a)(1) or to be awarded o
aining Administration. Every trainee must be paid at not less HUD contracts or participate in HUD programs pursuant to 24 CFR rte.
than the rate specified in the approved program for the trainee's Part 24 M
level of progress, expressed as a percentage of the journeyman
hourly rate specified in the applicable wage determination. Trainees (ii) No part of this contract shall be subcontracted to any person
shall be paid fringe benefits in accordance with the provisions of or firm ineligible for award of a Government contract by virtue of (9
the trainee program. If the trainee program does not mention fringe Section 3(a) of the Davis-Bacon Act or 29 CFR 5.12(x)(1)or to be U)
benefits, trainees shall be paid the full amount of fringe benefits awarded HUD contracts or participate in HUD programs pursuant :5
listed on the wage determination unless the Administrator of the to 24 CFR Part 24. M
Wage and Hour Division determines that there is an apprenticeship (iii) The penalty for making false statements is prescribed in the w
program associated with the corresponding journeyman wage rate U.S. Criminal Code, 18 U.S.C. 1001. Additionally, U.S. Criminal a
on the wage determination which provides for less than full fringe Code, Section 1 01 0, Title 18, U.S.C., "Federal Housing o
benefits for apprentices. Any employee listed on the payroll at a Administration Transactions", provides in part: "Whoever, for the -�
trainee rate, who is not registered and participating in a training purpose of influencing in any way the action of such Administration E
plan approved by the Employment and Training Administration, makes, utters or publishes any statement knowing the same to be =o
shall be paid not less than the applicable wage rate on the wage false shall be fined not more than $5,000 or imprisoned not more
determination for the work actually performed. In addition, any than two years,or both." J
trainee performing work on the job site in excess of the ratio 11. Complaints, Proceedings, or Testimony by Employees. No
permitted under the registered program shall be paid not less than laborer or mechanic to whom the wage, salary, or other labor M
the applicable wage rate on the wage determination for the work standards provisions of this Contract are applicable shall be U
actually performed. In the event the Employment and Training discharged or in any other manner discriminated against by the Q
Administration withdraws approval of a training program, the Contractor or any Subcontractor because such employee has filed
Contractor will no longer be permitted to utilize trainees at less than any complaint or instituted or caused to be instituted any
the applicable predetermined rate for the work performed until an proceeding or has testified or is about to testify in any proceeding
acceptable program is approved. under or relating to the labor standards applicable under this
(iii) Equal employment opportunity. The utilization of Contract to his employer.
apprentices, trainees and journeymen under 29 CFR Part 5 shall B. Contract Work Hours and Safety Standards Act. The
be in conformity with the equal employment opportunity provisions of this paragraph B are applicable where the amount of
requirements of Executive Order 11246, as amended, and 29 CFR the prime contract exceeds$100,000.As used in this paragraph,the
Fart 30. terms"laborers"and"mechanics"include watchmen and guards.
Previous edition is obsolete Page 3 of 4 HUD-4010(66t2009)
ref.Handbook 1344.1
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Packet Pg. 234
(1) Overtime requirements. No Contractor or Subcontractor
ontracting for any part of the contract work which may require or
solve the employment of laborers or mechanics shall require or
,permit any such laborer or mechanic in any workweek in which the
individual is employed on such work to work in excess of 40 hours in
such workweek unless such laborer or mechanic receives
compensation at a rate not less than one and one-half times the
basic rate of pay for all hours worked in excess of 40 hours in such
workweek.
(2)Violation; liability for unpaid wages;liquidated damages.In
the event of any violation of the clause set forth in subparagraph
(1) of this paragraph, the Contractor and any Subcontractor
responsible therefore shall be liable for the unpaid wages. In
addition, such Contractor and Subcontractor shall be liable to the m
United States (in the case of work done under contract for the 0
District of Columbia or a territory, to such District or to such a�
territory), for liquidated damages. Such liquidated damages shall
be computed with respect to each individual laborer or mechanic, Q
including watchmen and guards, employed in violation of the
clause set forth in subparagraph (1) of this paragraph, in the sum M
of$10 for each calendar day on which such individual was required J
or permitted to work in excess of the standard workweek of 40 hours �
without payment of the overtime wages required by the clause set p
forth in sub paragraph(1)of this paragraph. _
(3)Withholding for unpaid wages and liquidated damages.
HUD or its designee shall upon its own action or upon written t
r
request of an authorized representative of the Department of Labor o
withhold or cause to be withheld, from any moneys payable on
account of work performed by the Contractor or Subcontractor o
under any such contract or any other Federal contract with the Q
same prime contract, or any other federally-assisted contract CL
ibject to the Contract Work Hours and Safety Standards Act Q
ich is held by the same prime Contractor such sums as may be
etermined to be necessary to satisfy any liabilities of such r°v�
Contractor or Subcontractor for unpaid wages and liquidated M
damages as provided in the clause set forth in subparagraph (2) of
this paragraph. -'
(4) Subcontracts. The Contractor or Subcontractor shall insert
in any subcontracts the clauses set forth in subparagraph (1) w
through (4) of this paragraph and also a clause requiring the
Subcontractors to include these clauses in any lower tier X
subcontracts. The prime Contractor shall be responsible for w
compliance by any Subcontractor or lower tier Subcontractor with
ca
the clauses set forth in subparagraphs (1) through (4) of this 0
paragraph. (D
C. Health and Safety. The provisions of this paragraph C are E
applicable where the amount of the prime contract exceeds =
$100,000.
(1) No laborer or mechanic shall be required to work in
surroundings or under working conditions which are unsanitary,
hazardous, or dangerous to his health and safety as determined M
under construction safety and health standards promulgated by
the Secretary of Labor by regulation.
(2) The Contractor shall comply with all regulations issued by Q
the Secretary of Labor pursuant to Title 29 Part 1926 and failure
to comply may result in imposition of sanctions pursuant to the
Contract Work Hours and Safety Standards Act, (Public Law 91-
54,83 Stat 96).40 USC 3701 et seg.
(3) The Contractor shall include the provisions of this paragraph
in every subcontract so that such provisions will be binding on
each Subcontractor. The Contractor shall take such action with
—spect to any subcontract as the Secretary of Housing and
)an Development or the Secretary of Labor shall direct as a
-ans of enforcing such provisions.
Previous edition is obsolete Page 4 of 4 HUD-4010(0612009)
ref.Handbook 1344.1
Page 8 of 24
Packet Pg.235
SECTION 3 CLAUSE
(information for the Section 3 Report will be input on LCPtracker)
3-2.2 Employment opportunities for business and lower income persons in connection with assisted projects.
This clause applies to construction contracts of$100,000 or more, on projects funded with $200,000 or
more in federal funds from the U.S. Department of Housing and Urban Development.
Assurance of compliance with regulations.
(A) Every contract or agreement for a grant, loan, subsidy or other direct financial assistance in aid of housing,
urban. planning, development, redevelopment, or renewal, public or community facilities and new community
facilities and new community development, entered into by the Department of Housing and Urban
Development with respect to a Section 3 covered project shall contain provisions requiring the applicant or
recipient to carry out the provisions of Section 3,the regulations set forth in this part, and any applicable rules
and orders of the Department issued thereunder prior to approval of its application for assistance for a
Section 3 covered project.
c
(B) Every applicant, recipient, contracting party, Contractor and Subcontractor shall incorporate, or cause to be o
incorporated, in all contracts for work in connection with a Section 3 covered project, the following clause —�
(referred to as Section 3 clause):
a. The work to be performed under this contract is on a project assisted under a program providing direct =
federal financial assistance from the Department of Housing and Urban Development as is subject to the
requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C.
1701u. Section 3 requires that to the greatest extent feasible, opportunities for training and employment o
be given to lower income residents of the project area and contracts for work in connection with the >
project be awarded to business concerns, which are located or owned in substantial part by persons Q.
residing in the area of the project. C
b. The parties to this contract will comply with the provisions of said Section 3 and the regulations issued
pursuant thereto by the Secretary of Housing and Urban Development set forth to 24 CFR 135, and all
applicable rules and orders of the Department issued thereunder prior to the execution of this contract.
The parties to this contract certify and agree that they are under no contractual or other disability, which -,
would prevent them from complying with these requirements. t�
U)
c. The Contractor will send to each labor organization or representative of workers with which he has a
collective bargaining agreement or other contract or understanding, if any, a notice advising the said a
labor organizations or worker's representative of his commitments under this Section 3 clause and shall W
post copies of the notice in conspicuous places available to employees and applicants for employment or a
training. J
d. The Contractor will include this Section 3 clause in every subcontract for work in connection with the E
project and will, at the direction of the applicant for or recipient of federal financial assistance, take =
appropriate action pursuant to the subcontract upon a finding that the Subcontractor is in violation of
regulations issued by the Secretary of Housing and Urban Development 24 CFR 135. The Contractor
will not subcontract unless the Subcontractor has first provided him with a preliminary statement of ability E
to comply with the requirements of these regulations.
ca
e. Compliance with the provisions of Section 3,the regulations set forth in 24 CFR 135, and all applicable
rules and orders of the Department issued thereunder prior to the execution of the contract, shall be a
condition of the federal financial assistance provided to the project, binding upon the applicant or
recipient for such assistance provided to the project, binding upon the applicant or recipient for such
assistance, its successors and assigns. Failure to fulfill these requirements shall subject the applicant or
recipient, its Contractors and Subcontractors, its successors and assigns, to those sanctions specified by
the grant or loan agreement or contract through which federal assistance is provided, and to such
sanctions as are specified by 24 CFR 135
Page 9 of 24
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5.E.d
AFFIRMATIVE ACTION COMPLIANCE
Y
GUIDELINES FOR CONSTRUCTION AND
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NON-CONSTRUCTION CONTRACTORS
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5.E.d ..;
AFFIRMATIVE ACTION COMPLIANCE C. Affirmative Action Plan requirements for NON-
GUIDELINES FOR CONSTRUCTION AND CONSTRUCTION Contractors:
NON-CONSTRUCTION CONTRACTORS 1. All Contractors who have entered into a NON-
CONSTRUCTION CONTRACT and who: 1) do
These Affirmative Action Compliance Guidelines have been business in the amount of$50,000 or more with
designed to provide Contractors with information necessary the implementing entity in any one fiscal year
to comply with Federal regulations found under Title 40, Part and, 2) employ 50 or more employees, must
60 of the Code of Federal Regulations. It is the intent of develop a written Affirmative Action Program
these guidelines to insure that equal opportunity for within 120 days after the contract award date.
employment is practiced by the Contractor without regard to
race, color, sex, religion, national origin, disability, and 2. All Subcontractors rendering services or supplies
veteran's status. These guidelines provide the minimum to a Contractor in the amount of$50,000 or more
information necessary to comply with EEO and affirmative and employ 50 or more employees, must develop
action requirements, including the preparation of an a written Affirmative Action Program within 120
Affirmative Action Plan that complies with federal regulations days after the contract award date. Y
regarding Affirmative Action for federally-assisted projects.
Contractors are urged to contact the implementing entity or D. Exemptions under 41 CFR 60:
the U.S. Department of Labor's Office of Federal Contract The following persons/contracts shall be exempt from L
Compliance Programs (OFCCP) officer for any necessary this program:
technical assistance in meeting Affirmative Action Q
requirements if they are considering bidding under this c
1. A contract or contracts by a Contractor that do not M
contract. exceed$10,000 in the aggregate over a 12-month J
1. AFFIRMATIVE ACTION COMPLIANCE PROGRAM period. w
2. Contracts for Work outside the United States 0
A. The Affirmative Action program embodies the _
following principals: 3. State and Local Governments d
t
1. Discrimination because of race, color, age, sex, 4. Contracts with certain educational institutions 4-
religion, national origin, marital status, disability, O
or veteran's status is inconsistent with the 5. Work on or near Indian Reservations ro
constitution, laws, and policies of the United p
States, State of California and County of San 6. Specific contracts and facilities found exempt by a
Bernardino. a
7. Deputy Assistant Secretary Q
2. The implementing entity is committed to insuring g, National security contracts
that there be no discrimination by vendors, r.
Contractors (including professional services and Any Contractor who feels qualified for an exemption
consultants), lessors, or lessees doing business should contact the local Contract Compliance Officer
with the implementing entity, or the U.S. Department of Labor's OFCCP Officer for C7
3. Contractors and Subcontractors agree to take
further information.
affirmative personnel actions to hire and promote H. SATISFYING AFFIRMATIVE ACTION PLAN
workers who traditionally have been discriminated tL
against in the job market, including women, A. Affirmative Action Plan requirements for NON-
minorities, members of certain ethnic and CONSTRUCTION Contractors can be met through the
religious groups, individuals with disabilities, and following: �
veterans, 4)
1. Completing a Contract Compliance Qualifying o
B. Affirmative Action Step Requirements for Report for Non-construction Contractors and =
CONSTRUCTION Contractors and Subcontractors: Vendors, (refer to the form found in the"Additional
Required Documents/Sample Documents"section
1. Personnel affirmative action in recruitment, hiring, of Attachment"D"of the bid package).
and promotion is required by Contractor and
Subcontractors who have entered into a federally- 2. Completing a Contractor's Affirmative Action V
assisted construction or non-construction contract Policy, including methods of recruiting minorities Q
that exceed $10,000 or $10,000 in the aggregate and women. If the Contractor does not have its
over a 12-month period. own Affirmative Action Policy, it may adopt the
County's model Affirmative Action Policy((refer to
2. Contractors and Subcontractors who enter into a the form found in the "Additional Required
CONSTRUCTION CONTRACT in excess of Documents/Sample Documents" section of
$10,000 must take 16 specific affirmative action Attachment"D"of the bid package).
steps to ensure equal employment opportunity.
These steps are included in 41 CFR 60-4.3(a) (7) 3. Following Federal Affirmative Action Plan
and are also included under "Standard Federal guidelines which comply with the requirements of
Equal Employment Opportunity Construction 41 CFR 602.10.
40 Contract Specifications" of Attachment "D" of the
bid package.
Page 2 of 4
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Packet Pg. 239
DEFINITIONS
I. Has a physical or mental impairment, which
Unless a provision of a contract otherwise requires, certain substantially limits one or more of such person's
words and phrases shall be defined as follows: major life activities.
A. "Affirmative Action" is a commitment to increase the 2. Has a record or such impairment, or
number of minorities and women in the work force by
setting employment goals and timetables, including 3. Is generally regarded as having such an
action to achieve objectives. Affirmative Action seeks impairment.
to ensure that discrimination is eliminated in dealings
with employees or applicants for employment whether M. "Implementing Entity" means public jurisdiction who is
the discrimination is intentional or unintentional. In administering the contract.
addition, Affirmative Action seeks to improve job
standards and productivity through the removal of N. "Minority" includes:
artificial and unnecessary barriers to employment and
promotion and ensure that all job actions are related to 1. Black all Y
job performance measures. { persons having origins in any Black a
African racial groups not of Hispanic origin); a)
B. "Affirmative Action Plan" is a written affirmative plan a0i
required of Contractors and Subcontractors who have 2. Hispanic (all persons of Mexican, Puerto Rican, 0)
50 or more employees and have entered into a Cuban, Central or South American or other Q
contract with the implementing entity that exceeds Spanish Culture or origin, regardless of race);
$50,000, or $50,000 in contracts over a 12-month
period. 3. Asian or Pacific Islander (all persons having J
origins in any of the original peoples of the Far W
C. "Contract" means a federally-assisted purchase order, East, Southeast Asia, the Indian subcontinent or 2
offer and acceptance, lease, agreement or other the Pacific Islands); 0
2
arrangement creating an obligation to which the y
implementing entity is a party,which would make one 4. American India or.Alaskan native (all persons
of the parties within the definition a Contractor. having origins in any of the native peoples of 0
North America and maintaining identifiable tribal Ri
D. "Construction" means the construction, rehabilitation, affiliations through membership and participation >
alteration, conversion, extension, demolition or repair in community identification), o
of buildings, highways or other changes or Q CL
improvements to real property, including facili#ies O. "Non-construction Contract" means any contract that Q
providing utility services. does not fall within the definition of "Construction c
Contract".
E. "Contractor" means a prime Contractor or M
Subcontractor. P. "Officer" means the Contract Compliance Officer of
the implementing entity or U.S. Department of Labor
F. "Covered Area" means the geographical area Office of Federal Contract Compliance Program 6
described in the solicitation from which the contract {OFCCP}Officer. r
resulted;
G. "Director" means Director, OFCCP, U.S> Dept. of Q. "Persons" means any individual, firm, co-partnership, x
Labor, or any person to whom the Director delegates public service, joint venture, association, social club, W
authority to; fraternal organization, corporation, estate, trust
receiver, syndicate CITY, county, municipal 0
H. "Employee" means one who performs work for corporation, district or other political subdivision, or a)
compensation, or a person who is permanently or any other group or combination acting as a unit. ;_
0
regularly employed by the Contractor or =
Subcontractor. R. "Underutilization" means having fewer minorities or
women in a particular job classification than would c
reasonably be expected by their availability. a'
1. "Employer Identification Number" means the Federal E
Social Security Number; .�
S. "Vietnam-Era Veteran"means a person who:
J. "Handicapped Status' means any person who:
1. Served on actual duty for a period of more than Q
1. Has a physical or mental impairment, which 180 days, any part of which occurred between
substantially limits one or more of such person's August 5, 1964, and May 7, 1975, and was
major life activities. discharged or released therefrom with other than
a dishonorable discharge; or
2. Has a record or such impairment or, 2. Was discharged or released from active duty for a
3. Is generally regarded as having such an service-connected disability if any part of such
impairment. active duty was performed between August 5,
1964,and May 7, 1975.
K. "Employer Identification Number" means the Federal
Social Security Number;
L. "Handicapped Status"means any person who:
Page 3 of 4
Page 12 of 24
Packet Pg. 240
T. Violation and Appeal Procedure: 3. Contractor agrees to fully comply with the laws and
programs(including regulations issued pursuant thereto)
1. A Contractor found in violation of equal identified herein. Such compliance is required to the
opportunity/affirmative action laws will be referred extent such laws, programs and their regulations are, by
to the U.S. Department of Labor's OFCCP their own terms, applicable to this contract. Contractor
Division, and the Solicitor for Labor, Associate warrants that he will make himself thoroughly familiar
Solicitor of Labor Relations and Civil Rights with the applicable provisions of said laws, programs,
Regional Solicitors and Regional Attorney are and regulations prior to commencing performance of the
authorized to institute enforcement proceedings contract. Copies of said laws,programs, and regulations
by filing a compliant and serving that compliant to are available upon request from the implementing
the Contractor (defendant), in accordance with entity's Contract Compliance Officer, or from the U.S.
procedures set forth in 41 CFR 60-30.5. The Department of Labor's OFCCP Officer to the extent
complaint shall contain information on the alleged applicable the provisions of said laws programs and
violation, a prayer regarding the relief being regulations are deemed to be a part of this contract as if
sought, and the name and address of the attorney fully set forth herein.
representing the Government. Within 20 days
after receiving the complaint, the defendant shall 4. Vietnam Era Veterans' Readjustment Assistance Acts of
file an answer with the Chief Administrative Law 1972 and 1974, as amended. Pub. L. 92-540, Title V,
Judge, if the case has not been assigned to an Sec 503(a), Pub. L 93-508, Title IV, Sec. 402. (38 Q
Administrative Law judge. USCA 2011-2013). c
2. The answer shall contain a statement of the facts 5. Rehabilitation act of 1973, as amended (Handicapped) —J
which constitute the ground of defense, and shall: Pub. 193-112 as amended. (29 USCA 701-794). W
1) specifically admit, explain, or deny each of the 5
allegations of the complaint unless the defendan# 6. California Fair Employment Practice Act. Labor Code =
is without knowledge, or 2) state that the Sec. 1410 e€seq. m
defendant admits all the allegations contained in
the complaint. The answer may contain a waiver 7. Civil Rights Act of 1964, as amended (42 USCA 2000a p
for a hearing and if not, a separate paragraph in to 2000H-6) and Executive Order No. 11246, September Ri
the answer shall request a hearing. The answer 24, 1965, as amended. o
shall contain the name and address of the
defendant, or of the attorney representing the Q
defendant. Failure to file an answer or plead Q
specifically to an allegation of the complaint shall
constitute an admission of such allegation.
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..
1965, and by rules, regulations and orders of the
EQUAL OPPORTUNITY CLAUSES Secretary of Labor, pursuant thereto, and will permit
access to his books, records, and accounts by the
The Contractor and Subcontractors not found
administering agency and Secretary of Labor for
exempt under 41 CFR 60-1.5, are required to purposes of investigation to ascertain compliance with
comply with the following equal opportunity such rules, regulations,and orders
clauses as a condition of being awarded a (6) In the event of the Contractor's noncompliance with
federally-assisted contract. Each nonexempt the nondiscrimination clauses of this contract or with
prime Contractor shall include equal employment any of such rules, regulations or orders, this contract
opportunity clauses in each of its nonexempt may be canceled, terminated or suspended in whole
Subcontractors. or in part, and the Contractor may be declared
ineligible for further Government contracts in
EQUAL OPPORTUNITY CLAUSE FOR accordance with procedures authorized in Executive
Order 11246 of September 24, 1965, and such other
FEDERALLY-ASSISTED CONSTRUCTION sanctions may be imposed and remedies invoked as E
CONTRACTS provided in Executive Order 11246 of September 24, y
1965, or by rule, regulation or order of the Secretary
This clause is inserted pursuant to Executive Order 11246 of of Labor,or as otherwise provided by law. Q
September 24, 1965, as amended, and Title VII of the Civil c
Rights Act of 1964, and is applicable pursuant to 41 CFR (7) The Contractor will include the provisions of 0
Sec.60-1.4. The following requirements apply to Contractors paragraphs (1) through (7) in every subcontract or —i
and Subcontractors purchase order unless exempted by rules, regulations W
or orders of the Secretary of Labor issued pursuant to 50
(1) The Contractor will not discriminate against any Section 204 of Executive Order 11246 of September 2
employee or applicant for employment because of 24, 1965, so that such provisions will be binding upon m
race, color, religion, sex, or national origin. The each Subcontractor or vendor. The Contractor will
Contractor will take affirmative action to ensure that take such action with respect to any subcontract or o
applicants are employed, and that employees are purchase order as the contracting agency may direct E
treated during employment without regard to their as a means of enforcing such provisions, including o
race, color, religion, sex, national origin. Such action sanctions for noncompliance: Provided, however,that
shall include, but not be limited to the following: in the event the Contractor becomes involved in, or is 0-
Employment, upgrading, demotion, or transfer; threatened with, litigation with a Subcontractor or Q
recruitment or recruitment advertising; layoff or vendor as a result of such direction by the contracting c
termination; rates of pay or other forms of agency, the Contractor may request the United States d
ti
compensation; and selection for training, including to enter into such litigation to protect the interests of
V
apprenticeship. The Contractor agrees to post in the United states.
conspicuous places, available to employees and
applicants for employment, notices to be provided by The applicant further agrees that it will be bound by N
the contracting officer setting forth the provisions of the above equal opportunity clause with respect to its
this nondiscrimination clause. own employment practices when it participates in
federally assisted construction work; provided, that if x
(2) The Contractor will, in all solicitations or the applicant so participating is a state or local W
advertisements for employees placed by or on behalf government, the above equal opportunity clause is
of the Contractor, state that all qualified applicants will not applicable to any agency, instrumentality or 0
J
receive consideration for employment without regard subdivision of such government which does not m
to race,color, religion,sex, or national origin, participate in work on or under the contract. E
0
(3) The Contractor will send to each labor union or The applicant agrees that it will assist and cooperate
representative of workers with which he has a actively with the administering agency and the =
collective bargaining agreement or other contract or Secretary of Labor in obtaining the compliance of °'
understanding, a notice to be provided by the agency Contractors and Subcontractors with the equal
contracting officer, advising the labor union or opportunity clause and the rules, regulations, and
workers' representative of the Contractor's relevant orders of the Secretary of Labor, that it will w
commitments under Section 202 of Executive Order furnish the administering agency and the Secretary of Q
11246 of September 24, 1965, and shall post copies Labor in obtaining the compliance of Contractors and
of the notice in conspicuous places available to Subcontractors with the equal opportunity clause and
employees and applicants for employment. the rules, regulations, and relevant orders of the
Secretary of Labor,that it will furnish the administering
(4) The Contractor will comply with all provisions of agency and the Secretary of Labor such information
Executive Order 11246 of September 24, 1965 and of as they may require for the supervision of such
the rules, regulations, and relevant orders of the compliance, and that it will otherwise assist the
Secretary of Labor. administering agency in the discharge of the agency's
primary responsibility for securing compliance,
(5) The Contractor will furnish all information and reports
required by Executive Order 11246 of September 24,
Page 1 of 8
Page 14 of 24
Packet,Pg. 242
The applicant further agrees that it will refrain from independently operated corporate affiliates, shall be
entering into any contract or contract modification listed at an appropriate local office of the State
subject to Executive Order 1124 of September 24, Employment Service System wherein the opening
1965, with a Contractor debarred from, or who has occurs. The ConWytractor further agrees to provide
not demonstrated eligibility for Government such reports to such local office regarding
contracts and federally assisted construction employment openings and hires as may be
contracts pursuant to the Executive Order and will required.
carry out such sanctions and penalties for violation
of the equal opportunity clause as may be imposed (3) Listings of employment openings with the
upon Contractors and Subcontractors by the employment service system pursuant to this clause
administering agency or the Secretary of Labor shall be made at least concurrentiv with the use of
pursuant to Part Il, Subpart D of the Executive any other recruitment source or effort and shall
Order. In addition,the applicant agrees that if it fails involve the normal obligations which attach to the
or refuses to comply with these undertakings, the placing of a bona fide job order, including the
administering agency may take any or all of the acceptance of referrals of veterans and non-
following actions_ Cancel, terminate, or suspend in veterans. The listing of employment openings does
whole or in part this grant(contract, loan, insurance, not require the hiring of any particular job applicant d
guarantee), refrain from extending any further or from any particular group of job applicants, and d
assistance to the applicant under the program with nothing herein is intended to relieve the Contractor Q
respect to which the failure or refund occurred until from any requirements in Executive Orders or
satisfactory assurances of future compliance has regulations regarding nondiscrimination in c
been received from such applicant, and refer the employment. _J
case to the Department of Justice for appropriate (4) The reports required by paragraph (2) of this clause w
legal proceedings. shall include, but not be limited to, periodic reports p
In addition to the above, Contractor will agree to which shall be filed at least quarterly with the _
furnish all information and reports, including appropriate local office or,where the Contractor has
Standard form EEO-1, if applicable, to the U.S. more than one hiring location in a State, with the 41
Equal Employment Opportunity Commission central office of that State Employment Service. C
(EEOC) and the U.S. Department of Labor's Such reports shall indicate for each hiring location,
OFCCP, as required by Executive Order No. 11.246 (a) the number of individuals hired during the p
of September 24, 1965. reporting period, (b) the number of non-disabled Q,
veterans of the Vietnam Era hired, (c)the number of Q
EQUAL OPPORTUNITY CLAUSE FOR disabled veterans of the Vietnam Era hired, and (d)
SPECIAL DISABLED VETERANS the total number of disable veterans hired. The o
reports shall include covered veterans hired for on- ti
AND VETERANS OF THE VIETNAM ERA the-job training under 38 USC Sec. 1787. The
Contractor shall submit a report within 30 days after -�
This clause is inserted pursuant to Executive Order 11701 of the end of each reporting period wherein any
January 24, 1973 and the Vietnam Era Veterans performance is made on this contract identifying
Readjustment Assistance Acts of 1972 and 1974 (P.L. 92- data for each hiring location. The Contractor shall
540, 93-508), and is applicable pursuant to 41 CFR Sec. 60- maintain at each hiring location, copies of the :E
250• reports submitted until the expiration of one year lu
(1) The Contractor wilt. not discriminate against any after final payment under the contract, during which r_
time these reports and related documentation shall M
employee or applicant for employment because he be made available, upon request, for examination J
or she is a disabled veteran or veteran of the by any authorized representatives of the contracting 4)
Vietnam Era in regard to any position for which the officer or of the Secretary of Labor. Documentation E
employee or applicant for employment is qualified. would include personnel records respecting job =
The Contractor agrees to take affirmative action to openings, recruitment and placement.
employ, advance in employment and otherwise treat c
qualified disabled veterans and veterans of the a)
q (5) Whenever the Contractor becomes contractual[Era without discrimination based upon their bound to the listing provisions of this clause, it shall
disability or veterans status in all employment advise the employment service system in each
practices such as the following: employment, State where it has establishments of the name and Q
upgrading, demotion or transfer, recruitment, location of each hiring location in the State. As long
advertising, layoff or termination, rates of pay or as the Contractor is contractually bound to these
other forms of compensation, and selection for provisions and has so advised the State system,
training,including apprenticeship. there is no need to advise the State system of
(2) The Contractor agrees that all suitable employment subsequent contracts. The Contractor may advise
openings of the Contractor which exist at the time of the State system when it is no longer bound by this
the execution of this contract and those which occur
contract clause,
during the performance of this contract, including (6) This clause does not apply to the listing of
those not generated by this contract and including employment openings, which occur and are filled
those occurring at an establishment of the outside of the 50 States, the District of Columbia,
Contractor other than the one wherein the contract Puerto Rico, Guam and the Virgin Islands.
is being performed but excluding those of
Page 2 of 8
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Packet Pg. 243
i
(7) The provisions of paragraphs(2), (3), (4) and (5) of Contractor and representatives of his
this clause do not apply to openings which the employees.
Contractor proposes to 511 from within his own
organization or to 511 pursuant to a customary and (9) The Contractor agrees to comply with the rules,
traditional employer - union hiring arrangement. regulations and relevant orders of the Secretary of
This exclusion does not apply to a particular Labor issued pursuant to the Act.
opening once an employer decides to consider
applicants outside of his own organization or (10) In the event of the Contractor's noncompliance with
employer-union arrangement for that opening. the requirements of this clause, actions for
(8) As used in this clause: noncompliance may be taken in accordance with
the rules, regulations and relevant orders of the
a. "Ali suitable employment openings' includes,
Secretary of Labor issued pursuant to the Act.
but is not limited to, openings which occur in
the following job categories: production and (11) The Contractor agrees to post in conspicuous m
non-production; plant and office; laborers and places, available to employees and applicants for 4)
mechanics; supervisory and non-supervisory; employment, notices in a form to be prescribed by aa)
technical; and executive, administrative and the Director, provided by or through the contracting L
professional openings as are compensated on
officer. Such notices shall state the Contractor's
obligation under the law to take affirmative action to Q
a salary basis of less than $25,000 per year. g c
The term includes full-time employment, employ and advance in employment qualified o
temporary employment of more than three disabled veterans and veterans of the Vietnam Era _J
days duration, and part-time employment. It for employment, and the rights of applicants and w
does not include openings which the employees. 0
Contractor proposes to 511 from within his own z
organization or to fill pursuant to a customary (12) The Contractor will notify each labor union or am
and traditional employer - union hiring representative of workers with which it has a 5
arrangement or openings in an educational collective bargaining agreement or other contract p
institution which are restricted to students of understanding, that the Contractor is bound by the "E
that institution. Under most compelling terms of the Vietnam Era Veterans' Readjustment o
circumstances an employment opening may Assistance Act, and is committed to take affirmative
not be suitable for listing, including such action to employ and advance in employment a
situations where the needs of the Government qualified disabled veterans and veterans of the Q
cannot reasonably be otherwise supplied, Vietnam Era. e
where listing would be contrary to national d
ti
security, or where the requirement of listing (13) The Contractor will include the provisions of this
would otherwise not be for the best interest of clause in every subcontract or purchase order of —�
the Government. $10,000 or more unless exempted by rules, 6
regulations or orders of the Secretary issued N
b. "Appropriate office of the State Employment pursuant to the Act, so that such provisions will be
Service System" means the local office of the binding upon each Subcontractor or vendor. The �
federal - state national system of public Contractor will take such action with respect to any W
employment offices with assigned subcontract or purchase order as the Director of the
responsibility for serving the area where the Office of Federal Contract Compliance Programs o
employment opening is to be filled, including may direct to enforce such provisions, including J
the District of Colombia, Guam, Puerto Rico action for noncompliance.
and the Virgin Islands. (14) Collective bargaining agreement or other contract o
understanding that the Contractor is bound by the =
C. "Openings which the Contractor proposes to terms of the Vietnam Era Veterans' Readjustment
fill from within his own organization" means Assistance Act, and is committed to take affirmative d
employment openings for which no action to employ and advance in employment �
consideration will be given to persons outside qualified disabled veterans and veterans of the 0
the Contractor's organization (including any Vietnam Era. +c
affiliates, subsidiaries and the parent Q
companies) and includes any openings which (15) The Contractor will include the provisions of this
the Contractor proposes to fill from regularly clause in every subcontract or purchase order of
established"recall"lists. $10,000 or more unless exempted by rules,
regulations or orders of the Secretary issued
d. "Openings which the Contractor proposes to pursuant to the Act, so that such provisions will be
fill pursuant to a customary and traditional binding upon each Subcontractor or vendor. The
employer - union hiring arrangement" means Contractor will take such action with respect to any
employment openings which the Contractor subcontract or purchase order as the Director of the
proposes to fill from union halls, which is part Office of Federal Contract Compliance Programs
of the customary and traditional hiring may direct to enforce such provisions, including
relationship which exists between the action for noncompliance.
Page 3 of 8
Page 16 of 24
Packet Pg.244
1
EQUAL OPPORTUNITY CLAUSE FOR (4) The Contractor agrees to post in conspicuous
WORKERS WITH DISABILITIES places, available to employees and applicants for
employment, notices in a form to be prescribed by
This clause is inserted pursuant to the Rehabilitation Act of the Director, provided by or through the contracting
1973(P.L. 93-112)and 41 CFR Sec. 60-741-4. officer.
(1) The Contractor will not discriminate against any (5) Such notices shall state the Contractor's obligation
employee or applicant for employment because of under the law to take affirmative action to employ
physical or mental handicap in regard to any and advance in employment qualified handicapped
position for which the employee or applicant for employees and applicants for employment, and the
employment is qualified. The Contractor agrees to rights of applicants and employees.
take affirmative action to employ, advance in
employment and otherwise treat qualified (6) The Contractor will notify each labor union or
handicapped individuals without discrimination representative of workers with which it has a
based upon their physical or mental handicap in all collective bargaining agreement or other contract understanding, that the Contractor is bound by the E
employment practices such as the following: terms of Section 503 of the Rehabilitation Act of y
employment, upgrading, demotion or transfer, L
recruitment, advertising, layoff or termination, rates 1973, and is committed to take affirmative action to
of pay or other forms of compensation, and employ and advance in employment physically and Q
mentally handicapped individuals.
selection for training, including apprenticeship, o
(7) The Contractor will include the provisions of this ',
(2) The Contractor agrees to comply with the rules, clause in every subcontract or purchase order of W
regulations and relevant orders of the Secretary of $2,500.00 or more unless exempted by rules, p
Labor issued pursuant#o the Act. regulations or orders of the Secretary issued =
(3) In the event of the Contractor's non-compliance with pursuant to Section 503 of the Act, so that such M
the requirements of this clause, actions for provisions will be binding upon each Subcontractor w
noncompliance may be taken in accordance with or vendor. The Contractor will take such action with o
the rules, regulations and relevant orders of the respect to any subcontract or purchase order as the
Secretary of Labor issued pursuant to the Act. Director of the Office of Federal Contract O
Compliance Programs may direct to enforce such Q,
provisions, including action for noncompliance. Q-
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Page 4 of 8
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Packet Pg. 245
STANDARD FEDERAL EQUAL unions participating in the Plan. Contractors must be
EMPLOYMENT OPPORTUNITY able to demonstrate their participation in and
CONSTRUCTION CONTRACT PROVISIONS compliance with the provisions of any such
Hometown Plan. Each Contractor or Subcontractor
(EXECUTIVE ORDER 11246, PURSUANT TO participating in an approved Plan is individually
41 CFR 60-4.3 (a) required to comply with its obligations under the EEO
clause, and to make a good faith effort to achieve
1. As used in these specifications: each goal under the Plan in each trade in which it
has employees. The overall good faith performance
a. "Covered area" means the geographical area by other Contractors or Subcontractors toward a goal
described in the solicitation from which this in an approved Plan does not excuse any covered w
contract resulted; Contractor's or Subcontractor's failure to take good
m
faith efforts to achieve Plan goals and timetables. E
b. "Director" means Director, Office of Federal
Contract Compliance Programs, United States 4. The Contractor shall implement the specific
Department of Labor, or any person to whom the affirmative action standards provided in paragraphs Q
Director delegates authority; 7a through p of these specifications. The goals set c
forth in the solicitation from which the contract 0
0
c. "Employer identification number" means the resulted are expressed as percentages of the total —J
Federal Social Security number used on the hours of employment and training of minority and W
Employer's Quarter Federal Tax Return. U.S. female utilization the Contractor should reasonable 2
Treasury Department form 941. the able to achieve in each construction trade in =
which it has employees in the covered area, a)
d. "Minority"includes: Covered construction Contractors performing r
construction work in geographical areas where they o
(i) Black (all persons having origins in any of do not have a federal or federally assisted Fa
the Black African racial groups not of construction contract shall apply the minority and >
Hispanic origin); female goals established for the geographical area o
where the work is being performed. Goals are a
(ii) Hispanic (ail persons of Mexican, Puerto published periodically in the FEDERAL REGISTER Q
Rican, Cuban, Central or South American or in notice form, and such notices may be obtained c
other Spanish Culture or origin, regardless from any Office of Federal Contract Compliance d
of race); programs Office or from federal procurement M,
contracting officers. The Contractor is expected to
(iii) Asian and Pacific Islander (all persons make substantially uniform progress in meeting. its
having origins in any of the original peoples goals in each craft during the period specified.
of the Far East, Southeast Asia, the Indian
Subcontinent,or the Pacific Islands);and 5. Neither the provisions of any collective bargaining
agreement, nor the failure by a union with whom the x
(iv) American Indian or Alaskan Native (all Contractor has a collective bargaining agreement, to W
persons having origins in any of the original refer either minorities or women shall excuse the
peoples of North America and maintaining Contractor's obligations under these specifications, o
identifiable tribal affiliations through Executive Order 11246 or the regulations a)
membership and participation or community promulgated pursuant thereto. E
identification). o
6. In order for the nonworking training hours of
2. Whenever the Contractor, or any Subcontractor at apprentices and trainees to be counted in meeting c
any tier, subcontracts a portion of the work involving the goals, such apprentices and trainees must be d
any construction trade, it shall physically include in employed by the Contractor during the training t
each subcontract in excess of$10,000 the provisions period and the Contractor must have made
of these specifications and the Notice which contains commitment to employ the apprentices and trainees Q
the applicable goals for minority and female at the completion of their training, subject to the
participation and which is set forth in the solicitations availability of employment opportunities. Trainees
from which this contract resulted, must be trained pursuant to training programs
approved by the U.S. Department of Labor.
3. If the Contractor is participating (pursuant to 41 CFR
60-4.5) in a Hometown Plan approved by the U.S. 7. The Contractor shall take specific affirmative actions
Department of Labor in the covered area either to ensure equal employment opportunity. The
individually or through an association, its affirmative evaluation of the Contractor's compliance with these
action obligations on all work in the Plan area specifications shall be based upon its effort to
(including goals and timetables) shall be in achieve maximum results from its actions. The
accordance with the plan for those trades which have Contractor shall document these efforts fully, and
Page 5 of 8
Page 18 of 24
Packet Pg. 246
5.E.d
shall implement affirmative action steps at least as employment needs, especially those
extensive as the follow 16 steps: programs funded or approved by the
Department of Labor. The Contractor
a. Ensure and maintain a working shall provide notice of these programs
environment free of harassment, to the sources compiled under 7b
intimidation, and coercion at all sites, above,
and in all facilities at which the
Contractor's employees are assigned f. Disseminate the Contractor's EEO
to work. The Contractor shall policy by providing notice of the policy
specifically ensure that all foremen, to unions and training programs and
superintendents, and other on-site requesting their cooperation in +,
supervisory personnel are aware of and assisting the Contractor in meeting its
carry out the Contractor's obligation to EEO obligations by including it in any E
maintain such a working environment, policy manual and collective bargaining a)
with specific attention to minority or agreement; by publicizing it in the
female individuals working at such sites company newspaper, annual report, Q
or in such facilities. etc.; by specific review of the policy
with all management personnel and M
b. Establish and maintain a current list of with all minority and female employees J
minority and female recruitment at least once a year; and by posting the LU
sources, provide written notification to company EEO policy on bulletin boards 2
minority and female recruitment accessible to all employees that each =
sources and to community location. where construction work is m
organizations when the Contractor or performed,
its unions have employment p
opportunities available, and maintain a 9. Review, at least annually, the 0
record of the organizations'responses. company's EEO policy and affirmative o
action obligations under these L
C. Maintain a current file of the names, specifications with all employees a
addresses and telephone numbers of having any responsibility for hiring, Q
each minority and female off-the-street assignment, layoff, termination or other
applicant and minority or female employment decisions including
referral from a union, a recruitment specific review of these items with c�i
source or community organization and onsite supervisory P ersonnel such as
of what action was taken with respect Superintendents, General Foremen, C�
to each such individual. If such etc., prior to the initiation of
individual was sent to the union hiring construction work at any job site. A
hall for referral and was not referred written record shall be made and
back to the Contractor by the union or, maintained identifying the item and K
if referred, not employed by the place of these meetings, persons W
Contractor, this shall be documented in attending, subject matter discussed,
the file with the reason therefore, along and disposition of the subject manner. 0
with whatever additional actions the
Contractor may have taken. h. Disseminate the Contractor's EEO E
Policy externally by including it in any =
d. Provide immediate written notification advertising in the news media,
to the Director when the union or specifically including minority and
unions bargaining agreement has not female news media, and providing
referred to the Contractor a minority written notification to and discussing
person or woman sent by the the Contractor's EEO policy with other V
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Contractor, or when the Contractor has Contractors and Subcontractors with
other information that the union referral whom the Contractor does or Q
process has impeded the Contractor's anticipates doing business.
efforts to meet its obligations.
i. Direct its recruitment efforts, both oral
e. Develop on-the-job training and written, to minority, female and
opportunities and/or participate in community organizations, to schools
training programs for the area which with minority and female students and
expressly include minorities and to minority and female recruitment and
women, including upgrading programs training organizations serving the
and apprenticeship and trainee Contractor's recruitment source, the
programs relevant to the Contractor's Contractor shall send written
Page 6 of S
Page 19 of 24
Packet Pg. 247
notification to organizations such as the community or other similar group of which the
above, describing the openings, Contractor is a member and participant may be
screening procedures, and tests to be asserted as fulfilling any one or more of its
used in the selection process. obligations provided that the Contractor actively
participates in the group, makes every effort to
j. Encourage present minority and female assure that the group has a positive impact on
employees to recruit other minority the employment of minorities and women in the
persons and women and, where industry, ensures that the concrete benefits of
reasonable, provide after school, the program are reflected in the Contractor's
summer and vacation employment to minority and female workforce participation
minority and female youth both on the makes a good faith effort to meet its individual
site and in other areas of a Contractor's goals and timetables, and can provide access to
work force. documentation, which demonstrates the E
effectiveness of actions taken on behalf of the
k. Validate all tests and other selection Contractor. The obligation to comply, however,
requirements where there is an is the Contractor's and failure of such a group to Q
obligation to do so under 41 CFR Part fulfill an obligation shall not be a defense for the C
60-3. Contractor's noncompliance. o
1. Conduct, at least annually, an inventory g, A single goal for minorities and a separate single UJ
and evaluation at least of all minor8ty goal for women have been established. The
and female personnel for promotional Contractor, however, is required to provide =
opportunities and encourage these equal employment opportunity and to take t
employees to seek or to prepare for, affirmative action for all minority groups, both
through appropriate training, etc., such male and female, and all women, both minority p
opportunities. and non-minority. Consequently, the Contractor �a
may be in violation of the executive order if a >
M. Ensure that seniority practices, job particular group is employed in a substantially o
classifications, work assignments and disparate manner(for example,even though the Q
other personnel practices, do not have Contractor has achieved its goals for women Q
a discriminatory effect by continually generally, the Contractor may be in violation of c
monitoring all personnel and the Executive Order if a specific minority group d
employment related activities to ensure of women is underutilized),
that the EEO policy and the
Contractor's obligations under these 10. The Contractor shall not use the goals and
specifications are being carried out. timetables or affirmative action standards to
discriminate against any person because of y
n. Ensure that all facilities and company race,color, religion, sex, or national origin. -°
activities are non-segregated except -�
that separate or single-user toilet and 11. The Contractor shall not enter into any W
necessary changing facilities shall be Subcontract with any person or firm debarred
provided to assure privacy between the from Government contracts pursuant to 0
sexes. Executive Order 11246,
d
o. Document and maintain a record of all 12. The Contractor shall carry out such sanctions o
solicitations of offers for subcontracts and penalties for violation of these specifications =
from minority and female construction and of the Equal Opportunity Clause, including
Contractors and suppliers, including suspension, termination and cancellation of
circulation of solicitations to minority existing subcontracts as may be imposed or t
and female Contractor associations ordered pursuant to Executive Order 11246, as
and other business associations. amended, and its implementing regulations, by
P. Conduct a review, at least annually, of the Office of Federal Contract Compliance Q
all supervisors; adherence to and Programs. Any Contractor who fails to carry out
performance under the Contractor's such sanctions and penalties shall be in violation
EEO policies and affirmative action of these specifications and Executive Order
obligations.
11246,as amended.
8. Contractors are encouraged to participate in 13. The Contractor, in fulfilling its obligations under
voluntary associations which assist in fulfilling these specifications, shall implement specific
one or more of their affirmative action affirmative action steps, at least as extensive as
obligations (7a—p). The efforts of a Contractor those standards prescribed in paragraph 7 of
association, joint Contractor-union, Contractor- these specifications, so as to achieve maximum
Page 7 of S
Page 20 of 24
Packet Pg.248
results from its efforts to ensure equal which establish different standards of
employment opportunity. If the Contractor fails compliance or upon the application of
to comply with the requirements of the Executive requirements for the hiring of local or other area
Order, the implementing regulations, or these residents (e.g. those under the Public Works
specifications, the director shall proceed in Employment Act of 1977 and the Community
accordance with 41 CRF 60-4.6. Development Block Grant Program).
14. The Contractor shall designate a responsible a) The notice set forth in 41 CFR 60-4.2 and
official to monitor all employment related activity the specifications set forth in 41 CFR 60-4.3
to ensure that the company EEO policy is being replace the New Form for Federal Equal
carried out, to submit reports relating to the Employment Opportunity Bid conditions for
provisions hereof as may be required by the Federal and federally Assisted Construction
Government and to keep records. Records shall published at 41 CFR 32482 and commonly
at lease include for each employee the name, known as the Model Federal EEO Bid m
address, telephone numbers,construction trade, Conditions, and the New Form shall not be L
union affiliation if any, employee identification used after the regulations in 41 CFR Part
number when assigned, social security number, 60A become effective. Q
race, sex, status (e.g., mechanic, apprentice
trainee, helper, or laborer) dates of changes in Minority Goals
status, hours worked per week in the indicated The goal for the utilization of women employees on w
trade, rate of pay, and locations at which the federally-assisted construction contracts is set at 6.9%. 2
work was performed. Records shall be =
maintained in an easily understandable and The goal for utilization of minorities, based on the ar
retrievable form; however, to the degree that Standard metropolitan Statistical Area (SMSA) for
existing records satisfy this requirement, Riverside/San Bernardino County is 19%. c
Contractors shall not be required to maintain
separate records. For additional information on these goals, please contact
the OFCCP-Pacific Region at(415)848-6969. 0
15. Nothing herein provided shall be construed as a a
limitation upon the application of other laws Q
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CERTIFICATION OF COMPLIANCE WITH AIR AND WATER ACTS
(Applicable to federally assisted construction contracts
and related subcontracts exceeding 100 000
During the performance of this Contract, the Contractor and all Subcontractors shall comply with the
requirements of the Clean Air act, as amended, 42 U.S.C. 1857 et, seq., the Federal Water Pollution
Control Act, as amended, 33 U.S.C. 1251 et. seq., and the regulations of the Environmental Protection
Agency with respect thereto, at 40 CFR Part 15, as amended.
In addition to the forgoing requirements, all nonexempt Contractors and Subcontractors shall furnish to a
the owner, the following: E
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(1) A stipulation by the Contractor or Subcontractors, that any facility to be utilized in the performance Q
of any nonexempt Contract or subcontract, is not listed on the List of Violating Facilities issued by =
the Environmental Protection Agency (EPA) pursuant to 40 CFR 1520, o
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(2) Agreement by the Contractor to comply with all requirements of Section 114 of the Clean Air Act, 2
as amended, (42 U.S.C. 1857c-8) and Section 308 of the Federal Water Pollution Control Act, as =
amended, (33 U.S.C. 1318) relating to inspection, monitoring entry, reports and information, as s
well as all other requirements specified in said Section 114 and Section 308, and all regulations r
and guidelines issued thereunder. o
(3) A stipulation that as a condition for the award of the Contract, prompt notice will be given of any a.
notification received from the Director, Office of Federal Activities, EPA, indicating. that a facility a
utilized, or to be utilized for the Contract, is under consideration to be listed on the EPA List of
Violating Facilities. o
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(4) Agreement by the Contractor to include, or cause to be included, the criteria and requirements in 7
paragraph (1) through (3) of this section in every nonexempt subcontract and requiring that the a
Contractor will take such action as the Government may direct as a means of enforcing such y
provisions. :c
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COUNTY OF
SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
CONTRACTOR'S CERTIFICATION OF COMPLIANCE WITH
DAVIS-BACON AND RELATED ACTS REQUIREMENTS
PRIME • ► 1 •
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PROJECT NAME: PROJECT CODE:
PROJECT ADDRESS: E
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PRIME CONTRACTOR NAME: L
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As the Prime Contractor for the above referenced project, I hereby make the following certification and
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acknowledgment with respect to the applicability of"DAVIS-BACON AN6 LATE ACTS"requirements: —J
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1. By entering into this contract I certify and acknowledge= that the above I'eferenced.project is federally O
funded and, as the Prime Contractor, I am solely responsible forcomplying with the IS-BACON AND
RELATED ACTS"requirements;and
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2. The Prime Contractor and all Subcontractors are required to pay their`laborers and mechanics
employed a wage not less than the highest wage applicable to their work classifications. If no federal work L
classification appears to apply, the Prime Contractor shall,;make a written 'request to the County of San a
Bernardino to obtain the applicable work classj.... Ion and Waage rate prior to the start of construction. The a
Prime Contractor is solely responsible for ensur ig tffirs .all Subcontractors are in compliance with the"DAVIS- e
BACON AND RELATED ACTS" re . '``y `""'' M
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PRIME CONTRA CTpR:SIGNATU, tea TITLE _
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IF PRIMM&TRACTOR IS A CORPORATION OR PARTNERSHIP a�
LISTTH LEGAL NAMES;AND TITLES OF ALL PARTNERS OR CORPORATE OFFICERS. p
NAME TITLE
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NAME TITLE
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EXHIBIT:A
Created on 8/23/2012
Packet Pg.256
COUNTY OF
SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
SUBCONTRACTOR'S CERTIFICATION OF COMPLIANCE WITH
DAVIS-BACON AND RELATED ACTS REQUIREMENTS
SUBCONTRACTOR
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PROJECT NAME: PROJECT CODE:
PROJECT ADDRESS: E
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PRIME CONTRACTOR NAME: ;v
SUBCONTRACTOR NAME: Q
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As the undersigned Subcontractor, having executed a contract with the aboye' narn#d contractor on the above 0
referenced project, hereby make the following certification and acknowledgment with respect to the W
applicability of"DAVIS-BACON AND RELATED ACTS" requirements: p
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1. By executing a contract with the above named contractor, I/we certify and acktltfwledge that the above w
referenced project is federally funded and will comply wit s;Ahe "DAVIS-BACON AND RELATED ACTS" c
requirements.
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2. I/we have read the "LABOR COMPLIANCE 6CINTRAC-t AbDENDUM" including the wage determination for a
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the above referenced project. I/we acknowledge'the receipt and,adherence to following provisions set forth in a
the"FEDERAL LABOR STANDARDS PROVISIONS"before partic+paPon on this project. o
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3. I/we will include the"LABOR COMPLIANCE CONTRACTADDENDIlM" including the wage determination for
the above referenced project in any lower tler subcantractsourchase orders executed. I/we will forward to
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Prime Contractor a copy of all executed`subcontra. f rurchase orders to any lower tier subcontractors within
seven(7)days of the exec uti"Apte,
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IF SUBCONTRACTOR IS A CORPORATION OR PARTNERSHIP
LIST THE LEGAL NAMES AND TITLES OF ALL PARTNERS OR CORPORATE OFFICERS. d
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NAME TITLE
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NAME TITLE
NAME TITLE
NAME TITLE
EXHIBIT:A-1
Created on 8/21/2012
Packet Pg. 257
S.E.d
COUNTY OF
SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
CERTIFICATION OF BIDDER REGARDING
EQUAL EMPLOYMENT OPPORTUNITY
PRIME • ■ 1 . r
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PROJECT NAME: ;=iftOJECT CODE: E
PROJECT ADDRESS:
INSTRUCTIONS �
This certification is required pursuant to Executive Order 11246 130 F,It 1231%;, 11. The implementing rules o
and regulations provide that any bidder or prospective contractor, or any of t#3efit`;proposed Subcontractors, shall —i
state as an initial part of the bid or negotiations of the contract whether it has participated. in any previous w
contract or subcontract subject to the Equal Opportunity Clause;and, �fso,whether i#`h8s filed ell compliance reports G
due under applicable instructions.
Where the certification indicates that the bidder has not fled;; a compliance .report due under applicable o
instructions, such bidder shall be required to submit`a compliance:report within seven (7) calendar days after bid
opening. No contract shall be awarded unless such report is submitte'ti: o
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BIDDER'S CERTIFICATION
BIDDER'S NAME:
ADDRESS:
1 Bidder has participated in a previous contract or subco>ttract subject to the Equal Opportunity Clause. t�
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❑ Yes ❑ No (IF YES,identify the most recent:contract)
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(IF NO,contractor may be required to submit an EEO 1 survey or other reports to the Equal Employment Opportunity Commission, uJ
EEOC at 800-66 Qor online at Ixtt)://wwsk eeoc.eov/eeolsurvey/index.html.
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2.Compliance reports were filed in.t6hriection with such contract or subcontractor with the Joint Reporting
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Committee,the Deputy Assistant•Secretary or the Equal Employment Opportunity Commission.
❑ Yes ❑ No [] 11 one lequ,red Y
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3.Has Bidder ever been or is bidder being considered for sanction due to violation of EXECUTIVE ORDER 11246,as E
amended. http./Iwww.do.goy%compliancellaws/comp-eeo.htm
❑I Yes ❑ No Q
Certification:The information above is true and complete to the best of my knowledge and belief.
PRIME CONTRACTOR(Print Name) TITLE
CONTRACTOR SIGNATURE DATE
EXHIBIT:B
Created on 8/24/2012
Packet Pg. 258
COUNTY OF
% - SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
CERTIFICATION BY PROPOSED SUBCONTRACTOR
REGARDING EQUAL EMPLOYMENT OPPORTUNITY
SVBCONTRACTOR
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PROJECT NAME: :K FItCIJECT CODE:
PROJECT ADDRESS:
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INSTRUCTIONS
This certification is required pursuant to Executive Order 11246 30 2333 o
and regulations provide that any bidder or prospective Contractor, or any of their 'proposed Subcontractors, shall w
state as an initial part of the bid or negotiations of the contract whether it has participated ;i.n any previous
contract or subcontract subject to the Equal Opportunity Clause; and, if so, whether it has Bled"14f.compliance reports =
due under applicable instructions. _
Where the certification indicates that the Subcorltra.ctor has not filed; a c hplance report due under °
applicable instructions, such Subcontractor shall be required to submit a com 'lance report before the Prime c
Contractor approves the subcontract or permits work.to begin under the subcontract. No contract shall be awarded Q.
unless such report is submitted.
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SUBCONTRACTOR'S CERTIFICATION
SUBCONTRACTOR'S NAME:
ADDRESS:
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1.Subcontractor has partrcip tp. in a previog4 contract ctr subcontract subject to the Equal Opportunity Clause.
❑ Yes ❑ No(IF YES,identify the most recent- retract.) x
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(IF NO,contractor shay`'be required to,submit an EEQ-isurvey or other reports to the Equal Employment Opportunity Commission, p
EEOC at 800-6 4000 or online at http:l(wwuv.eeoc�bOeeoisurvev/index.html.
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2.Compliance reports wwre filed m connection with such contract or subcontractor with the Joint Reporting =°
Committee,the Deputy Assistant Secretary or the Equal Employment Opportunity Commission.
❑ Yes ❑ No ❑ None Regwred E
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3.Subcontractor has ever been;;or is being considered for sanction due to violation of EXECUTIVE ORDER 11246 as
amended. http://www.doi.,govLcompliance/laws/comp-eeo.htm Q
❑ Yes ❑ No
Certification:The information above is true and complete to the best of my knowledge and belief.
SUBCONTRACTOR(Print Name) TITLE
SUBCONTRACTOR SIGNATURE DATE
EXHIBIT:C
Created on 8/24/2012
Packet Pg.259
COUNTY OF
SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
AFFIRMATIVE ACTION COMPLIANCE FORM
FOR CONSTRUCTION CONTRACTS OVER $10,000
PRIME CONTRACTOR SUBCONTRACTOR
PROJECT NAME: PROJECT CODE:
COMPANY—CONTRACTOR NAME: AS E
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ni I / We DO currently maintain an effective ive Ac gram. The Affirmative Action Program complies CL
with the Standard Federal E ual Em tom rtunit nstruction Contract Provisions Executive Order Q
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I /We DO NOT currently mainta # tive on P I/We agree to the Equal Opportunity Clause
for Federal! -Assisted Constructio tr ive Or r 11246), as amended, and Title VII of the Civil
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Personn ative actin re ring and promotion is required by Contractors and Subcontractors
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excess of e 1 ecific affirmative action steps to ensure equal employment opportunity. _
These steps are included 41 R and are also included under "Standard Federal Equal
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ADDENDUM
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I certify the information above is true and complete to the best of my knowledge and belief.
CONTRACTOR(Print Name) TITLE
CONTRACTOR SIGNATURE DATE
EXHIBIT.D
Created on 3/12/2014
Packet Pg.260
COUNTY OF
SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
CERTIFICATE OF UNDERSTANDING
AND AUTHORIZATION FORM
CONTRACTOR PRIME
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COMPANY—CONTRACTOR NAME:
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The undersigned certifies that the company principal(s) and the authonzedoayraCl officer have read the most w
current "DAVIS-BACON LABOR STANDARDS" (A Contractor's Guide to Prevailing Wage Requirements for
Federally-Assisted Construction Projects) and understand the labor standards ';clauses pertaining to this =
project including the pre-construction conference discussions andal! related documents required for this
project by the implementing agency in the pre-construction checklist package. c
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THE FOLLOWING PERSON(S)IS DESIGNATED AS THE PAYROLL OFFICER FOR THE UNDERSIGNED COMPANY— Q
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EACH WEEKLY CERTIFIED PAYROLL`REPORT FOR TIHIS PROJECT d
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EXHIBIT:E
Created on 8/24/2022
Packet Pg. 261 ''?
COUNTY OF
SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
FRINGE BENEFIT STATEMENT FORM
PRIME CONTRACTOR $UBCONTRA
PROJECT NAME: PROJECT CODE:
COMPANY—CONTRACTOR NAME:
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Use this form to identify those bona fide Fringe Benefit Plan(s)in which your employees are participatiWowil third party plans,funds or trustees to which your i
firm makes fringe benefit payments in the interest of your employees. Provide an hourly equival each fringe type (in dollars) below. Payrolls will be Q
monitored to ensure the proper Fringe Benefit rates are being paid.Additional documentation may be re
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CLASSIFICATION: EFFECTIVE DATE: OR TRAVEL PAY$: 0
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iRiNGEBENEFI#HOUtfLYAM0UN7 NAME ADURES5ANDCONTACIINFORMATIDNOF'PkAN�F>JNDQRT+RO6RAN1 ; i+ rr W
VACATION/HOLIDAY$: NAME: 0
ADDRESS: 2
CONTACT INFORMATION: G�
HEALTH&WELFARE$: NAME: r
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ADDRESS: O
CONTACT INFORMATION:
PENSION$: NAME: >
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ADDRESS: L
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CONTACT INFORMATION:
APPRENTICE/TRAINING$: NAME:
ADDRESS: O
CONTACT ION:
OTHER$: NAME:
ADDRESS 1111h, IL -7
CONTACTINFOR Ift 0
CLASSIFICATION: EFF SUBSISTENCE OR TRAVEL PAY$: r
FRINGE t#i NEF1T10C1RLAM(UN7 "k�1Y"VI ,APaRESS AiV CONI�ACi 1NFG�R ��ON D1� 1t P{iOGRAiW Z4 � � xa r X
VACATION/HOLIDAY$: N W
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CON INF I 0
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HEALTH&WELFA NAME: —1
ADDRESS O
CT 1 MATION: p
PENSION$: _
ADDR +'
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CONTA FORMATION: N
APPRENTICE/TRAINING$: NAM E
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ACT INFORMATION: r
OTHER$: NAME: Q
ADDRESS:
CONTACT INFORMATION:
I certify under penalty of perjury that fringe benefits are paid to the approved plans,funds or programs as listed above:
CONTRACTOR(PRINT NAME) TITLE
CONTRACTOR SIGNATURE DATE
EXHIBIT: F
Page 1 of 2 Created on 8/24/2012
Packet Pg.262
III
FRINGE BENEFIT FORM INSTRUCTIONS
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;` � � M1`R`YE Yi *.; 9'43 'v ,x .,1,f p1 ,_r+�,} '. +y �'.l -..,:,}� .::y.., 1i •t.41..:}..��j�y�.11 aye 3\\t�FS���� ��ht+�\�s i -.ii�i���i .h�\
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NOTE: To receive credit for employer paid benefit contributions,plans must be bona fide and contributions must be documented.
On the Fringe Benefit Statement, indicate the name, address and phone number of the administrator of the Plan, Fund or
Program.
i VACATION PLAN/PAID HOLIDAY DOCUMENTATION: Please submit copies of your company's policy for employer paid
vacation and holidays. For vacation, please explain how you track the vacatio ours for each employee. Additionally, a)
please submit copies of monthly reports or statements from the bank/fund d ory showing that the plan and vacation E
a)
amounts are available for the workers. m
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HEALTH AND WELFARE DOCUMENTATION: For our Health & Welfa n Q
y p submit copies of the plan =
1 documentation indicating monthly or quarterly billings for the covered benefits ating all benefits per worker),as o
well as statements and copies of checks transmitted by your cc y to the trust r plan for these benefits. J
Ab W
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PENSION PLAN DOCUMENTATION: Please submit copies of the pla umentation fro PI ministrator including O
the plan summary, account balances, monthly or quar itta the account a s of checks transmitted =
by your company as payments into the accounts. -
APPRENTICE/TRAINING DOCUMENTATION: Please su copies e A re 0
p pp g Certification Letter from your �
Federally Registered Program Sponsors. Th entice ro must be r ed with the Department of Labor o
(DOL), Office of Apprenticeship. Include I or p the apprentice; apprentice's wage scale and ratio CL
information.A training or apprentice wage can my if t inee is registered in a DOL approved apprenticeship or CL
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training program or with a State Apprenticeshi a ecogni DOL. Otherwise, the individual is to be paid the
Davis-Bacon and Related Acts{ revailing rat the cla tion of work that they are performing regardless d°
of their skill level.{Federal regu QT REQ the oymen of apprentices on federally funded projects)
OTHER DOCUMENTATION: Please s c e nation, onthly reports or statements and plan documentation
from the Plan Adminliftor for all"OT omp lan(s).The implementing agency will verify plan(s)for employer N
to receive credit.
FRINGES PAiD IN CASH: ate or all fr will be added to the employee's basic hourly rate. j
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If your any does not o t r tive bargaining agreement or contribute based on an hourly amount; you 0
may u he following form compute ourly benefits. Please be advised that examples are provided only to 'J
a�
demons how t ulas used.
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Annual Calculation:The an Cal tion is based on 2080 hours per year(40hrs x 52 weeks per year)
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Formula: Employe ' sic Hourly Rate x Number of Benefit Hours(8 Hrs a Day x Number of Days)divided by 2080
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Example: At$2 Hr,with 80 vacation hours a year,the hourly rate would calculate as follows: Q
$20 X 80 Hrs=$1,600 divided by 2,080 hours per year=$.77
Fringe Benefit Hourly Amount:$.77
Monthly Calculation:The monthly calculation factor 173.33 is based on 2080 hours per year divided by 12 months.
Formula: Monthly Benefit Plan Contribution divided by 173.33
Example:if employer pays$200/month for a medical benefit,the monthly hourly rate calculates as follows:
A monthly plan contribution of$200 divided by 173.33=$1.15
Fringe Benefit hourly amount:$1.15
Page 2 of 2 Created on 8/24/2012
Packet Pg. 263
S.E.d
COUNTY OF
SAN BERNARDINO
ECONOMIC DEVELOPMENT AGENCY
AUTHORIZATION FOR PAYROLL DEDUCTION(S)
PRIME . ■ j • R R • R` R
PROJECT NAME: PROTECT CODE:
COMPANY—CONTRACTOR NAME:
EMPLOYEE NAME: ;:< hIIPLOYEE#:
MUST be completed and signed by the employee who has "OTHER/GARNItHI" deductions) subtracted from his/her Q
payroll. Deduction types include: Alimony, Child Support, other Court ( fired "beductions or Garnishments, o
Uniforms, 401K, Loans, Advance Plybacks, or insurance, etc. Thrs,form is to be submitted before the first Certified —�
Payroll reflecting the deduction(s). ALL "Other/Garnish" ded uctions must be, accompanied by supportine �
documentation.
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DEDUCTION TYPE: EXPLANATION FOR DEDUCTION(S) Y `>,. WEEKLY AMOUNT: r
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, HEREBY AUTHORIZE o
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(PRINT EMPLOYEE IAA"M ) Y f (COMPANY-CONTRACTOR NAME)
TO MAKE THE ABOVE LISTED DEDUCfION(S) FROM MY PAYROLL CHECK. IT IS UNDERSTOOD THAT THESE _
DEDUCTIONS ARE IN THE INTEREST:OF THE EMPLOYEE AND NOT A CONDITION OF EMPLOYMENT,OR A DIRECT E
OR INDIRECT FINANCIAL BENEFIT`ACCRUING TO THE EMPLOYER,AND NOT OTHERWISE FORBIDDEN BY LAW.
Rz
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EMPLOYEE SIGNATURE DATE
CONTRACTOR SIGNATURE DATE
EXHIBIT:G
Created on 8/23/2012
Packet Pg:264
EXHIBIT I
PROJECT DELIVERABLES
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5.E.d'
EXHIBIT I
ADDITIONAL SCOPE OF WORK
Pursuant to Section 3.16(b)the Borrower will be eligible to draw down up to $600,000 of
Developer Fee on the condition that the Borrower submits sufficient evidence to the County
evidencing that that the Borrower has performed or obtains performance of the following
Additional Scope of Work items for the benefit of the Development.
No Developer Fee shall be paid under this subsection 3.16(b)unless the County has received a
written draw request from Borrower, including (1) certification that the funds will be used for
Additional Scope of Work, (2) certification that the proposed uses of funds consistent with the
budget for the Additional Scope of Work, (3)the amount of funds needed, and, (4) where L
I applicable, a copy of the bill or invoice covering a cost incurred or to be incurred. Q
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Item Valuation Detailed Description Current Status J
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HTH Services $175,000 Planning,hiring,management of community service staff from In Progress 0
developer selection until loan.closing of Development March 2015 d
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Promise Zone $150,000 Review and study of Guidelines,organization of effort, Completed o
reparation of proposals in 2013,2014 Q,
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Marketing $120,000 Preparation of market segmentation analysis and branding and In Progress Cv
marketing plan for neighborhood my 2015 M
7
RAD Innovation $100,000 Preparation of rent comparability study and site based waiting In Progress N
list(with income tiering) July 2015
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Schools Work $75,000 Hiring schools master planning firm for collaborative planning In Progress w
effort September2015
0
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Specific Plan $75,000 Planning,preparation,negotiation of Specific Plan for area up In Progress E
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to City Council authorization of Specific Plan effort Apri 1 2015 0
Collaborative $50,0000 Create and manage Leadership Council to negotiate,design In Progress a=i
Partnership and management of partnership with partners in education, July 2015 E
Management mployment,health care and services
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Total Budget $745,00 0 Q
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EXHIBIT J
STATEMENT OF RESIDUAL RECEIPTS
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EXHIBIT J
FORM OF RESIDUAL RECEIPTS REPORT
Residual Receipts Report
for the Year Ending
Date Prepared: ,20
Please complete the following information and execute the certification at the bottom of this
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form.
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Annual Operating Income ;v
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Please report Annual Operating Income for the year ending on the following lines: o
Rent Payments received(including Section 8 tenant assistance (1) $ w
2
payments, if any) p
Interest Income(do not include interest income from replacement
and operating reserves nor interest income on tenant security o
deposits) (2) $
0
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Additional Income Related to Project Operations(for example, C
vending machine income, tenant forfeited deposits, laundry
income not paid to the residents' association, business interruption
insurance casualty insurance,not used to rebuild) (3) $ M
Total Annual Operating Income(Add lines 1, 2, and 3) (4) $ 0
Operating Expenses
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Please report Operating Expenses incurred in relation to the
operations of the Project for the year ending 0
on the following lines:
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Operating and Maintenance Expenses (5) S _
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Utilities (6) $ E
Fees and licenses (7) $
Property management Expenses and On-Site Staff
Payroll (g) $
Administrative Expenses incurred by Project
1 61010811662871.2
Packet Pg. 269
Property/Possessory Interest Taxes (9) $
Insurance (10) $
Other Expenses Related to Operations of the Project (l l) $
Total Annual Operating Expenses 12
(Add Lines 5, 6, 7, 8,9, 10,and l 1) E
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Net Operating Income(Subtract Line 12 from Line 4) (13) $ Q
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Do not include expense unrelated to the Project's operations, w
such as depreciation, amortization,accrued principal and interest O
expense on deferred payment debt,or capital expenditures paid =
from withdrawals from the Replacement Reserves or other reserve accounts.
4-
0
Additional Cash Flow Payments
0
Obligated Debt Service Payments(as approved by the County and C
other parties that may have such approval rights) (14) $
0
Scheduled Deposits Capital and Operating Reserves(as
approved by the County) (15) $
C7
Additional Payment Obligations (i.e. additional Resident Services,
Deferred Developer Fee) (16) $ 4?
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Total Additional Cash Flow Payments(Add lines 14, 15 and 16) (17) $
0
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Residual Receipts for Year Ending m
(Subtract Line 17 from Line 13) (1 g) $ o
Percentage of Residual Receipts to be Paid to the County (19) $
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Amount Payable to the County(Multiply Line 18 by Line 19) (20) $
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161010811662871.2
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The following certification should be executed by the Executive Director or Chief Financial Officer
of the Borrower,or the Managing General Partner of the Borrower.
I certify that the information provided in this form is true, accurate, and correct in all respects.
Date
By:
(Print Name) m
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(Title) _
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