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HomeMy WebLinkAboutStaff Report 266-05NOW, THEREFORE, in consideration of terms, conditions, and provisions set forth in the parties agree: the covenants, this Agreement, SECTION 1. TERM 1.1 Time of Performance. This Agreement shall commence on the day above written and terminate one (1) year from the date of this Agreement. The term of this agreement and the provisions herein shall be extended to cover any additional time period during which the Borrower remain.s in control of Funds or other assets including program income. SECTION 2. SCOPE OF SERVICE 2.1 Acti vi ties. Borrower shall upgrade, repair and modernize the existing kitchens at the Facility (" Proj ect" ), as more fully described in Exhibit "A" which is incorporated herein by reference and made a part of this agreement. 2.2 Provision of Funds. The City will loan Borrower the sum of money not to exceed One Hundred Nine. Thousand Six Hundred Ninety-Five Dollars ($109,695) drawn from its CDBG funds for upgrading and repairing the existing kitchens. Payments shall be made to Borrower only for costs incurred on or after the effective date of this Agreement. City shall make. funds available to Borrower on the following basis: (1) City has reviewed and approved the bidding process and the contract for the rehabilitation work; and (2) Borrower has provided City with a copy of the actual invoice(s) for work done and performed in accordance with this Agreement; (3) Project is in compliance with all Federal, State and City Rules and Regulations. 2.3 Performance Moni toring. The Ci ty will monitor the performance of the Borrower against goals and performance standards required herein. City will retain a consultant who will monitor labor to be performed pursuant to this Agreement according to Davis-Bacon Act standards ("Consult"). City will be responsible for directing all work to be performed by Consultant, and Consultant will report directly to City. Borrower agrees that City shall charge the cost of the Labor Monitoring Consultant against the project Funds. Total cost for such labor monitoring services will not exceed Five Thousand 2 050615 syn 0120044 This shall be a simple interest, noncompounding loan with interest at 3 percent (3%) per annum. It is agreed and understood that the loan shall be nonamortizing, and all payments of interest and principal shall be deferred until July 1, 2035, as long as Borrower continues to comply with all terms and conditions of this Agreement. Both principal and accrued interest shall be forgiven by the City on July 1, 2035 if Borrower has satisfactorily complied with all terms and conditions of this Agreement. If at any time any of the above conditions are not met, City has the right to demand repayment of the One Hundred Nine Thousand Six Hundred Ninety-Five ($109,695), plus all accrued interest and any other costs or amounts due. 3.2 Use, Occupancy and Rent Restrictions. Borrower shall operate and maintain the Proj ect as a rental housing complex for occupancy by Very Low Income Households and Low-Income Households. Without derogating the' importance of Borrower's compliance with the other provisions of this Agreement, Borrower's compliance with Section 3.2 is of particular importance to City and is one of 'the principal reasons for which City agreed to make the Project loan to Borrower. 050615 syn 0120044 3.2.1 Low-Income Units (a) At all times during the term of this Agreement, fifty (50) of the Units shall be rented and occupied by, or if vacant, made available for rental and occupancy by households not exceeding the low income definition as defined by the Department of Housing and urban Development (HUD) as certified according to Section 3.3 immediately prior to each Tenant's initial occupancy and annually thereafter. Low Income means a household whose annual income, adjusted for household size, does not exceed the Low-Income limit as published annually for Santa Clara County by HUD. (b) Subject to Section 3.3 below, the maximum monthly Rent charged to each of the Tenants of the Low~, Income Units shall not exceed Section 8 Fair Market Rents as published annually by HUD for Santa Clara County based on the size of the actual unit. 4 with Section 3.3 below, and that, if the Tenant's income increases above the applicable income limits, such Tenant's Rent may be increased. 3.3 Income Certification Borrower will obtain, complete and maintain on file, immediately prior to initial occupancy and annually thereafter, an income certification from each Tenant renting any of the Very Low-Income and Low-Income Units. Borrower shall make a good faith effort to verify that the income provided by an applicant or occupying household, in an income certification is accurate in accordance with the CDBG Regulations. Copies of tenant income certifications shall be made available to the City, including its designated representatives and HUD upon request. SECTION 4. NOTICES 4.1 Communications. All notices, correspondence, and other communications concerning this Agreement shall be directed to the parties' duly authorized representatives at the addresses set forth below or at any other addresses as may be noticed, in writing: CITY: City of Palo Alto Department of Planning & Community Environment Attn: CDBG Coordinator 250 Hamilton Avenue Palo Alto, CA 94301 BORROWER: Community Housing, Inc. Attn: Chief Executive Officer 437 Webster St. Palo Alto, CA 94301 SECTION 5. SPECIAL CONDITIONS 5.1 Compliance with Federal Regulations. The Borrower agrees to comply with the' requirements of the Housing and Urban Development regulations concerning Community Development Block Grants (24 CFR Part 570) and all federal regulations and policies issued pursuant to these Regulations. I The Borrower further agrees to utilize Funds available under this Agreement to supplement rather than supplant Funds otherwise available. 5.2. National Objectives. the activities carried out with 6 050615 syn 0120044 The Borrower certifies that funds provided under this g. Other records compliance with 570. necessary Subpart K to of 24 document CFR Part 7.2.2 Retention. The Borrower shall retain all records pertinent to expenditures in~urred under this Agreement for a period of five (5) years after the termination of all activities funded under this Agreement, or after the resolution of all federal audit findings, whichever occurs later. Records for non-expendable property acquired with Funds under this Agreement shall be retained for five (5) years after final disposition of such property. Records for any displaced person must be kept for five (5) years after he or she has received final payment. N10twithstanding the above, if there is litigation, claims, audits, negotiations o~ other actions that involve any of the records cited and that have started before the expiration of the five-year period, then such records must be retained until completion of the actions and resolution of all issues, or the expiration of the five-year period, whichever occurs later. 7.2.3 Client· Data. The Borrower shall maintain confidential records of client data demonstrating client eligibility for housing. Such data shall include, but not be limi ted to, client name, address, income level or other basis for determining eligibility, and ethnici ty. Such information shall be made available to the City's monitors or their designees for review upon request in order to determine compliance with the Agreement. 7.2.4 Disclosure. The Borrower understands that client information collected under this Agreement is private and the use or disclosure of such· information, when not directly connected with the administration of the City's or the Borrower's responsibilities with respect to Services provided under this Agreement, is prohibited by the laws of the State of California, unless written consent is obtained from such person receiving the service and, in the case of a minor, that of a responsible parent or guardian. 7.2.5 Property Records. The Borrower shall maintain real property inventory records which clearly identify properties purchased, improved or sold. Properties retained shall continue to meet eligibility criteria and shall conform with the "changes in use" restrictions specified in 24 CFR Section 570.503(b) (8), as applicable. 7.2.6 National Obj ecti ves. The Borrower agrees to maintain documentation that demonstrates that the activities 10 050615 syn 0120044 " a. All rents or other payment collected from project tenants during the term of this Agreement shall be used by BORROWER solely to further project activities. b. Rents or other income collected which remains unspent at the end of the term of this Agreement shall be used by BORROWER solely to further proj ect acti vi ties or shall be reimbursed to CITY. c. Rents or other income received after the term of this Agreement shall not be subject to this Agreement. 7 .3.3 Reversion of Assets. Upon the expiration of this Agreement, Borrower shall transfer to CITY and 'CDBG Funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG Funds, except as allowed under Section 15, Program Income. Any real estate property under BORROWER'S control that was acquired or improved in whole or in part wi-th CDBG Funds in excess of Twenty-Five Thousand Dollars ($25,000) must either be used to meet one of the national objectives in 570.208 for a period of five years or be disposed of in a manner that results in the CITY being reimbursed in the amount of the current fair market value of the property less any portion of the value attributable to expenditures of non-CDBG funds for acquisition of, or improvement to, the property. 7.3.4 Indirect Costs. If indirect costs are charged, the Borrower shall develop an indirect cost allocation plan for determining the appropriate City share of administrative costs and shall submit such plan to the City for approval, in a form specified by the City. 7.3.5 Payment Procedures. The City will pay to the Borrower Funds available under this Agreement based upon information submitted by the Borrower and consistent with any approved budget and City policy concerning payments. With the exception of certain advances, payments will be made for eligible expenses actually incurred by the Borrower, and not to exceed actual cash requirements. Payments will be adjusted by the Ci ty in accordance wi th advance fund and program income balances available in the Bdrrower accounts. In addition, the City reserves the right to liquidate Funds available under this Agreement for costs incurred by the City on behalf of the Borrower. 7.3.6 Progress Reports. The Borrower shall be responsible for filing periodic repor'ts, including but not limited to monthly activity reports and weekly certified wage 12 050615 syn 0120044 " limitation, 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 Housing and Communi ty Development Act of 1974, as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and Executive Order 11246, as amended by Executive Orders 11375 and 12086. 8.1.2 Nondiscrimination. Borrower will not discriminate against any employee or applicant for employment because of race, skin color, gender, age, religion, disability, national origin, ancestry, sexual orientation, housing status, marital status, familial status, weight or height of such person. Borrower will take affirmative action to ensure that all employment practices are free from such discrimination and in compliance with all Federal, State and local directives and executive orders regarding nondiscrimination in employment. Such employment, practices include, but are not limited to the following: hiring, upgrading, demotion, transfer, rec,ruitment or recruitment advertising, layoff, termination, rates of payor other forms of compensation, and selection for training, including apprenticeship. Borrower agree to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting agency setting forth the provision of this nondiscrimination clause. 8.1.3 Land Covenants. This Agreement is subject to the requirements of Title VI of the Civil Rights Act of 1964, as amended, and 24 CFR Part 570.601 and 602. In regard to the sale, lease, or other transfer of land acquired, cleared or improved with assistance provided under this Agreement, the Borrower shall cause or require a covenant running with the land to be inserted in the deed or lease for such transfer, prohibiting discrimination as herein defined, in the sale, lease or rental, or in the use or occupancy of such land, or in any improvements erected or to be erected thereon, providing that the City and the United States are beneficiaries of and entitled to enforce such covenants. The Borrower, in undertaking its obligation to carry out the CDBG Program assisted hereunder, agrees to take such measures as are necessary to enforce such covenant, and will not itself so discriminate. 8.1. 4 Section 504. The Borrower agrees to comply with any federal regulations issued pursuant to and in compliance with Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 706), as amended, which prohibits discrimination against the disabled in any federally assisted program. The Ci ty shall provide the Borrower wi th any guidelines nec.essary 14 050615 syn 0120044 " 8.2.4 Access to Records. The Borrower shall furnish and cause each of its contractors or subcontractors to furnish all information and reports required hereunder and will permi t access to its books, records and accounts by the Ci ty, HUD or its agent, or other authorized federal officials for purposes of investigation to ascertain compliance with rules, regulations and provisions stated herein. 8.2.5 Notifications. The Borrower will send to each labor union or representative of workers with which it may have a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or worker's representative of the Borrower's commitments hereunder, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 8.2.6 EEO/ AA Statement. The Borrower will, in all solici tations or advertisements for employees placed by or on behalf of the Borrower, state that it is an Equal Opportunity or Affirmative Action Employer. 8.2.7 Subcontract include the provisions of subcontract or purchase order, that such provisions will be subcontractor or vendor. Provisions. Sections 8.1 specifically binding upon The Borrower will and 8.2 in every or by reference, so each contractor or 8.3 Employment Restrictions. 8.3 .1 Prohibi ted Acti vi ty . The prohibited from using Funds provided herein employed in the administration of the CDBG Program activities, sectarian or religious activities, political patronage, and nepotism activities. Borrower is or personnel for political or lobbying, 8.3.2 Labor Standards. The Borrower agrees to comply wi th the requirements of the Secretary of Labor in accordance with the Davis-Bacon Act, as amended, the provisions of Contract Work Hours, the Safety Standards Act, the Copeland "Anti- Kickback" Act (40 U.S.C. 276a-276a-5i 40 U.S.C. 327 and 40 U. S . C . 27 6c and all other applicable Laws pertaining to labor standards 1nsofar as those acts apply to the performance of this Agreement. The Borrower shall maintain documentation which demonstrates compliance with the hour and age requirements of this part. Such documentation shall be made available to the City for review upon request. 16 050615 syn 0120044 050615 syn 0120044 requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U. S. C. 1701. "Section 3" requires that to the greatest extent feasible opportunities for training and employment be gi ven to low and very low income residents of the proj ect area and contracts for work in connection with the proj ect be awarded t.O business concerns that provide economic opportuni ties for low and very low income persons residing in the metropolitan area in which the project is located." The Borrower further agrees to ensure that opportunities for training and employment arising in connection with a housing rehabilitation (including reduction and abatement of lead-based paint hazards) , housing construction, or other public construction project are given to low and very low income persons residing within the metropolitan area in which the CDBG-funded project is located; where feasible, priority should be given to low and very low income persons within the service area of the project or the neighborhood in which the proj ect is located, a,nd to low and very low income participants in other HUD programs; and award contracts for work undertaken in connection with a housing rehabilitation (including reduction, and abatement of lead- based paint hazards), housing construction, or other public construction project are given to business concerns that provide economic opportuni ties for low and very low income persons residing within the metropoli tan area in which the CDBG-funded project is located; where feasible priority should be given to busines,s concerns which provide economic opportunities to low and very low income residents within the service area of the neighborhood in which the project is located, and to low and very low income participants in other HUD programs. The Borrower certifies and agrees that no contractual or other legal incapacity exists which would prevent compliance with these requirements. 18 'r direct or indirect, which would conflict in any manner or degree with the performance of Services required under this ~greement. The Borrower further covenants that in the performance of this Agreement, no person having such a financial interest shall be employed or retained by the Borrower hereunder. These conflict of interest provisions apply to any person who is an employee, agent, consultant, officer, or elected official or appointed official of the City, or of any designated public agencies or Borrowers which are receiving Funds under the CDBG Program. 050615 syn 0120044 8.4.4 Subcontracts. a. The Borrower shall not enter into any subcontracts with any agency or individual in the performance of this Agreement without the written consent, of the City prior to the execution of such subcontracts. b. The' Borrower will monitor all subcontract services on a regular basis to assure contract compliance. Results of monitoring efforts shall be summarized in written reports and supported with documented evidence of follow-up actions taken to correct areas of noncompliance. c. The Borrower shall cause provisions of this Agreement to be included in and made subcontract executed in the this Agreement. all of the in its entirety a part of any performance of d. The Borrower shall undertake to ensure that all subcontracts let in the performance of this Agreement shall be awarded on a fair and open competition basis. Executed copies of all subcontracts shall be forwarded to the City along with documentation concerning the selection process. 20 CERTIFICATE OF ACKNOWLEDGMENT (Civil Code § 1189) STATE OF CALIFORNIA COUNTY OF SANTA CLARA) On before me, the undersigned, a notary public in and for said County, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/ her/their authorized capacity (ies) , and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 26 050615 syn 0120044 '. its best efforts to afford minority and women-owned business enterprises the maximum practicable opportunity to participate in the contracts let in the performance of this project. Executed copies of all contracts shall be supplied to City along with documentation concerning the selection process. Prevailing Wage and Federal Labor Standards Community Housing, Inc., its contractors and subcontractors shall comply with the Federal Davis-Bacon Act Prevailing Wage requirements including inserting the applicable wage decision into the bid documents, and all contracts awarded under this Agreement. Community Housing Inc., the selected contractor and any subcontractors will participate in a pre-construction conference with City to review Davis Bacon compliance requirements, including reporting and monitoring. Timeline: The proJect will attempt to adhere to the following timetable. June 20, 205 July 1, 2005 July 15, 2005 July 15, 2005 August 1, 2005 August 15, 2005 September 1; 2005 December 31, 2005 050615 syn 0120044 City contract approved by Council Meeting with City Staff to review project specifications Bid documents Available/Ad in paper City Contract .Signed Bid Opening and Contractor Selection Pre-Construction Conference State of Construction Work Completed '. '. Department of Housing and Urban Development, or successor agencYiand (d) an uncured default under the Agreement and this Note. Subject to the terms of the Agreement, the entire principal balance shall be considered paid in full if, on July 1, 2035, the contingencies set forth in subparagraphs (a), (b), (c) and (d)' above have not occurred. BORROWER, any endorser of this Note, and any others who may become liable for allor' any part of the obligations evidenced by this Note may prepay all or any portion of the principal sum of this Note, without penalty. Any and all payments made hereunder shall be credited, first, on the interest then due and, the remainder, on the principal balance, and interest on the principal balance so credited shall thereupon cease. Unless CITY shall expressly agree otherwise, in writing, any Encumbrance affecting the Facility shall provide that, in the event of any default or breach by BORROWER under any Encumbrance enti tling any party thereunder to accelerate the indebtedness secured thereby and foreclose upon the Facility, (l) CITY shall have the right, but not the obligation, to cure the default prior to the completion of any foreclosure and reinstate the Encumbrancei or (2) pay the total unpaid indebtedness secured by such Encumbrance, in which event, such Encumbrance shall be released, canceled, or otherwise reconveyed. If any default is made hereunder, BORROWER further promises to pay reasonable attorneys' fees and costs and expenses incurred by CITY in connection with any such default or any, other action or other proceeding brought to enforce any of the provisions of this Note. CITY's right to $uch fees shall not be limited to or by its representation by staff attorneys of CITY's Office of the Ci ty Attorney, and such representation shall be valued at the customary and reasonable rates for private sector legal services. The relationship of CITY and BORROWER evidenced by this Note shall be deemed to be one of credi tor and debtor and not of partnership or joint venture. This Note may not be modified or amended except by an instrument in writing which expresses such intention of the parties sought to be bound thereby, and such writing shall be firmly attached to this Note and made a part thereof. Any failure of CITY or other holder to exercise any rights under this Note shall not constitute a waiver of such rights or of any other rights under this Note. 2 050615 syn 0120044 '. EXHIBIT "C" INSURANCE REQUIREMENTS The policy or policies of insurance maintained by Subrecipient shall provide the following limits and coverages: POLICY • Worker's Compensation • Comprehensive Automobile Liability (including owned, hired, and non- owned automobiles) • Comprehensive General Liability (including products and completed operations, broad form contractual, and personal injury) • Flood Insurance Statutory $1,000,000 Bodily Injury each person $1,000,000 Bodily Injury each occurrence $1,000,000 Property Damage each occurrence $1,000,000 Bodily Injury each person $1,000,000 Bodily Injury each occurrence $1,000,000 Bodily Injury Aggregate $1,000,000 Property Damage each occurrence Total Project cost (to be determined) Any deductibles of self-insurance retentions must be declared to and approved by the Ci ty . At the option of the Ci ty , ei ther : the insurer shall reduce or eliminate such deductibles or self- insured retentions as respects the City, its officers, officials, employees and volunteers i or the Subrecipient shall procure a bond guaranteeing payment of losses and related investigations, claim administration and defense expenses. Insurance shall be in full force and effect commencing on the first day of the term of this Agreement. Each insurance policy required by this Agreement shall contain the following clauses: 1. "This insurance shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days written notice has been given to the City by Certified Mail, Return Requested." 2. "All rights of subrogation are hereby waived against the City and the members of the City Council and elective or appointive officers or employees, when acting within the scope of their employment or appointment. " 1 050615 syn 0120044 '.