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15-142 CDBG City Non-Profit Capital Housing Project Contract, FY 2015-16 Community Housing for the Disabled, IncCOMI\1-UNITY DEVELOPMENT BLOCK GRANT (CDBG) PROGRAM
CITY/NON-PROFIT CAPITAL HOUSING PROJECT CONTRACT
THIS Community Development Block Grant Program City/Non-Profit Contract (the "Contract")
is entered into pursuant to the Catalog of Federal Domestic Assistance (CFDA) 14.218 by and
between the CITY OF CUPERTINO, a municipal corporation (hereinafter "CITY"), and
CUPERTINO COMMUNITY HOUSING FOR THE DISABLED, INC.
a California non-profit public benefit corporation (hereinafter "CORPORATION"). The
allocation of funds pursuant to this Contract will be a grant for the purposes of eligible CDBG
capital housing project rehabilitation activities to be performed at the property located at 10092
Bianchi Way, Cupertino, California 95014 as more commonly described in Exhibit "G". CITY
approved the allocation and disbursement of Community Development Block Grant (hereinafter
"CDBG") funds to CORPORATION on April 7, 2015.
WITNESSETH
WHEREAS, CITY has applied for and received CDBG Entitlement program funds (hereinafter
"PROJECT") from the United States Department of Housing and Urban Development
(hereinafter "HUD") as an entitlement jurisdiction pursuant to the provisions of Title 1 of the
Housing and Cmmnunity Development Act of 1974, Public Law 93-383 as amended; and,
WHEREAS, CITY has agreed to the use by CORPORATION, for eligible capital housing project
rehabilitation activities, of a portion of CITY'S CDBG entitlement for the Project as described
below to be operated within CITY and will benefit low and very low-income households or meet
another National Objective of the CDBG Project;
WHEREAS, CEQA imposes no conditions on the CITY's consideration and approval of this
Contract, because the project undertaken pursuant to this Contract is the rehabilitation of existing
improvements, and such projects are exempt from CEQA requirements under class 2 categorical
exemption
WHEREAS, CITY will complete and approve all applicable NEPA environmental review for the
activities proposed to be undertaken under this Contract prior to the release of any portion of the
CDBG Grant. CITY anticipates that the project will be categorically excluded according to 24
Code of Federal Regulations Section 58.35(a)(3)(ii).
NOW, THEREFORE, the parties agree as follows;
I. PROJECT
CITY agrees to allocate a portion of its current CDBG entitlement, and/or program income as
defined in 24 CFR 570 Subpart J, "Grant Administration," to CORPORATION in the sum of
Three Hundred and Nine Thousand Eight Hundred and Three Dollars and No Cents
($309,803.00) for the purpose of implementing the CORPORATION'S project (hereinafter
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
"Project"), as more particularly described in numerous exhibits marked as noted herein, attached
to this Contract, incorporated by this reference, as though fully set forth, as follows: Exhibit "A"
(Project Description), Exhibit "B" (Project Work Plan), Exhibit "C" (Proposed Implementation
Time Schedule), Exhibit "D" (Project Budget), Exhibit "E" (Basic Insurance and Bond
Requirements for Non-profit Contracts), Exhibit "F" (Assurances). Exhibit "G" (Project Scope of
Work), Exhibit "H" (Map of Prope1iy), Exhibit "I" (Legal Description), and Exhibit "J" (Grant
Agreement).
II. TERM
A. The purpose of this Contract is for the CITY to disburse CDBG funds for eligible
capital housing project rehabilitation activities to be performed at the prope1iy located at 10092
Bianchi Way, Cupertino, California 95014 as more commonly described in Exhibit "L". Unless
amended prior to its expiration, the term of this Contract for disbursement purposes will begin on
July 1, 2015 and will end on June 30, 2016 unless terminated earlier pursuant to Section VI or
Section VII of this Contract.
B. The term of the expenditure of Grant funds by CORPORATION of the allocation
provided for herein will begin on July 1, 2015 and terminate on the earliest of the following
dates as set fmih herein: July l, 2016, or later date per amendment to this Contract; or upon the
termination date established pursuant to Section VI or Section VII of this Contract.
III. OBLIGATIONS OF CORPORATION
A. Organization of CORPORATION. CORPORATION will:
1. Provide CITY with copies of the following documents, evidencing filing
with the appropriate goverl1lllental agency:
(a) Its Articles oflncorporation under the laws of the State of
California;
(b) A copy of the current Bylaws of CORPORATION;
(c) Documentation of its Internal Revenue Service non-profit status;
(d)
CORPORATION; and,
Names and addresses of the current Board of Directors of
2. During the Contract te1m, immediately repmi any changes, subsequent to
the date of this Contract, in CORPORATION'S Articles oflncorporation, Bylaws, Board of
Directors, or tax exempt status to DIRECTOR.
3. Maintain no member of its Board of Directors as a paid employee, agent,
independent contractor, or subcontractor under this Contract.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
4. Open to the public, meetings of its Board of Directors, if required by
California's open meeting laws, except meetings, or portions thereof, dealing with personnel or
litigation matters or as otherwise provided by law.
5. Keep minutes of all its regular and special meetings.
6. Comply with all applicable provisions of California and Federal Non-
Profit Corporation Laws.
7. Provide to the CITY a copy of a resolution authorizing the
CORPORATION's execution of this Contract. The CORPORATION hereby warrants to the
CITY that this Contract is a legal, valid, and binding obligation of the CORPORATION
enforceable in accordance with its terms, and that the execution and delivery of this Contract and
the perfonnance of the CORPORATION's obligations have been duly authorized by the
CORPORATION.
B. Project Performance by CORPORATION. CORPORATION shall:
1. Conduct the PROJECT within the City of Cupertino, for the purpose of
benefiting low and very low-income households as set forth in the regulatory agreement.
2. File quarterly reports as required by CITY on the type and number of
services rendered through the operation of the PROJECT, and a description of the beneficiaries
of these services, and which reports will evaluate the manner in which the PROJECT is
achieving its objectives and goals according to the standards established by CITY. The progress
repmis will be due ten days after the close of each repmiing period and must cover the three
months immediately preceding the date on which the report is filed.
3. Coordinate its services with other existing organizations providing similar
services in order to foster community cooperation and to avoid unnecessary duplication of
services.
4. Seek out and apply for other sources of revenue in support of its operation
or services from local, state, federal and private sources and, in the event of receipt of such
award, inform CITY within ten days.
5. Include an acknowledgement of CITY funding and suppmi on all
appropriate project-related publicity and publications using words to the effect: "funded in
whole or in part by the City of Cupertino through the Housing and Community Development Act
of 1974, as amended."
6. CORPORATION agrees it will carry out the principles as provided in
Presidents Executive Order 11246 of September 24, 1965.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
7. CORPORATION will comply with Section 281 of the National
Affordable Housing Act.
8. "Section 3" Clauses.
(a) Compliance. Compliance with the provisions of Section 3,
the regulations set forth in 24 CFR 135, and all applicable rules and orders issued
hereunder prior to the execution of this Contract, shall be a condition of the federal
financial assistance provided under this Contract and binding upon the CITY, the
CORPORATION, and any sub-recipients. Failure to fulfill these requirements shall
subject the CITY, the CORPORATION, and any sub-recipients, their successors and
assigns, to those sanctions specified by the Contract through which federal assistance is
provided. The CORPORATION certifies and agrees that no contractual or other
disability exists which would prevent compliance with these requirements. The
CORPORATION further agrees to comply with these "Section 3" requirements and to
include the following language in all subcontracts executed under this Contract (the
"Section 3 Clause"):
"The work to be performed under the Contract is a project assisted under a
program providing direct federal financial assistance from HUD and is subject to the
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 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."
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.
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
contractors' commitments under this Section 3 Clause; and will post copies of the notice in
conspicuous places at the work site where both employees and applicants for training and
employment positions can see the notice. The notice shall describe the section 3 preference;
shall set forth minimum number and job titles subject to hire; availability of apprenticeship and
training positions; the qualifications for each; the name and location of the person(s) taking
applications for each of the positions; and the anticipated date the work shall begin.
The contractor agrees to include this Section 3 Clause in 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 C.F.R. Pmi 135. The
contractor will not subcontract with any subcontractor where the contractor has notice or
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FY 2015-16 Cupe1tino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
lmowledge that the subcontractor has been found in violation of the regulations in 24 C.F.R.
Part 135.
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 the
contractor's obligations under 24 C.F.R. Paii 135.
Noncompliance with HUD's regulations in 24 C.F.R. Part 135 may result
in sections, termination of this contract for default, and debarment or suspension from future
HUD assisted contracts.
With respect to work performed in connection with Section 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 ai1d Section 7(b) agree to
comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with
Section 7(b).
The CORPORATION certifies and agrees that no contractual or other
disability exists which would prevent compliance with the requirements.
(b) Notifications. The CORPORATION agrees to send to each labor
organization or representative of workers with which it has a collective bargaining agreement or
other agreement or understanding, if any, a notice advising said labor organization or worker's
representative of its commitments under this Section 3 clause and shall post copies of the notice
in conspicuous places available to employees and applicants for employment or training. The
notice shall describe the Section 3 preference; shall set forth minimum number and job titles
subject to hire; availability of apprenticeship and training positions; the qualifications for each;
the name and location of the person(s) taking applications for each of the positions; and the
ai1ticipated date the work shall begin.
(c) Subcontracts. The CORPORATION will include the Section 3
Clause found in B.8.a of this Contract, in every subcontract and will take appropriate action
pursuant to the subcontract upon a finding that the sub-Subrecipient is in violation of regulations
issued by CITY. The CORPORATION will not subcontract with any sub-Subrecipient where it
has notice or lmowledge that the latter has been found in violation of regulations under 24 CPR
135 ai1d will not let any subcontract unless the sub-Subrecipient has first provided it with a
preliminary statement of ability to comply with the requirements of these regulations.
C. Fiscal Responsibilities of CORPORATION. CORPORATION will:
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
1. Appoint and submit the name of a fiscal agent who will be responsible for
the financial and accounting activities of CORPORATION, including the receipt and
disbursement of CORPORATION funds. The CITY must immediately be notified in writing of
the appointment of any new fiscal agent and that agent's name.
2. If the term of this Contract is extended by an amendment for a second
fiscal year, submit a satisfactory Audit within 150 days of CORPORATION's fiscal year
encompassed by the first year of this Contract.
3. Comply with the requirements and standards of Title 24 Code of Federal
Regulations, Part 570 of the Housing and Urban Development regulations concerning CDBG and
all federal regulations and policies issued pursuant to these regulations and OMB Circular No. A-
122 "Cost Principles for Non-Profit Organizations, the applicable policies, guidelines and
requirements of OMB Circulars A-87 and A-102, and with the following Attachments to OMB
Circular A-110:"
(a) Attachment A, "Cash Depositories," except for paragraph 4
concerning deposit insurance;
(b) Attachment B, "Bonding and Insurance;"
( c) Attachment C, "Retention and Custodial Requirements for
Records", except that in lieu of the provisions in paragraph 4, the retention period for records
pertaining to individual CDBG activities starts from the date of submission of the annual
performance and evaluation rep01i, as prescribed in 570.507, in which the specific activity is
reported on for the final time;
(d) Attachment F, "Standards for Financial Management Systems;"
e) Attachment H, "Monitoring and Rep01iing Project Performance,"
paragraph 2;
f) Attachment N, "Property Management Standards," except for
paragraph 3 concerning the standards for real property, and except that paragraphs 6 and 7 are
modified so that:
i) In all cases in which personal property is sold, the proceeds
shall be program income, and
ii) Personal property not needed by the CORPORATION for
CDBG activities will be transferred to the recipient for the CDBG PROJECT or will be retained
after compensating the recipient; and
g) Attachment 0, "Procurement Standards."
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
4. Comply with the audit requirements of OMB Circular A-133 which
require compliance with the Single Audit Act for any non-profit agency expending $500,000 or
more of federal funds for the fiscal year.
5. Document all PROJECT costs by maintaining records in accordance with
Section III, Paragraph D below.
6. Submit to the CITY, based on an agreed upon schedule, a request for
payment, together with all supporting documentation. Invoices requesting disbursements
submitted after the expiration of the Contract will be honored only for eligible charges incurred
during the Contract term. All invoices must be submitted by the Contract expiration date or
within such other time period specified by the CITY for this Contract term. Funds not disbursed
will be returned to the Competitive Housing Pool for future reallocation.
7. Certify current and continuous insurance coverage, subject to CITY
approval and in accordance with requirements as outlined in ExhibitE, "Insurance and Bond
Requirements."
8. Items 1) through 7) above are express conditions precedent to
disbursement of any CITY funding and failure to comply with these conditions will, at discretion
of CITY, result in suspension of funding or termination of this Contract.
9. If CORPORATION does not use CDBG funds in accordance with the
requirements of this Contract, CORPORATION is liable for repayment of all disallowed costs.
Disallowed costs may be identified through audits, monitoring or other sources.
CORPORATION is required to respond to any adverse findings which may lead to disallowed
costs subject to provisions of OMB Circular A-122, "Cost Principles for Non-Profit
Organizations."
D. Establishment and Maintenance of Records. CORPORATION shall:
1. In compliance with all HUD records and accounting requirements,
including but not limited to, those set forth in 24 C.F.R. 570.506 and 570.502(b), maintain
complete and accurate records of all its transactions including, but not limited to, contracts,
invoices, time cards, cash receipts, vouchers, canceled checks, bank statements, client statistical
records, personnel, property and all other pertinent records sufficient to reflect properly: (a) all
direct and indirect costs of whatever nature claimed to have been incurred or anticipated to be
incurred to perform this Contract or to operate the PROJECT; (b) each activity undertaken under
the PROGRAM meets one of the national objectives of the CDBG program set forth in 24 C.F.R.
570.208; ( c) compliance with fair housing and equal opportunity requirements; ( d) compliance
with Subpart K of 24 C.F.R. 570 and 24 C.F.R 508; and (e) all other matters covered by this
Contract.
2. Maintain client data demonstrating client eligibility for services provided
for the Project. Such data will include, but not be limited to, client name, address, income level
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
or other basis for determining eligibility, and description of service provided. Such information
will be made available to CITY monitors for review upon request.
E. Preservation of Records. CORPORATION will preserve and make available its
records:
I. Until five years following date of final payment of this contract, or
2. For such longer period, if any as is required by applicable law; or
3. If this Contract is completely or partially terminated, the records relating to
the work terminated will be preserved and made available for a period of five years from the date
of termination.
F. Examination of Records and Facilities. At any time during normal business
hours, and as often as may be deemed necessary, CORPORATION agrees that HUD and the
CITY, and/or any duly authorized representatives may until expiration of (a) five years after final
payment under this Contract, (b) five years from the date of termination of this Contract, or ( c)
such longer period as may be described by applicable law, have access to and the right to
examine its plants, offices and facilities used in the performance of this Contract or the operation
of the PROJECT, and all its records with respect to the PROJECT and all matters covered by this
Contract. CORPORATION also agrees that CITY or any duly authorized representatives will
have the right to audit, examine, and make excerpts or transactions of and from, such records and
to make audits of all contracts and subcontracts, invoices, payrolls, records of personnel,
conditions of employment, materials and all other data relating to the PROJECT and matters
covered by this Contract. CORPORATION will be notified in advance that an audit will be
conducted. CORPORATION will be required to respond to any audit findings, and have the
responses included in the final audit report. The cost of any such audit will be bome by CITY.
G. Compliance with Law. CORPORATION will become familiar and comply with
and cause all its subcontractors, independent contractors, and employees, if any, to become
familiar and comply with all applicable federal, state and local laws, ordinances, codes,
regulations and decrees including, but not limited to, those federal rules and regulations,
executive orders, and statutes identified in Exhibit F ("Assurances"). Specifically,
CORPORATION must comply with the requirements and standards of OMB Circular No. A-
122, "Cost Principles for Non-Profit Organizations", and the attachments to OMB Circular No.
A-110 as described in section
III. OBLIGATIONS OF CORPORATION, C. Fiscal Responsibilities of CORPORATION.
H. Suspension and Termination. In accordance with 24 CPR 85.43, suspension or
termination of this Contract may occur ifthe CORPORATION materially fails to comply with
any term of the award, and that the award may be terminated for convenience in accordance with
24 CPR 85.44.
I. Reversion of Assets. Upon expiration or termination of this Contract, or in the
event HUD cancels the PROJECT for any reason, the CORPORATION will transfer to the CITY
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital I-lousing Project Contract
any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the
use of CDBG funds. Any real prope1iy under the CORPORATION' s control that was acquired
or improved in whole or in part with CDBG funds (including CDBG funds provided to
CORPORATION in the form of a loan) in excess of $25 ,000 must be:
1. Used to meet one of the national objectives stated in Title 24 CPR part
570.208 for a period of five years after expiration of this Contract, or for such longer period of
time as required by the CITY; or,
2. Reimburse the CITY an amount equal to the cun-ent market value of the
property, less any portion of the value attributable to expenditures of non-CD BG funds for
acquisition of, or improvement to, the prope1iy (reimbursement is not required after the period of
time specified in I. 1. above).
I. CORPORATION certifies, to the best ofCORPORATION's knowledge or belief,
that:
1. No Federal appropriated funds have been paid or will be paid, by or on behalf
of it, to any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member
of Congress in com1ection with the awarding of any Federal contract, the making of any Federal
grant, the making of any Federal loan, the entering into any cooperative agreement, and the
extension, continuation, renewal, amendment, or modification of any Federal contract, grant,
loan, or cooperative agreement;
2. If any funds other than Federal appropriated funds have been paid or will be
paid to any person for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member
of Congress in cmmection with the awarding of any Federal contract, grant, loan, or cooperative
agreement, it will complete and submit Standard Form-LLL, Disclosure Form to Report
Lobbying, in accordance with its instructions.
3. This certification is a material representation of fact upon which reliance was
placed when this Contract was made or entered into. Submission of this certification is a
prerequisite for making or entering into this Contract imposed by Section 1352, Title 31, U.S.
Code. Any person who fails to file the required certification will 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.
K. Except for approved eligible administrative or personnel costs, no person described below
may, during or after their tenure, obtain a personal or financial interest or benefit from the
activities funded pursuant to this Contract, or have any interest in any contract, subcontract or
agreement with respect to such activities, or the proceeds under the contract, either for
themselves or those with whom they have family or business ties. CORPORATION shall
exercise due diligence to ensure that the prohibition in this Section IV.K is followed.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
The conflict of interest provision of Section IV .K applies to (i) any person who is an employee,
agent, consultant, or officer of the City who exercises or has exercised any functions or
responsibilities with respect to the activities funded pursuant to this Grant or who is in a position
to participate in a decision-making process or to gain inside information with regard to such
activities, may obtain a personal or financial interest or benefit from the activity, or have an
interest in any , (ii) any immediate family member of such person, (iii) any elected or appointed
official of the City, and (iv) any person related within the third (3rd) degree of such person.
In accordance with Government Code Section 1090 and the Political Reform Act, Government
Code section 87100 et seq., no person who is a director, officer, patiner, trustee or employee or
consultant of CORPORATION, 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 prope1iy of that person or CORPORATION. Interpretation of this
section shall be governed by the definitions and provisions used in the Political Reform Act,
Government Code section 87100 et seq., its implementing regulations manual and codes, ai1d
Government Code section 1090.
CORPORATION shall comply with the conflict of interest provisions set forth in 24 C.F.R.
Section 570.611.
IV. OBLIGATIONS OF CITY
A. Method of Payment. During the term of this Contract, CITY shall disburse
CDBG funds to CORPORATION on a reimbursement basis unless otherwise provided herein for
all allowable costs and expenses incurred in connection with the PROJECT, not to exceed the
total sum of Three Hundred and Nine Thousand Eight Hundred and Three Dollars and No
Cents ($309,803.00). CITY may, at any time in its absolute discretion, elect to suspend or
terminate payment to CORPORATION, in whole or in part, pursuant to this Contract based on
CORPORATION'S non-compliance, including, but not limited to, incomplete documentation of
expenses, failure to substantially meet goals and objectives as required in Exhibit B, ("Project
Work Plan"), failure to submit adequate progress reports as required herein or other incidents of
non-compliai1ce as described in Section VI, Paragraph B of this Contract or based on the refusal
by CORPORATION to accept any additional conditions that may be imposed by HUD at any
time, or based on the suspension or termination of the grant to CITY made pursuant to the
Housing and Community Development Act of 1974, as amended.
V. PROJECT COORDINATION
A. CITY. The CITY Executive will assign a single DIRECTOR for CITY who will
render overall supervision of the progress and perforn1ance of this Contract by CITY. All
services agreed to be performed by CITY will be at the overall direction of the DIRECTOR.
B. CORPORATION. As of the date hereof, CORPORATION has designated
Matthew Franklin to serve as EXECUTIVE DIRECTOR and to assume overall responsibility
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
for the progress and execution of this Contract. The CITY will be immediately notified in
writing of the appointment of a new EXECUTIVE DIRECTOR.
C. NOTICES. All notices or other conespondence required or contemplated by this
Contract shall be sent to the parties at the following addresses:
CITY: Attention: Senior Housing Planner
Community Development Department
City of Cupertino
10300 Torre Avenue
Cupertino, CA 95014
CORPORATION: Attn: Matthew Franklin
Executive Director
Cupertino Community Housing For The Disabled, Inc.
303 Vintage Park Drive, Suite 250
Foster City, California 94404
All notices will either be hand delivered or sent by United States mail, registered or certified,
postage prepaid. Notices given in such a mam1er will be deemed received when hand delivered
or seventy-two (72) hours after deposit in the United States mail. Any paiiy may change his or
her address for the purpose of this section by giving five days written notice of such change to
the other party in the manner provided in this section.
VI. CONTRACT COMPLIANCE
A. Monitoring and Evaluation of Services. Evaluation and monitoring of the
PROJECT perfonnance is the mutual responsibility of both CITY and CORPORATION.
CORPORATION must furnish all data, statements, records, information and reports necessary
for DIRECTOR to monitor, review and evaluate the performai1ce of the PROJECT and its
components. CITY will have the right to request the services of an outside agent to assist in any
such evaluation. Such services shall be paid for by CITY.
B. Contract Noncompliai1ce. If CORPORATION fails to comply with any provision
of this Contract; CITY will have the right to require corrective action to enforce compliance with
such provision as well as the right to suspend or terminate this Contract. Exainples of
noncompliance include, but are not limited to:
1. If CORPORATION (with or without knowledge) has made any material
misrepresentation of any nature with respect to any information or data furnished to CITY in
connection with the PROJECT.
2. Ifthere is pending litigation with respect to the performance by
CORPORATION of any of its duties or obligations under this Contract, which may materially
jeopardize or adversely affect the undertaking of or the canying out of the PROJECT.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
3. If CORPORATION has taken any action pertaining to the PROJECT,
which action required CITY approval, and such approval was not obtained.
4. If CORPORATION is in default under any provision of this Contract.
5. If CORPORATION makes illegal use of CITY funds.
6. If CORPORATION submits to CITY any report which is incorrect or
incomplete in any material respect.
7. If CORPORATION fails to meet the stated objectives in Exhibit B
("Project Work Plan").
C. Corrective Action Procedure. CITY, upon occurrence or discove1y of
noncompliance by CORPORATION pursuant to this Contract, shall give CORPORATION
notice of CITY'S intention to consider corrective action to enforce compliance. Such notice
must indicate the nature of the non-compliance and the procedure whereby CORPORATION will
have the opp01iunity to paiiicipate in fonnulating ai1y corrective action recommendation. CITY
will have the right to require the presence of CORPORATION'S officer(s) and EXECUTIVE
DIRECTOR at any hearing or meeting called for the purpose of considering corrective action.
In the event that CORPORATION does not implement the c01Tective action
recommendations in accordance with the corrective action timetable, CITY may suspend
payments hereunder or terminate this Contract as set forth in Section VII below.
VII. TERMINATION
A. Termination for Cause. CITY may terminate this Contract by providing written
notice to CORPORATION, for any of the following reasons: uncorrected Contract non-
compliance as defined in Section VI, Paragraph B following expiration of applicable notice and
cure periods pursuant to the corrective action procedure devised pursuant to Section VI,
Paragraph C above; CORPORATION is in bankruptcy or receivership; a member of the
CORPORATION'S Board of Directors or the executive director is found to have committed
fraud or; there is reliable evidence that CORPORATION is unable to complete the Project as
described in the attached Exhibits. The date of termination will be as specified in the notice.
B. Intentionally deleted.
C. In the event that this Contract is terminated, CORPORATON may be required to
return funds according to HUD regulations.
D. Upon termination of this Contract, CORPORATION must immediately provide
CITY access to all documents, records, payroll, minutes of meetings, correspondence and all
other data pertaining to the CDBG entitlement fund granted to CORPORATION pursuant to this
Contract.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
VIII. PURCHASING REAL OR PERSONAL PROPERTY
CORPORATION and CITY will comply with all applicable Federal Regulations as detailed by
24 CFR Part 570, Subpart J, i.e. 570.500 (Definitions), 570.503 (Agreements with
Subrecipients), 570.504 (Project Income), and 570.505 (Use of Real Prope1iy), with regards to
the use and disposal of Real or Personal Property purchased in whole, or in part, with CDBG
funds.
In addition, 24 CFR Part 85 (the Common Rule) includes definitions which apply to CDBG Real
Property, however, the Common Rule section governing Real Prope1iy (CFR 85.31) DOES NOT
APPLY TO CDBG ACTIVITIES.
A. The following definitions apply to this Contract pursuant to 24 CFR, Part 85
(Common Rule) 85.3:
1. Equipment means tangible, non-expendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or more per unit.
2. Title as defined in detail in 24 CFR, Part 85.32 (a).
3. Use as defined in detail in 24 CFR, Part 85.32 (c) (1).
4. Supplies as defined in detail in 24 CFR, Part 85.33.
5. Procurement, Use and Disposition of Real Property as defined in detail
by24
CFR, Part 570.503 (Agreements with Subrecipients), 570.505 (Use of Real Property), and
570.504 (Program Income).
B. Intentionally deleted.
C. Grants. If a grant is provided for the acquisition of real property,
CORPORATION, or its assignee, will continually operate its Project for a minimum period of
twenty (20) years from the effective date of this Contract. This obligation will survive the term
of this Contract, the assignment or assumption of this Contract and the sale of the property prior
to expiration of the obligation period as set forth in this paragraph. If this obligation is not fully
met, CORPORATION may be required to reimburse the CITY. The CITY may consider, but will
not be limited by, the following factors in calculating the reimbursement obligation: initial grant
sum; the duration of the initial contractual obligation to operate the Project versus the actual
duration of operation and; the appreciated value.
D. Relocation, Acquisition, and Displacement. CORPORATION agrees to comply
with 24 CFR 570.606 relating to the acquisition and disposition of all real property utilizing
CDBG funds, and to the displacement of persons, businesses, and non-profit organizations as a
direct result of any acquisition of real property utilizing CDBG funds. CORPORATION agrees
Page 13 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
to comply with applicable state laws, City Ordinances, Resolutions, and Policies concerning
displacement of individuals from their residences.
IV. PROGRAM INCOME
Income generated by the Project, is Program Income and shall be regulated by all provisions of
Title 24 CFR 570 Subpart J "Grant Administration," 570.503 "Agreements with Subrecipients,"
and 570.504 "Program Income." CORPORATION will annually report all program income
generated by activities can-ied out with CDBG funds made available under this Contract. By way
of further limitations, CORPORATION may use such income during the Contract period for
activities permitted under this Contract and shall reduce requests for additional funds by the
amount of any such program income balances on hand. All unused program income shall be
returned to the CITY at the end of the Contract period.
X. INDEPENDENT CONTRACTOR
This is a Contract by and between independent contractors and is not intended and will not be
construed to create the relationship of agent, servant, employee, partnership, joint venture or
association between CORPORATION and CITY. CORPORATION, including its officers,
employees, agents or independent contractors or subcontractors, shall not have any claim under
this Contract or otherwise against CITY for any Social Security, Worker's Compensation, or
employee benefits extended to employees of CITY.
XI. ASSIGNABILITY
A. CITY is entering into this Contract based on the experience, skill, and ability to
perform of the CORPORATION. The CORPORATION recognizes that its qualifications and
identify are of particular concern to the CITY in view of the CITY's interest in providing services
to lower income persons and the CITY's reliance on the unique qualifications of the
CORPORATION. Consequently, this Contract may not be assigned to another CORPORATION,
person, partnership or any other entity without the prior written approval of CITY, provided
however, notwithstanding anything to the contrary set forth herein or in any other document
evidencing the Grant, the CORPORATION may assign the Grant and all of its rights and
obligations under this Contract to a limited partnership, the general partner of which is the
CORPORATION or an affiliate thereof.=None of the work or services to be performed hereunder
may be assigned, delegated or subcontracted to third parties without the prior written approval of
CITY, which the CITY may withhold in its reasonable discretion. Copies of all third party
contracts shall be submitted to CITY at least ten days prior to the proposed effective date. In the
event CITY approves of any such assignment, delegation or sub-contract, the subcontractors,
assignees or delegates, CORPORATION shall remain fully liable for all obligations and
requirements under this Contract including the performance and any liabilities attaching to the
assignees' actions or omissions.
B. Except as permitted above, this Contract may not be assumed nor assigned to
another CORPORATION, person, partnership or any other entity without the prior written
approval of CITY.
Page 14 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
XII. DISCLOSURE OF CONFIDENTIAL CLIENT INFORMATION
CORPORATION agrees to maintain client records consistent with applicable laws regarding
personal privacy and obligations of confidentiality.
XIII. HOLD HARMLESS
In addition to the indemnity obligations set fmih in Exhibit E, "Insurance and Bond
Requirements," CORPORATION will indemnify and hold harmless the CITY, its employees,
agents, and officials, members of boards and commissions, from any and all claims, actions,
suits, charges and judgments whatsoever, with respect to any damages, including attorney's fees
and court costs, arising out of the failure of the CORPORATION's Project to comply with
applicable laws, ordinances, codes, regulations and decrees, including without limitation those
set forth in Exhibit E, "Certifications."
XIV. WAIVER OF RIGHTS AND REMEDIES
In no event will any payment by CITY constitute or be construed to be a waiver by CITY of any
breach of the covenants or conditions of this Contract or any default which may then exist on the
part of CORPORATION, and the making of any such payment while any such breach or default
will in no way impair or prejudice any right or remedy available to CITY with respect touch
breach or default. In no event will payment to CORPORATION by CITY in any way constitute a
waiver by CITY of its rights to recover from CORPORATION the amount of money paid to
CORPORATION on any item, which is not eligible for payment under the PROJECT or this
Contract.
XV. NON-DISCRIMINATION
CORPORATION will comply with all applicable Federal, State and local laws and regulations
including the City of Cupertino's policies concerning nondiscrimination and equal opportunity in
contracting. Such laws include but are not limited to the following: Title VII of the Civil Rights
Act of 1964 as amended; Americans with Disabilities Act of 1990; The Rehabilitation Act of
1973 (Sections 503 and 504); California Fair Employment and Housing Act (Government Code
sections 12900 et seq.); and California Labor Code sections 1101and1102. CORPORATION
will not discriminate against any subcontractor, employee, or applicant for employment because
of age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental
disability, physical disability, medical condition, political beliefs, organizational affiliations, or
marital status in the recruitment, selection for training including apprenticeship, hiring,
employment, utilization, promotion, layoff, rates of pay or other forms of compensation. Nor
shall CORPORATION discriminate in provision of services provided in this Contract because of
age, race, color, national origin, ancestry, religion, sex/gender, sexual orientation, mental
disability, physical disability, medical condition, political beliefs, organizational affiliations, or
marital status.
This non-discrimination provision must be included in CORPORATION's contracts with sub-
contractors and vendors when utilizing the CDBG funds disbursed for this Project.
Page 15 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
XVI. AMENDMENTS
Amendments to the terms or conditions of this Contract must be requested in writing by a duly
authorized representative of the party desiring such amendments, and any such amendment shall
be effective only upon the mutual agreement in writing of the parties hereto.
XVII. INTEGRATED DOCUMENT
This Contract contains the entire agreement between CITY and CORPORATION with respect to
the subject matter hereof. No written or oral agreements with any officer, agent or employee of
CITY prior to execution of this Contract shall affect or modify any of the terms of obligations
contained in any documents comprising this Contract.
XIII. MISCELLANEOUS
A. Headings. The captions and section headings used in this Contract are for
convenience of reference only, and the words contained herein will, in no way, be held to
explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of
this Contract.
B. Exhibits. All Exhibits attached hereto and referred to in this Contract are
incorporated herein by this reference as if set forth fully herein. Exhibits are as follows: Exhibit
"A" (Project Description), Exhibit "B" (Project Work Plan), Exhibit "C" (Proposed
Implementation Time Schedule), Exhibit "D" (Project Budget), Exhibit "E" (Basic Insurance and
Bond Requirements for Non-profit Contracts), Exhibit "F" (Assurances). Exhibit "G" (Project
Scope of Work), Exhibit "H" (Map of Property), Exhibit "I" (Legal Description), and Exhibit "J"
(Grant Agreement).
C. Conflict of Interest. In accordance with Goverlll11ent Code Section 1090 and the
Political Reform Act, Goverlll11ent Code Section 87100 et seq., except for approved eligible
administrative or personnel costs, no 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
who exercises or has exercised any functions or responsibilities with respect to the activities
funded by this Contract or who is in a position to participate in a decision-making process, may
obtain a personal or financial interest or benefit from the activity, or have an interest in any
contract, subcontract or agreement with respect thereto, or the proceeds thereunder, during, or at
any time after, such person's tenure. The CORPORATION shall exercise due diligence to ensure
that the prohibition in this section is followed.
Further, no person who is a director, officer, partner, trustee or employee or consultant of the
CORPORATION, or immediate family member of any ofthe preceding, shall make or
participate in a decision, made by the CITY or a CITY board, col11111ission 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 the CORPORATION.
Page 16 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
Interpretation of this section shall be governed by the definitions and provisions used in the
Political Reform Act, Government Code Section 87100 et seq., its implementing regulations
manual and codes, and Government Code Section 1090.
D. Interpretation. Each paiiy to this Contract has had an opportunity to review the Contract,
confer with legal counsel regarding the meaning of the Contract, and negotiate revisions to the
Contract. Accordingly, neither party shall rely upon Civil Code Section 1654 in order to interpret
any unce1iainty in the meaning of the Contract.
E. Third-Party Beneficiary. There shall be no third party beneficiaries to this Contract~
F. Choice of Law and Venue. This Contract shall be governed by and construed in
accordance with California law. Venue shall be Santa Clara County.
G. Severability. If any term of this Contract is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the provisions shall 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.
[Signature Page Follows]
Page 17 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
IN WITNESS WHEREOF, the parties have executed this Contract the day and year above
written. The parties signing below hereby warrant that they are duly authorized to execute this
Contract.
AGENCY:
Cupertino Community Housing For
The Disabled, Inc.
By:
(Print name)
~
Art Faturn
Assistant Secretary
APPROVED AS TO FORM AND
LEGALITY:
EXPENDITURE DISTRIBUTION
ACCOUNT NUMBER
260-72-709-600-623
PO#
Original Contract:
Total:
Date
CITY:
CITY OF CUPERTINO, a municipal
corporation
c,>.J) ~ ~rdf
;YZ_
Date 8 /1 9 /is-
City Manager
ATTEST:
AMOUNT
$309,803.00
$309,803.00
Page 18 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
Agency Name:
EXHIBIT A
PROJECT DESCRIPTION
Cupertino Community Housing For The Disabled, Inc.
Executive Director: Project Manager:
Matthew Franklin Matthew Lewis
Street Address: City:
303 Vintage Park Drive Foster City
Telephone number: Fax Number:
650.356.2928 650.357.9766
Name of Project/Program:
Le Beaulieu Rehab (Phase II)
Project/Program Location:
10092 Bianchi Way, Cupertino, California 95014
Project Description:
DUNS#:
621070098
Project# (For Office Use Only)
CDBG 2015-5
State: I Zip Code:
CA 94404
Project Manager E-mail Address:
mfranklin@,midpen-housing.org
The proposed project is a rehabilitation of 12 units within a 27-unit multi-family residential affordable housing
property in Cupertino serving low income disabled and senior households. The rehab scope of work will include
measures to increase resident quality of life, protect resident health, and decrease operating expenses. Le Beaulieu is
a vital affordable housing resource for low-income, disabled residents of Cupertino. The property consists of 27 units
in 7 buildings, with 21 I-bedroom units and 6 2-bedroom lllits. Residents qualified to live at Le Beaulieu have an
income below 50% AMI and have a physical or sensory disability. Amenities at Le Beaulieu include full ADA
accessibility, landscaped courtyards, a community room, a 1: 1 parking ratio, and a computer lab supporting extensive
resident services. Le Beaulieu is owned by Cupertino Community Housing For The Disabled, Inc.
The proposed renovation would preserve this asset for the long term by addressing critical building needs, lowering
operating expenses, and raising quality of life for residents. The scope will include miscellaneous repairs that
MidPen's preventative maintenance team have identified, including kitchen and bathroom cabinet upgrades, new
kitchen appliances, new flooring, repainting units, replacing interior pocket doors, replacing unit entry doors,
upgrading interior lighting, and replacing air conditioning units. Funds will also be used to repaint building exteriors.
Soft costs include funding for drawings, design and permits. In total, these measures would improve building
integrity, address life-safety issues, help reduce utility bills and offset long-term maintenance costs at the property,
thereby preserving a vital affordable housing resource for Cupertino's senior and disabled c01mnunity.
Page 19 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
AGENCY NAME:
PROJECT NAME
EXHIBITB
PROJECT WORK PLAN
FY 2015/16
Cupertino Community Housing For The Disabled, Inc.
Le Beaulieu Rehabilitation
Low/Mod Housing (LMH)
Benchmarks for Each Quarter
Objectives
l st 2nd 3 rd 4th
Rehabilitation of 12 residential multi-0 0 0 12 family units
Page 20 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
TOTAL
12
EXHIBITC
PROPOSED IMPLEMENTATION TIMELINE SCHEDULE
FY 2015/16
AGENCY NAME: Cupertino Community Housing For The Disabled, Inc.
PROJECT NAME: Le Beaulieu Rehabilitation
Activi Number & Descri tion:
#1. Rehabilitation of 12 residential multi-family units
Page 21of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
EXHIBITD
PROJECT BUDGET
FY 2015/16
Agency Name:
Project Name:
Cupertino Community Housing For The Disabled, Inc.
Le Beaulieu Rehabilitation
Sources
City of Cupertino CDBG Funds (Grant)
Total Sources
Uses
Construction Costs:
Exterior/Common Area Work:
Fence upgrades
Subtotal
Unit /11terio1·s:
Replace interior pocket doors and unit entry doors
Cabinet resurfacing and replacements
Flooring replacements
Selective energy-efficient aooliance replacements
Unit lighting
Selective air conditioning replacements
Repaint unit interiors
Replace selected bathroom floors and shower pans
Subtotal
Soft Costs:
Construction Management Fee @, 6%
NEPA consultant
Prevailing Wage Consultants
Design and drawings
Permits
Legal Expenses
Subtotal
Contingency up to 10%
Subtotal
Total Uses (or Total Project Cost)
Page 22 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
$309,803
$309,803
20,000
$20,000
$30,000
$65,000
$30,000
$15,000
$10,000
$15,000
$15,000
$40,000
$220,000
$17,536
$4,000
$10,000
$5,000
$5,000
$2,591
$44,127
$25,676
$25,676
$309,803
EXHIBITE
BASIC INSURANCE AND BOND REQUIREMENTS FOR
NON-PROFIT CONTRACTS
Definition of Contractor: The "Contractor" as the word is used herein is the party contracting
with the City of Cupe1iino for the direct distribution of CDBG funds. If your organization will
be contracting for construction work (such as general contractors building rental apartments) to
undertake a Project (as defined in this Non-Profit/City Contract) then the requirements set forth
herein shall be complied with by the party contracted with for construction work protecting both
the non-profit and the City.
Indemnity
The Contractor shall indemnify, defend, and hold harmless the City of Cupertino (hereinafter
"City"), its officers, agents and employees from any loss, liability, claim, injury or damage arising
out of, or in co1111ection with performance of this Contract by Contractor and/or its agents,
employees or subcontractors, excepting only loss, injury or damage caused solely by the acts or
omissions of perso1111el employed by the City. It is the intent of the parties to this Contract to
provide the broadest possible coverage for the City. The Contractor shall reimburse the City for
all costs, attorneys' fees, expenses and liabilities incurred with respect to any litigation in which
the Contractor is obligated to indemnify, defend and hold harmless the City under this Contract.
Insurance
Without limiting the Contractor's indemnification of the City, the Contractor shall provide and
maintain at its own expense, during the term of this Contract, or as may be further required
herein, the following insurance coverages and provisions:
A. Evidence of Coverage
Prior to commencement of this Contract, the Contractor shall provide on the City's own form or a
form approved by the City's Insurance Manager an original plus one copy of a Certificate of
Insurance certifying that coverage as required herein has been obtained and remains in force for
the period required by this Contract. The contract number and project name must be stated
on the Certificate of Insurance. The City's Special Endorsement form shall accompany the
certificate. Individual endorsements executed by the insurance carrier may be substituted for the
City's Special Endorsement form if they provide the coverage as required. In addition, a certified
copy of the policy or policies shall be provided by the Contractor upon request.
This verification of coverage shall be sent to the address as shown on the City's Certificate of
Insurance form and to the Housing and Comnmnity Development Program at the address set
forth in this Contract at Section VI. PROGRAM COORDINATION, Paragraph C., NOTICES.
The Contractor shall not issue a Notice to Proceed with the work under this Contract until it has
obtained all insurance required and such insurance has been approved by the City. This approval
of insurance shall neither relieve nor decrease the liability of the Contractor.
B. Notice of Cancellation of Reduction of Coverage
Page 23 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
All policies shall contain a special provision for thhiy (30) days prior written notice of any
cancellation or reduction in coverage to be sent to the Community Development Department,
10300 ToITe Avenue, Cupertino, CA 95014.
C. Qualifying Insurers
All policies shall be issued by companies which hold a current policy holder's alphabetic and
financial size category rating of not less than A VIII, according to the current Best's Key Rating
Guide, unless otherwise approved by the City's Insurance Manager.
D. Insurance Required
1. Comprehensive General Liability Insurance -for bodily injury (including death)
and property damage which provides limits of not less than one million dollars ($1,000,000)
combined single limit (CSL) per occurrence.
OR
2. Co1mnercial General Liability Insurance -for bodily injury (including death) and
property damage which provides limits as follows:
a. General limit per occurrence -$1,000,000
b. General limit aggregate -$2,000,000
c. Products/Completed Operations-$1,000,000 aggregate
d. Personal Injury limit -$1,000,000
If coverage is provided under a Commercial General Liability Insurance form, the caITier
shall provide the City Insurance Manager with a quarterly report of the amount of aggregate
limits expended to that date. If over 50% of the aggregate limits have been paid or reserved, the
City may require additional coverage to be purchased by the Contractor to restore the required
limits.
3. For either type of insurance, coverage shall include:
a. Premises and Operations
b. Products/Completed Operations with limits of one million dollars
($1,000,000) per occurrence/ aggregate to be maintained for two (2) years following acceptance
of the work by the City.
c. Contractual Liability expressly including liability assun1ed under this
Contract.
Page 24 of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
d. Personal Injury liability.
e. Independent Contractors' (Protective) liability.
f. Severability of Interest clause providing that the coverage applies
separately to each insured except with respect to the limits ofliability.
4. For either type of insurance, coverage shall include the following endorsements,
copies of which shall be provided to the City:
a. Additional Insured Endorsement:
Such insurance as is afforded by this policy shall also apply to the City of
Cupertino, and members of the City Council, and the officers, agents and
employees of the City of Cupertino, individually and collectively, as additional
insureds.
b. Primary Insurance Endorsement:
Such insurance as is afforded by the additional insured endorsement shall apply as
primary insurance, and other insurance maintained by the City of Cupe1iino, its
officers, agents, and employees shall be excess only and not contributing with
insurance provided under this policy.
c. Notice of Cancellation or Change of Coverage Endorsement:
This policy may not be cancelled nor the coverage reduced by the Company
without 30 days prior written notice of such cancellation or reduction in coverage
to the City of Cupe1iino at the address shown on the Certificate of Insurance.
d. Contractual Liability Endorsement:
This policy shall apply to liability assumed by the insured under written contract
with the City of Cupertino.
e. Personal Injury Endorsement:
The provisions of this policy shall provide Personal Injury coverage.
f. Severability of Interest Endorsement:
The insurance afforded by this policy shall apply separately to each insured that is
seeking coverage or against whom a claim is made or a suit is brought, except
with respect to the Company's limit ofliability.
Page 25 of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
5. Comprehensive Automobile Liability Insurance for bodily injury (including death)
and property damage which provides total limits of not less than one million dollars ($1,000,000)
combined single limit per occuITence applicable to all owned, non-owned and hired vehicles.
6. Workers' Compensation and Employer's Liability Insurance for:
a. Statutory California Workers' Compensation coverage including a broad
form all-states endorsement.
b. Employer's Liability coverage for not less than one million dollars
($1,000,000) per occurrence for all employees engaged in services or operations under this
Contract.
c. Inclusion of the City and its governing board(s), officers, representatives,
agents, and employees as additional insureds, or a waiver of subrogation.
7. Professional Errors and Omissions Liability Insurance
This type of insurance should be provided by persons/entities you contract with to
provide you with professional services.
a. Limits of not less than one million dollars ($1,000,000).
b. If this policy contains a self retention limit, it shall not be greater than ten
thousand dollars ($10,000) per occurrence/event.
c. This coverage shall be maintained for a mm1mum of two (2) years
following termination of this Contract.
The City must first approve any exceptions to the above requirements.
8. Bond Requirements
Fidelity Bond -Before receiving compensation under this Contract, Contractor will
furnish City with evidence that all officials, employees, and agents handling or having
access to funds received or disbursed under this Contract, or authorized to sign or
countersign checks, are covered by a BLANKET FIDELITY BOND in an amount of
AT LEAST fifteen percent (15%) of the maximum financial obligation of the City cited
herein. If such bond is cancelled or reduced, Contractor will notify City immediately, and
City may withhold further payment to Contractor until proper coverage has been
obtained. Failure to give such notice may be cause for termination of this Contract, at the
option of the City.
Page 26 of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
9. Special Provisions
The following provisions shall apply to this Contract:
a. The foregoing requirements as to the types and limits of insurance
coverage to be maintained by the Contractor and any approval of said insurance by the City or its
insurance consultant(s) are not intended to and shall not in any manner limit or qualify the
liabilities and obligations otherwise assumed by the Contractor pursuant to this Contract:,
including but not limited to the provisions concerning indemnification.
b. The City acknowledges that some insurance requirements contained in this
Contract may be fulfilled by self-insurance on the part of the Contractor. However, this shall not
in any way limit liabilities assumed by the Contractor under this Contract. The City shall approve
any self-insurance in writing.
c. The City reserves the right to withhold payments to the Contractor in the
event of material noncompliance with the insurance requirements outlined above.
d. If the Contractor fails to maintain such insurance as is called for herein,
the City must order the Contractor to immediately suspend work at Contractor's expense until a
new policy of insurance is in effect.
Page 27 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
ADDENDUM TO EXHIBIT "E"
BASIC INSURANCE AND BOND REQUIREMENTS
FOR CONSTRUCTION PROJECTS USING CITY FUNDS
If your organization will be contracting for construction work (such as general contractors
building rental apartments) to undertake a Project (as defined in this Non-Profit/City Contract)
then the requirements set forth in this Addendum to Exhibit "E" shall be complied with by the
paiiy contracted with for construction work protecting both the non-profit and the City.
Indemnity
The General Contractor (hereinafter referred to as "General") shall indemnify, defend, and hold
harmless the City of Cupertino (hereinafter "City"), its officers, agents and employees, and the
Contractor, it's officers, agents and employees from any loss, liability, claim, injury or damage
arising out of, or in connection with performai1ce of this Contract by General and/or its agents,
employees or subcontractors, excepting only loss, injury or damage caused solely by the acts or
omissions of personnel employed by the City or the Contractor. It is the intent of the parties to
this Contract to provide the broadest possible coverage for the City and the Contractor. The
General shall reimburse the City and the Contractor for all costs, attorneys' fees, expenses and
liabilities incurred with respect to any litigation in which the General is obligated to indemnify,
defend and hold harmless the City and the Contractor under this Contract.
Insurance
Without limiting the General's indemnification of the City and the Contractor, the General shall
provide and maintain at its own expense, during the te1m of this Contract, or as may be further
required herein, the following insurance coverages and provisions:
A. Evidence of Coverage
Prior to commencement of this Contract, the General shall provide an original plus one copy of a
Certificate of Insurance certifying that coverage as required herein has been obtained and remains
in force for the period required by this Contract. The contract number and project name must be
stated on the Certificate of Insurance. Individual endorsements executed by the insurance carrier
shall accompany the Certificate.
This verification of coverage shall be sent to the Contractor at the address stated below and to the
Community Development Department, 10300 Torre Avenue, Cupertino, CA 95014. The
Contractor shall not issue a Notice to Proceed with the work under this Contract until it has
obtained all insurance required and such insurance has been approved by the Contractor and final
approval by the City. This approval of insurance shall neither relieve nor decrease the liability of
the Contractor.
B. Notice of Cancellation or Reduction of Coverage
All policies shall contain a special provision for thirty (30) days prior written notice of any
cancellation or reduction in coverage to be sent to the Community Development Depaiiment as
stated above, and the Contractor at the following address:
Page 28 of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
Cupe1iino Community Housing For The Disabled, Inc.
303 Vintage Park Drive, Suite 250
Foster City, California 94404
C. Qualifying Insurers
I. All policies shall be issued by companies which hold a current policy holder's
alphabetic and financial size category rating of not less than A VIII, according to the current
Best's Key Rating Guide, unless otherwise approved by the City.
2. Surety coverage (including bid, performance and payment bonds) shall be
required as follows:
a. For projects in excess of $100,000:
I. Either a California Admitted Surety OR a current Treasury Listed
Surety (Federal Register); and either a current A.M. Best A IV rated Surety OR a current
Standard and Poors (S&P) rating of A;
2. An admitted surety insurer which complies with the provisions of
the Code of Civil Procedure, Section 995.660*;
OR
3. In lieu of I & 2, a company of equal financial size and stability that
is approved by the City's Insurance/Risk Manager.
b. For projects between $25,000 and not exceeding $100,000:
1. A California Admitted Surety and either a current A.M. Best B
rated Surety OR a current Standard and Poors (S&P) rating of B B;
OR
2. An admitted surety insurer which complies with the provisions of
the Code of Civil Procedure, Section 995 .660*;
OR
•California Code of Civil Procedure Section 995.660 in summary, states that an admitted surety must provide: 1) the original, or a certified copy
of instrument authorizing the person who executed the bond to do so; 2) a certified copy of the Certificate of Authority issued by the Insurance
Commissioner; 3) a certificate from City Clerk of Cupe1iino City that Certificate of Authority has not been surrendered, revoked, canceled,
annulled or suspended; 4) a financial statement showing the assets and liabilities of the insurer at the end of the quarter calendar year, prior to 30
days next preceding the date of the execution of the bond.
Page 29 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
3. In lieu of I & 2, a company of equal financial size and stability that
is approved by the City's Insurance/Risk Manager.
D. Insurance Required
1. Comprehensive General Liability Insurance -for bodily injury (including death)
and property damage which provides limits of not less than one million dollars ($1,000,000)
combined single limit (CSL) per occurrence.
OR
2. C01mnercial General Liability Insurance -for bodily injury (including death) and
property damage which provides limits as follows:
a. General limit per occmTence -$1,000,000
b. General limit aggregate -$2,000,000
c. Products/Completed Operations-$1,000,000 aggregate
d. Personal Injury limit -$1,000,000
If coverage is provided under a Commercial General Liability Insurance fonn, the carrier
shall provide the City Insurance Manager with a quarterly report of the amount of aggregate
limits expended to that date. If over 50% of the aggregate limits have been paid or reserved, the
City may require additional coverage to be purchased by the General to restore the required
limits.
3. For either type of insurance, coverage shall include:
a. Premises and Operations
b. Products/Completed Operations with limits of one million dollars
($1,000,000) per occurrence/aggregate to be maintained for two (2) years following acceptance
of the work by the City.
c. Contractual Liability expressly including liability assumed under
this Contract.
d. Personal Injury liability.
e. Independent Contractors' (Protective) liability
f. Severability of Interest clause providing that the coverage applies
separately to each insured except with respect to the limits of liability.
Page 30 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
4. For either type of insurance, coverage shall include the following endorsements,
copies of which shall be provided to the City and the Contractor:
a. Additional Insured Endorsement:
Insurance afforded by this policy shall also apply to the City of Cupertino and
Contractor as additional insureds.
b. Primary Insurance Endorsement:
Insurance afforded by the additional insured endorsement shall apply as primary
insurance, and other insurance maintained by the City of Cupertino and the
Contractor shall be excess only and not contributing with insurance provided
under this policy.
c. Notice of Cancellation or Change of Coverage Endorsement:
This policy may not be canceled nor the coverage reduced by the Company
without 30 days prior written notice of such cancellation or reduction in coverage
to the City of Cupertino CDBG Program, and the Contractor at the addresses set
fmih on page 10 of this Addendum.
d. Severability of Interest Endorsement:
The insurance afforded by this policy shall apply separately to each insured who is
seeking coverage or against whom a claim is made or a suit is brought, except
with respect to the Company's limit of liability.
5. Comprehensive Automobile Liability Insurance for bodily injury (including death)
and property damage which provides total limits of not less than one million dollars ($1,000,000)
combined single limit per occurrence applicable to all owned, non-owned and hired vehicles.
6. Workers' Compensation and Employer's Liability Insurance for:
a. Statutory California Workers' Compensation coverage including a broad
form all-states endorsement.
b. Employer's Liability coverage for not less than one million dollars
($1,000,000) per occurrence for all employees engaged in services or operations under this
Contract.
7. Work and Materials Insurance (including but not limited to Builder's Risk,
Course of Construction, Installation Floater or similar first party property insurance for covering
the interest of the Contractor and the City) shall be provided by the Contractor.
The Contractor's coverage shall provide the following:
Page 31 of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
a. Coverage shall be provided on an "all-risk" basis.
b. Coverage shall be provided on the work and materials which are the
subject of this Contract, whether in process or manufacture or finished, including "in transit"
coverage to the final agreed upon destination of delivery, and including loading and unloading
operations, and such coverage shall be in force until the work and materials are accepted by the
City.
c. City and non-profit shall be named as additional insured as its interests
may appear at the time of loss.
d. Coverage shall be in an amount no less than the full replacement value of
the property at the time of loss.
e. The deductible shall not exceed $1,000 per occurrence unless otherwise
approved by the City and shall be borne by the Contractor.
f. If the construction contractor fails to maintain such insurance as is called
for herein, the City shall have cause to terminate this Contract in accordance with Section V,
paragraph B.
8. Bond Requirements
The following bond requirements apply:
a. Contract Bonds -Prior to execution of the Contract, Contractor shall file
with the City on the approved forms, the two surety bonds in the amounts and for the purposes
noted below, duly executed by a reputable surety company satisfactory to City, and Contractor
shall pay all premiums and costs thereof and incidental thereto. Both Contractor and the sureties
shall sign each bond.
b. The "payment bond for public works" shall be in an amount of one
hundred percent (100%) of the Contract price, as determined from the prices in the bid form, and
shall insure to the benefit of persons performing labor or furnishing materials in connection with
the work of the proposed Contract. This bond shall be maintained in full force and effect until all
work under the Contract is completed and accepted by the City, and until all claims for materials
and labor have been paid.
c. The "performance bond" shall be in an amount of one hundred percent
(100%) of the Contract price as determined from the prices in the bid form. and shall insure the
faithful performance by Contractor of all work under the Contract. It shall also insure the
replacing of, or making acceptable, any defective materials or faulty workmanship.
Should any surety or sureties be deemed unsatisfactory at any time by the City notice will
be given Contractor to that effect, and Contractor shall forthwith substitute a new surety or
Page 32 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
sureties satisfactory to the City. No fmiher payment shall be deemed due or will be made under
the Contract until the new sureties qualify and are accepted by the City.
All alterations, time extensions, extra and additional work, and other changes authorized
by the Specifications, or any part of the Contract, may be made without securing consent of the
surety or sureties on the contract bonds.
9. Special Provisions
The following provisions shall apply to this Contract:
a. The foregoing requirements as to the types and limits of insurance
coverage to be maintained by the General and any approval of said insurance by the City or the
Contractor are not intended to and shall not in any manner limit or qualify the liabilities and
obligations otherwise assumed by the General pursuant to this Contract, including but not limited
to the provisions concerning indemnification.
b. The Contractor reserves the right to withhold payments to the General in
the event of material noncompliance with the insurance requirements outlined above.
c. The Contractor shall notify the City Community Development Department
promptly of all losses or claims over $25,000 resulting from work performed under this contract,
or any products/completed operations loss or claim against the contractor resulting from any of
the contractor's work.
Page 33 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
EXHIBITF
ASSURANCES
CORPORATION hereby assures and certifies that it will comply with all regulations, policies,
guidelines and requirements applicable to the acceptance and use of Federal funds for this
Federally-assisted project and will be responsible for implementing and complying with all
relevant future changes to Federal Regulations or OMB Circulars. Specifically CORPORATION
gives assurances and ce1iifies with respect to the PROJECT that it is in compliance with the
following Regulations as defined by 24 CFR, Part 570, Subprui J; 24 CFR, Part 570, Subprui K;
and will be conducted and administered in conformity with "Public Law 88.352 and Public Law
90-284.
1. 570.601. Public Law 88-352 and Public Law 90-284; affirmatively furthering fair
housing; Executive Order 11063, as amended by Executive Order 12259 addresses
discrimination. HUD regulations implementing Executive Order 11063 are contained in
24 CFR, Part 107; 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 ru1d Community Development Act of 1974 as amended; Section 504 of the
Rehabilitation Act of 1973; the Age Discrimination Act of 1975; 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.
2. 570.602. Section 109 of the Act addresses discrimination.
3. 570.603. Labor Standards.
4. 570.604. Environmental Standards.
5. 570.605. National Flood Insurance Program.
6. 570.606. Relocation, Displacement and Acquisition.
7. 570.607. Employment and Contracting Opportunities.
8. 570.608. Lead-Based Paint.
9. 570.609. Use of Debarred, Suspended, or Ineligible Contractors or Subrecipients.
10. 570.610. Uniform Administrative Requirement and Cost Principles. The CITY, its
Subrecipients, agencies or instrun1entalities, shall comply with the policies, guidelines,
ru1d requirements of 24 CFR Part 85 (Common Rule), and OMB Circulars A-110 (Grants
and Agreements with Non-Profit Organizations), A-122 (Cost Principles for Non-Profits),
A-128 (Audits of State and Local Governments-implemented at 24 CFR, Part 24), and A-
133 (Audits oflnstitutions of Higher Education and Other Non-Profit Institutions), as
Page 34 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
applicable, as they relate to the acceptance and use of Federal funds under this part. The
applicable sections of 24 CFR, Part 85 and OMB Circular A-100 are set forth at 570.502.
11. 570.611. Conflict oflnterest.
12. 570.612. Executive Order 12372 allows States to establish its own process for review
and comment on proposed Federal financial assistance programs, specifically the use of
CDBG funds for the construction or planning of water or sewer facilities.
13. 570.613. Eligibility restrictions for certain resident aliens.
14. 570.614. Architectural Barriers Act and the Americans with Disabilities Act. 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 of Title II and/or Title III of the
Americans with Disabilities Act of 1990 (42 U.S.C. 12131 et seq.), the requirements of
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), and federal regulations
issued pursuant thereto.
15. Drug Free Work Place. The requirements of the Drug Free Workplace Act of 1988
(P .L. 100-690) and implementing regulations at 24 C.F .R. Part 24.
16. Religious Organizations. If the CORPORATION is a religious organization, as defined
by the CDBG program, all conditions prescribed by HUD for the use of CDBG Funds by
religious organizations, including the First Amendment of the United States Constitution
regarding church/state principles and the applicable constitutional prohibitions set forth in
24 C.F.R. Section 570.200G).
17. Flood Disaster Protection. The Flood Disaster Protection Act of 1973 (P.L. 93-234).
No portion of the assistance provided under this Contract is approved for acquisition or
construction purposes as defined under Section 3(a) of said Act, for use in an area
identified by HUD as having special flood hazards which is located in a community not
then in compliance with the requirements for participation in the national flood insurance
program pursuant to Section 201 ( d) of said Act. The use of any assistance provided under
this Contract 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 said Act. Any contract or
Agreement for the sale, lease, or other transfer of land acquired, cleared or improved with
assistance provided under this Contract is to contain certain provisions. These provisions
will apply if such land is located in an area identified by HUD as having special flood
hazards and in which 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 seq. These
provisions obligate the transferee and its successors or assigns to obtain and maintain,
during the ownership of such land, such flood insurance as required with respect to
financial assistance for acquisition or construction purposes under -section 102(s) of the
Flood Disaster Protection Act of 1973. Such provisions are required notwithstanding the
Page 35 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
fact that the construction on such land is not itself funded with assistance provided under
this Contract.
18. Environmental and Historic Preservation. 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 C.F.R. 58.5.
19. HUD Regulations. Any other HUD regulations present or as may be amended, added, or
waived in the future pertaining to the Grant funds, including but not limited to HUD
regulations as may be promulgated regarding subrecipients.
The CORPORATION agrees to comply with the following federal regulations, requirements,
provisions and citations below. In addition all federal environmental requirements and
conditions must be satisfied prior to the release of grant funds.
ADDITIONAL FEDERAL REGULATIONS, REQUIREMENTS, PROVISIONS AND
CITATIONS
OMB
OMB Circulars for
Circulars for Gov't. Othe1· Federal
Provisions Federal Regulations* Non Gov't. Subrecipients Regulations**
Subrecipients
1. National Objective 570.200(a)(1)+(2),
Compliance/Eligibility 570.201-570.209,
570.506
2. Scope of Work 570.503
3. Time of Performance 570.503
4. Compensations and Method 570.502, 570.513 A-122, A-21 A-87 24 CFR Part 85
of Payment
5. Program Income 570.500(a),
570.503(b )(3),
570.504
6. Record-Keeping 570.502, 24 CFR Parts 84
Requirements 570.503(b )(2), and85
570.506
7. Reporting Requirements 570.502, 570.507 24 CFR Parts 84
and 85
8. Public Access to Program 570.502, 570.508 24 CFR Parts 84
Records and 85
9. Grant Closeout Procedures 570.502, 570.509
10. Uniform Administrative 570.502, A-122, A-21, A-87, A-133 24 CFR Parts 84
and Program Management 570.503(b)(4), A-133 and 85
Standards 570.610
11. Reversion of Assets 570.502, 570.503,
570.505
12. Real Property 570.502,
570.503(b )(7),
570.505
13. Other Program 570.503(b )(5),
Page 36 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
Requirements 570.600-603,
570.605-614
14. Termination 570.502,570.503 24 CFR Part 84.43
15. Compliance with 570.501 A-122 24 CFR Pmis 84
Laws/Regulations and85
16. Anti discrimination/ 570.601, 570.602,
Affinnative Action and 570.607
EEO
17. Financial Management 570.502, 570.610 24 CFRPmis
84.20 and 85.20
and Treasury Cir.
1075
18. Audits 570.502, 570.610 A-133 A-133 24 CFRParts
84.26 and 85.26
19. Religious and Political 570.2000), 570.207
Activities
20. Budget Modifications 570.502.
570.503(b )(1)
21. Monitoring 570.501 (b ), 24 CFR Parts 84
570.502(b )(vii), and85
570.503(b )(1)
22. Conflict oflnterest 570.611 24 CFR Parts 84
and 85
23. Procurement Methods 570.502 24 CFRPmis
84.40-48 and 85.36
24. Budget 570.503
25. Project 570.503
Schedule/Milestones
26. Env:iromnental Review 570.503(b)(3)(1)
* Unless otherwise noted, citations are from Title 24 of the Code of Federal Regulations (CFR).
**Part 84 applies to institutions of higher education, hospitals, and other non-profit
organizations; Part 85 applies to state, local, and federally recognized Tribal governments.
Page 37 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
ADDITIONAL FEDERAL REGULATIONS, REQUIREMENTS, PROVISIONS AND
CITATIONS
Reouirements Federal Re1mlations Other References
1. Federal Labor Standards 24 CFR 570.603; 29 CFR Section 110, Housing and
-Davis-Bacon Parts 1, 3, and 5 Community Development Act
-Copeland Act (Anti-kickback) of 1974 (HCDA); 40 U.S.C.
-Contract Work Hours and Safety 276a-276a-5; 40 U.S.C. 276c;
Standards 40 U.S.C. 327 et seq.
2. Equal Employment Opportunity 24 CFR 570.601-602,
24 CFR 570.607, Executive Orders 11246 and
41CFR60 12086, 12 U.S.C. 170lu
3. List ofDebaned or Ineligible Contractors 24 CFR 570.609,
24 CFR24
4. Non-Discrimination 24 CFR Part 8, Section 504 of Rehab. Act of
24 CFR 570.601, 1973, Americans with
24 CFR 570.602 Disabilities Act of 1990,
Exec. Order 11063
5. Fire Safetv Codes Local
6. Building, Housing, and Zoning Codes; 24 CFR 570.208(b)(l)(iv) and Local
Housing Quality Standards (b )(2)
7. Lead-Based Paint 24 CFR 570.608, 42 U.S.C. 4821 et seq.
24 CFR35
8. Lump Sum Drawdowns 24 CFR 570.513
9. Environmental/Historic 24 CFR 570.503(b )(5)(i), Sec. 104(g), HCDA
Preservation/National Enviromnental Policy 24 CFR 570.604, 570.202,
Act/Flood Insurance Requirements 24 CFR 58
-Siting Near Airpmts and Coastal Banit
Resources
-Fish and Wildlife Protection Ref. At 24 CFR 58.6
-Flood Plain
-National Historic Preservation See reference at 24 CFR
-Noise Abatement & Control 58.5570.605, 58.6
-Wetlands
-Air Quality
-Coastal Zones
-Endangered Species
-Thermal/Explosive Hazards
-Flood Insurance 42 U.S.C. 4001 et sea.
10. Relocation, Real Prope1ty Acquisition, and 24 CFR 570.20l(i), 570.606, Sect. 104(d) and 105(a)(l 1)
One-For-One Housing Replacement 49 CFR24, ofHCDA,
-Uniform Relocation Act www.hud.gov/relocation
-Residential anti-displacement and
relocation assistance
-One-For-One Replacement 24 CFR 570.606(c)(l)
Page 38 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
Exterior/C01mnon Area Work:
EXHIBITG
PROJECT SCOPE OF WORK
APPROVED SCOPE OF WORK
Task 1. Replace backyard privacy fences, replace the "good neighbor" chain link fence, and
install a privacy wall in the common patio area
Unit Interiors:
Task 1. Replace interior pocket doors and unit entry doors
Task 2. Cabinet and vanity resurfacing and replacements in select units.
Task 3. Selective flooring replacements
Task 4. Repaint selected unit interiors
Task 5. Selective energy-efficient appliances, including refrigerators and stoves.
Task 6. Upgrade unit interior lighting.
Task 7. Selective air conditioning replacements
Task 8. Replace the shower pans and repair bathrooms floors in 4 units
Page 39 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
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EXHIBIT I
LEGAL DESCRIPTION
The land referred to is situated in the County of Santa Clara, City of Cupertino, State of
California, and is described as follows:
PARCEL ONE:
Beginning at a point on the east line of Stelling Road, distant thereon South 424. 77 feet from the
intersection thereof with the Southerly line of a 30 foot strip of land conveyed by Southern
Pacific Company, a corporation to County of Santa Clara, by deed dated April 5, 1937 and
recorded December 7, 1937 in Book 853 of Official Records, Page 248, said point being the
Southwesterly comer of said land conveyed by Bank of America to Peter Bianchi by Deed dated
April 10, 1941 and recorded April 28, 1941 in Book 1038 of Official Records, Page 156; thence
along the Southerly line of said Bianchi parcel N. 89 deg. 57' 00" E. 143.50 feet to the true point
of beginning; thence continuing N. 89 deg. 57' 00" E. 323.45 feet; thence parallel with Stelling
Road North 252.77 feet; thence parallel with the Southerly line of said Bianchi parcel S. 89 deg.
57' 00" W. 159.95 feet; thence parallel with Stelling Road South 189.02 feet; thence parallel with
the Southerly line of said Bianchi parcel S. 89° deg. 57' 00" W. 163.50 feet; thence parallel with
Stelling Road South 63.75 feet to the true point of beginning. Said parcel is also shown on the
Record of Survey filed March 27, 2006, in Book 798 of Maps, Page 44, Santa Clara County
Records.
PARCEL TWO:
A right of way for ingress and egress over that certain parcel of land 40 feet wide, the center line
of which is described as follows:
Beginning at a point in the Southerly line of the 30 foot strip of land conveyed by Southern
Pacific Company to the County of Santa Clara by Deed dated April 5, 1937 and recorded
December 7, 1937 in Vol. 853 of Official Records, Page 248, Santa Clara County Records, said
point of beginning being distant along said line Easterly 20 feet from the Westerly line of the
parcel of land conveyed by the Bank of America to Peter Bianchi by Deed dated April 10, 1941
and recorded April 28, 1941 in Vol. 103 8 of Official Records, Page 156, Santa Clara County
Records; thence Southerly and parallel with said Westerly line and the Southerly prolongation
thereof, 424.77 feet to the Southerly line of said lands so conveyed to Bianchi.
APN's 359-07-010, 019 and 020
Page 41 of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
EXHIBIT J
GRANT AGREEMENT
(See attached Grant Agreement)
Page 42 of43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
END OF CONTRACT
PAGE LEFT BLANK INTENTIONALLY
Page 43 of 43
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG City/Non-Profit Capital Housing Project Contract
CDBGGRANTAGREEMENT
(Le Beaulieu Apartments)
This CDBG Grant Agreement (the "Agreement") is dated July 1, 2015, and entered into
by and between the City of Cupertino, a municipal corporation (the "City"), and Cupertino
Community Housing for the Disabled, Inc., a California nonprofit public benefit corporation
("Grantee"), with reference to the following facts, purposes and intentions.
RECITALS
A. In addition to capitalized terms defined in these Recitals, these Recitals refer to
and utilize certain capitalized terms which are defined in Article 1 of this Agreement. The
Parties intend to refer to those definitions in connection with the use of capitalized terms in these
Recitals.
B. The City has received entitlement funds from HUD pursuant to Title I of the
Housing and Community Development Act of 1974, as amended ("CDBG Funds"). CDBG
Funds must be used in accordance with the CDBG Regulations.
C. Grantee owns the Property, improved with twenty-seven (27) units of multifamily
rental housing in seven (7) separate buildings, commonly referred to as the Le Beaulieu (the
"Development"). Grantee proposes to rehabilitate twelve (12) of the units of multifamily rental
housing and to make specified improvements to the exterior and common areas of the
Development to address security, accessibility, and safety concerns.
D. CEQA imposes no conditions on the City's consideration and approval ofthis
Agreement, because the project undertaken pursuant to this Agreement is the rehabilitation of
existing improvements, and such projects are exempt from CEQA requirements under class 2
categorical exemption.
E. The City will complete and approve all applicable NEPA environmental review
for the activities proposed to be undertaken under this Agreement prior to the release of any
portion of the CDBG Grant. The City anticipates that the project will be categorically excluded
according to 24 Code of Federal Regulations Section 58.35(a)(3)(ii).
NOW, THEREFORE, the Parties agree as follows:
ARTICLE 1.
DEFINITIONS AND EXHIBITS
Section 1.1 Definitions.
(a) "Agreement" means this CDBG Grant Agreement.
1
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
(b) "Capital Housing Project Contract" means that ce1iain Conununity
Development Block Grant Program City/Non-Profit Capital Housing Project Contract of even
date herewith between the City and Grantee of even date herewith.
( c) "Grantee" means Cupertino Community Housing for the Disabled, Inc., a
California nonprofit public benefit corporation.
(d) "CDBG" means the Community Development Block Grant program under
Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et. seq.), as
amended.
(e) "CDBG Funds" has the meaning set forth in Recital B.
(f) "CDBG Grant" means a grant of up to Three Hundred and Nine
Thousand Eight Hundred and Three Dollars and No Cents ($309,803.00) of CDBG Funds
from the City to Grantee. · · ·
(g) "CDBG Grant Documents" means this Agreement, the CDBG Regulatory
Agreement, the Capital Housing Project Contract, and any other document or agreement
evidencing the CDBG Grant.
(h) "CDBG Regulations" means the statutory and regulatory provisions that
govern the CDBG program under Title I of the Housing and Community Development Act of
1974 (42 U.S.C. 5301 et. seq.), as amended including 24 C.F.R. Part 570 et seq.
(i) "CDBG Regulatory Agreement" means that certain Regulatory Agreement
and Declaration of Restrictive Covenants of even date herewith between City and Grantee, to be
recorded against the Property.
G) "CEQA" means the California Environmental Quality Act (Public
Resources Code Section 21000 et seq.).
(k) "City" means the City of Cupertino, a political subdivision of the State of
California.
(1) "Effective Date" means the date the CDBG Regulatory Agreement is
recorded in the Official Records.
(m) "HUD" means the United States Department of Housing and Urban
Development.
(n) "NEPA" means the National Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321-4347).
(o) "Parties" mean Grantee and the City.
(p) "Property" means that certain real property located in the City of
Cupertino, California, commonly known as 10092 Bianchi Way in the City of Cupertino, State
of California. A legal description of the Property is attached as Exhibit A.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
(q) "Term" has the meaning set fmih in Section 2.5(a).
Section 1.2 Exhibits.
The following exhibits are attached to this Agreement and incorporated into this
Agreement by this reference:
ExhibitA:
ExhibitB:
Exhibit C:
Section 2.1
Legal Description
Scope of Work
Project Budget
ARTICLE2.
GRANT PROVISIONS
Grant.
(a) The City shall grant up to Three Hundred and Nine Thousand Eight
Hundred and Three Dollars and No Cents ($309,803.00) to the Grantee for the purposes set
forth in Section 2.2.
Section 2.2 Use of Grant Funds.
Grantee shall use the Grant Funds to perform the activities described in the Scope of
Work attached hereto as Exhibit Bin accordance with the Project Budget attached to this
Agreement as Exhibit C, both of which are incorporated herein by reference. Grantee shall not
use the CDBG Grant Funds for any other purpose without the prior written consent of the City.
Section 2.3 Interest on Default.
In the event of a Default, interest on the CDBG Grant shall begin to accrue, as of the date
of Default and continuing until such time as CDBG Grant funds (as applicable) are repaid in full
or the Default is cured, at the default rate of the lesser often percent (10%), compounded
annually, or the highest rate permitted by law.
Section 2.4 Conditions to Disbursement.
(a) City shall not be obligated to make any disbursements of the CDBG Grant
unless the following conditions precedent are satisfied prior to each such disbursement of the
Grant:
(1) Grantee holds title to the Property;
(2) There exists no Default nor any act, failure, omission or condition
that would constitute an event of Default under this Agreement;
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
(3) Grantee has delivered to City a copy of an authorizing resolution
authorizing Grantee's execution of this Agreement and the transactions contemplated by this
Agreement;
(4) Grantee has executed and delivered to City all documents,
instruments, and policies required under the CDBG Grant Documents;
(5) City has completed and approved all environmental reviews under
the National Environmental Protection Act as necessary for the rehabilitation of the
Development as detailed in the Scope of Work;
( 6) Grantee has received all necessary governmental approvals and all
building permits necessary to perform the Scope of Work pursuant to the terms of this
Agreement;
(7) Grantee has furnished City with evidence of the insurance
coverage meeting the requirements of this Agreement;
(8) City has received and approved the Bid Package for the
rehabilitation of the Development;
(9) City has received and approved the general contractor's
construction contract that the Grantee has entered or proposed to enter for the rehabilitation of
the Development pursuant to the approved Scope of Work;
(10) The CDBG Regulatory Agreement has been recorded against the
Grantee's fee interest in the Prope1iy, subject only to those exceptions to title, and other
encumbrances approved by the City; and
(11) City has received a written draw request from Grantee, including
certification that the condition set forth in Section 2.4(b) continues to be satisfied, and setting
forth the proposed uses of funds consistent with the approved Project Budget, the amount of
funds needed and a copy of the bill or invoice covering all costs incurred and to be reimbursed
under the draw request. When a disbursement is requested to pay any contractor in connection
with the rehabilitation of the Development, the written request must be accompanied by (i)
certification by the Grantee's architect that the work for which disbursement is requested has
been completed, and (ii) conditional lien releases and/or mechanics lien title insurance
endorsements reasonably acceptable to City. Grantee shall apply all disbursements to reimburse
costs incurred for the purpose( s) requested.
(b) The City will use best efforts to fund draw request and disburse the
CDBG Grant funds to the Grantee pursuant to the terms and conditions of this Agreement on a
reimbursement basis within ten (10) business days of the date Grantee has satisfied all conditions
set f01ih in this Section 2.4. The City shall notify the Developers in writing, as early as
reasonably feasible, of the City's disapproval of any draw request or any portion thereof, clearly
stating the reasons for its disapproval. The Grantee shall, promptly following notification by the
City of its disapproval of a draw request, revise the draw request and resubmit it to the City. All
draw requests from the Grantee must comply with the requirements of this Section. Nothing in
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
this Section shall be interpreted to require the City to process draw requests more than once per
quarter of each fiscal year.
Section 2.5 Tenn and Repayment.
(a) Term. The CDBG Grant and this Agreement have a term (the "Term")
commencing on the Effective Date and ending on the twentieth (20t11) aimiversary of the
Effective Date, but in no event later than July 1, 2035.
(b) Payments. No repayment of the Grant shall be required if Grantee
complies with the requirements of this Agreement and the CDBG Regulatory Agreement for the
entire Term. At the election of the City, in the sole execution of its discretion, the CDBG Grant
shall be repaid in full in the event of a Default during the Term which continues beyond
expiration of applicable notice and cure periods.
Section 2.6 Interest on Default.
In the event of a Default, interest on the CDBG Grant shall begin to accrue, as of the date
of Default and continuing until such time as the outstanding balance of the CDBG Grant funds
are repaid in full or the Default is cured, at the default rate of the lesser of ten percent (10% ),
compounded annually, or the highest rate permitted by law.
ARTICLE3.
REHABILITATION OF THE DEVELOPMENT
Section 3.1 Rehabilitation of Development.
Grantee shall rehabilitate the Development as more particularly described in the Scope of
Work attached as Exhibit B. Grantee shall cause all work performed in connection with the
rehabilitation of the Development to be performed in compliance with the provisions and
implementing rules and regulations of: (i) federal labor requirements, including the prevailing
wage provisions of the federal Davis-Bacon Act (40 USC 276a-5), the Contract Work Hours and
Safety Act (40 USC 327-333), the Copeland (Anti-Kickback) Act (48 Stat. 948 62 Stat. 108, 18
USC 874, 40 USC 276(c)), and the Federal Labor Standards Act; (ii) the prevailing wage
provisions of California Labor Code Section 1770 et seq., and implementing regulations; (iii) all
City requirements as contained in any land use or permit approvals necessary to perform the
Scope of Work; (iv) 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; and
(v) all applicable directions, rules and regulations of any fire marshal, health officer, building
inspector, or other officer of every gover11111ental agency now having or hereafter acquiring
jurisdiction. The work shall proceed only after procurement of each permit, license, or other
authorization that may be required by any governmental agency having jurisdiction, and Grantee
shall be responsible for the procurement and maintenance thereof. Any contract entered into by
Grai1tee in cmmection with this Agreement shall comply with all federal, state, and local
requirements set fo1ih in this Agreement.
Section 3 .2 Bid Packet.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
Prior to the release of the request for bids for the rehabilitation of the Development (the
"Bid Packet"), Grantee shall submit the Bid Packet to the City for City approval. The City shall,
if the Bid Packet submitted conforms to the provisions of this Agreement, approve in writing the
Bid Packet. Unless rejected by the City for the failure to comply with the foregoing
requirements within thirty (30) days of submission by Grantee, said Bid Packet shall be deemed
accepted.
Section 3.3 Construction Contract.
(a) Not later than thirty (30) days prior to the proposed commencement of
bidding for the rehabilitation of the Development, Grantee shall submit to the City for its
approval the proposed construction contract for the rehabilitation of the Development. All
rehabilitation work and professional services shall be performed by persons or entities licensed
or otherwise authorized to perform the applicable construction work or service in the State of
California. The construction contract shall include all applicable CDBG requirements set forth
in Section 4.5 below. The City's approval of the construction contract shall in no way be
deemed to constitute approval of or concurrence with any term or condition of the construction
contract except as such term or condition may be required by this Agreement.
(b) Upon receipt by the City of the proposed construction contract, the City
shall promptly review same and approve or disapprove it within ten working (10) days. If the
construction contract is not approved by the City, the City shall set forth in writing and notify
Grantee of the City's reasons for withholding such approval. Grantee shall thereafter submit a
revised construction contract for City approval, which approval shall be granted or denied in ten
(10) working days in accordance with the procedures set forth above. Any construction contract
executed by the Grantee for the perfmmance of the Scope of Work shall be in the f01m
approved by the City.
Section 3.4 Construction Bonds.
Prior to commencement of rehabilitation of the Development as described in the Scope of
Work, Grantee shall deliver to the City copies of labor and material bonds and performance
bonds for the rehabilitation of the Development in an amount equal to one hundred percent
(100%) of the scheduled cost of the rehabilitation of the Development. Such bonds shall name
the City as a co-obligee.
Section 3.5 Commencement of Rehabilitation.
Grantee shall cause the commencement of rehabilitation no later than March 1, 2016.
Section 3.6 Completion of Rehabilitation.
Grantee shall diligently prosecute rehabilitation of the Development to completion as set
fo1ih in the Scope of Work, and shall cause the completion of the rehabilitation of the
Development no later than June 30, 2016.
Section 3. 7 Rehabilitation Pursuant to Plans and Laws.
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. COBO Grant Agreement
Grantee shall rehabilitate the Development in conformance with Approved Scope of
Work, attached to this Agreement as Exhibit B. Except as provided in this Section 3.8, Grantee
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 approved Scope of
Work. 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: (1)
any change in the work the cost of which exceeds Ten Thousand Dollars ($10,000); or (2) any
set of changes in the work the cost of which cumulatively exceeds Twenty-five Thousand
Dollars ($25,000); or (3) any material change in building materials or equipment, specifications,
or the structural or architectural design or appearance of the Development. Consent to any
additions, changes, or deletions to the work shall not relieve or release Grantee from any other
obligations under this Agreement, or relieve or release Grantee or its surety from any surety
bond. City shall utilize best efforts to approve or disapprove change orders within five (5)
working days of receipt of a request for approval.
Section 3.8 Equal Opportunity.
During the rehabilitation of the Development there shall be no discrimination on the basis
of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin,
ancestry, or disability in the hiring, firing, promoting, or demoting of any person engaged in the
rehabilitation of the Development. The Grantee shall, and shall cause the contractor, to comply
with the requirements of Section 202 of Executive Order Number 11246, as amended, including,
but not limited to, the posting of equal opportunity notices at the site of the rehabilitation of the
Development.
Section 3.9 Minority and Women-Owned Contractors.
Grantee will use its best efforts to afford minority-owned and women-owned business
enterprises the maximum practicable opportunity to participate in the rehabilitation of the
Development. Grantee shall, at a minimum, notify applicable minority-owned and women-
owned business firms located in Santa Clara County of bid opportunities for the rehabilitation of
the Development. Documentation of such notifications shall be maintained by Grantee and
available to the City as requested.
Section 3 .10 Progress Reports.
Until such time as Grantee has received a notice of completion for the rehabilitation of
the Development, Grantee shall provide the City with quarterly progress reports regarding the
status of the rehabilitation of the Developments, including a certification that costs incurred to
date conform to the approved Project Budget.
Section 3.11 Federal and State Prevailing Wages.
(a) In rehabilitation of the Development, Grantee shall comply with the
prevailing wage provisions of the federal Davis-Bacon Act and implementing rules and
regulations and the prevailing wage and other requirements of California Labor Code Sections
1720 et seq. Grantee shall and shall cause the Contractor and subcontractors to pay prevailing
wages in the rehabilitation of the Development as those wages are determined pursuant to the
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Grant Agreement
Davis-Bacon-Act and Labor Code Sections 1720 et seq. and implementing regulations of the
Department oflndustrial Relations (the "DIR"). Grantee 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 Labor Code Sections 1720 et seq. Copies of the
cunently applicable current per diem prevailing wages are available from the City's Public
Works Department. During the rehabilitation of the Development, Grantee shall or shall cause
the contractor to post at the Property the applicable prevailing rates of per diem wages.
(b) Grantee shall defend (with counsel reasonably acceptable to the City) the
City, and its council members, directors, officers, employees, agents, successor and assigns (the
"City Indemnitees") 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 Grantee, its
Contractor and subcontractors) to pay prevailing wages as determined pursuant to the Davis
Bacon Act and Labor Code Sections 1720 et seq. and implementing regulations of the DIR or
comply with the other applicable provisions of the Davis Bacon Act and Labor Code Sections
1720 et~· and implementing regulations of the DIR in connection with the rehabilitation of the
Development and shall indemnify and hold the City Indemnitees harmless against any damages,
compensation, fines, penalties or other amounts resulting from the successful prosecution of such
claim. Grantee's obligation to indemnify under this Section shall apply to any legal or
administrative proceeding, arbitration, or enforcement action.
(c) In the event that the City determines that Grantee's contractor or any
subcontractors have not complied with this Section by failing to pay the appropriate wage to any
person, then the City shall have the right, but not the obligation, to withhold from the City's
disbursement of Grant funds, an amount equal to the difference between the wage paid by the
contractor, or subcontractor, and the appropriate wage that the Grantee's contractor, or
subcontractor-; is required to pay pursuant to the Davis-Bacon Act and the DIR regulations, as
applicable. Such withheld amounts may, in the City's sole discretion, be paid to person entitled
to such funds and the City's payment of such amount shall be credited as a disbursement of the
Grant funds. The City's withholding of any amount of the Grant funds, or payment of any
amount of the Grant funds, pursuant to this Section 2.10 shall not create or justify any claim
against the City by any person.
( d) The requirements of this Section shall survive the repayment of the Grant
and the expiration of the Term or earlier termination of this Agreement.
Section 3.12 Relocation.
(a) If and to the extent that rehabilitation of the Development results in the
permanent or temporary displacement of residential tenants, homeowners, or businesses, then
Grantee shall comply with all applicable local, state, and federal statutes and regulations,
(including without limitation the federal Uniform Relocation Act and accompanying regulations,
and California Government Code Section 7260 et seq. and accompanying regulations) with
respect to relocation planning, advisory assistance, and payment of monetary benefits. Grantee
shall be solely responsible for payment of any relocation benefits to any displaced persons and
any other obligations associated with complying with such relocation laws. Grantee shall submit
8
FY 2015-16 Cupertino Community Housing For The Disabled, !nc. CDBG Grant Agreement
a detailed relocation plan to the City for approval prior to implementing the relocation of any
entity in connection with the rehabilitation of the Development.
(b) Grantee shall defend (with counsel reasonably acceptable to the City) the
City and the City Indemnitees 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
Grantee, and the City) to pay relocation costs connection with the rehabilitation of the
Development and shall indemnify and hold the City lndemnitees harmless against any damages,
compensation, fines, penalties or other amounts resulting from the successful prosecution of such
claim. Grantee's obligation to indemnify under this Section shall apply to any legal or
administrative proceeding, arbitration, or enforcement action.
(c) The requirements of this Section shall survive the repayment of the Grant
and the expiration of the Term or earlier termination of this Agreement.
Section 3 .13 Construction Responsibilities.
(a) It shall be the responsibility of Grantee to coordinate and schedule the
rehabilitation of the Development so that construction will take place in accordance with this
Agreement.
(b) Grantee shall be solely responsible for all aspects of Grantee's conduct in
connection with the rehabilitation of the Development, including (but not limited to) the
timeliness and appropriateness of all fees paid with Grant funds. Any review or inspection
undertaken by the City with reference to the
Section 3.14 Mechanics Liens, Stop Notices, and Notices of Completion.
(a) If any claim of lien is filed against the Property or a stop notice affecting
the CDBG Grant is served on the City or any other lender or other third party in connection with
the Development, then Grantee 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
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.
(b) If Grantee 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 (but
shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at Grantee's
expense. Alternately, the City may require Grantee to immediately deposit with the City the
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
Grantee.
( c) Grantee shall file a valid notice of cessation or notice of completion upon
cessation ofrehabilitation on the Development for a continuous period of thi1iy (30) days or
more, and take all other reasonable steps to forestall the assertion of claims of lien against the
Property. Grantee authorizes the City, but without any 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 Prope1iy.
9
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
Section 3.15 Inspections.
Grantee shall permit and facilitate, and shall require its contractors to permit and
facilitate, observation and inspection at the Development by the City and by public authorities
during reasonable business hours for the purposes of determining compliance with this
Agreement.
ARTICLE4.
GRANT REQUIREMENTS.
Section 4.1 Compliance with Regulatory Agreement.
(a) Grantee shall comply with the terms of all conditions set forth in the
CDBG Regulatory Agreement, and any breach thereunder, subject to any applicable notice and
cure periods, is a default under this Agreement. The CDBG Regulatory Agreement is hereby
incorporated into this Agreement by this reference.
Section 4.2 Info1mation.
Grantee shall provide any infonnation reasonably requested by the City in connection
with the Development, including (but not limited to) any information required by HUD in
connection with Grantee's operation of the Development.
Section 4.3 Records.
(a) Grantee shall keep and maintain at Grantee's principal office, or
elsewhere, full, complete and appropriate books, records and accounts relating to the
Development, including all such books, records and accounts necessary or prudent to evidence
and substantiate in full detail Grantee's compliance with the terms and provisions of this
Agreement. Books, records and accounts relating to Grantee's compliance with the tenns,
provisions, covenants and conditions of this Agreement must be kept and maintained in
accordance with generally accepted accounting principles consistently applied, and be consistent
with requirements of this Agreement. All such books, records, and accounts must 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. Copies of all tax returns
and other reports that Grantee may be required to furnish any government agency must at all
reasonable times be available for inspection by the City at the place that the books, records and
accounts of Grantee are kept. Grantee 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 including but not limited to those set forth in 24 C.F.R. 570.506 and
570.502(b ). If any litigation, claim, negotiation, audit exception, monitoring, inspection or other
action relating to the use of the Grant is pending at the end of the record retention period stated
herein, then Grantee shall retain such records until such action and all related issues are resolved.
Such records include all invoices, receipts, and other documents related to expenditures from the
CDBG Grant funds. Records must be accurate and current. Such records include but are not
limited to:
(1) Records providing a full description of the activities undertaken
with the use of the CDBG Grant;
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FY 2015-16 Cupertino Community Housing For The Disabled, lnc. CDBG Grant Agreement
(2) Records demonstrating that each activity undertaken meets one of
the national objectives of the CDBG program set forth in 24 C.F.R. 570.208;
(3) Records required to determine the eligibility under the CDBG
program of the activities undertaken;
(4) Records documenting compliance with the fair housing and equal
opportunity requirements, as applicable;
(5) Financial records as required by 24 C.F.R. 570.502 and OMB
Circular A-110; and
( 6) Other records necessary to document compliance with Subpart K
of24 C.F.R. 570 and 24 C.F.R. 92.508.
(b) The City shall notify Grantee of any records it deems insufficient.
Grantee has fifteen (15) calendar days after the receipt of such a notice to correct any deficiency
in the records specified by the City in such notice, or if a period longer than fifteen (15) days is
reasonably necessary to correct the deficiency, then Grantee shall begin to correct the deficiency
within fifteen (15) days and correct the deficiency as soon as reasonably possible.
Section 4.4 Audits.
For the entire Tern1 of this Agreement, Grantee shall provide the City with a copy of
Grantee's ammal audit, which must include information on all of Grantee's activities and not just
those pertaining to the Development. In addition, the City or any designated agent or employee
of the City at any time is entitled to audit all of Grantee's books, records, and accounts pertaining
thereto. Such audit shall be conducted during normal business hours at the principal place of
business of Grantee and other places where records are kept. Immediately after the completion
of an audit, the City shall deliver a copy of the results of such audit to Grantee.
Section 4.5 CDBG Requirements.
(a) Grantee shall comply with all applicable laws and regulations governing
the use of the CDBG Funds as set fotih in 24 C.F.R. 570 et seq,. In the event of any conflict
between this Agreement and applicable laws and regulations governing the use of the CDBG
Grant funds, the applicable laws and regulations govern.
(b) The laws and regulations governing the use of the CDBG Grant include
(but are not limited to) the following:
(1) Environmental and Historic Preservation. 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 C.F.R. 58.5.
(2) Applicability of OMB Circulars. The applicable policies,
guidelines, and requirements of OMB Circulars Nos. A-87, A-102, Revised, A-110, A-122, and
A-133.
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FY 2015-16 Cupertino Community I-lousing For The Disabled, Inc. CDBG Grant Agreement
(3) Debarred, Suspended or Ineligible Contractors. The use of
debarred, suspended, or ineligible contractors set forth in 24 C.F.R. Part 24.
(4) Civil Rights, Housing and Community Development, and Age
Discrimination Acts. The Fair Housing Act (42 U.S.C. 3601 et seq.) and implementing
regulations at 24 C.F.R. 100 et seq.; 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 Community Development Act of 1974 as amended; Section 504 of the
Rehabilitation Act of 1973; the Age Discrimination Act of 1975; Executive Order 11063 as
amended by Executive Order 12259 and implementing regulations at 24 C.F.R. 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.
(5) Lead-Based Paint. The requirement of the Lead-Based Paint
Poisoning Prevention Act, as amended (42 U.S.C. 4821 et seq.), the Residential Lead-Based
Paint Hazard Reduction Act (42 U.S.C. 4851 et seq.), and implementing regulations at 24 C.F.R.
Part 35.
(6) Relocation. The requirements of the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, and state relocation laws. If and
to the extent that rehabilitation of the Development results in the permanent or temporary
displacement of residential tenants, homeowners, or businesses, then Grantee shall comply with
all applicable local, state, and federal statutes and regulations with respect to relocation planning,
advisory assistance, and payment of monetary benefits. Grantee shall prepare and submit a
relocation plan to the City for approval. Grantee is solely responsible for payment of any
relocation benefits to any displaced persons and any other obligations associated with complying
with such relocation laws. Grantee shall inde1ru1ify, defend (with counsel reasonably chosen by
the City), and hold harmless the City against all claims that arise out of relocation law
obligations to residential tenants, homeowners, or businesses permanently or temporarily
displaced by the Development.
(7) Discrimination against the Disabled. The requirements of Section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794),. 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 of Title II and/or Title III of the Americans with Disabilities Act of 1990 (42
U.S.C. 12131 et seq.), and federal regulations issued pursuant thereto.
(8) Clean Air and Water Acts. The Clean Air Act, as amended, 42
U.S.C. 7401 et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
seq., and the regulations of the Environn1ental Protection City with respect thereto, at 40 C.F.R.
Part 1500, as amended from time to time.
(9) CDBG Uniform Administrative Requirements. The requirements
of 24 C.F.R. 92.505 regarding cost and auditing requirements.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. COBO Grant Agreement
(10) Training Opportunities. The requirements of Section 3 of the
Housing and Urban Development Act of 1968, as amended, 12 U.S.C. l 70l(u) ("Section 3"),
requiring that to the greatest extent feasible 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 that are located in, or owned in substantial part by
persons residing in, the areas of the project. Grantee agrees to include the following language in
all subcontracts executed under this Agreement:
(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. 1701 u. 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-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 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.
(C) 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
conspicuous places at the work site where both employees and applicants for training and
employment positions can see the notice. The notice shall describe the Section 3 preference;
shall set forth minimum number and job titles subject to hire; availability of apprenticeship and
training positions; the qualifications for each; the nan1e and location of the person(s) taking
applications for each of the positions; and the anticipated date the work shall begin.
(D) The contractor agrees to include this Section 3 clause in 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 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 24 C.F.R.
Part 135.
(E) 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 of24 C.F.R.
Part 135 require employment opportunities to be directed, were not filled to circumvent the
contractor's obligations under 24 C.F.R. Part 135.
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FY 2015-16 Cupe1ii110 Community Housing For The Disabled, Inc. CDBG Grant Agreement
(F) Noncompliance with HUD's regulations in 24 C.F.R. 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 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).
(11) Drug Free Workplace. The requirements of the Dmg Free
Workplace Act of 1988 (P.L. 100-690) and implementing regulations at 24 C.F.R. Part 24.
(12) Anti-Lobbying; Disclosure Requirements. The disclosure
requirements and prohibitions of 31 U.S.C. 1352 and implementing regulations at 24 C.F.R.
Part 87.
(13) Historic Preservation. The historic preservation requirements set
forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. Section 470) and
the procedures set forth in 36 C.F.R. Part 800.
(14) Flood Disaster Protection. The Flood Disaster Protection Act of
1973 (P.L. 93-234). No portion of the assistance provided under this Agreement is approved for
acquisition or construction purposes as defined under Section 3(a) of said Act, for use in an area
identified by HUD as having special flood hazards which is located in a community not then in
compliance with the requirements for participation in the national flood insurance program
pursuant to Section 201 ( d) of said 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 said Act. Any contract or Agreement for the sale, lease, or
other transfer of land acquired, cleared or improved with assistance provided under this
Agreement is to contain certain provisions. These provisions will apply if such land is located in
an area identified by HUD as having special flood hazards and in which 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 seq. These provisions obligate the transferee and its successors or assigns to
obtain and maintain, during the ownership of such land, such flood insurance as required with
respect to financial assistance for acquisition or construction purposes under -section 102( s) of
the Flood Disaster Protection Act of 1973. Such provisions are required notwithstanding the fact
that the construction on such land is not itself funded with assistance provided under this
Agreement
(15) Religious Organizations. If Grantee is a religious organization, as
defined by the CDBG program, all conditions prescribed by HUD for the use of CDBG Funds by
religious organizations, including the First Amendment of the United States Constitution
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Grant Agreement
regarding church/state principles and the applicable constitutional prohibitions set forth in 24
C.P.R. Section 570.2000).
(16) National Objectives. Grantee certifies, and agrees to, from the
Effective Date forward, maintain documentation that demonstrates, that the activities catTied out
under this Agreement meet one or more of the CDBG program's national objectives-(1) benefit
low/moderate income persons; (2) aid in the prevention or elimination of slums or blight; or (3)
meet community development needs having a particular urgency as defined in 24 CPR Part
570.208.
(17) Resident Aliens. The eligibility restrictions for certain resident
aliens in accordance with the requirements set forth in 24 CPR Part 570.613.
(18) HUD Regulations. Any other HUD regulations present or as may
be amended, added, or waived in the future pertaining to the Grant funds, including but not
limited to HUD regulations as may be promulgated regarding subrecipients.
Section 4.6 Hazardous Materials.
(a) Grantee shall keep and maintain the Property in compliance with, and may
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. Grantee 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," "hazardous materials,"
or "toxic substances" under any applicable federal or state laws or regulations (collectively
referred to hereinafter as "Hazardous Materials") except such of the foregoing as may be
customarily used in rehabilitation, operation and maintenance of projects like the Development.
(b) Grantee 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 government or
regulatory actions instituted, completed or threatened against Grantee 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 Grantee 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) Grantee's discovery
of any occulTence 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" under
the provision of California Health and Safety Code, Sections 25220 et seq., or any regulation
adopted in 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 Grantee. Grantee
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Grant Agreement
shall indemnify and hold harmless the City and City Inde1ru1itees 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 plans; and (iii) all reasonable costs and expenses incurred by the City in
connection with clauses (i) and (ii), 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 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 prope1iies). This obligation to
indemnify will survive termination of this Agreement.
( d) Without the City's prior written consent, which shall not be umeasonably
withheld, Grantee 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 reasonable
judgment, impair the value of the City's security hereunder; provided, however, that the City's
prior consent is not necessary in the event that the presence of Hazardous Materials on, under,
or about the Property 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 the City's consent before taking such action, provided that in such
event Grantee shall notify the City as soon as practicable of any action so taken. The City
agrees not to withhold its consent, where such consent is required hereunder, if either (i) a
particular remedial action is ordered by a court of competent jurisdiction, (ii) Grantee will or
may be subjected to civil or criminal sanctions or penalties if it fails to take a required action;
(iii) Grantee establishes to the reasonable satisfaction of the City that there is no reasonable
alternative to such remedial action that would result in less impairment of the City's security
hereunder; or (iv) the action has been agreed to by the City.
( e) Grantee hereby acknowledges and agrees that: (i) this Section is intended
as the City's written request for information (and Grantee'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
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) and Grantee is in default of its obligations to the City, then,
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Grant Agreement
without otherwise limiting or in any way affecting the City's or the trustee's rights and remedies,
the City may elect to exercise its rights under California Code of Civil Procedure Section
726.S(a) to (1) waive its lien on such environmentally impaired or affected portion of the
Property and (2) exercise (a) the rights and remedies of an unsecured creditor, including
reduction of its claim against Grantee to judgment, and (b) any other rights and remedies
permitted by law. For purposes of determining the City's right to proceed as an unsecured
creditor under California Code of Civil Procedure Section 726.S(a), Grantee 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.S(d)(l), ifthe 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 Grantee knew or should have
known of the activity by such lessee, occupant, or user that caused or contributed to the release
or threatened release. All costs and expenses, including (but not limited to) attorneys' fees and
other professional service fees and costs, incurred by the City in connection with any action
commenced under this paragraph, including any action required by California Code of Civil
Procedure Section 726.S(b) to determine the degree to which the Property is environmentally
impaired, plus interest thereon at the lesser of ten percent (10%) or the maximum rate permitted
by law, until paid, will be payable to the City upon its demand made at any time following the
conclusion of such action.
Section 4. 7 Maintenance and Damage.
During the course of rehabilitation and for entire Term of this Agreement, Grantee shall
maintain the Development in good repair and in a neat, clean and orderly condition. If there
arises a condition in contravention of this requirement, and if Grantee has not cured such
condition within thirty (30) days after receiving a City notice of such a condition, then in
addition to any other rights available to the City, the City has the right to perform all acts
necessary to cure such condition, and to establish or enforce a lien or other encumbrance against
the Property.
Section 4.8 Fees and Taxes.
Grantee 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, and shall
pay such charges prior to delinquency. However, Grantee is not required to pay and discharge
any such charge so long as (a) the legality thereof is being contested diligently and in good faith
and by appropriate proceedings, and (b) if requested by the City, Grantee deposits with the City
any funds or other forms of assurance that the City in good faith from time to time determines
appropriate to protect the City from the consequences of the contest being unsuccessful. The
Parties acknowledge that Grantee intends to file for the welfare exemption under Section 214 of
the California Code of Revenue and Taxation.
Section 4.9 Notice of Litigation.
Grantee shall promptly notify the City in writing of any litigation materially affecting
Grantee or the Property and of any claims or disputes that involve a material risk of such
litigation.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
Section 4.10 Operation of Development as Affordable Housing.
Upon the execution of this Agreement or the recordation of the CDBG Regulatory
Agreement, whichever is later, the Grantee shall continuously operate and maintain the
Development as multifamily housing rented to occupants and at rent levels in conformity with
the Regulatory Agreement.
Section 4.11 Transfer.
(a) For purposes of this Agreement, "Transfer" means any sale, assignment,
or transfer, whether voluntary or involuntary, of (i) any rights and/or duties under this
Agreement, and/or (ii) any interest in the Property, including (but not limited to) a fee 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 Property is
transferred and Grantee retains title. Notwithstanding the foregoing, the City's consent shall not
be required for a Transfer to an entity under the control of Grantee, or under the control of
MidPen Housing Corporation.
(b) Except as permitted above, no Transfer is pe1mitted without the prior
written consent of the City, which the City may withhold in its sole discretion.
Section 4.12 Insurance Requirements.
(a) Grantee shall maintain the insurance coverage required under Exhibit E of
the Housing Project Contract throughout the Term of the Grant:
(b) All policies and bonds must contain: (i) the agreement of the insurer to
give the City at least thirty (30) days' notice prior to cancellation (including, without limitation,
for non-payment of premium) or any material change in said policies; (i) 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 Grantee will 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
rights of subrogation against the City and its authorized parties in connection with any loss or
damage thereby insured against.
Section 4.13 Anti-Lobbying.Certification.
Grantee certifies, to the best of Grantee's knowledge or belief, that:
(a) No Federal appropriated funds have been paid or will be paid, by or on
behalf of it, to any person for influencing or attempting to influence an officer or employee of
any agency, a 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
Federal grant, the making of any Federal loan, the entering into any cooperative agreement, and
the extension, continuation, renewal, amendment, or modification of any Federal contract, grant,
loan, or cooperative agreement;
(b) If any funds other than Federal appropriated funds have been paid or will
be paid to any person for influencing or attempting to influence an officer or employee of any
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
agency, a Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in c01mection with the awarding of any Federal contract, grant, loan, or
cooperative agreement, it will complete and submit Standard Form-LLL, Disclosure Form to
Report Lobbying, in accordance with its instructions.
( c) 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 will 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.
ARTICLES.
REPRESENTATIONS AND WARRANTIES OF GRANTEE
Section 5.1 Representations and Warranties.
Grantee hereby represents and warrants to the City as follows:
(a) Organization. Grantee is a duly organized Californianonprofit public
benefit corporation, 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.
(b) Authority of Grantee. Grantee has full power and authority to execute and
deliver this Agreement and to make and accept the borrowings contemplated hereunder, to
execute and deliver this Agreement and all other documents or instruments executed and
delivered, or to be executed and delivered, pursuant to this Agreement, and to perf01m and
observe the te1ms and provisions of all of the above.
( c) Authority of Persons Executing Documents. This Agreement, 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 Grantee, and all actions required
under Grantee's organizational documents and applicable governing law for the authorization,
execution, delivery and performance of this Agreement and all other documents or instruments
executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been
duly taken.
( d) Valid Binding Agreements. This Agreement and all other documents or
instruments which have been executed and delivered pursuant to or in com1ection with this
Agreement constitute or, if not yet executed or delivered, will when so executed and delivered
constitute, legal, valid and binding obligations of Grantee, enforceable against it in accordance
with their respective terms.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of
this Agreement or of any other documents or instruments executed and delivered, or to be
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FY 2015-16 Cupe1iino Community Housing For The Disabled, Inc. CDBG Grant Agreement
executed or delivered, pursuant to this Agreement, nor the performance of any provision,
condition, covenant or other term hereof or thereof, will conflict with or result in a breach of
any statute, rule or regulation, or any judgment, decree or order of any comi, board, commission
or agency whatsoever binding on Grantee, or any provision of the organizational documents of
Grantee, or will conflict with or constitute a breach of or a default under any agreement to
which Grantee is a party, or will result in the creation or imposition of any lien upon any assets
or property of Grantee.
(f) Compliance with Laws; Consents and Approvals. The rehabilitation 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 of the fire marshal, health officer, building inspector and other officers of any such
government or agency.
(g) Pending Proceedings. Grantee is not in default m1der 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 Grantee, threatened
against or affecting Grantee or the Prope1iy, at law or in equity, before or by any comi, board,
commission or agency whatsoever which might, if determined adversely to Grantee, materially
affect Grantee's ability to comply with the terms of this Agreement.
(h) Title to Land. At the time ofrecordation of the CDBG Regulatory
Agreement, Grantee will have good and marketable fee title to the Development and the
Property and there will exist thereon or with respect thereto no mortgage, lien, pledge or other
encumbrance of any character whatsoever other than those liens approved by the City, liens for
current real property taxes and assessments not yet due and payable, and liens in favor of the
City or approved in writing by the City.
(i) Financial Statements. The financial statements of Grantee and other
financial data and information furnished by Grantee to the City fairly present the information
contained therein. As of the date of this Agreement, there has not been any adverse, material
change in the financial condition of Grantee from that shown by such financial statements and
other data and information.
G) Sufficient Funds. Grantee holds sufficient funds and/or binding
commitments for sufficient funds to complete the rehabilitation of the Development in
accordance with Scope of Work.
ARTICLE 6.
DEF AULT AND REMEDIES
Section 6.1 Events of Default.
Each of the following constitutes a "Default" by Grantee under this Agreement:
(a) Failure to Rehabilitate. Failure of Grantee to commence and complete
rehabilitation of the Development within the times set forth in Article 3 above, subject to a
thirty (30)-day cure period;
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FY 2015-16 Cupertino Community Housing For The Disabled, [nc. CDBG Grant Agreement
(b) Failure to Comply with CDBG Regulatory Agreement. Failure of Grantee
to comply with the CDBG Regulatory Agreement, subject to all applicable notice and cure
rights provided therein.
(c) Breach of Covenants. Failure by Grantee to duly perform, comply with,
or observe any of the conditions, terms, or covenants of this Agreement, and such failure
continues uncured for thirty (30) days after receipt of written notice thereof from the City to
Grantee or, if the breach cannot be cured within thirty (30) days, Grantee shall not be in breach
so long as Grantee is diligently undertaking to cure such breach and such breach is cured within
ninety (90) days or such longer period as may be expressly approved by the City in writing;
provided, however, that if a different period or notice requirement is specified under any other
section of this Article 5, the specific provisions shall control.
( d) Insolvency. A court having jurisdiction has made or entered any decree or
order: (i) adjudging Grantee to be bankrupt or insolvent; (ii) approving as properly filed a
petition seeking reorganization of Grantee or seeking any arrangement for Grantee under the
bankruptcy law or any other applicable debtor's relieflaw or statute of the United States or any
state or other jurisdiction; (iii) appointing a receiver, trustee, liquidator, or assignee of Grantee
in bankruptcy or insolvency or for any of their properties; (iv) directing the winding up or
liquidation of Grantee, if any such decree or order described in clauses (i) to (iv), inclusive, has
continued unstayed or undischarged for a period of ninety (90) days; or (v) Grantee has
admitted in writing its inability to pay its debts as they fall due or has voluntarily submitted to
or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv),
inclusive.
( e) Assignment; Attachment. Grantee has assigned its assets for the benefit of
its creditors or suffered a sequestration or attachment of or execution on any substantial part of
its property, unless the property so assigned, sequestered, attached or executed upon has been
returned or released within ninety (90) days after such event or, if sooner, prior to sale pursuant
to such sequestration, attachment, or execution.
(:t) Suspension; Termination. Grantee shall have voluntarily suspended its
business or has been dissolved or terminated.
(g) Liens on Property. There shall be filed any claim oflien (other than liens
approved in writing by City) against the Development, the Property, or any part thereof, or any
interest or right made appurtenant thereto 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 City.
(h) Condemnation. The condemnation, seizure, or appropriation of all or the
substantial part of the Property or the Development, by an entity other than the City.
(i) Unauthorized Transfer. Any Transfer not previously approved by the City
pursuant to Section 4.11.
(j) Representation or Warranty Incorrect. Any Grantee representation or
warranty contained in this Agreement, or in any application, financial statement, certificate, or
report submitted to the City in connection with this Agreement, proves to have been incorrect in
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Grant Agreement
any material respect when made. After issuance of the certificates of occupancy for the
Property, Default may be declared under this subsection only if the failure ofrepresentation or
warranty also has a material adverse effect on the operation of the Property.
Section 6.2 Remedies.
The occurrence of any Default hereunder following the expiration of all applicable notice
and cure periods will, either at the option of the City or automatically where so specified, gives
the City the right to proceed with any and all remedies set forth in this Agreement, including but
not limited to the following:
(a) Repayment of Grant. The City may demand Grantee repay the CDBG
Grant, together with any accrued interest thereon, to become immediately due and payable.
Grantee waives all right to presentment, demand, protest or notice of protest or dishonor.
Grantee is liable to pay the City on demand all reasonable expenses, costs and fees (including,
without limitation, reasonable attorney's fees) paid or incurred by the City in c01mection with the
repayment of the CDBG Grant.
(b) Specific Performance. The City has the right to mandamus or other suit,
action or proceeding at law or in equity to require Grantee to perform its obligations and
covenants under this Agreement and the CDBG Regulatory Agreement or to enjoin acts on
things that may be unlawful or in violation of the provisions of this Agreement.
(c) Right to Cure at Grantee's Expense. The City shall have the right (but not
the obligation) to cure any monetary default by Grantee under a loan other than the CDBG
Grant. The Grantee agrees to reimburse the City for any funds advanced by the City to cure a
monetary default by Grantee upon demand therefor, together with interest thereon at the lesser of
the maximum rate permitted by law or ten percent (10%) per annum from the date of expenditure
until the date of reimbursement.
Section 6.3 Right of Contest.
Grantee shall have the right to contest in good faith any claim, demand, levy, or
assessment the asse1iion of which would constitute a Default hereunder.
Section 6.4 Remedies Cumulative.
No right, power, or remedy given to the City by the tenns of this Agreement is intended
to be exclusive of any other right, power, or remedy; and each and every such right, power, or
remedy shall 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 Grantee and any
other person. Neither the failure nor any delay on the part of the City to exercise any such rights
and remedies shall 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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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
ARTICLE 7.
GENERAL PROVISIONS
Section 7.1 Relationship of Parties.
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
and agent, limited or general partnership, or joint venture between the City and Grantee or its
agents, employees or contractors, and Grantee will at all times be deemed an independent
contractor and shall be wholly responsible for the manner in which it or its agents, or both,
perform the services required of it by the terms of this Agreement. Grantee has and retains the
right to exercise full control of employment, direction, compensation, and discharge of all
persons assisting in the performance of services under this Agreement. In regards to the
rehabilitation of the Development, Grantee is solely responsible for all matters relating to
payment of its employees, including compliance with Social Security, withholding, and all other
laws and regulations governing such matters, and shall include requirements in each contract that
contractors are solely responsible for similar matters relating to their employees. Grantee 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 Grantee may have employed or with whom Grantee 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 rehabilitation of the Development, and Grantee shall include
similar requirements in any contracts entered into for the rehabilitation or the operation of the
Development.
Section 7 .3 Amendments.
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 CDBG Grant Documents so long as any material change in the amount or terms ofthis
Agreement is approved by the City Council.
Section 7.4 Inde11lllification.
Grantee shall inde11lllify, defend (with counsel reasonably selected by the City) and hold
the City and City Inde11lllitees harmless against any and all claims, suits, actions, losses and
liability of every kind, nature and description made against it and expenses (including reasonable
attorneys' fees or other professional service fees or costs) that arise out of or in connection with
this Agreement, including but not limited to the rehabilitation of the Development, except to the
extent such claim arises from the grossly negligent or willful misconduct of the City and City
Inde1m1itees. The provisions of this Section will survive the termination of this Agreement.
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Grant Agreement
Section 7.5 Non-Liability of Officials, Employees and Agents.
No member, official, employee or agent of the City will be personally liable to Grantee in
the event of any default or breach by the City or for any amount that may become due to Grantee
under the tem1s of this Agreement. No member, officer, director, employee or agent of Grantee
shall be personally liable to the City in the event of any default or breach by Grantee or for any
amount which may become due to the City or its successor or on any obligation under the terms
of this Agreement.
Section 7.6 No Third Party Beneficiaries.
There are no third party beneficiaries to this Agreement.
Section 7. 7 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 rehabilitation of the Development.
Section 7.8 Conflict of Interest.
(a) Except for approved eligible administrative or personnel costs, no person
described in Section 6.8(b) below may, during or after their tenure, obtain a personal or
financial interest or benefit from the activities funded pursuant to this Agreement, or have any
interest in any contract, subcontract or agreement with respect to such activities, or the proceeds
under the contract, either for themselves or those with whom they have family or business ties.
Grantee shall exercise due diligence to ensure that the prohibition in this Section 6.8(a) is
followed.
(b) The conflict of interest provision of Section 7.8(a) above applies to: (i)
any person who is an employee, agent, consultant, or officer of the City who exercises or has
exercised any functions or responsibilities with respect to the activities funded pursuant to this
Grant or who is in a position to participate in a decision-making process or to gain inside
infom1ation with regard to such activities, may obtain a personal or financial interest or benefit
from the activity, or have an interest in any, (ii) any immediate family member of such person,
(iii) any elected or appointed official of the City, and (iv) any person related within the third
(3rd) degree of such person.
( c) In accordance with Government Code Section 1090 and the Political
Reform Act, Government Code section 87100 et seq., no person who is a director, officer,
partner, trustee or employee or consultant of Grantee, 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 Grantee.
Interpretation of this section shall be governed by the definitions and provisions used in the
Political Reform Act, Governn1ent Code section 87100 et seq., its implementing regulations
manual and codes, and Government Code section 1090.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
( d) Grantee shall comply with the conflict of interest provisions set fo1ih in 24
C.F.R. Section 570.611.
Section 7.9 Notices, Demands and Communications.
Formal notices, demands, and communications between the parties will be sufficiently
given if and will not be deemed given unless dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered by express delivery service (e.g., Fed-Ex, UPS),
return receipt requested, or delivered personally, to the principal office of the Parties as follows:
City:
Grantee:
City of Cupertino
Community Development Department
10300 Torre Avenue
Cupertino, CA 95014
Attention: Senior Housing Planner
Cupertino Community Housing for the Disabled, Inc.
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attention: Executive Director
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).
Section 7.10 Applicable Law.
The laws of the State of California govern all matters arising out of this Agreement.
Section 7.11 Parties Bound.
Except as otherwise limited herein, the provisions of this Agreement are binding upon
and inure to the benefit of the parties and their heirs, executors, administrators, legal
representatives, successors, and assigns. This Agreement is intended to run with the land and
shall bind Grantee and its successors and assigns in the Property and the Development for the
entire Term, and the benefit hereof shall inure to the benefit of City and its successors and
assigns.
Section 7.12 Attorneys' Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing
party has the right to recover its reasonable attorneys' fees and costs of suit from the other party.
Section 7 .13 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
25
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
unless the rights and obligations of the parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
Section 7.14 Force Majeure.
In addition to specific provisions of this Agreement, performance by either Party shall 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
transpmiation, or court order. An extension of time for any cause will be deemed granted if
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
Paiiy within ten (10) days ofreceipt of the notice. In no event shall the City be required to agree
to cumulative delays in excess of one hundred eighty (180) days.
Section 7.15 City Approval.
The City has authorized the City Manager to execute the CDBG Grant Documents and
deliver such approvals or consents as are required by this Agreement, and to execute estoppel
certificates concerning the status of the CDBG Grant and the existence of Grantee defaults under
the CDBG Grant Documents. Any consents or approvals required under this Agreement shall
not be unreasonably withheld or made, except where it is specifically provided that a sole
discretion standard applies. The City shall not unreasonably delay in reviewing and approving or
disapproving any proposal by Grantee made in connection with this Agreement.
Section 7.16 Waivers.
Any waiver by the City of any obligation or condition in this Agreement must be in
writing. No waiver will be implied from any delay or failure by the City to take action on any
breach or default of Grantee or to pursue any remedy allowed under this Agreement or
applicable law. Any extension of time granted to Grantee to perform any obligation under this
Agreement does not operate as a waiver or release from any of its obligations under this
Agreement. Consent by the City to any act or omission by Grantee is not to be construed to be a
consent to any other or subsequent act or omission or to waive the requirement for the City's
written consent to future waivers.
Section 7.17 Title of Parts and Sections.
Any titles of the sections or subsections of this Agreement are inse1ied for convenience of
reference only and are to be disregarded in interpreting any part of this Agreement's provisions.
Section 7.18 Entire Understanding of the Parties.
This Agreement, together with the CDBG Grant Documents constitutes the entire
understanding ai1d agreement of the patiies with respect to the subject matter hereof.
Section 7 .19 Multiple Originals; Counterpart.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts.
-; _ ...
27
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
WHEREAS, this Agreement has been entered into by the undersigned as of the Effective
Date.
APPROVED AS TO FORM
AND LEGALITY:
~
Carol Korade, City Attorney
~TEST:
~~
CITY:
OWNER:
CUPERTINO COMMUNITY HOUSING FOR THE
DISABLED, INC., a California nonprofit public benefit
corporation
-
By: ··----
Art Fatum, Assistant Secretary
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Grant Agreement
EXHIBIT A
LEGAL DESCRIPTION
The land referred to is situated in the County of Santa Clara, City of Cupertino, State of
California, and is described as follows:
PARCEL ONE:
Beginning at a point on the east line of Stelling Road, distant thereon South 424. 77 feet from the
intersection thereof with the Southerly line of a 30 foot strip of land conveyed by Southern
Pacific Company, a corporation to County of Santa Clara, by deed dated April 5, 1937 and
recorded December 7, 1937 in Book 853 of Official Records, Page 248, said point being the
Southwesterly corner of said land conveyed by Bank of America to Peter Bianchi by Deed dated
April 10, 1941 and recorded April 28, 1941 in Book 1038 of Official Records, Page 156; thence
along the Southerly line of said Bianchi parcel N. 89 deg. 57' 00" E. 143.50 feet to the tme point
of beginning; thence continuing N. 89 deg. 57' 00" E. 323.45 feet; thence parallel with Stelling
Road North 252.77 feet; thence parallel with the Southerly line of said Bianchi parcel S. 89 deg.
57' 00" W. 159.95 feet; thence parallel with Stelling Road South 189.02 feet; thence parallel with
the Southerly line of said Bianchi parcel S. 89° deg. 57' 00" W. 163.50 feet; thence parallel with
Stelling Road South 63.75 feet to the tme point of beginning. Said parcel is also shown on the
Record of Survey filed March 27, 2006, in Book 798 of Maps, Page 44, Santa Clara County
Records.
PARCEL TWO:
A right of way for ingress and egress over that certain parcel of land 40 feet wide, the center line
of which is described as follows:
Beginning at a point in the Southerly line of the 30 foot strip of land conveyed by Southern
Pacific Company to the County of Santa Clara by Deed dated April 5, 1937 and recorded
December 7, 1937 in Vol. 853 of Official Records, Page 248, Santa Clara County Records, said
point of beginning being distant along said line Easterly 20 feet from the Westerly line of the
parcel of land conveyed by the Bank of America to Peter Bianchi by Deed dated April 10, 1941
and recorded April 28, 1941 in Vol. 1038 of Official Records, Page 156, Santa Clara County
Records; thence Southerly and parallel with said Westerly line and the Southerly prolongation
thereof, 424.77 feet to the Southerly line of said lands so conveyed to Bianchi.
APN's 359-07-010, 019 and 020
A-1
EXHIBITB
APPROVED BUDGET
Sources
City of Cupertino CDBG Funds (Grant) $309,803
Total Sources $309,803
Uses
Construction Costs:
Exterior/Common Area Work:
Fence upgrades 20,000
Subtotal $20,000
Unit Interiors:
Replace interior pocket doors and unit entry doors $30,000
Cabinet resurfacing and replacements $65,000
Flooring replacements $30,000
Selective energy-efficient appliance replacements $15,000
Unit lighting $10,000
Selective air conditioning replacements $15,000
Repaint unit interiors $15,000
Replace selected bathroom floors and shower pans $40,000
Subtotal $220,000
Soft Costs:
Construction Management Fee ({iJ, 6% $17,536
NEPA consultant $4,000
Prevailing Wage Consultants $10,000
Design and drawings $5,000
Permits $5,000
Legal Expenses $2,591
Subtotal $44,127
Contingency up to 10% $25,676
Subtotal $25,676
Total Uses (or Total Pro.ject Cost) $309,803
C-1
EXHIBITC
APPROVED SCOPE OF WORK
Exterior/Common Area Work:
Task 1. Replace backyard privacy fences, replace the "good neighbor" chain link fence, and
install a privacy wall in the common patio area.
Unit Interiors:
Task 1. Replace interior pocket doors and unit entry doors
Task 2. Cabinet and vanity resurfacing and replacements in select units.
Task 3. Selective flooring replacements
Task 4. Repaint selected unit interiors
Task 5. Selective energy-efficient appliances, including refrigerators and stoves.
Task 6. Upgrade unit interior lighting.
Task 7. Selective air conditioning replacements
Task 8. Replace the shower pans and repair bathrooms floors in 4 units
C-2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Cupertino
Community Development Depaiiment
10300 Torre Avenue
Cupertino, CA 95014
Attn: Senior Housing Planner
No fee for recording pursuant to
Government Code Section 27383
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(CDBG Grant-Le Beaulieu Apartments)
This Regulatory Agreement and Declaration of Restrictive Covenants (the "Agreement")
is made and entered into as of July 1, 2015, by and between the City of Cupertino, a municipal
corporation ("City"), and Cupertino Community Housing for the Disabled, Inc., a California
nonprofit public benefit corporation ("Owner").
RECITALS
A. This Agreement is entered into pursuant to the Grant Agreement (as defined in
Section 1.1 below), entered into as part of Owner's rehabilitation of the real property located at
10092 Biai1chi Way, Cupertino, as more particularly described in Exhibit A attached here to (the
"Prope1iy"). The Property is improved with improved with a twenty-seven (27) units of
multifainily rental housing in seven (7) separate buildings, commonly referred to as the Le
Beaulieu (the "Development"). The Owner intends on rehabilitating twelve (12) of the units of
multifamily rental housing and to malce specified improvements to the exterior and common
areas of the Development to address security, accessibility, and safety concerns. Capitalized
terms used but not defined in this Agreement shall have the meanings set forth in the Grant
Agreement.
B. As set forth in the Grant Agreement, the rehabilitation of the Development is
being funded utilizing the proceeds of funds received by the City from the United States
Department of Housing and Urban Development ("HUD") under the Community Development
Block Grant ("CDBG") program.
C. The City entered into the Grant Agreement with Owner on the condition that the
Development be maintained and operated in accordance with restrictions concerning
affordability, operation, and maintenance of the Development that are set f01ih in this Agreement
and in the Grant Agreement.
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
D. In consideration of the Grant Agreement, Owner agrees to observe all the terms
and conditions set forth below.
E.
THEREFORE, City and Owner hereby agree as follows.
1.1 Definitions.
ARTICLE 1
DEFINITIONS
When used in this Agreement, the following terms shall have the respective meanings
assigned to them in this Article 1.
(a) "Actual Household Size" means the actual number of persons in the
applicable household.
(b) "Adjusted Income" means the total anticipated annual income of all
persons in the Tenant household as calculated in accordance with 24 C.F.R. Section 5.611.
( c) "CDBG" means the Community Development Block Grant program under
Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et. seq.), as
amended.
(d) "CDBG Grant" means the financing provided to the Owner by City
pursuant to the Grant Agreement.
(e) "CDBG Regulations" means the statutory and regulatory"'provisions that
govern the CDBG program under Title I of the Housing and Community Development Act of
1974 (42 U.S.C. 5301 et. seq.), as amended including 24 C.F.R. Part 570 et seq.
(f) "City-Assisted Units" means five (5) units on the Property designated as
assisted by the City.
(g) "Development" has the meaning set forth in Recital A.
(h) "Grant Agreement" means the Grant Agreement between Owner and City,
dated of even date herewith, evidencing the Grant.
(i) "HUD" has the meaning set forth in Recital B.
G) "Median Income" means the median gross yearly income, adjusted for
Actual Household Size as specified herein, in the Santa Clara County, 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
provide the Owner with other income determinations which are reasonably similar with respect
to methods of calculation to those previously published by HUD.
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FY 2015-16 Cupertino Community Housing For The Disabled .. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
(k) "Official Records" means the official land records of the County of Santa
Clara, California.
(1) "Property Rent" means the total of monthly payments by the Tenant and
the subsidy on behalf of the tenant of a City-Assisted Unit for the following: " has the meaning
set forth in Recital A.
(m) "use and occupancy of the City-Assisted Unit and land and associated
facilities, including parking; any separately charged fees or service charges assessed by Owner
which are required of all Tenants, other than security deposits; an allowance for the cost of an
adequate level of service for utilities paid by the Tenant, including garbage collection, sewer,
water, electricity, gas and other heating, cooking and refrigeration fuel, but not telephone
service or cable television; and any other interest, taxes, fees or charges for use of the land or
associated facilities and assessed by a public or private entity other than Owner, and paid by
the Tenant.
(n) "Tenant" means a household legally occupying a City-Assisted Unit.
(o) "Term" means the term of this Agreement which commences as of the
date this Agreement is recorded in the Official Records and ends on the twentieth (20t11)
anniversary thereof.
(p) "Very Low Income Household" means a Tenant 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 family incomes.
( q) "Very Low Income Rent" shall mean the maximum allowable rent for a
Very Low Income Unit pursuant to Section 2.l(a) below.
(r) "Very Low Income Units" shall mean the City-Assisted Units which,
pursuant to Section 2.2(a) below, are required to be occupied by Very Low Income
Households.
ARTICLE2
AFFORDABILITY AND OCCUPANCY COVENANTS
2.1 Occupancy Requirements.
Five (5) of the City-Assisted Units shall be rented to and occupied by or, if vacant,
available for occupancy by Very Low Income Households. At initial occupancy, affordability by
bedroom type shall be met in accordance with the following:
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FY 2015-16 Cupertino Community I-lousing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of RestrictiYe Covenants
Unit Size Very Low
Income
1 Bedroom 3
2 Bedroom 2
Total 5
Owner agrees to use its best efforts to maintain the distribution shown in the above chart for the
Tenn of this Agreement.
2.2 Allowable Rent.
(a) Very Low Income Rent. The Rent paid by Tenants of the Very Low
Income Units shall not exceed thirty percent (30%) of fifty percent (50%) of Median Income
("Very Low Income Rent").
2.3 Increased Incomes of Tenant.
(a) Non-Qualifying Household. If, upon recertification of the income of a
Tenant, the Owner determines that a former Very Low Income Household has an Adjusted
Income exceeding the maximum qualifying income for a Very Low Income Household, such
Tenant shall be permitted to continue occupying the Unit and, upon expiration of the Tenant's
lease and upon sixty (60) days written notice, the Rent shall be increased to the lesser of one-
twelfth (1/lih) of thirty percent (30%) of the actual Adjusted Income of the Tenant, or fair
market rent. Owner shall not be required to evict an otherwise qualified household due to an
increase in household income above the limit set forth herein for a Very Low Income Household.
When the Tenant vacates the Unit the Owner shall rent the Unit to a Very Low Income
Household to comply with the requirements of Section 2.1 above.
(b) Termination of Tenancy. Upon tem1ination of occupancy of a City-
Assisted Unit by a Tenant, such City-Assisted Unit shall be rented to Very Low Income
Household, or a Low-Income Household, as applicable, to comply with the requirements of
Section 2.1 above.
2.4 Units Available to the Disabled. In compliance with Section 504 of the
Rehabilitation Act of 1973 (29 USC 794 et. seq.), City-Assisted Units shall to the maximum
extent feasible be accessible to and usable by individuals with handicaps.
ARTICLE3
INCOME CERTIFICATION AND REPORTING
3 .1 Income Certification.
Owner will obtain, complete, and maintain on file, annual income certifications from
each Tenant renting any of the City-Assisted Units. Owner shall make a good faith effort to
verify the accuracy of the income provided by the applicant or occupying household, as the case
may be, in an income certification. To verify the information, Owner shall take two or more of
4
FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
the following steps: (i) obtain a pay stub for the most recent pay period; (ii) obtain an income
tax return for the most recent tax year for self-employed individuals and those paid in cash; (iv)
obtain an income verification form from the applicant's current employer; (v) obtain an income
verification form from the Social Security Administration and/or the California Department of
Social Services if the applicant receives assistance from either of such agencies; or (vi) if the
applicant is unemployed and does not have a tax return, obtain another form of independent
verification. Owner shall also complete and/or have the Tenants of the City-Assisted Units
complete and sign the "Income Computation and Certification" and the "Owner's Certification of
Household Income" both of which are attached hereto as Exhibit Band/or any other forms
related to Tenants' income provided to Owner by the City or that provide income information
that is sufficient to determine an applicant's income as required by this Section 3.1. Copies of
Tenant income certifications shall be available to the City upon request.
3 .2 Reporting Requirements.
Owner shall submit to the City annual reports in a fonn approved by the City, no later
than one hundred twenty (120) days after the end of Owner's fiscal year. The reports shall
contain such information as the City may require, including, but not limited to, the following:
(a) A statement of the fiscal condition of the Prope1iy, including a financial
statement indicating surpluses or deficits in operating accounts for the period covered, a
detailed itemized listing of income and expenses, and the amounts of any Property reserves.
The report due after the end of each fiscal year shall contain an audited version of this
statement. Such audit shall be prepared in accordance with the requirements of the City and
ce1iified at the Owner's expense by an independent Certified Public Accountant licensed by the
State of California. The Owner shall also follow audit requirements of the Single Audit Act
and OMB Circulars A-122 and 110.
(b) The substantial physical defects in the Property, if any, including a
description of any major repair or maintenance work undertaken in the reporting period.
( c) The occupancy of the Property indicating:
(1) A listing of current Tenants' names, income levels, rent charged
and paid, move-in dates, and the race and ethnic groups of Tenants;
(2) General management performance, including Tenant relations and
other relevant information.
Upon request of the City, Owner shall furnish, within fifteen (15) days, copies of all
Tenant agreements for the City-Assisted Units. Within fifteen (15) days after receipt of a written
request from the City, Owner shall also submit any other information or completed forms
requested by the City in order to comply with reporting requirements of HUD, (provided,
however, that the Owner shall in no event be obligated to provide any information that it cam1ot
legally obtain as a housing provider), the State of California, or any other goverm11ent entity or
lender to Owner.
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FY 2015-16 Cupertino Community Housing For The Disabled, lnc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
3.3 Additional Information.
Owner shall provide any additional information reasonably requested by the City. The
City shall have the right to examine and make copies of all books, records or other documents of
Owner which pertain to the Property.
3 .4 Records.
Owner shall maintain complete, accurate and current records pertaining to the Property
and all those records set forth in the Grant Agreement, and shall permit any duly authorized
representative of the City to inspect records, including records pertaining to income and
household size of Tenants. All Tenant lists, applications and waiting lists relating to the
Development shall at all times be kept separate and identifiable from any other business of
Owner and shall be maintained as required by the City, in a reasonable condition for proper audit
and subject to examination during business hours by representatives of the City. Owner shall
retain copies of all materials obtained or produced with respect to occupancy of the City-Assisted
Units for a period of at least five (5) years.
3 .5 On-site Inspection.
The City shall have the right to perform an on-site inspection of the Property when
deemed necessary by the City, and subject to the rights of the Tenants, at least one (1) time per
year upon reasonable notice to the Owner. Owner agrees to cooperate in such inspection and
request Tenants cooperate with such inspections.
ARTICLE4
OPERATION OF THE PROPERTY
4.1 Residential Use.
Owner shall operate the Development as rental multifamily affordable housing in
accordance with Article 2 of this Agreement. The Development shall be operated only for
residential use. No part of the Property may be operated as transient housing.
4.2 Compliance with Grant Agreement.
Owner shall comply with all the terms and provisions of the Grant Agreement.
4.3 Taxes and Assessments.
Owner shall pay all real and personal property taxes, 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 maimer as to prevent any penalty from
accruing, or any lien or chai·ge from attaching to the Property; provided, however, that Owner
shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event
Owner exercises its right to contest any tax, assessment, or charge against it, Owner, on final
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FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
determination of the proceeding or contest, shall immediately pay or discharge any decision or
judgment rendered against it, together with all costs, charges and interest.
4.4 Property Tax Exemption.
Owner shall not apply for a property tax exemption for the Property under any provision
of law except California Revenue and Taxation Section 214(g), without the prior written consent
of the City.
4.5 Tenant Selection Plan.
Owner shall not make material modifications to its tenant selection plan without the prior
written approval of the City, which approval shall not be unreasonably withheld.
ARTICLE 5
PROPERTY MANAGEMENT AND MAINTENANCE
5.1 Management Responsibilities.
The Owner is responsible for all management functions with respect to the Development
and Property, including without limitation the selection of Tenants, certification and
recertification of household size and income, evictions, collection of rents and deposits,
maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and
security. The City shall have no responsibility over management of the Development and
Prope1iy. The Owner shall retain a professional property management company approved by the
City in its reasonable discretion to perfonn its management duties hereunder.
5 .2 Management Agent; Periodic Repmis.
The Property shall at all times be managed by an experienced management agent
reasonably acceptable to the City, with demonstrated ability to operate residential facilities like
the Property in a manner that will provide decent, safe, and sanitary housing (as approved, the
"Management Agent"). The Owner shall submit for the City's approval the identity of any
proposed Management Agent and if applicable, the management agreement between Owner and
the Management Agent (the "Management Agreement"). The Owner shall also 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 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 the Owner in writing.
Unless the proposed management agent and proposed management agreement is disapproved by
the City within thirty (30) days, which disapproval shall state with reasonable specificity the
basis for disapproval, it shall be deemed approved.
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
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 Property. The
purpose of each periodic review will be to enable the City to determine if the Property is being
operated and managed in accordance with the requirements and standards of this Agreement.
The Owner shall cooperate with the City in such reviews.
5 .4 Replacement of Management Agent.
If, as a result of a periodic review, the City determines in its reasonable judgment that the
Property is not being operated and managed in accordance with any of the material requirements
and standards of this Agreement, or, if applicable, the Management Agreement, the City shall
deliver notice to Owner of its determination that the Property does not satisfy the requirements of
this Agreement, such notice may include a request to cause replacement of the Management
Agent, including the reasons therefor. Within fifteen (15) days after receipt by Owner of such
written notice, City staff and the Owner shall meet in good faith to consider methods for
improving the financial and operating status of the Property, including, without limitation,
replacement of the Management Agent.
If, after such meeting and not less than thirty (30) days opportunity to cure, City staff
recommends in writing the replacement of the Management Agent, Owner shall promptly
dismiss the current Management Agent (subject to any applicable notice and cure periods in the
Management Agreement or this Agreement), and shall appoint as the Management Agent a
person or entity meeting the standards for a management agent set forth in Section 5.2 above and
approved by the City pursuant to Section 5 .2 above.
Any contract for the ope1=ation or management of the Property entered into by Owner
shall provide that the Management Agent may be dismissed and the contract terminated as set
forth above. Failure to remove the Management Agent in accordance with the provisions of this
Section shall constitute default under this Agreement, and the City may enforce this provision
through legal proceedings as specified in Section 6.8 below.
5.5 Approval of Management Policies.
The Owner shall submit its written management policies with respect to the Property to
the City for its review, and shall amend such policies in any way necessary to ensure that such
policies comply with the provisions of this Agreement.
5.6 Property Maintenance.
The Owner shall, for the entire Tenn of this Agreement, maintain all interior and exterior
improvements, including landscaping, on the Prope1iy 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
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FY 2015-16 Cupertino Community I-lousing For The Disabled, Inc. CDBG Regulatory Agreement and Declaration or Restrictive Covenants
departments, bureaus, and officials, and in accordance with the following maintenance
conditions:
The Owner shall, for the entire Term of this Agreement, maintain 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 accordance with the following maintenance
conditions:
(a) Landscaping. The Owner shall have landscape maintenance performed on
a regular basis, including replacement of dead or diseased plants with comparable plants. Owner
agrees to adequately water the landscaping on the Property. No improperly maintained
landscaping on the Property is to be visible from public streets and/or rights of way;
(b) Yard Area. Owner shall not leave any yard areas on the Property
unmaintained, including:
(1) broken or discarded furniture, appliances and other, household
equipment stored in yard areas for a period exceeding one (1) week;
(2) packing boxes, lumber trash, dirt and other debris in areas visible
from public property or neighboring properties; and
(3) vehicles parked or stored in other than approved parking areas.
( c) Building. The Owner shall not leave any buildings located on the
Property in an unmaintained condition so that any of the following exist:
(1) violations of state law, unifonn codes, or City ordinances;
(2) conditions that constitute an unsightly appearance that detracts
from the aesthetics or value of the Property or constitutes a private or public nuisance;
(3) broken windows;
(4) graffiti (must be removed within 72 hours); and
(5) conditions constituting hazards and/or inviting trespassers, or
malicious mischief.
(d) Sidewalks. The Owner shall maintain, repair, and replace as necessary all
public sidewalks adjacent to the Development.
The City places prime importance on quality maintenance to protect its investment and to
ensure that all City-assisted affordable housing projects within the City are not allowed to
9
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
deteriorate due to below-average maintenance. Normal wear and tear of the Property will be
acceptable to the City assuming the Owner agrees to provide all necessary improvements to
assure the Property is maintained in good condition. The Owner shall make all repairs and
replacements reasonably necessary to keep the improvements in good condition and repair.
In the event that the Owner breaches any of the covenants contained in this Section and
such default continues for a period of fifteen business (15) 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, shall have the right to
enter upon the Property and perform or cause to be performed all such acts and work necessary
to cure the default. Pursuant to such right of entry, the City shall be pennitted (but is not
required) to enter upon the Property and perform all acts and work necessary to protect,
maintain, and preserve the improvements and landscaped areas on the Property, and to attach a
lien on the Property, or to assess the Property, in the amount of the expenditures arising from
such acts and work of protection, maintenance, and preservation by the City and/or costs of such
cure, which amount shall be promptly paid by the Owner to the City upon demand.
( e) Safety Conditions. The Owner acknowledges that the City places a prime
importance on the security of City-assisted projects and the safety of the residents and
surrounding community. The Owner shall implement and maintain throughout the Term the
following security measures in the Development:
(1) to the extent feasible employ defensible space design principles
and crime prevention measures in the operation of the Development including, but not limited to,
maintaining adequate lighting in parking areas and pathways;
(2) use its best efforts to work with the City Police Depatiment to
implement and operate an effective neighborhood watch program; and
(3) provide added security including dead-bolt locks for every entry
door, and where entry doors are damaged, replace them with solid-core doors.
(f) The City shall have the right to enter on the Property and/or contact the
City Police Department if it becomes aware of, or is notified of, any conditions that pose a
danger to the peace, health, welfare or safety of the Tenants and/or the surrounding community,
and to perform, or cause to be performed, such acts as are necessary to correct the condition.
5. 7 Asset Management.
The Owner is responsible for all asset management functions with respect to the Property,
including without limitation the oversight of the Management Agent, maintaining accurate and
CUtTent books and records for the Property and promptly paying costs incurred in connection
with the Property. The City shall have no responsibility over asset management of the Property.
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FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
6.1 Lease Provisions.
ARTICLE 6
MISCELLANEOUS
In leasing the City-Assisted Units, Owner shall use a form of Tenant lease approved by
the U.S. Department of Housing and Urban Development (HUD). The form of Tenant lease
shall also comply with all requirements of this Agreement and the Grant Agreement, and shall,
among other matters:
(a) provide for termination of the lease and consent by the Tenant to
immediate eviction for failure: (i) to provide any information required under this Agreement
or reasonably requested by Owner to establish or recertify the Tenant's qualification, or the
qualification of the Tenant's household, for occupancy in the Property in accordance with the
standards set fotih in this Agreement, or (ii) to qualify as a Very Low Income Household or a
Low Income Household as a result of any material misrepresentation made by such Tenant
with respect to the income computation.
(b) be for an initial term of not less than one (1) year, unless by mutual
agreement between the Tenant and Owner (and only if allowed by all financing sources), 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 Owner and the Tenant.
6.2 Lease Termination.
Any termination of a lease or refusal to renew a lease for a City-Assisted Unit shall be in
conformance with the CDBG Regulations and shall be preceded by not less than sixty (60) days
written notice to the Tenant by the Owner specifying the grounds for the action.
6.3 Nondiscrimination.
(a) The Property shall be operated at all times in compliance with the
provisions of: (i) the Umuh Act; (ii) the California Fair Employment and Housing Act; (iii)
Section 504 of the Rehabilitation Act of 1973; (iv) the Fair Housing Act, as amended; and (v)
any other applicable law or regulation (including the Americans With Disabilities Act, to the
extent applicable to the Property). Owner shall agree to indemnify, protect, hold harmless and
defend (with counsel reasonably satisfactory to City) City, and its boardmembers, officers and
employees, from all suits, actions, claims, causes of action, costs, demands, judgments and
liens arising out of Owner's failure to comply with applicable legal requirements related to
housing for persons with disabilities. The provisions of this subsection will survive expiration
of the Term or other termination of this Agreement, and remain in full force and effect.
(b) All of the City-Assisted Units shall be available for occupancy on a
continuous basis to members of the general public who are income eligible. Owner shall not
give preference to any particular class or group of persons in renting or selling the City-
Assisted Units [other than disabled heads of households]. The Owner herein covenants by and
for Owner, assigns, and all persons claiming under or through the Owner, that there shall be no
11
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
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 City-Assisted Unit nor shall Owner or any person claiming under
or through Owner, 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, sublessees, subtenants, or vendees of any City-Assisted Unit or in connection with the
employment of persons for the construction, operation and management of any City-Assisted
Unit. Notwithstanding the above, with respect to familial status, the above should not be
construed to apply to housing for older persons as defined in Section 12955.9 of the
Government Code and other applicable sections of the Civil Code as identified in Health and
Safety Code Section 33050(b).
(c) The Owner will accept as Tenants, on the same basis as all other
prospective Tenants, persons who are recipients of federal ce1iificates for rent subsidies
pursuant to the existing housing program under Section 8 of the United States Housing Act, or
its successor. The Owner shall not apply selection criteria to Section 8 certificate or voucher
holders that are more burdensome than criteria applied to all other prospective Tenants, nor
shall the Owner apply or permit the application of management policies or lease provisions
with respect to the Property which have the effect of precluding occupancy of City-Assisted
Units by such prospective Tenants.
6.4 Term.
The provisions of this Agreement shall apply to the Property for the entire Term even if
the entire Grant is repaid, or forgiven, in full prior to the end of the Term. This Agreement shall
bind any successor, heir or assign of Owner, whether a change in interest occurs voluntarily or
involuntarily, by operation of law or otherwise, except as expressly released by the City. The
City makes the Grant on the condition, and in consideration of, this provision, and would not do
so otherwise.
6.5 Compliance with the Grant Agreement and Program Requirements.
Owner's actions with respect to the Property shall at all times be in full conformity with:
(i) all requirements of the Grant Agreement all requirements imposed on projects assisted under
the CDBG Program as contained in the CDBG Regulations.
6.6 Notice of Expiration of Term.
(a) At least six (6) months prior to the expiration of the Term, Owner shall
provide by first-class mail, postage prepaid, a notice to all Tenants containing (i) the
anticipated 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 the hearing at least fifteen (15) days in advance of any such hearing.
Owner shall also file a copy of the above-described notice with the Housing Director of the
City.
12
FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
(b) In addition to the notice required above, Owner shall comply with the
requirements set forth in California Govermnent Code Sections 65863.10 and 65863.11. Such
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
65863.IO(a), which would include the City Manager) prior to the expiration of the Term, (ii) a
six (6) month notice requirement to existing tenants, prospective tenants and Affected Public
Agencies prior to the expiration of the Term; (iii) a notice of an offer to purchase the Property
to "qualified entities" (as defined in California Government Code Section 65863.1 l(d)), ifthe
Property is to be sold within five (5) years of the end of the Tenn; (iv) a notice ofright of first
refusal within the one hundred eighty (180) day period that qualified entities may purchase the
Property.
6.7 Covenants to Run With the Land.
The City and Owner hereby declare their express intent that the covenants and
restrictions set forth in this Agreement shall run with the land, and shall bind all successors in
title to the Property, provided, however, that on the expiration of the Term of this Agreement
said covenants and restrictions shall automatically expire. Each and every contract, deed or other
instrument hereafter executed covering or conveying the Property or any portion thereof, shall be
held conclusively to have been executed, delivered and accepted subject to such 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. Notwithstanding the automatic expiration of
this Agreement set forth above, upon the expiration of the Tenn, the Parties hereby agree to
execute and record in the Official Records such document(s) as may be necessary to evidence the
termination and release of this Agreement as an encumbrance against the Prope1iy.
6.8 Enforcement by the City.
If Owner fails to perform any obligation under this Agreement, and fails to cure the
default within thirty (30) days after the City has notified Owner in writing of the default or, if the
default cannot be cured within thirty (30) days, failed to commence to cure within thiiiy (30)
days and thereafter diligently pursue such cure and complete such cure within ninety (90) days,
the City shall have the right to enforce this Agreement by any or all of the following actions, or
any other remedy provided by law:
(a) Revoking the Grant. The City may declare a default under the Grant
Agreement and, revoke the Grant. City and Owner agree and acknowledge that the
enforcement by the City of Owner's obligation to repay the Grant shall in no event constitute
the collection of, or enforcement of, monetary damages, and in the event of any conflict
between the requirements of this Section 6.8(a) regarding Owner's obligation to repay the
Grant in accordance with the Grant Agreement, and the prohibition on the monetary damages
set fmih in Section 6.8(b ), the requirements of this Section 6.8(a) shall control.
(b) Action to Compel Performance. The City may bring an action at law or in
equity to compel Owner's performance of its obligations under this Agreement, and/or for
13
FY 2015-16 Cupertino Community Housing For The Disabled, Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
injunctive relief; provided, however, in no event shall the City be entitled to bring an action at
law or in equity for monetary damages due to Owner's breach or default under this Agreement.
(c) Special Remedy for Breach of Use Requirement. Pursuant to 24 C.F.R.
570.503(b )(7)(ii), if Owner substantially changes the use of the Property to a use that fails to
meet a national objective as defined in 24 C.F.R 570.208, City may require Owner to pay to
City the fair market value of the Property based on an appraisal. Such appraisal shall be
performed by an appraiser selected by the City and shall take into consideration the Owner's
new use of the Property (that is not pennitted by this Agreement). Funds recovered from
Owner pursuant to this subsection shall be credited: (1) by the City against any remaining
amount of the CDBG Grant. City and Owner agree and acknowledge that the payment of any
funds to City pursuant to this Section 6.8(c) shall in no event constitute the collection of, or
enforcement of, monetary damages, and in the event of any conflict between the requirements
of this Section 6.8(c), and the prohibition on the monetary damages set forth in Section 6.8(b),
above, the requirements of this Section 6.8(c) shall control.
6.9 Attorneys' Fees and Costs.
In any action brought to enforce this Agreement, the prevailing party shall be entitled to
all costs and expenses of suit, including reasonable attorneys' fees. This Section shall be
interpreted in accordance with California Civil Code Section 1717 and judicial decisions
interpreting that statute.
6.10 Recording and Filing.
The City and Owner shall cause this Agreement, and all amendments and supplements to
it, to be recorded in the Official Records. To the extent necessary, the City and the Owner shall
execute, and cause the recordation in the Official Records, of any additional document necessary
to evidence the termination and release of the Original Agreement as an encumbrance against the
Property.
6.11 Governing Law.
This Agreement shall be governed by the laws of the State of California.
6.12 Waiver of Requirements.
Any of the requirements of this Agreement may be expressly waived by the City in
writing, but no waiver by the City of any requirement of this Agreement shall, or shall be
deemed to, extend to or affect any other provision of this Agreement.
6.13 Amendments.
This Agreement may be amended only by a written instrument executed by all the parties
hereto or their successors in title, and duly recorded in the real property records of the City of
Alameda.
14
FY 2015-16 Cupertino Community I-lousing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
6.14 Notices.
Formal notices, demands, and communications between the Parties shall be sufficiently
given if and shall not be deemed given unless dispatched by registered or certified mail, postage
prepaid, return receipt requested, or delivered by express delivery service, return receipt
requested, or delivered personally, to the principal office of the Parties as follows:
City:
Owner:
City of Cupertino
Community Development Department
10300 Torre Avenue
Cupertino, CA 95014
Attention: Senior Housing Plallller
Cupertino Community Housing for the Disabled, Inc.
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Attention: Executive Director
Such written notices, demands and cmmnunications may be sent in the same mallller to such
other addresses as the affected Party may from time to time designate by mail as provided in this
Section. Receipt shall 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).
6.15 Severability.
If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining portions of this Agreement shall not in any way be
affected or impaired thereby.
6.16 Multiple Originals; Counterparts.
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts.
6.17 Revival of Agreement after Foreclosure.
This Agreement shall be revived according to its original terms if, during the original
Term, the 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 Property or Property.
6.18 Subordination.
This Agreement may be subordinated to one or more liens securing financing approved
by the City.
15
FY 2015-16 Cupertino Community Housing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
6.19 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.
WHEREAS, this Agreement has been entered into by the undersigned as of the date first
above written.
APPROVED AS TO FORM
AND LEGALITY:
()Jtuwu
Carol Korade, City Attorney
~!TEST:
CITY:
P RTINO, a municipal corporation
~/ fi'_ By:
Da id Brandt, City Manager
OWNER:
CUPERTINO COMMUNITY HOUSING FOR THE
DISABLED, INC., a California nonprofit public benefit
corporation
By:~ ~sistant Secretary
16
FY 2015-16 Cupertino Community I-lousing For The Disabled. Inc. CDBG Regulatory Agreement and Declaration of Restrictive Covenants
ACKNOWLEDGMENT
California All-Purpose Acknowledgment
A notary public or other officer completing this ce1iificate 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 San Mateo } ss.
On August 17, 2015 before me, Carol Perrigo, Notary Public, personally appeared Art Fatum, who proved
to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her
signature on the instrument the person, or the entity upon behalf of which the person acted, executed the
instrument.
I ce1iify 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.
•
CAROL PERRIGO
Comm1111on * 2096114 ~ Notary Public • Callfornla ~ j San Mateo County ~
• • • ' • .~ goTT· 1x21r;s}tb J-JV.;.(
LS
Attached Loose Certificate, Aclmowledgment for document:
Le Beaulieu Apts -Regulatory Agr & Declaration of Restrictive Covenants CDBG Grant
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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 Sq 11~ C/4 ...-q
On Avrs-f-12 1 2--01£ before me, hr:s--f~ ~et! .~ vct...-c;5/ N"'~'/' f...;!c, It r,.
Date Here Insert Name and Title of the Officer
personally appeared J;t7t. vr) lJ ;-q"' o/-1-
Name(s) of Signer(s)
who proved to me on the basis of satisfactory evidence to be the person.(s)" whose nam~/are
subscribed to the within instrument and acknowledged to me thatJl.e/,she/they executed the same in
~her/th~ir authorized capacityiie§l, and that by..bls/her/their signatu~~(s'ton the instrument the perso!]..(sY,
or the entity upon behalf of which the person(s) acted, executed the instrument.
KIRSTEN RENEE SQUARCIA
Commission # 2080884 ii Notary Public • California ~
z Santa Clara County ~ l .. • ·~ ~· • • MJ £oa1T· Jx£i[Ts}2t j·J~1 ~ (
Place Notary Seal Above
I certify under PENAL TY OF PERJURY under the laws
of the State of California that the foregoing paragraph
is true and correct.
WITNESS my hand and official seal.
Though this section is optional, completing this information can deter alteration of the document or
fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Document Date: _______ _
Number of Pages: Signer(s) Other Than Named Aboye: ___________ _
Capacity(ies} Claimed by Signer(s)
Signer's Name: ___________ _ Signer's Name: ___________ _
0 Corporate Officer -Title(s): ______ _ D Corporate Officer -Title(s): ______ _
0 Partrier -0 Limited 0 General 0 Partner -D Limited D General
0 Individual 0 Attorney in Fact D Individual 0 Attorney in Fact
0 Trustee D Guardian or Conservator D Trustee D Guardian or Conservator
D Other:---------------D Other: _____________ _
Signer Is Representing: ________ _ Signer Is Representing: ________ _
©2014 National Notary Association· www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
STATE OF CALIFORNIA )
)
)
On , before me, , Notary Public,
personally appeared , who proved to me on the
basis of satisfactory evidence to be the pery (s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me tY,tt'ne/she/they executed the same in his/her/their
authorized capacity(ies), and that byliis/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which he person( s) acted, executed the instrument.
I certify UNDER PENALT OF PERJURY under the laws of the State of California that the
foregoing paragraph is e and correct.
WITNESS my h and official seal. S "GS-A-Tf rtc1f-&])
STATE OF CALIFORNIA
Notary Public
)
)
)
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
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify UNDER PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The land referred to is situated in the County of Santa Clara, City of Cupertino, State of
California, and is described as follows:
PARCEL ONE:
Beginning at a point on the east line of Stelling Road, distant thereon South 424. 77 feet from the
intersection thereof with the Southerly line of a 30 foot strip of land conveyed by Southern
Pacific Company, a corporation to County of Santa Clara, by deed dated April 5, 1937 and
recorded December 7, 1937 in Book 853 of Official Records, Page 248, said point being the
Southwesterly corner of said land conveyed by Bank of America to Peter Bianchi by Deed dated
April 10, 1941 and recorded April 28, 1941 in Book 1038 of Official Records, Page 156; thence
along the Southerly line of said Bianchi parcel N. 89 deg. 57' 00" E. 143.50 feet to the true point
of begim1ing; thence continuing N. 89 deg. 57' 00" E. 323.45 feet; thence parallel with Stelling
Road North 252. 77 feet; thence parallel with the Southerly line of said Bianchi parcel S. 89 deg.
57' 00" W. 159.95 feet; thence parallel with Stelling Road South 189.02 feet; thence parallel with
the Southerly line of said Bianchi parcel S. 89° deg. 57' 00" W. 163 .50 feet; thence parallel with
Stelling Road South 63.75 feet to the true point of beginning. Said parcel is also shown on the
Record of Survey filed March 27, 2006, in Book 798 of Maps, Page 44, Santa Clara County
Records.
PARCEL TWO:
A right of way for ingress and egress over that certain parcel of land 40 feet wide, the center line
of which is described as follows:
Beginning at a point in the Southerly line of the 30 foot strip of land conveyed by Southern
Pacific Company to the County of Santa Clara by Deed dated April 5, 1937 and recorded
December 7, 1937 in Vol. 853 of Official Records, Page 248, Santa Clara County Records, said
point of beginning being distant along said line Easterly 20 feet from the Westerly line of the
parcel ofland conveyed by the Bank of America to Peter Bianchi by Deed dated April 10, 1941
and recorded April 28, 1941 in Vol. 1038 of Official Records, Page 156, Santa Clara County
Records; thence Southerly and parallel with said Westerly line and the Southerly prolongation
thereof, 424. 77 feet to the Southerly line of said lands so conveyed to Bianchi.
APN's 359-07-010, 019 and 020
A-1
EXHIBITB
FORM INCOME COMPUTATION AND CERTIFICATION
AND OWNER'S CERTIFICATION OF HOUSEHOLD INCOME
I, the Undersigned, certify that I have read and answered fully, and truthfully each of the following
questions for all persons in the household who are to occupy a room in this house for which application
is made.
OccuJ!ant' s Name Social Securitv # Age Annual Income
(Last 4 digits}
1.
2.
3.
4.
5.
6.
7.
TOTAL:
The total anticipated annual household income* for the twelve (12) month period
beginning this date (the sum of the final column): $ ---------
Head of Household
*The anticipated annual Income as determined under 24 CFR 5.609(b) and (c), and as verified under
Attachment A .
B-1
ATTACHMENT A
Owner's Certification of Household Income
Household Name:
~~~~~~~~~-
I certify, as Owner/Management Agent for that I have verified
this Household's Income by using the HUD acceptable forms of verification as listed on HUD
Appendix 3 of the 4350.3 HUD Occupancy Handbook.
Owner/Management Agent
Date
B-2
