Loading...
1999-016-Execute A CDBG Funding Agreement With Community DevelopersRESOLUTION 1999- 16 A RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE A CDBG FUNDING AGREEMENT WITH COMMUNITY DEVELOPERS - LOCAL DEVELOPMENT CORPORATION (CD -LDC) AND TO EXECUTE RELATED DOCUMENTS AS REQUIRED WHEREAS, the Town realizes the need to provide affordable housing opportunities; and WHEREAS, CD -LDC has filed an application with the Town to construct 12 very low income apartment units at 71 Miles Avenue, Los Gatos, CA; and WHEREAS, these 12 units are critical to help the Town meet its General Plan affordable housing policies; and WHEREAS, CD -LDC is applying for $305,000.00 from the Los Gatos Redevelopment Agency for this project; and WHEREAS, the Town anticipates receipt of Community Development Block Grant (CDBG) funds from the United States Department of Housing and Urban Development pursuant to Title 1 of the Housing and Community Development Act of 1974, as amended; and WHEREAS, the Town seeks to use these CDBG funds to defray CD -LDC's land acquisition costs for the project and thereby make it affordable to very low income households; and WHEREAS, at its November 2, 1998 meeting the Town Council conceptually approved the award of a grant to CD -LDC. THEREFORE, BE IT RESOLVED: That the Town Manager is authorized to execute a CDBG funding agreement (attached as exhibit A) with Community Developers - Local Development Corporation, and to execute related documents as required. This decision constitutes a final administrative decision pursuant to Code of Civil Procedure section 1094.6 as adopted by section 1.10.085 of the Town Code of the Town of Los Gatos. Any application for judicial relief from this decision must be sought within the time limits and pursuant to the procedures established by Code of Civil Procedure section 1094.6, or such shorter time as required by state or federal law. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on'the 1st day of February, 1999 by the following vote: COUNCIL MEMBERS: AYES: Steven Blanton, Linda Lubeck, Mayor Jan Hutchins NAYS: Randy Attaway, Joe Pirzynski ABSENT: None ABSTAIN: None SIGNED ATTEST: CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA GATOS RECORDING REQUEJWED BY AND WHEN RECORDED MAIL TO Name Town Clerk Town of Los Gatos Street/Address P.O. Box 949 City & State Los Gatos, California 95031 ,a! c4�1 q SPACE ABOVE THIS LINE FOR RECORDER'S USE TOWN OF LOS GATOS CDBG FUNDING AGREEMENT This Agreement made this of , 1999, is made and entered into in the Town of Los Gatos, County of Santa Clara, State of California, by and between the TOWN OF LOS GATOS, a municipal corporation [hereinafter TOWN], and Community Developers - Local Development Corporation, Inc. [hereinafter CD -LDC], a California non - profit public benefit corporation. RECITALS WHEREAS, the TOWN realizes the need to provide affordable housing opportunities; and WHEREAS, CD -LDC has filed an application with the TOWN to construct 12 very low income apartment units at 71 Miles Avenue, Los Gatos, CA, APN 529 -05 -049, more fully described in Exhibit A of this Agreement [hereinafter PROJECT]; and WHEREAS, these 12 units are critical to help the TOWN meet its General Plan affordable housing policies; and WHEREAS, CD -LDC is receiving $305,000.00 from the Los Gatos Redevelopment Agency for PROJECT costs; and WHEREAS, the TOWN has been allocated Community Development Block Grant [hereinafter CDBG] funds from the United States Department of Housing and Urban Development [hereinafter HUD] pursuant to Title 1 of the Housing and Community Development Act of 1974, as amended; and WHEREAS, the TOWN seeks to use these CDBG funds to defray CD -LDC's land acquisition costs for PROJECT and thereby make the PROJECT affordable to Very Low Income Households; and WHEREAS, at its November 2, 1998 meeting the Town Council conceptually approved the award of a grant to CD -LDC. THEREFORE, TOWN and CD -LDC agree as follows: 1 PAYMENT 1.1 CD -LDC shall receive from TOWN the total lump sum of one hundred twenty thousand dollars ($120,000.00) in CDBG funds for Pk,,JECT, upon the occurrence of the following: CD -LDC shall provide TOWN with evidence that title to said PROJECT site, APN 529 -05 -049, has been acquired by CD -LDC. 1.1.2 CD -LDC shall execute a Deed of Trust on APN 529 -05 -049 which provides title to the Los Gatos Redevelopment Agency in the case of default, as defined in Section 12 below. 1.1.3 CD -LDC shall execute a Deed Restriction on APN 529 -05 -049 which requires its use as housing affordable to very low income households for fifty (50) years, and which shall be enforceable by TOWN. 1. 1.4 CD -LDC shall receive Zoning Approval from TOWN. 1.1.5 CD -LDC shall invoice TOWN, and direct its invoice to: Accounts Payable, Town of Los Gatos, P.O. Box 949, Los Gatos, CA 95031. 1.1.6 TOWN shall receive CDBG funds in the amount of $120,000 from the County of Santa Clara, CA, as allocated in its project LG96 -11. As required by the County of Santa Clara, TOWN must disburse these funds to CD -LDC within 5 days of their receipt by TOWN. 1.2 CD -LDC understands and agrees that it shall be paid solely from CDBG funds to be received by TOWN from the County of Santa Clara, CA, and in response to invoice(s) to be received by TOWN from CD -LDC pursuant to this Agreement. CD- LDC further understands and agrees that no other TOWN funds shall be obligated to make any payment required pursuant to this Agreement. 2 TERM 2.1 Term. The term of this Agreement shall commence upon the date of this Agreement as written above, and shall continue for fifty (50) years, or until terminated by written agreement by both parties. 2.2 Covenants Running With Land. The provisions of this Agreement shall constitute covenants which shall run with the land and be binding upon CD -LDC and CD- LDC's successors and assigns, and all parties having or acquiring any right, title, interest in whatever form, including, but not limited to, leasehold interests, in or to any part of the PROJECT except that the same shall terminate and become void after the term of this Agreement as stated above. Any attempt to transfer title or any interest therein in violation of these covenants shall be void. 3 DEVELOPMENT AND OPERATION OF PROJECT CD -LDC shall construct and operate PROJECT as twelve (12) units of affordable rental housing for very low income households in the Town of Los Gatos, in accordance with this Agreement and all -2- other applicable legal requirements. CD -LDC shall at all times, if .- ,luired by the laws of the jurisdiction, maintain in full force and effect all appropriate licenses to operate and manage the PROJECT thereon from the jurisdiction or other applicable licensing authority. In addition, CD- LDC shall, at all times during the term of this Agreement, maintain its corporate existence and shall comply with all provisions of the California Non - Profit Corporation Law (Corporations Code Section 5000, et seq.). CD -LDC shall report to TOWN any material changes, subsequent to the date of this Agreement, in CD -LDC's Articles of Incorporation, Bylaws, or tax exempt status as part of its Annual Report as specified in Subsection 6.6 below. 4 CDBG REQUIREMENTS CD -LDC shall comply with all applicable laws and regulations governing the use of CDBG funds, including, but not limited to: 4.1 . Labor Standards. The Davis -Bacon Act (40 U.S.C. 276a -5), and the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 -333), as applicable. 4.2 Environment and Historic Preservation. Section 104(f) of the Housing and Community Development Act of 1974 and 24 CFR Part 58 that 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 CFR Section 58.5. 4.3 Applicability of OMB Circulars. The policies, guidelines, and requirements of OMB Circulars Nos. A, -87, A -102, Revised A -110 and A -122, as they relate to the acceptance and use of CDBG funds. 4.4 Architectural Barriers. The requirements of the Architectural Barriers Act of 1968 (42 U.S.C. 4151- 4157). 4.5 Lead -Based Paint. The requirements of the Lead -Based Paint Poisoning Prevention Act (42 U.S.C. 4821 -4846) and implementing regulations at 24 CFR Part 35. 4.6 Displacement. Relocation. and Acquisition. The requirements of the Uniform Relocation Assistance Act and the requirements of 49 CFR Part 24, Subpart B, and the California State Relocation Guidelines. 4.7 HUD Regulations. Any other HUD regulations present or as may be amended; added, or waived in the future pertaining to the use of CDBG funds, including, but not limited to, HUD regulations as may be promulgated regarding subrecipients. 5 OCCUPANCY AND RENT REQUIREMENTS 5.1 Definitions. For the purposes of this Agreement, the following definitions shall apply: 5. 1.1 "Very Low Income Households" means a household whose Annual Income does not exceed fifty percent (50 %) of the median income for the San Jose Metropolitan Statistical Area, as determined by HUD under Section 8 of the United States Housing Act of 1937 [hereinafter Section 8 Program], with 3- adjustment for household size. 5.1.2 "Annual Income" means annual income as determined under the Section 8 _ . Program. 5.2 Occupancy Requirement. Throughout the term of this Agreement, no less than one hundred percent (100 %) of the 12 units in PROJECT shall be made available for occupancy by Very Low Income Households. Prior to occupancy of those 12 units, each applicant for residency shall be determined eligible by CD -LDC, based on documentation reasonably necessary to make such determination. 5.3 Rent Requirements. Throughout the term of this Agreement, all residential accommodations and services made available to occupants of the units in the PROJECT shall be provided at charges that do not exceed thirty percent (30 %)of the Annual Income of a household whose Annual Income equals the upper. qualifying limit for a Very Low Income Household, adjusted for household size. As all 12 units are studios, household size shall be assumed to be one person. 5.4 Rental Applicant Ranking. A point system shall be used to establish applicant ranking. Applicants shall be ranked according to total points and must have at least one point to be eligible for consideration. A lottery will be used to rank each qualified applicant in the case of a tie. Points shall be awarded as follows: 5.4.1 6 points: Senior citizens who reside in the Town at the time of application and have lived in the Town for at least the two prior years. A senior citizen is any person 62 years of age or older at the time of application or a married couple living together when at least one spouse is 62 years of age or older at the time of application. 5.4.2 6 points: Senior citizens who have lived in the Town for at least two years and have moved out of the Town within the last five years prior to the time of application. 5.4.3 6 points: Handicapped persons who reside in the Town at the time of application and who have lived in the Town for at least the prior two years. 5.4.4 6 points:' Households which are required to relocate their residence as a result of Council action. 5.4.5 4 points: Persons who live in the Town at the time of application and who have lived in the Town at least the prior 2 years. 5.4.6 3 points: Persons who work in the Town at the time of application and who have worked in the Town for at least the prior 2 years. 5.4.7 2 points: Households who have lived in the Town for at least 10 years and have moved out within the last 10 years prior to the time of application. 5.4.8 1 point: Households who live or work within Santa Clara County at the time -4- of appiication. 6 RECORDS AND AUDITS 6.1 Maintenance of General Records. CD -LDC shall cause the maintenance of records, including, but not limited to, books, financial records, supporting documents, statistical records, personnel, property and all other pertinent records sufficient to reflect properly all expenditures under this Agreement, and all other matters covered by this Agreement. These records and documents shall be maintained for the period of ten (10) calendar years after the expiration of the term of this Agreement. If this Agreement is completely or partially terminated, the records relating to the work terminated shall be preserved and made available for a period of five (5) calendar years from the date of any resulting final settlement. 6.2 Records Related to Occupancy and Rental Requirements. CD -LDC shall cause the maintenance of (i) all documents used in determining the qualification of occupants as Very Low Income Households, (ii) complete records of rents and other charges billed to and received from all occupants, and (iii) such other documents and records as are necessary to enable the TOWN, as recipient of CDBG funds, to meet the recordkeeping requirements of 24 CFR 570.506 (b)(4). These records and documents shall be maintained for the period of ten (10) calendar years after the expiration of the term of this Agreement. If this Agreement is completely or partially terminated, the records relating to the work terminated shall be preserved and made available for a period of five (5) calendar years from the date of any resulting final settlement. 6.3 Examination of Records and Facilities. At any time during normal business hours, and as often as may be deemed necessary, CD -LDC agrees that HUD and TOWN, or any duly authorized representatives, shall have access to and the right to examine its plants, offices and facilities engaged in performance of this Agreement and all records with respect to all matters covered by this Agreement. CD -LDC also agrees that HUD and TOWN, or any duly authorized representatives, shall have the right to audit, examine, and make excerpts or transcripts 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 matters covered by this Agreement. 6.4 Annual audit. Each fiscal year in which funds are received or expended pursuant to this Agreement, CD -LDC shall cause to be prepared an independent fiscal audit conducted in accordance with generally accepted accounting principles, which audit shall identify funds received and expended. Upon completion, CD -LDC shall provide TOWN with a copy of such annual independent fiscal audit. This copy may be submitted with the Annual Report as described in Subsection 6.6 below. 6.5 Town audit. The TOWN may require an independent audit of matters covered by this Agreement. CD -LDC shall be notified in advance that an audit will be conducted. CD -LDC shall be afforded an opportunity to respond to any audit findings, and have the responses included in the final audit report. Cost of such audits shall be born by TOWN. -5- 6.6 Annual report. Each fiscal year from the date of this Agreement, CD -L• DC shall cause an Annual Report to be submitted to TOWN. This Report may be combined Witk the Annual Report to the Los Gatos Redevelopment Agency for receipt of Housing Set Aside funds for PROJECT. Such report shall include, but not be limited to: 6.6.1 A description of the work on the PROJECT completed to date, specifically addressing any problems, and explaining any delays, changes in budgeted costs, revisions of the anticipated completion date, etc. 6.6.2 A report on the progress which CD -LDC has made in accomplishing its purposes or carrying out its program as a result of TOWN's CDBG funds. 6.6.3 Sufficient information for TOWN to determine that the funds have been used for the authorized purpose as described in Section 1 above, and to satisfy TOWN's public reporting responsibilities. 7 INSURANCE 7.1 Minimum Scope of Insurance. 7. 1.1 CD -LDC agrees to have and maintain, for the duration of this Agreement, General Liability insurance policies insuring it to an amount not less than: one million dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. 7.1.2 CD -LDC agrees to have and maintain for the duration of this Agreement, an Automobile Liability insurance policy ensuring it to an amount not less than one million dollars ($1,000,000) combined single limit per accident for bodily injury and property damage. 7.1.3 CD -LDC shall provide to the TOWN all certificates of insurance, with original endorsements effecting coverage. CD -LDC agrees that all certificates and endorsements are to be received and approved by the TOWN before work commences. CD -LDC further agrees to provide new certificates and endorsements evidencing each renewal of the insurance coverage required by this Section 7. 7.2 General Liability. 7.2.1 The TOWN, its officers, officials, employees and volunteers are to be covered as insured as respects: liability arising out of activities performed by or on behalf of CD -LDC; products and completed operations of CD -LDC, premises owned or used by CD -LDC. 7.2.2 CD -LDC's insurance coverage shall be primary insurance as respects the TOWN, its officers, officials, employees and volunteers. Any insurance or self - insurance maintained by the TOWN, its officers, officials, employees or volunteers shall be excess of CD -LDC's insurance and shall not contribute with it. 7.23, Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the TOWN, its officers, officials, employees or volunteers. 7.2.4 CD -LDC's insurance shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 7.3 All Coverages. Each insurance policy required in this item shall be endorsed to state that coverage shall not be suspended, voided, cancelled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the TOWN. Current certification of such insurance shall be kept on file at all times during the term of this agreement with the Town Clerk. 7.4 Workers' Compensation. In addition to these policies, CD -LDC shall have and maintain Workers' Compensation insurance as required by California law and shall provide evidence of such policy to the TOWN before beginning services under this Agreement. Further, CD -LDC shall ensure that all subcontractors employed by CD- LDC provide the required Workers' Compensation insurance for their respective employees. INDEMNIFICATION AND HOLD HARMLESS 8.1 CD -LDC hereby releases and agrees to protect, defend, hold harmless, and indemnify the TOWN, its officers, boards, commissions, employees, volunteers, and agents from and against all claims, injury, liability, loss, costs, expenses, and damages, howsoever they may have been caused, including all costs and attorneys' fees in providing a defense to any claim arising therefrom, occurring by reason of or in any way connected with CD -LDC's performance under this Agreement or the work to be done in connection with this Agreement, or in consequence thereof. 8.2 CD -LDC shall hold TOWN, its officers, boards, commissions, employees, volunteers, and agents harmless from CD -LDC's failure to comply with any requirement or obligation imposed on the work to be done by CD -LDC pursuant to this Agreement by virtue of utilization of Federal, State, County of Santa Clara, or TOWN funds. CD -LDC shall reimburse TOWN for any disallowed costs, penalties, or expenses imposed on TOWN because of CD -LDC's failure to comply with Federal, State, County, or TOWN laws or regulations or requirements. 9 NONDISCRIMINATION 9.1 Neither CD -LDC nor any of CD -LDC's contractors shall discriminate in the employment of any person because of race, color, national origin, sex, age, ancestry, sexual orientation, religion, physical or mental disability, or marital status, unless based upon a bona fide qualification under the California Fair Employment and -7- Housing Act. 9.2 Neither CD -LDC nor any of CD -LDC's contractors shall discriminate in use leasing, renting, or conveyance of the PROJECT because of race, color, national origin, sex, age, ancestry, sexual orientation, religion, physical or mental disability, or marital status, unless based upon a bona fide qualification under the California Fair Employment and Housing Act. 10 PROHIBITIONS ON BONUS, COMMISSION, AND FEE CD -LDC shall not pay any third party any bonus, commission, or fee for the purpose of obtaining approval of CD -LDC's application for the funding described in Section 1 of this Agreement, or any other approval or concurrence required by TOWN to complete work performed in connection with this Agreement. CD -LDC shall not request or receive any money or price reduction from any contractor, laborer, or material provider for assigning the work. 11 INTEREST OF PUBLIC EMPLOYEES No member of the governing body of the TOWN, Redevelopment Agency of the Town of Los Gatos, or the County of Santa Clara who exercises any functions or responsibilities in connection with the administration of urban renewal project areas and designated areas within the Town limits, and no other officer or employee of the TOWN who exercises such functions or responsibilities, shall have any interest, direct or indirect, in the PROJECT or in this Agreement, or in any other contract entered into by the CD -LDC for the performance of work financed in whole or in part by this Agreement. 12 DEFAULT Failure by either party to timely perform any material term or provision of this Agreement shall be considered an Event of Default by that party under this Agreement. 12.1 Default by CD -LDC. Upon occurrence of an Event of Default by CD -LDC or its assign, including, but not limited to, failure to comply with the occupancy and rent requirements of Section 5 above, TOWN shall give written notice thereof to CD- LDC in the manner provided in Section 19 below. If such Event of Default is not corrected to the satisfaction of TOWN within ninety (90) days after the date such notice is received by CD -LDC, or within such further time as the TOWN determines is necessary to correct the Event of Default, the TOWN may without further notice declare this Agreement in default, and declare that funds disbursed as set forth in Section 1 above immediately due in rescission to TOWN, according to the following schedule: 12. 1.1 One hundred percent (100 %) of all funds disbursed in connection with this Agreement, within the first five (5) calendar years from the date of this Agreement. 12.1.2 Seventy -five percent (75 %) of all funds disbursed in connection with this Agreement, within the first ten (10) calendar years from the date of this Agreement. -8- 12.1.3 Fifty percent (50 %) of all funds disbursed in coni.cction with this Agreement, within the first twenty (20) calendar years from the date of this Agreement. 12.1.4 Twenty -five percent (25 %) of all funds disbursed in connection with this Agreement, within the first fifty (50) calendar years from the date of this Agreement. 12.2 Default by Town. Upon occurrence of an Event of Default by TOWN, CD -LDC shall give written notice thereof to TOWN in the manner provided in Section 19 below. If such Event of Default is not corrected to the satisfaction of CD -LDC within ninety (90) days after the date such notice is received by TOWN, or within such further time as CD -LDC determines is necessary to correct the Event of Default, CD -LDC may without further notice declare this Agreement in default, and proceed with any remedies available under rules of law or equity. 13 ATTORNEY'S FEES AND COSTS In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs and other nonreimbursable litigation expenses, not to exceed $7,500 in total. 14 WAIVER No failure on the part of either party to exercise any right or remedy hereunder shall operate as a waiver of any other right or remedy that party may have hereunder, nor does waiver of a breach or default under this Agreement constitute a continuing waiver of a subsequent breach of the same or any other provision of this Agreement. 15 ASSIGNMENT CD -LDC acknowledges and agrees that funds are being provided in consideration of the special experience, skill, and ability of CD -LDC to construct and operate the PROJECT in a manner that will achieve the TOWN's objectives to provide quality affordable housing for Very Low Income Households. Consequently, CD -LDC shall not permit any voluntary transfer, assignment, or encumbrance of this Agreement or CD -LDC's interest in the PROJECT, or permit a lease or a sublease of all or part of the PROJECT, other than to occupants of the PROJECT in accordance with the requirements of Section 5 above, without first obtaining the prior written consent of TOWN, which consent shall not be unreasonably withheld. CD -LDC may assign its interest in the PROJECT and this Agreement to a non - profit affiliate of CD -LDC or to a partnership of CD -LDC if its non- profit affiliate is a managing general partner upon obtaining prior written consent from TOWN. Any transfer, assignment, encumbrance, or lease without the TOWN's consent shall be voidable and, at the TOWN's election, shall constitute a breach of this Agreement. No consent to any assignment, encumbrance, or lease shall constitute a further waiver of the provisions of this Section. If an assignee is approved by the TOWN, all obligations and duties of CD -LDC as set forth in this Agreement shall be binding on said approved assignee. 16 INDEPENDENT CONTRACTOR Nothing contained in this Agreement shall be construed as creating the relationship of employer and W employee or principal and agent between the TOWN and CD -Ll .- or CD -LDC's agents or employees, and CD -LDC shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it, its agents, or both, perform the services required of it by the terms of this Agreement. 17 RECORDING The TOWN intends to record this document, and CD -LDC agrees that it may be recorded. 18 ENTIRE AGREEMENT This Agreement, including Exhibits A and B hereto, set forth the entire agreement between the parties and supersedes all other oral and written provisions. This Agreement may only be modified in writing signed by both parties. 19 NOTICE All notices related to this Agreement shall be in writing and sent by United States mail, postage prepaid, addressed to the other party at the party's address set forth below. Each notice shall be deemed to have been given on the fifth day following the date on which it is deposited in the U.S. mail: To the TOWN: Town of Los Gatos Attn: Community Services Department P.O. Box 949 Los Gatos, CA 95031 20 EXHIBITS To CD -LDC: Community Developers - Local Development Corp. Attn: Los Gatos Creek Village Project Manager 255 North Market Street, Suite 290 San Jose, CA 95110 All exhibits attached and referred to in this Agreement are incorporated in this Agreement by this reference as if set forth fully herein. These include: Exhibit A - Legal Description, Exhibit B - Project costs for Land Acquisition. stile IN WITNESS WHEREOF, THE TOWN AND CD -LDC HAVE EXECu iED THIS AGREEMENT ON THE DATE FIRST WRITTEN ABOVE. TOWN OF LOS GATOS COMMUNITY DEVELOPERS - LOCAL DEVELOPMENT CORPORATION David W. Knapp Town Manager Approved as to Content: Regina A. Falkner Community Services Director Approved as to Form: Orry P. Korb Town Attorney Attest: Marian V. Cosgrove Town Clerk n Acsd \jenny\housing \chd.agt rev. January 27, 1999 11111E Ronald Morgan Executive Director