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1992-100-Authorizing The Town Manager To Execute An Amendment To Service Agreement With Nielsen Trudeau Associates/United States Escrow For Implementation Of The Town's California Natural Disaster Assistance ProgramRESOLUTION 1992 -100 RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS AUTHORIZING THE TOWN MANAGER TO EXECUTE AN AMENDMENT TO SERVICE AGREEMENT WITH NILSEN TRUDEAU ASSOCIATES /UNITED STATES ESCROW FOR IMPLEMENTATION OF THE TOWN'S CALIFORNIA NATURAL DISASTER ASSISTANCE PROGRAM (CALDAP) BE IT RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa Clara, State of California, that the Town Manager is authorized to execute an amendment to service agreement, attached as Exhibit A, with NILSEN TRUDEAU ASSOCIATES /UNITED STATES ESCROW in the name and in behalf of the Town of Los Gatos. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California, held on the 1st day of June, 1992, by the following vote: COUNCIL MEMBERS: AYES: Randy Attaway, Steven Blanton, Brent N. Ventura, Mayor Eric D. Carlson NAYS: None. ABSENT: Joanne Benjamin ABSTAIN: None. SIGNED: Q MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA ATTEST: ✓ �,'� C.t 2x- �v'a. % ' ! `--- 't%'3 "�'�\ _rte CLERK OF THE TOWN OF LDS GATOS LOS GATOS, CALIFORNIA CSD08 * \RES0S \CS060192.100 f AMENDMENT TO SERVICE AGREEMENT WITH NILSEN TRUDEAU ASSOCIATES /UNITED STATES ESCROW FOR IMPLEMENTATION OF THE CALIFORNIA NATURAL DISASTER ASSISTANCE PROGRAM (CALDAP) This AMENDMENT TO AGREEMENT is entered into this _ day of , 1992, to be effective the lst day of July, 1992, by and between TOWN OF LOS GATOS, a municipal corporation ( "TOWN ") and NILSEN TRUDEAU ASSOCIATES /UNITED STATES ESCROW, a for profit corporation ( "CONTRACTOR "). WHEREAS, TOWN and CONTRACTOR executed an Agreement for provision of services necessary to administer the Town's California Natural Disaster Assistance Program on August 14, 1990; and WHEREAS, the Town Council has approved an allocation of funds for Fiscal Year 1992 -93 to CONTRACTOR; AGREEMENT: IT IS THEREFORE AGREED by the parties as follows: 1. Term of the contract be extended from July 1, 1992, to June 30, 1993. 2. TOWN agrees to reimburse CONTRACTOR according to the schedule set out in Attachment 1, Exhibit A, entitled "Service Agreement" which is attached hereto and incorporated herein. Payments to CONTRACTOR will be expended through CALDAP administrative account at United States Escrow; Community Services Department approval is required for disbursement. 3. Attachment 1, Page S, be replaced by Exhibit A, attached. 4. The terms and conditions of the original Agreement, except as herein amended, shall remain in full force and effect. IN WITNESS WHEREOF, the parties have executed this Amendment to the Agreement for community services on the date written above, effective July 1, 1992. -1- APPROVED AS TO FORM: Katherine Anderton Town Attorney ATTEST: Marian V. Cosgrove Town Clerk APPROVED AS TO CONTENT: Regina A. Falkner Community Services Director -2- CSD13:A: \CONTRACT \NILSEN.TRU TOWN OF LOS CATOS David W. Knapp Town Manager NILSEN TRUDEAU ASSOCIATES William Trudeau Principal UNITED STATES ESCROW Kay Morris Vice - president SERVICE AGREEMENT FOR CALIFORNIA NATURAL DISASTER ASSISTANCE PROGRAM (CALDAP -O AND CALDAP -R) THIS AGREEMENT is entered into as of the /day of 1990, by and between the TOWN MF LOS GATOS, (hereinafter "Agency "); NILSEN TRUDEAU ASSOCIATES (hereinafter "NTA"); and UNITED STATES ESCROW, INC. (hereinafter "USE "). W I T N E S S E T H WHEREAS, Agency has entered into an Agreement with the California Department of Housing and Community Development ( "Department "), to directly administer the California Natural Disaster Assistance Program ( "Program ") to homeowners and /or owners of rental housing whose properties were damaged as a result of the October 17, 1989, Loma - Prieta Earthquake and subsequent aftershocks; and WHEREAS, Agency agrees to follow Department guidelines established pursuant to Sections 50661.5, 50661.7, and 50671.5 of the California Health and Safety Code; and WHEREAS, Agency desires to engage NTA and USE to render services in connection with loans made under the Program; and WHEREAS, NTA and USE represent that individually each is qualified to provide services under this Agreement; NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: I. COMMITMENTS /RESPONSIBILITIES OF PARTIES TO THIS AGREEMENT A. NILSEN TRUDEAU ASSOCIATES AGREES TO: 1. Applicant Intake a. Set appointments and meet with Program applicants to fully review and clarify Program. b. Assist applicants in completing application and submitting application for processing and approval. C. Maintain follow -up with applicants to assure timely submission of any documentation required to complete application. 1 2. Initial Inspection, Work Writeup and Cost Estimate a. Set appointments to meet with Program applicants for the purpose of inspecting the damaged dwellings. b. Perform an inspection and prepare a work writeup which addresses: 1) Repair or replacement of structurally damaged items due to the Earthquake itself. 2) Code violations not caused by the Earthquake. 3) Cosmetic work necessary due to the other repairs. C. Prepare a cost estimate based on reasonable cost levels given current market conditions in the locality. 3. Contractor Bid Process and Selection a. Assist Program applicants with contractor bid process through: 1) Formal Bid Process or 2) Negotiated Bid Process b. Upon receipt of bids from licensed general contractors, review bids for cost reasonableness, and in cases where costs exceed previously prepared cost estimate, to add a justification letter to the file. C. bidlsselection ,apandcaprepareaalcontract final for execution. d. Hold a Preconstruction Conference and issue the Notice to Proceed, following satisfactory completion of all loan closing functions. 4. Execution of Loan Documents a. Set appointments and meet with Program borrowers to execute State approved loan documents. b. Ensure that all loan documents are properly executed and notarized, and where necessary, that Program borrowers, questions regarding documents are fully answered. 2 C. Forward executed documents for loan closing and recordation. 5. Progress and Final Payment Inspections a. Make timely progress payment inspections at the request of the general contractor. b. Review workmanship, materials, and contract compliance to ensure quality of work and adherence to CALDAP guidelines. C. Collect appropriate permits, receipts, and lien releases from general contractor. d. Prepare and submit an Authorization For Payment upon approval of property owner. e. Prepare a final punch list in coordination with property owner and general contractor and cause the execution of the Notice of Completion after all punch list items are corrected. f. Forward the executed Notice of Completion to USE for recordation. g. Prepare and forward an Authorization For Payment for release of retention thirty -five (35) days after recording of the Notice of Completion. B. UNITED STATES ESCROW AGREES TO: 1. Loan Processing a. Complete a loan analysis for each loan application submitted. Such analysis will be based upon criteria established by the Department. b. Order any outside services applicable to the packaging of each loan. Outside services may include: 1) Appraisal 2) Title 3) Credit C. Verify mortgage payment history and monitor for duplication of benefits with FEMA, SBA, IFG, applicants' personal insurance company and applicants' financial institution (when applicable). 3 2. 3. d. Assist Program applicant in the removal of any clouds on title in order to assure the Department a secure lien position. e. Upon receipt of final approved rehabilitation cost, prepare the Loan Analysis Summary Sheet, Loan File Checklist, and provide all supporting documentation for signature by Agency and final approval by Department. Preparation of Loan Documents and Loan Closing a. Prepare Department approved loan documents for each loan approved and funded by the Department. The following documents will be prepared: 1) Promissory Note 2) Deed of Trust 3) Request for Notice of Default and Sale 4) Notice of Right to Cancel 5) Truth in Lending Disclosure Statement 6) Escrow Control Instructions 7) Regulatory Agreement (Rental Only) 8) Rehabilitation Loan Agreement b. Verify prior to loan closing, that hazard and flood insurance (when applicable) in an amount sufficient to cover the interest of the Department is in effect. C. Following execution of documents with Program borrowers, to record the Deed of Trust and Request for Notice with the applicable County Recorder, and to update title when using a lot book report, CTR, or PIRT, or cause the issuance of a Full Title Policy when a Preliminary Title Report has been used. d. Notify the appropriate party that all loan closing functions have been performed so that the Notice to Proceed may be issued. Funds Disbursement and Notice of Completion Recording a. Receive loan and administrative funds for each loan approved by Department. b. Ensure that no borrower funds will be disbursed until all loan closing functions have been completed. C. Open an individual disbursement account for each loan. For each borrower account, borrower's name, job site address, account identification number, and initial balance will be entered into the computerized ledger system, and a receipt for funds will be forwarded to Agency. d. Keep signatures on file of those persons authorized by Agency to order disbursement of funds. e. Follow the guidelines established by the Department for the disbursement of funds, the use of contingency, and the release of retention. f. Upon receipt of an Authorization For Payment, verify that signatures are acceptable and that amounts to be disbursed are correct and in agreement with Control Instructions. Checks will be issued the same day and returned to Agency or mailed directly to payee. g. Receive supplemental loan funds and change orders at any time during the construction process. h. Receive and record the Notice of Completion with the appropriate County Recorder, and release retention no earlier than thirty -five (35) days after Notice of Completion recording and upon receipt of an Authorization For Payment. i. Upon payout of all funds in an individual borrower account, prepare and forward a Final Closing Statement. j. Provide monthly Escrow Status Reports to Agency. All disbursements made to date and balances remaining in each escrow account will be shown. Owner /Occupant and Rental Property loans will be shown separately. C. AGENCY AGREES TO: 1. Maintain policy control over Program and exercise approval or denial of the following actions (upon recommendations of NTA and USE): a. loan applicant packages to be submitted to Department for approval b. construction contracts C. Notice of Completion d. Change orders requiring supplemental loan fund approval by Department 2. Designate an officer or employee of the Agency with authority to grant or deny approvals of the above actions. 3. Mediate and determine the rights of the parties, should any dispute arise during the construction phase. NTA shall provide such information, in written form, as necessary for Agency to make a proper determination. 4. Perform normal Agency building inspection services during the construction phase and to inspect work in progress to determine its compliance with building codes and permits issued by Agency. 5. Provide to NTA, or approve, a standard construction contract to be used for all Program applicants. 6. Compensate NTA and USE for services rendered per fee schedule as outlined in Section II, Schedule of Fees. II. SCHEDULE OF FEES In return for services rendered, Agency agrees to compensate NTA and USE at the following rates on a per loan basis. A. Applicant Intake (Nilsen Trudeau Assoc.) $175.00 Owner /Occupant and Rental Property B. Initial Inspection, Work write Up And Cost Estimate (Nilsen Trudeau Assoc.) 400.00 Owner /Occupant* $ * In cases where architectural and /or engineering plans are available and complete, the fee shall be reduced by $200.00. 6 Over 12 Units - $2,000.00 plus $30.00 for each unit over 12 C. Contractor Bid Process And Selection (Nilsen Trudeau Assoc.) Owner /Occupant and $225.00 Rental Property D. Loan Document Execution (Nilsen Trudeau Assoc.) Owner /Occupant and $50.00 Rental Property E. Progress Payment Inspection (Nilsen Trudeau Assoc.) Owner /Occupant Rental Property - 1 to 12 Units 1 Units $400.00 7 Units $1,450.00 2 Units $600.00 8 Units $1,600.00 3 Units $800.00 9 Units $1,700.00 4 Units $1,000.00 10 Units $1,800.00 5 Units $1,150.00 11 Units $1,900.00 6 Units $1,300.00 12 Units $2,000.00 Over 12 Units - $2,000.00 plus $30.00 for each unit over 12 C. Contractor Bid Process And Selection (Nilsen Trudeau Assoc.) Owner /Occupant and $225.00 Rental Property D. Loan Document Execution (Nilsen Trudeau Assoc.) Owner /Occupant and $50.00 Rental Property E. Progress Payment Inspection (Nilsen Trudeau Assoc.) Owner /Occupant $75.00 Three Anticipated Inspections per inspection Rental Property $100.00 first unit plus $10.00 for each additional unit per inspection F. Final Inspection And Execution of NOC (Nilsen Trudeau Assoc.) Owner /Occupant $100.00 Rental Property $125.00 first unit plus $10.00 for each additional unit G. Change Orders (Nilsen Trudeau) Owner /Occupant $50.00 per change order 7 M Rental Property Loan Processing /Underwriting (United States Escrow) owner /occupant Rental Property - 1 to 12 Units * Sole Ownership * Partnership or Corporation Rental Property - 13 or More Units * Sole Ownership * Partnership or Corporation I. Preparation of Loan Documents and Loan Closing (United States Escrow) J. Funds Disbursement (United States Escrow) K. Supplemental Loan Funds (United States Escrow) Loan Processing, Loan Document Preparation and Closing, Loan Document Execution 0 $100.00 per change order $125.00 plus outside costs $350.00 plus outside costs $450.00 plus outside costs $350.00 plus $5.00 per unit plus out- side costs $450.00 plus $5.00 per unit plus out- side costs $125.00 plus outside costs $50.00 $150.00 plus outside costs No fees shall be charged by NTA or USE for services rendered to any Program applicant who is denied or rejects a CALDAP loan. The payment of costs for outside services ordered by USE (title, credit, appraisal, mortgage verification) on behalf of Program applicants who are denied or reject a CALDAP loan, shall remain the responsibility of the Agency. It is understood by NTA and USE that fees for services rendered shall be paid from administrative grants received by Agency from Department at the time individual Program loans are funded. III. ADDITIONAL TERMS During the performance of this Agreement, Agency, NTA and USE individually agree as follows: A. INDEPENDENT CONTRACTOR STATUS NTA and USE agree individually to provide those services for which each is designated as responsible as set forth in Section I, A and B. In providing such services, Agency agrees that each is an independent contractor of Agency and nothing herein shall affect such independent contractor status. Both NTA and USE shall be directly responsible to Agency only for their own performance under the terms of this Agreement and neither shall be held liable for the acts of the other. B. INDEMNIFICATION BY NTA AND USE NTA and USE individually shall indemnify, defend and hold harmless each other and Agency, of and from any claim, liability, judgements, costs, and demands arising as a result of loss, demand, penalty, fine, forfeiture, reasonable attorney fees, damage, or expense sustained due to the failure to perform commitments and /or responsibilities under the terms of this Agreement, provided that such indemnification shall not extend to any loss incurred by errors, omissions or inconsistencies in guidelines supplied by Agency to NTA or USE. C. INDEMNIFICATION BY AGENCY Agency shall indemnify and hold harmless both NTA and USE and /or its agents, against all claims and damages of whatsoever nature, arising out of Agency's instructions, written or verbal, regarding rehabilitation work or administrative services; reliance of NTA and USE upon any authentic instruction or notice; the performance or non- performance of both the borrower(s) and licensed contractor(s) under the Program whose actions could not reasonably have been monitored. NTA and USE are not responsible for loss or liability which Agency incurs under the Program which is caused by fraudulent acts of borrowers, licensed contractors, or any third party not an agent or employee of NTA or USE. Agency's obligation under this paragraph shall not extend to negligent or willful acts of omission by NTA and USE. D. REPRESENTATIONS As an inducement to the execution of this Agreement by the Agency, NTA and USE individually represent that each has, and will continue to have, adequate and proper facilities and personnel to perform the services and work agreed to be performed by each hereunder, that each party is duly qualified by law to perform such services and work, and that each has not employed any person to solicit or procure this Agreement, and has not made, and will not make, any payment or any agreement for the payment of any commission, percentage, brokerage, contingent fee or other compensation in connection with the procurement of this Agreement. F. CONFLICT OF INTEREST No officer or employee of the Agency shall have any personal interest, direct or indirect, in this Agreement nor shall any such officer or employee participate in any decision relating to the Agreement which effects his personal interest or the interest of any corporation, partnership or association in which he is, directly or indirectly, interested, in violation of any State statute or regulation. 10 G. NONDISCRIMINATION AND EQUAL OPPORTUNITY NTA and USE shall not discriminate against any employee or applicant for employment because of their race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex. NTA and USE will take affirmative action to ensure that the applicants are employed, and that employees are treated during employment without regard to their race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. H. SOLICITATIONS FOR EMPLOYEES NTA and USE will, in all solicitations or advertisements for employees placed by or on behalf of NTA or USE, state that all qualified applicants will receive consideration for employment without regard to race, religious creed, color, national origin, ancestry, physical handicap, medical condition, marital status, or sex. SUBCONTRACTS NTA and USE will cause the foregoing provisions to be inserted in all subcontracts for any work covered by this Agreement so that such provisions will be binding upon each subcontractor, provided that the foregoing provisions shall not apply to contracts or subcontracts for standard commercial supplies or raw materials. J. COMPLIANCE TO APPLICABLE STATUTES, REGULATIONS, ORDINANCES, AND DEPARTMENT GUIDELINES Each party to this Agreement, in performing their respective duties, shall comply with all applicable statutes, regulations, ordinances and Department guidelines including the Federal Truth in Lending Act and Regulation Z thereto; the Real Estate Settlement Procedures Act as amended; the Freedom of Information Act; the Equal Credit Opportunity Act and Regulation B thereto; Title VI of the Civil Rights Act of 1964; and Title VIII of the Civil Rights Act of 1968. 11 K. DISPUTES In the event of any dispute arising under this Agreement, the injured party shall notify the injuring party and the other party in writing of its contentions by submitting a claim therefor. The injured party shall continue performing its obligations hereunder so long as the injuring party commences to cure such default within ten (10) days of service of such notice and completes the cure of such default within forty -five (45) days after service of the notice, or such longer period as may be permitted by the injured party. Compliance with the provisions of the Paragraph shall be a condition precedent to termination of the Agreement for cause and to any legal action, and such compliance shall not be a waiver of any party's right to take legal action in the event that the dispute is not cured, provided that nothing herein shall limit Agency's right to terminate this Agreement without cause pursuant to Section III, M. The default of one party shall not be considered by Agency to be default of the other party. L. TERMINATION FOR CAUSE In the event of default of a condition or provision of this Agreement by NTA or USE, which party having been served notice as stipulated in Section III, K, continues to remain in default, Agency shall have the right, by prior written notice, to terminate the independent contractor status of the defaulting party hereunder and cancel this Agreement, take over the work called for herein and provide for completion by contract or otherwise, without prejudice to any other rights or remedies of the Agency. The Agency shall have the benefit of such work as may have been completed up to the time of such termination and with respect to any part which shall have been delivered to accepted by the Agency, there shall be an equitable adjustment of compensation. M. TERMINATION WITHOUT CAUSE Irrespective of any default hereunder, the Agency may also, at any time at its discretion, terminate this Agreement, in whole or in part, by giving NTA and /or USE thirty (30) days written notice thereof. In such event, NTA and /or USE shall be entitled to received compensation specified herein with respect to loans approved and funded prior to the date of termination or cancellation. An equitable adjustment shall be made, as compensation to NTA and /or USE, to the date of such termination, for work completed, but not yet delivered to Agency. 12 NTA and /or USE, at its discretion, may terminate its respective portion of the services by giving the Agency one hundred twenty (120) days written notice of said termination. In the event of termination by NTA and /or USE, the terminating party agrees to concientiously continue to provide the required services prior to termination, to turn over all records to the Agency upon termination, and to provide an orderly transition of services to ensure continuation of the Program and timely completion of any projects in progress. NTA and /or USE shall be entitled to compensation for services performed up to the date of termination. N. TERM OF AGREEMENT The term of this Agreement shall commence upon execution of this Agreement by all parties and shall remain in full force and effect concurrent with the Agreement between the Agency and the Department. IN WITNESS HEREOF the Agency, NTA, and USE have executed this Agreement as of the date first hereinabove set forth. TOWN OF LOS GATOS BY it Jo Lev' ger TITLE T n Attor TW Tpping instrument is a correct copy of the original on file in this office. ATTEST: MARIAN V. COS +ROV DIRE&M -0 L%G1$Qi4 SERVICES CLERR(iD1PlTIRE BRIVVBFOk WSG"t6S DATE TOWN OF LOS GATOS BY ASSOCIATES TITLE UNITF,Q STATES ESCROW, INC. By U TITLE y, C¢ „ 13 EXHIBIT A Rental Property $100.00 per change order H. Loan Processing /Underwriting (United States Escrow) Owner /Occupant $125.00 plus outside costs Rental Property - 1 to 12 Units • Sole Ownership $350.00 plus outside costs • Partnership or Corporation $450.00 plus outside costs Rental Property - 13 or More Units • Sole Ownership $350.00 plus $5.00 per unit plus out- side costs • Partnership or Corporation„ $450.00 plus $5.00 per unit plus out- side costs I. Preparation of Loan Documents and Loan Closing (United states Escrow) $125.00 plus outside costs J. Funds Disbursement (United States Escrow) $50.00 K. Supplemental Loan Funds (United States Escrow) Loan Processing, Loan Document Preparation and Closing, Loan Document Execution L. Program Direct Services (on -site , at Town Community Services Department Office) 8 $150.00 plus outside costs $50 /hr.