14-140 CDBG Grant Agreement-Le Beaulieu OFFICE OF THE CITY CLERK
CITY HALL
10300 TORRE AVENUE-CUPERTINO, CA 95014-3255
TELEPHONE:(408)777-3223• FAX: (408)777-3366
C U P E R°T'I N O WEBSITE:www.cupertino.org
August 7, 2014
Mid-Penn
Attention: Matthew Louis
303 Vintage Park Drive, Suite 250
Foster City, CA 94404
Re: Community Development Block Grant (CDBG) Program City/Non-Profit Capital
Housing Project contract. Regulatory agreern.ent and Declaration of Restrictive
Covenants-Le Beaulieu Apartments. CDBG Grant Agreement-Le Beaulieu Apartments.
A fully executed copy of the agreements for consultant services with the City of
Cupertino is enclosed. If you have any questions or need additional information, please
contact the Community Development Department at (408) 777-3308.
Sincerely,
Andrea Sanders
Senior Office Assistant
City Clerk's Office
Enclosure
cc: Community Development
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CDBG GRAFT AGREEMENT
(Le Beaulieu Apartments)
This CDBG Grant Agreement(the "Agreement") is dated July 1, 2014, 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:coimection 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 11974, as amended ("CDBG Funds"). CDBG
Funds must be used in accordance with the CD13G Regulations.
C. Grantee owns the Property, improved with a 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 fifteen(15) 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 of this
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.
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
(b) "Capital Housing Project Contract" means that certain Community
Development Block Grant Program City/Non-Pi,ofit 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 Commmunity Development Block Grant program under
Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et. sue.), as
amended.
(e) "CDBG Funds" has the meaning set forth in Recital B.
(f) "CDBG Grant" means a grant of up to Five Hundred Thousand Dollars
($500,000) 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 lJousing 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.
0) "CEQA" means the California Environmental Quality Act (Public
Resources Code Section 21000 et sect.).
(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 l OC192 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 2014-15 Cupertino Community Housing For The Disabled,Inc.CLOG Grant Agreement
(q) "Term" has the meaning set forth 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:
Exhibit A: Legal Description
Exhibit B: Scope of Work
Exhibit C: Project Budget
ARTICLE 2.
GRANT PROVISIONS
Section 2.1 Grant.
(a) The City shall grant up to Five Hundred Thousand Dollars ($500,000) 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 B in 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 CE)BG Grant funds (as applicable) 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.
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;
(3) Grantee has delivered to City a copy of an authorizing resolution
authorizing G1aritrce's e«ecution of this Agrcenier� and the transactions contei plated by this
Agreement;
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant 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 Property, subject ordy 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 deeded and a copy of the bill or invoice covering all costs incurred and to be reimbursed
under the draw request. When a disbursement its 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 lied 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 terns and conditions of this Agreement on a
reimbursement basis within ten (10) business days of the date Grantee has satisfied all conditions
set forth 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
this Section shall be interpreted to require the City to process draw requests more than once per
quarter of each fiscal year.
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDI3G Grant Agreement
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Section 2.5 'Term 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(20th) anniversary of the
Effective Date, but in no event later than July 1, 2034.
(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.
ARTICLE 3.
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 1',770 et M., and implementing regulations; (iii) all
City requirements as contained in any land use or permit approvals necessary to perfonm 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 goveinniental 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
Grantee in connection with this Agreement shall comply with all federal, state, and local
requirements set forth in this Agreement.
Section 3.2 Bid Packet.
Prior to the release of the request for bids for the rehabilitation of the Development(the
"Bid Packs-L"), Grantee shall submit the L'ic+ Packet to the City for Ci-y approval. T1 11c. City shall,
if the Bid Packet submitted conforms to the provisions of this Agreement, approve in writing the
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
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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 (3)0) 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 performance of the Scope of Work shall be in the form 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 December 1, 2014.
Section 3.6 Completion of Rehabilitation.
Grantee shall diligently prosecute rehabilitation of the Development to completion as set
forth in the Scope of Work, and shall cause the completion of the rehabilitation of the
Development no later than June 30, 2015.
Section 3.7 Rehabilitation Pursuant to Plans and Laws.
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 changr-�s In the \,7o,-1<-_required to be t_cr crmed
under this Agreement, including any additions, changes, or deletions to the approved Scope of
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
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Work. A written change order authorized by thc, 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 elease 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 opportuniity 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 se . 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
Davis-Bacon Act and Labor Code Sections 172.0 et se . and implementing regulations of the
Department of Industrial Relations (the "DIR"). Grantee shall and shall cause the Contractor and
subcontractors to ke(--p and retain st?cl2 records as are necessary if such prevailing
wages have been paid as required pursuant to Labor Code Sections 1720 et sue. Copies of the
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FY 2014-15 Cupertino Community Housing For The Disabled,laic.CI)13G Grant Agreement
currently 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 sect. and implementing regulations of the DIR or
comply with the other applicable provisions of the Davis Bacon Act and Labor Code Sections
1720 et sew. 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 detenTrines 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 Tenn 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 se . 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
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 courser reasonably acceptable to tie City)the
malty and the City Indemnit-e s against any clai.-ca for danna.gCS, Compensation., fine-S, penalties of
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
other amounts arising out of the failure or allegeld 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 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) 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) The Grantee shall be solely responsible for all aspects of the Grantee's
conduct in connection with the rehabilitation of the Development, including (but not limited to)
the quality and suitability of the scope of work, the supervision of construction work, and the
qualifications, financial condition, and performance of all architects, engineers, contractors,
subcontractors, suppliers, consultants, and property managers. Any review or inspection
undertaken by the City with reference to the rehabilitation of the Development is solely for the
purpose of determining whether the Grantee is 1properly discharging its obligations to the City,
and should not be relied upon by the Grantee or by any third parties as a warranty or
representation by the City as to the quality of the design, construction or rehabilitation of the
Development.
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 of rehabilitation on the Development for a continuous period of thirty (30) days or
more, and take all other reasonable steps to forestall the assertion of claims of lien against the
Property. Grante- authorizes the �'i�j�, but witt out any obligat on, to record airy notices o
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
completion or cessation of labor, or any other notice that the City deems necessary or desirable
to protect its interest in the Development and Property.
Section 3.15 Inspections.
Grantee shall pen-nit 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.
ARTICLE 4.
GRANT REQUIF:EMENTS.
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 Information.
Grantee shall provide any information reasonably requested by the City in connection
with the Development, including (but not limited to) any information required by HUD in
connection with Grantee's operation of the Development.
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FY 2014-15 Cupertino Community Housing For The Disabled,Ine.CDBG Grant Agreement
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 terms,
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 nn 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;
(2) Records demonstrating that each activity undertaken meets one of
the national objectives of the CDBG program selt 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
of 24 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.
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
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Section 4.4 Audits.
For the entire Term of this Agreement, Grantee shall provide the City with a copy of
Grantee's annual 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 forth 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 regulation, 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.
(3) Debarred, Susper.ided or Ineligible Contractors. The use of
debarred, suspended, or ineligible contractors sett 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 sea.) and implementing
regulations at 24 C.F.R. 100 et se q.; 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 1 1246 as amended by Executive Orders 11375, 12086, 1 1478, 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 se .), the Residential Lead-Based
Paint Hazard Reduction Act (42 U.S.C. 4851 el seq.), and implementing regulations at 24 C.F.R.
Part 35.
(6) Relocation. 'ri-Le requirements of the=Uni ern_Relocation
Assistance and Real Property Acquisition Policies Act of 1970, and state relocation laws. If and
12
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
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 indemnify, 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 se q .,the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et
seq., and the regulations of the Environmental 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.
(10) Training Opportunities. The requirements of Section 3 of the
Housing,and Urban Development Act of 1968, as amended, 12 U.S.C. 1701(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. 1701u. The purpose of Section 3 is to ensure that employment and other economic
opportunities generated by HUD assistance or IIUD-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.
13
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
(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 subj ect 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.
(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 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. Part. 135.
(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 fi--asible, but not in derogation of compliance with
section 7(b).
(11) Drug Free Workp:i[ace. The requirements of the Drug Free
Workplace Act of 1988 (P.L. 100-690) and implementing regulations at 24 C.F.R. Part 24.
(12) Anti-Lobbing, 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 fortis in 36 C.F.R. Part 800.
a4
FY 2014-15 Cupertino Community Housing,For The Disabled,Inc.CD:BG Grant Agreement
(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 haza:rds 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 stitch 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
regarding church/state principles and the applicable constitutional prohibitions set forth in 24
C.F.R. Section 570.2000).
(16) National Objectives. Grantee certifies, and agrees to, from the
Effective Date forward, maintain documentation.that demonstrates,that the activities carried 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 CFR Part
570.208.
(17) Resident Aliens. The eligibility restrictions for certain resident
aliens in accordance with the requirements set J_orth in 24 CFR 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 n.laintain 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 sand 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 flanu-nablo explosives, n-,,diloactive inateria.ls, hazardous, ,;.,,astes, to tic
15
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
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 occurrence or condition on any real property adjoining or in the vicinity of the Property
that could cause the Property or any part thereof to be classified as "border-zone property" 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 shall
indemnify and hold harmless the City and City Indemnitees 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 properties). This obligation to indemnify will survive termination of
this Agreement.
(d) Without the City's prior written consent, which shall not be unreasonably
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
Jud-gr :e1nt, impair the value of the City's security hereunder; providCd., however, that the City's
prior consent is not necessary in the event-that the presence of Hazardous Materials.on, tinder, or
FY 2014-15 Cupertino Community Housing For The Disabled,Ine.CDB6G Grant Agreement
about the Property either poses an immediate tiv-eat 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,
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
726.5(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 726.5(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 726.5(d)(1), if the release or
threatened release of hazardous materials was knowingly or negligently caused or contributed to
by any lessee, occupant, or user of any portion oil 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 726.5(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, co- nd.ition. If there
arises a condition in contravention of this requireMent, and if Grantee has not Cure. such
1'7
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
condition within thirty (30) days after receiving a City notice of such a condition, then in
` addition to any other rights available to th'e 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 or 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 adversely
affecting Grantee or the Property and of any claims or disputes that involve a material risk of
such litigation.
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 pennitted above, no Transfer is permitted without the prior
written consent of the City, which the City may ,NitlAzold in its sole discretion.
Section 4.12 Insurance Requirements.
(a) Grantee shall maintain the insurance coverage required under Exhibit E of
the Fiousing Project Contract th ougl.iout the Terri► of the G ant:
18
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
(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 si-istained; 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 fiuids 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
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, 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.
ARTICLE 5.
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 California nonprofit 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 condt cted..
FY 2014-15 Cupertino Community Housing For The Disabled,Ine.CDBG Grant Agreement
(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 perform and
observe the terms 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 connection with this
Agreement constitute or, if not yet executed or delivered, will when so executed and delivered
constitute, legal, valid and binding obligations o9'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
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 court, 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 under any law or
regulation or under any order of any court, board., commission or agency whatsoever, and there
are no claims, actions, suits or proceedings pending or, to the knowledge of Grantee, threatened
against or affecting Grantee or the Property, at law or in equity, before or by any court, 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 of recordation 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 th , L those liens approved by the amity, liens for
20
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
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. Thy 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.
(j) 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.
DEFAULT 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;
(b) Intentionally Deleted.
(c) 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.
(d) 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.
(e) 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 relief law 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
conti11tie ur�stayed o1 undlschar med_5 r a period of ninety (90) day j�s, O� (v) Grantee has admi hcc
21
FY 2014-15 Cupertino Community Housing For The Disabled,hic.CDBG Grant Agreement
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.
(f) 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.
(g) Suspension; Termination. Grantee shall have voluntarily suspended its
business or has been dissolved or terminated.
(h) Liens on Property. There shall be filed any claim of lien(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.
(i) Condemnation. The condemnation, seizure, or appropriation of all or the
substantial part of the Property or the Developm(-Int, by an entity other than the City.
0) Unauthorized Transfer. Any Transfer not previously approved by the City
pursuant to Section 4.11.
(k) 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
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 of representation 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 reir.tedies 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 connection 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 CDB�,r��oulatory Agreement or to c1.liCiil ?CAS on
things that may be unlawful or in violation of the provisions of this Agreement.
FY 2014-15 Cupertino Community Housing For The Disabled,hie.CDBcJ Grant Agreement
(c) Right to Cure at Grantee':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 assertion of which would constitute a Default hereunder.
Section 6.4 Remedies Cumulative.
No right, power, or remedy given to the City by the terms of this Agreement is intended
to be exclusive of any other right,power, or rem-dy; 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.
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 j oint.venture between the City and Grantee or its
agents, employees or contractors, and Grantee wial 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 mafiters relating to their employees. Grantee is
solely responsible for its own acts and those of it:; 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 urchase of"it aterials, supplies or equipment, or the furniShing of the performance o7 C2Ily
2'i
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDB(J Grant Agreement
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 of this
Agreement is approved by the City Council.
Section 7.4 Indemnification.
Grantee shall indemnify, defend (with counsel reasonably selected by the City) and hold
the City and City Indemnitees 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 conmection 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
Indelnnitees. The provisions of this Section willl survive the termination of this 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 terms 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 terns
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 Cif.
The City's execution of this Agreement in no way limits the discretion of the City in the
pen-nit 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 dili once to ensure that the prohibition in this Section 6.8(a) is followed.
24
FY 2014-I5 Cupertino Community Housing For The Disabled,Inc.CD13G Grant A-reement
(b) The conflict of interest prevision 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-snaking 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.
(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, Government Code section 87100 et seq., its implementing regulations manual and codes,
and Government Code section 1090.
(d) Grantee shall comply with the conflict of interest provisions set forth 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: City of Cupertino
Community Development Department
10300 Torre Avenue
Cupertino, CA 95014
Attention: Senior Housing Planner
Grantee: 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 goverrt all natters arising OWE of this Acrreelilent.
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FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
Section 7.1'l 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 assign; 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 teens of this Agreement, the prevailing
party has the right to recover its reasonable atonaeys' 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
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, perfonnance 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
transportation, 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
Party within ten(10) days of receipt 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 aj')provals 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 Nvill be implied from any delay or failure by the City to tape action on any
bleach or default of Grant-Ce or to purS)-,U,,e any re m,cdy allowed under tills Aareeinent or
26)
FY 2014-15 Cupertino Community Housing For The Disabled,Inc.CDBG Grant Agreement
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 inserted 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 and agreement of the parties with respect to the subject matter hereof.
Section 7.19 Multiple Originals; Counterpart.
This Agreement may be executed in multiple originals, each of which is deemed to be an
original, and may be signed in counterparts.
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FY 2014-15 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.
CITY:
CITY OF PEy INO, a municipal corporation
By:
David Brandt, City Manager
APPROVED AS TO FORM
AND LEGALITY:
I
Carol Korade, City Attorney
ATTEST:
+ r.
Grace Sclunidt, City Clerk
OWNED:
CUPERTINO COMMUNITY HOUSING FOR THE
DISABLED, INC.,a California nonprofit public benefit
corporation
By: �f
ME tl e i ,&ssistant Secretary
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FY 2014-15 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 1,-1. 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 thi-I 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. 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
394\09\1494882.2
EXHIBIT..B
APPROVED BUDGET
Sources
City of Cupertino CDBG Funds(Grant) $500,000
Total Sources $500,000
Uses _
Construction Costs:
Exterior/Connnon Area Work:
Landscape-irrigation controllers,drip irrigation,plantings $100,000
sewer and stonn drains camera and repairs $20,000
exterior security lighting improvements $40,000
fencing replacement $12,000
Site concrete repairs $10,000
Siding and roofing repair $5,000
Monument sign $10,000
Subtotal $197,000
Unit Interiors:
Installation of energy efficient bath fans $27,000
cabinet resurfacing and replacements _ $75,000
VCT flooring replacements $20,000
Closet and pocket door replacements $15,000
Selective energy-efficient appliance replacements $15,000
Repair drywall and wainscoting $17,500
Selective air conditioning and PTAC replacements $20,000
Batlu-oom waterproofing and shower replacements $30,000
Subtotal $219,500
So t Costs:
Construction Management Fee @ 6% $24,990
NEPA consultant $3,000
Prevailing Wage Consultants $7,500
Design and drawings $15,000
Permits $5,000
Title and escrow $5,000
Legal Expenses $600
Subtotal $61,090
Contingency up to 10% $22,410
Subtotal $22,410
Total Uses(or Total Project Cost) $500,000
B-1
394\09\1494882.2
EXHIBIT C
APPROVED S(:OPE OF WORK
Exterior/Common Area Work:
Task 1. Landscape improvements.New irrigation controllers, drip irrigation, and plantings.
Create swales for stormwater runoff control, pailicularly in.sensitive locations such as near
plantings, a transformer, and site walkways.
Task 2. Storm drains repairs, including new storm drains at locations prone to flooding near the
BBQ area and beneath the ADA ramp.
Task 3. Exterior lighting improvements. Includes upgrades to LED for walkway lights. Replace
or reset pole lights.
Task 4. Fencing replacement. Install a new fence on portion of site.
Task 5. Selective unit entry door and frame replacement
Task 6. Siding and roofing repair. Adjust gutters on walkway roof. Caulk gaps in siding. Replace
dry rotted support beams. Install metal stand-ofi�for deck support beams.
Task 7. Site concrete and asphalt repairs, including curbs along walkway to BBQ area. Relocate
the BBQ gas line behind the BBQ. Partial parking lot resurfacing and restriping. Replace
adjacent water connection to laundry building.
Task 8. Monument sign and building signs. Create a new monument sign and selective building
signs.
Unit Interiors:
Task 1. Installation of energy efficient bathfans in all units.
Task 2. Cabinet and vanity resurfacing and replacements in select units. Replace damaged
medicine cabinets. Replace countertops.
Task 3. Flooring repairs, including VCT flooring replacements. Repair subfloor in damaged
units. Install VCT in elevator and community room. Repair bathroom and kitchen floors.
Task 4. Closet door and pocket door replacements in select units.
Task 5. Selective energy-efficient appliance and lighting replacements, including bathroom and
kitchen lights, motion sensors, range hoods, stoves, cooktops, and refrigerators. Replace
damaged and inefficient water fixtures, including select tub and shower enclosures.
Task 6. Repair drywall and wainscoting where dlamaged.
Task 7. Selective air conditioning and PTAC replacements.
Task 8. Bathroom waterproofing and shower replacements.
C-1
394\09\1494882.2