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2010 CON Community Housing Works - HOME Funds Affordable Housing
AGREEMENT BY AND BETWEEN THE CITY OF NATIONAL CITY AND COMMUNITY HOUSINGWORKS This agreement ("Agreement' between the City of National City, a Community HousingWorks., a California "CHW"). '), is entered into this 1st day of July, 2010, by and municipal corporation (hereinafter "City"), and non-profit public benefit corporation (hereinafter RECITALS WHEREAS, the City receives an annual allocation of Home Investment Partnerships (hereinafter "HOME") Program funds from the U.S. Department of Housing and Urban Development (hereinafter "HUD"), pursuant to Title II of the National Affordable Housing Act of 1990 (42 U.S.C. 12701 et. seq.) as amended (hereinafter the "Act"); and WHEREAS, the City of National City made an allocation of HOME funds to assist in the development of approximately 201 affordable housing units at Paradise Creek in National City, California (hereinafter "Project"); and WHERAS, CHW has been certified by the City as an eligible Community Development Housing Organization ("CHDO") pursuant to the definition of such organizations contained in 24 CFR 92.2 and is a development partner in the Project and described in the Exhibit B, "Exclusive Negotiating Agreement"; and WHEREAS, the City has appropriated $31,830.00 for CHDO operating costs (hereinafter "CHDO Operating Grant Funds"), $9,459.00 for CHDO Project predevelopment costs (hereinafter "CHDO Predevelopment Loan Funds"), and $85,943.00 in CHDO set -aside loan funds hereinafter "CHDO Set -Aside Loan Funds") in Fiscal Year 2011 to assist with the development of the Project subject to the federal restrictions and qualifications listed under Volume 24 of the Code of Federal Regulations, Part 92 ("24 CFR 92"); and WHEREAS, CHW intends to borrow CHDO Set -Aside Loan Funds on the project within 24 months from the date of this agreement which qualifies CHW to draw on CHDO Operating Grant Funds for operating expenses incurred during the predevelopment phase of the Project. NOW, THEREFORE, THE PARTIES HERETO DO MUTUALLY AGREE AS FOLLOWS: 1. USE OF HOME FUNDS. The express purpose of this Contract is for the City to provide CHW with Thirty One Thousand Eight Hundred Thirty and 00/100 Dollars ($31,830.00) in CHDO Operating Grant Funds. The CHDO Operating Grant Funds do not have to be repaid. All funds shall be used by CHW solely for operating expenses incurred by CHW after July 1, 2010 through June 1, 2012. The CHDO Operating Grant Funds can pay for reasonable and necessary costs for the operation of the CHDO. Such costs include salaries, wages, and other employee, compensation and benefits; employee education, training, and travel; rent; utilities; communication costs; taxes; insurance; equipment; materials and supplies. 2. PROJECT COORDINATION AND SUPERVISION. Carlos Aguirre, Community Development Specialist II, is hereby designated as the Program Coordinator for the City and will monitor the progress and execution of this Agreement. Mary Jane Jagodzinski, Senior Project Manager is hereby assigned as Project Manager to provide supervision and have overall responsibility for the progress and execution of this Agreement for CHW. 3. COMPENSATION AND PAYMENT. The compensation for CHW shall be based on billings covering actual operation costs as outlined in Exhibit A (the "Budget"). CHW shall not be able to request cash advances under this Agreement. Reimbursement requests shall must include provide proof of capital outlay with invoices and payroll reports such as cancelled checks or bank statements showing the transfer of funds for payment of expenses claimed. Invoices will be processed for payment and remitted within thirty (30) days from receipt of invoice, provided that the operating expenses claimed are listed in Exhibit A. . 4. RETENTION OF RECORDS. CHW shall maintain all books, documents, papers, employee time sheets, accounting records, and other evidence pertaining to costs incurred and shall make such materials available at its office at all reasonable times during the term of this Agreement and for five (5) years from the date of final payment under this Agreement, for inspection by the City and for furnishing of copies to the City, if requested. 5. ACCEPTABILITY OF WORK. The City shall decide any and all questions which may arise as to the quality or acceptability of the services performed and the manner of performance, the acceptable completion of this Agreement and the amount of compensation due. In the event CHW and the City cannot agree to the quality or acceptability of the work, the manner of performance and/or the compensation payable to CHW in this Agreement, the City or CHW shall give to the other written notice. Within ten (10) business days, CHW and the City shall each prepare a report which supports their position and file the same with the other party. The City shall, with reasonable diligence, determine the quality or acceptability of the work, the manner of performance and/or the compensation payable to CHW. 6. LENGTH OF AGREEMENT. The contract period begins on July 1, 2010 and ends on June 30, 2012. 7. DISPOSITION AND OWNERSHIP OF DOCUMENTS. All reports, studies, information, data, statistics, forms, designs, plans, and procedures, systems and any other materials or properties produced under this agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights, or patent rights by CHW in the United States or in any other country without the express consent of the City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 8. INDEPENDENT CONTRACTOR. Both parties hereto in the performance of this Agreement will be acting in an independent capacity and not as agents, employees, partners or joint ventures with one another. Neither CHW nor CHW's employees are employees of the City and are not entitled to any of the rights, benefits, or privileges of the HOME Program Agreement CHDO Operating and Predevelopment Funds Page 2 of 15 City's employees, including but not limited to retirement, medical, unemployment, or workers' compensation insurance. This Agreement contemplates the personal services of CHW and CHW's employees, and it is recognized by the parties that a substantial inducement to the City for entering into this Agreement was, and is, the professional reputation and competence of CHW and its employees. Neither this Agreement nor any interest herein may be assigned by CHW without the prior written consent of the City. Nothing herein contained is intended to prevent CHW from employing or hiring as many employees, or subcontractors, as CHW may deem necessary for the proper and efficient performance of this Agreement. All agreements by CHW with its subcontractor(s) shall require the subcontractor to adhere to the applicable terms of this Agreement. 9. CONTROL. Neither the City nor its officers, agents or employees shall have any control over the conduct of CHW or any of CHW's employees except as herein set forth, and CHW expressly agrees not to represent that CHW or CHW's agents, servants, or employees are in any manner agents, servants or employees of the City, it being understood that CHW, its agents, servants, and employees are as to the City wholly independent contractors and that CHW's obligations to the City are solely such as are prescribed by this Agreement. 10. COMPLIANCE WITH APPLICABLE LAW. CHW, in the performance of the services to be provided herein, shall comply with all applicable State and Federal statutes and regulations, and all applicable ordinances, rules and regulations of the City of National City, whether now in force or subsequently enacted. CHW, and each of its subcontractors, shall obtain and maintain a current City of National City business license prior to and during performance of any work pursuant to this Agreement. 11. LICENSES, PERMITS, ETC. CHW represents and covenants that it has all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession. CHW represents and covenants that CHW shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, or approval which is legally required for CHW to practice its profession. 12. STANDARD OF CARE. A. CHW, in performing any services under this Agreement, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of CHW's trade or profession currently practicing under similar conditions and in similar locations. CHW shall take all special precautions necessary to protect CHW's employees and members of the public from risk of harm arising out of the nature of the work and/or the conditions of the work site. B. Unless disclosed in writing prior to the date of this agreement, CHW warrants to the City that it is not now, nor has it for the five (5) years preceding, been debarred by a governmental agency or involved in debarment, arbitration or litigation proceedings concerning CHW's professional performance or the furnishing of materials or services relating thereto. C. CHW is responsible for identifying any unique products, treatments, processes or materials whose availability is critical to the success of the project CHW has been retained to perform, within the time requirements of the City, or, when no time is specified, then within a commercially reasonable time. Accordingly, unless CHW has notified the City HOME Program Agreement CHDO Operating and Predevelopment Funds Page 3 of 15 otherwise, CHW warrants that all products, materials, processes or treatments identified in the project documents prepared for the City are reasonably commercially available. Any failure by CHW to use due diligence under this sub -paragraph will render CHW liable to the City for any increased costs that result from the City's later inability to obtain the specified items or any reasonable substitute within a price range that allows for project completion in the time frame specified or, when not specified, then within a commercially reasonable time. 13. NON-DISCRIMINATION PROVISIONS. CHW shall not discriminate against any employee or applicant for employment because of age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. CHW will take positive action to insure that applicants are employed without regard to their age, race, color, ancestry, religion, sex, sexual orientation, marital status, national origin, physical handicap, or medical condition. Such action shall include but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. CHW agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the City setting forth the provisions of this non-discrimination clause. 14. CONFIDENTIAL INFORMATION. The City may from time to time communicate to CHW certain confidential information to enable CHW to effectively perform the services to be provided herein. CHW shall treat all such information as confidential and shall not disclose any part thereof without the prior written consent of the City. CHW shall limit the use and circulation of such information, even within its own organization, to the extent necessary to perform the services to be provided herein. The foregoing obligation of this Section 13, however, shall not apply to any part of the information that (i) has been disclosed in publicly available sources of information; (ii) is, through no fault of CHW, hereafter disclosed in publicly available sources of information; (iii) is already in the possession of CHW without any obligation of confidentiality; or (iv) has been or is hereafter rightfully disclosed to CHW by a third party, but only to the extent that the use or disclosure thereof has been or is rightfully authorized by that third party. CHW shall not disclose any reports, recommendations, conclusions or other results of the services or the existence of the subject matter of this Agreement without the prior written consent of the City. In its performance hereunder, CHW shall comply with all legal obligations it may now or hereafter have respecting the information or other property of any other person, firm or corporation. CHW shall be liable to City for any damages caused by breach of this condition, pursuant to the provisions of Section 14. 15. INDEMNIFICATION AND HOLD HARMLESS. CHW agrees to defend, indemnify, and hold harmless the City of National City, its officers and employees, against and from any and all liability, loss, damages to property, injuries to, or death of any person or persons, and all claims, demands, suits, actions, proceedings, reasonable attorneys' fees, and defense costs, of any kind or nature, including workers' compensation claims, of or by anyone whomsoever, resulting from or arising out of CHW's negligent performance of this Agreement. HOME Program Agreement CHDO Operating and Predevelopment Funds Page 4 of 15 16. WORKERS' COMPENSATION. CHW shall comply with all of the provisions of the Workers' Compensation Insurance and Safety Acts of the State of California, the applicable provisions of Division 4 and 5 of the California Government Code and all amendments thereto; and all similar state or Federal acts or laws applicable; and shall indemnify, and hold harmless the City and its officers, and employees from and against all claims, demands, payments, suits, actions, proceedings and judgments of every nature and description, including reasonable attorney's fees and defense costs presented, brought or recovered against the City or its officers, employees, or volunteers, for or on account of any liability under any of said acts which may be incurred by reason of any work to be performed by CHW under this Agreement. 17. INSURANCE. CHW, at its sole cost and expense, shall purchase and maintain, and shall require its Contractors to purchase and maintain throughout the term of this agreement, the following insurance policies: ® A. If checked, Professional Liability Insurance (errors and omissions) with minimum limits of $1,000,000 per occurrence. B. Automobile insurance covering all bodily injury and property damage incurred during the performance of this Agreement, with a minimum coverage of $1,000,000 combined single limit per accident. Such automobile insurance shall include owned, non - owned, and hired vehicles ("any auto"). C. Commercial general liability insurance, with minimum limits of $1,000,000 per occurrence/ $2,000,000 aggregate, covering all bodily injury and property damage arising out of its operations under this Agreement. D. Workers' compensation insurance in an amount sufficient to meet statutory requirements covering all of CHW employees and employers' liability insurance with limits of at least $1,000,000 per accident. In addition, the policy shall be endorsed with a waiver of subrogation in favor of the City. Said endorsement shall be provided prior to commencement of work under this Agreement. E. The aforesaid policies shall constitute primary insurance as to the City, its officers, employees, and volunteers, so that any other policies held by the City shall not contribute to any loss under said insurance. Said policies shall provide for thirty (30) days prior written notice to the City of cancellation or material change. F. Said policies, except for the professional liability and workers' compensation policies, shall name the City and its officers, agents and employees as additional insureds, and separate additional insured endorsements shall be provided. G. If required insurance coverage is provided on a "claims made" rather than "occurrence" form, CHW shall maintain such insurance coverage for three years after expiration of the term (and any extensions) of this Agreement. In addition, the "retro" date must be on or before the date of this Agreement. H. Any aggregate insurance limits must apply solely to this Agreement. I. Insurance shall be written with only California admitted companies which hold a current policy holder's alphabetic and financial size category rating of not less than A VIII according to the current Best's Key Rating Guide, or a company equal financial stability that is approved by the City's Risk Manager. In the event coverage is provided by non -admitted "surplus lines" carriers, they must be included on the most recent California List of Eligible Surplus Lines Insurers (LESLI list) and otherwise meet rating requirements. J. This Agreement shall not take effect until certificate(s) or other sufficient proof that these insurance provisions have been complied with, are filed with and approved by the City's Risk Manager. If CHW does not keep all of such insurance policies in full HOME Program Agreement CHDO Operating and Predevelopment Funds Page 5 of 15 force and effect at all times during the terms of this Agreement, the City may elect to treat the failure to maintain the requisite insurance as a breach of this Agreement and terminate the Agreement as provided herein. K. All deductibles and self -insured retentions in excess of $25,000 must be disclosed to and approved by the City. 18. LEGAL FEES. If any party brings a suit or action against the other party arising from any breach of any of the covenants or agreements or any inaccuracies in any of the representations and warranties on the part of the other party arising out of this Agreement, then in that event, the prevailing party in such action or dispute, whether by final judgment or out -of -court settlement, shall be entitled to have and recover of and from the other party all costs and expenses of suit, including attorneys' fees. For purposes of determining who is to be considered the prevailing party, it is stipulated that attorney's fees incurred in the prosecution or defense of the action or suit shall not be considered in determining the amount of the judgment or award. Attorney's fees to the prevailing party if other than the City shall, in addition, be limited to the amount of attorney's fees incurred by the City in its prosecution or defense of the action, irrespective of the actual amount of attorney's fees incurred by the prevailing party. 19. MEDIATION/ARBITRATION. If a dispute arises out of or relates to this Agreement, or the breach thereof, the parties agree first to try, in good faith, to settle the dispute by mediation in San Diego, California, in accordance with the Commercial Mediation Rules of the American Arbitration Association (the "AAA") before resorting to arbitration. The costs of mediation shall be borne equally by the parties. Any controversy or claim arising out of, or relating to, this Agreement, or breach thereof, which is not resolved by mediation shall be settled by arbitration in San Diego, California, in accordance with the Commercial Arbitration Rules of the AAA then existing. Any award rendered shall be final and conclusive upon the parties, and a judgment thereon may be entered in any court having jurisdiction over the subject matter of the controversy. The expenses of the arbitration shall be borne equally by the parties to the arbitration, provided that each party shall pay for and bear the costs of its own experts, evidence and attorneys' fees, except that the arbitrator may assess such expenses or any part thereof against a specified party as part of the arbitration award. 20. TERMINATION. A. This Agreement may be terminated with or without cause by the City. Termination without cause shall be effective only upon 60-day's written notice to CHW. During said 60-day period CHW shall perform all services in accordance with this Agreement. B. This Agreement may also be terminated immediately by the City for cause in the event of a material breach of this Agreement, misrepresentation by CHW in connection with the formation of this Agreement or the performance of services, or the failure to perform services as directed by the City. C. Termination with or without cause shall be effected by delivery of written Notice of Termination to CHW as provided for herein. D. In the event of termination, all finished or unfinished Memoranda Reports, Maps, Drawings, Plans, Specifications and other documents prepared by CHW, whether paper or electronic, shall immediately become the property of and be delivered to the City, and CHW shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of the HOME Program Agreement CHDO Operating and Predevelopment Funds Page 6 of 15 Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused the City by CHW's breach, if any. Thereafter, ownership of said written material shall vest in the City all rights set forth in Section 6. E. The City further reserves the right to immediately terminate this Agreement upon: (1) the filing of a petition in bankruptcy affecting CHW; (2) a reorganization of CHW for the benefit of creditors; or (3) a business reorganization, change in business name or change in business status of CHW. 21. NOTICES. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered; or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile or fax; and shall be deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such overnight mail facility, (iii) if mailed by registered, certified or ordinary mail, five (5) days (ten (10) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile or fax, when sent. Any notice, request, demand, direction or other communication delivered or sent as specified above shall be directed to the following persons: To the City: To CHW: Alfredo Ybarra Community Development Manager City of National City 1243 National City Boulevard National City, CA 91950-4301 Anne B. Wilson Senior Vice President of Housing and Real Estate Development Community HousingWorks, Inc. 4305 University Ave, Suite 550 San Diego, CA 92105 Notice of change of address shall be given by written notice in the manner specified in this Section. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to constitute receipt of the notice, demand, request or communication sent. Any notice, request, demand, direction or other communication sent by cable, telex, telecopy, facsimile or fax must be confirmed within forty-eight (48) hours by letter mailed or delivered as specified in this Section. 22. CONFLICT OF INTEREST AND POLITICAL REFORM ACT OBLIGATIONS. During the term of this Agreement, CHW shall not perform services of any kind for any person or entity whose interests conflict in any way with those of the City of National City. CHW also agrees not to specify any product, treatment, process or material for the project in which CHW has a material financial interest, either direct or indirect, without first notifying the City of that fact. CHW shall at all times comply with the terms of the Political Reform Act and the National City Conflict of Interest Code. CHW shall immediately disqualify HOME Program Agreement CHDO Operating and Predevelopment Funds Page 7 of 15 itself and shall not use its official position to influence in any way any matter coming before the City in which CHW has a financial interest as defined in Government Code Section 87103. CHW represents that it has no knowledge of any financial interests that would require it to disqualify itself from any matter on which it might perform services for the City. ® If checked, CHW shall comply with all of the reporting requirements of the Political Reform Act and the National City Conflict of Interest Code. Specifically, CHW shall file a Statement of Economic Interests with the City Clerk of the City of National City in a timely manner on forms which CHW shall obtain from the City Clerk. CHW shall be strictly liable to the City for all damages, costs or expenses the City may suffer by virtue of any violation of this Paragraph 22 by CHW. 23. HOME PROGRAM PROVISIONS. A. CHDO Operating Funds. The CHDO Operating Funds can pay for reasonable and necessary costs for the operation of the CHDO. Such costs include salaries, wages, and other employee, compensation and benefits; employee education, training, and travel; rent; utilities; communication costs; taxes; insurance; equipment; materials and supplies. The CHDO Operating Funds are a grant and do not have to be repaid to the City. B. Affirmative Markefing Procedures. CHW shall adopt affirmative marketing procedures and requirements for all HOME assisted housing in compliance with 24 CFR § 92.351, as well as City's affirmative marketing responsibilities. Affirmative marketing steps consists, at a minimum, of actions to provide information and otherwise attract eligible persons from all racial, ethnic, and gender groups in the housing market area to the available housing assistance program The procedures and requirements must include methods for informing the public and owners about fair housing laws and policies so as to ensure that all individuals, without regard to race, color, national origin, religion, or sex are given an equal opportunity to participate in the program. CHW shall be solely responsible for the effective marketing responsibilities necessary to achieve CHW's production goals set forth in Section 2. C. Environmental Review. The City has assessed the activities carried out under this agreement in accordance with the provisions of the National Environmental Policy Act of 1969 (NEPA) and the related authorities listed in HUD's implementing regulations at 24 CFR parts 50 and 58. The City has determined that the activities described in the Scope of Work are exempt from environmental review as described at 24 CFR 58.35(b) 6. D. Displacement, Relocation, and Acquisition. No individual or business is anticipated to be displaced from predevelopment activities. CHW will comply with 24 CFR § 92.353 if any individual or business is displaced or relocated as a result of any predevelopment activities. E. Procurement. Unless specified otherwise within this agreement, CHW shall procure all materials, property, or services in accordance with the requirements of 24 CFR 84.40-48. CHW will follow their written policy for procurement. F. HOME Program Conflict of interest. No member, officer or employee of City or its designees or agents; no member of the governing body of the locality in which the HOME Program Agreement CHDO Operating and Predevelopment Funds Page 8 of 15 Program is situated; and no other public official of such locality or localities, who exercises any functions or responsibilities with respect to the program funded hereunder during their tenure or for one year thereafter, shall have any interest, direct or indirect, in any Contract or subcontract, or the proceeds thereof, for work to be performed hereunder. CHW agrees to incorporate, or cause to be incorporated, like language prohibiting such interest in all contracts and subcontracts hereunder. No officer, employee, member or program participant of CHW its contractors or its subcontractors shall have a financial interest, direct or indirect, in this Contract or the monies transferred hereunder or be financially interested, directly or indirectly, in the sale to CHW of any land, materials, supplies or services purchased with any funds transferred hereunder, except on behalf of CHW, as an officer, employee, member or program participant. Any willful violation of this paragraph with the knowledge, expressed or implied, of CHW or its subcontractors shall render this Contract voidable by City. G. Flood Disaster Protection. In accordance with the requirements of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4001), CHW shall assure that for activities located in an area identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards, flood insurance under the National Flood Insurance Program is obtained and maintained as a condition of financial assistance for acquisition or construction purposes (including rehabilitation). H. Reversion of Assets. Upon the termination or expiration of the term of this Agreement, CHW must transfer to the City any HOME funds on hand at the time of expiration and any accounts receivable attributable to the use of HOME funds. I. Program Income. All program income produced or funds recaptured under this Contract Agreement and obtained by CHW shall be retained by CHW during the contract period for eligible uses on the Project. CHW shall refund any program income to the City attributable to the use of HOME funds under this agreement at the time of cancellation, expiration, or termination. J. Program Monitoring. In accordance with 24 CFR § 92.254, the City will monitor CHW, no less than one (1) time per year. Each review shall also include, but not be limited to on -site inspections to determine compliance with all HOME regulations and standards. CHW shall fully cooperate with the City in monitoring the effectiveness and work performed by CHW in compliance with the terms of the Agreement. City shall have access at a reasonable hour to all offices and records (dealing with the use of funds that are the basis of this Agreement) of CHW, it officers, directors, agents, employees, and subcontractors for the purposes of such monitoring. City shall give CHW reasonable notice for accessing offices and records. K. Uniform Administrative Requirements. CHW agrees to comply with the HOME requirements 24 CFR § 92.505 and the requirements and standards of OMB Circular A-122, "Cost Principles for Non -Profit Organizations" and with the following Attachments to OMB Circular No. A-110 and any changes to either Circular. It is understood that certain items below may not be applicable to CHW's operations and to the performance of this contract: HOME Program Agreement CHDO Operating and Predevelopment Funds Page 9 of 15 a) Attachment A, "Cash Depositories," except for Paragraph 4 concerning deposit insurance; b) Attachment B, "Bonding and Insurance"; c) Attachment C, "Retention and Custodial Requirements for Records"; d) Attachment F, "Standards for Financial Management Systems"; e) Attachment H, "Monitoring and Reporting Program Performance," paragraph 2; f) Attachment N, "Property Management Standards," except for paragraph 3 concerning the standards; g) Attachment 0, "Procurement Standards"; and h) Attachment P, "Audit Requirements." i) Audits must be conducted in accordance with 24 CFR Part 44 and OMB Circular A-133. L. Hatch Act. CHW agrees that no funds provided, nor personnel employed under this Agreement, shall be in any way or to any extent engaged in the conduct of political activities in violation of Chapter 15 of Title V of the U.S.C. M. Conflict of Interest. CHW agrees to abide by the provisions of 24 CFR 84.42 and 570.611, which include (but are not limited to) the following: a. CHW shall maintain a written code or standards of conduct that shall govern the performance of its officers, employees or agents engaged in the award and administration of contracts supported by Federal funds. b. No employee, officer or agent of CHW shall participate in the selection, or in the award, or administration of, a contract supported by Federal funds if a conflict of interest, real or apparent, would be involved. c. No covered persons who exercise or have exercised any functions or responsibilities with respect to HOME -assisted activities, or who are in a position to participate in a decision -making process or gain inside information with regard to such activities, may obtain a financial interest in any contract, or have a financial interest in any contract, subcontract, or agreement with respect to the HOME -assisted activity, or with respect to the proceeds from the HOME -assisted activity, either for themselves or those with whom they have business or immediate family ties, during their tenure or for a period of one (1) year thereafter. For purposes of this paragraph, a "covered person" includes any person who is an employee, agent, consultant, officer, or elected or appointed official of the Grantee, CHW, or any designated public agency. N. Lobbying. CHW hereby certifies that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative HOME Program Agreement CHDO Operating and Predevelopment Funds Page 10 of 15 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 this 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; and c. It will require that the language of paragraph (d) of this certification be included in the award documents for all sub awards at all tiers (including subcontracts, sub grants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients and contractors shall certify and disclose accordingly: d. Lobbying Certification. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S.C. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. O. Conditions for Religious Organizations. If applicable, CHW must meet the conditions in 24 CDF Part 92.257 regarding the use of HOME funds involving a primarily religious entity. 24. MISCELLANEOUS PROVISIONS. A. Computation of Time Periods. If any date or time period provided for in this Agreement is or ends on a Saturday, Sunday or federal, state or legal holiday, then such date shall automatically be extended until 5:00 p.m. Pacific Time of the next day which is not a Saturday, Sunday or federal, state or legal holiday. B. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which, together, shall constitute but one and the same instrument. C. Captions. Any captions to, or headings of, the sections or subsections of this Agreement are solely for the convenience of the parties hereto, are not a part of this Agreement, and shall not be used for the interpretation or determination of the validity of this Agreement or any provision hereof. D. No Obligations to Third Parties. Except as otherwise expressly provided herein, the execution and delivery of this Agreement shall not be deemed to confer any rights upon, or obligate any of the parties hereto, to any person or entity other than the parties hereto. E. Exhibits and Schedules. The Exhibits and Schedules attached hereto are hereby incorporated herein by this reference for all purposes. F. Amendment to this Agreement. The terms of this Agreement may not be modified or amended except by an instrument in writing executed by each of the parties hereto. HOME Program Agreement CHDO Operating and Predevelopment Funds Page 11 of 15 G. Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof. H. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California. I. Entire Agreement. This Agreement supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof. No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. J. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto. K. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength, (ii) each party has actively participated in the drafting, preparation and negotiation of this Agreement, (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Agreement, (iv) each party and such party's counsel and advisors have reviewed this Agreement, (v) each party has agreed to enter into this Agreement following such review and the rendering of such advice, and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Agreement, or any portions hereof, or any amendments hereto. HOME Program Agreement CHDO Operating and Predevelopment Funds Page 12 of 15 25. ATTACHMENTS TO THE AGREEMENT Exhibit A: CHDO Project Operating Budget Exhibit B: Exclusive Negotiating Agreement Exhibit C: Certificate of Insurance IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date and year first above written. City of National City By: R. Morrison Its: Mayor iLr i7udia City Attor OVED AS TO FORM: Community HousingWorks By: � gXaY B. Wilson Senior Vice President HOME Program Agreement CHDO Operating and Predevelopment Funds Page 13 of 15 Exhibit A: CHDO Project Operating Budget West Side National City Development Operating Budget Staff Costs Community HousingWorks Av Monthly % of Time Salary and Benefits Name Role Anne B. Wilson Sr. Vice President, mgr and authorized signer $ 1,140 10% Mary Jane Jagodzinski Sr. Project Manager, lead staff 2,308 25% Lisi Martinez-Manriquez Intern/Ast Project Manager, support 357 20% $ 3,805 CHDO Operations Months Estimated Budget July 2010 $ 3,805 August 2010 3,805 September 2010 3,805 October 2010 3,805 November 2010 3,805 January 2011 3,805 February 2011 3,805 March 2011 3,805 April2011 (partial) 1,390 Total $ 31,830 Exhibit B: Exclusive Negotiating Agreement EXCLUSIVE NEGOTIATION AGREEMENT BY AND BETWEEN COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, THE RELATED COMPANIES OF CALIFORNIA, AND COMMUNITY HOUSINGWORKS THIS EXCLUSIVE NEGOTIATION AGREEMENT (hereinafter referred to as "AGREEMENT") is entered into this 3rd day of March, 2009, by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic (hereinafter referred to as "CDC"), and both THE RELATED COMPANIES OF CALIFORNIA, LLC and COMMUNITY HOUSINGWORKS, (collectively referred to as "DEVELOPER") on the terms and provisions set forth below. RECITALS WHEREAS, the City of National City ("City") owns approximately 10.6 acres at 2200 Hoover Avenue commonly referred to as the Public Works site (Assessor Parcel Numbers 560- 396-06, 560-391-08, 560-206-03, 559-124-05 plus public right of ways) ("CDC SI1.E"); and, WHEREAS, the City is considering transferring title of these properties to the Community Development Commission of the City of National City for the purposes of redeveloping the site; and, WHEREAS, the CDC is interested in having the CDC SITE developed into a transit oriented mixed use development consisting of affordable housing units, retail sites, and enhancement to Paradise Creek, all of which was part of a Request for Qualifications previously issued; and, WHEREAS, the City of National City is undertaking a planning process for the Westside area of National City, known as the Westside Specific Plan and accompanying Environmental Impact Report ("EIR"), which are currently being prepared and are anticipated to be brought before the City of National City for a public hearing and decision in approximately June, 2009; and, WHEREAS, the Westside Specific Plan includes a transit oriented development, consistent with what was called out in the Request for Proposal, and which is part of the EIR analysis; and, WHEREAS, the CDC issued a Request for Qualifications seeking qualifications from experienced non-profit or for profit developers to: 1) enter into an Exclusive Negotiation Agreement to complete due diligence and design, followed by a Disposition and Development Agreement to transform this property into affordable housing with linkages to the 24th Street Page 1 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC r• Metropolitan Transit System Trolley Station, to enhance Paradise Creek, expand the Paradise Creek Education Park; and, 2) prepare and provide a mechanism for ongoing program management for a home ownership "incubator" to provide training and services to empower tenants within the project to more effectively pursue home ownership; WHEREAS, THE RELATED COMPANIES OF CALIFORNIA, LLC and COMMUNITY HOUSINGWORKS responded jointly to the RFQ to participate in design and development of the CDC SITE, and have entered into a Memorandum of Understanding between themselves, and these two entities are jointly referred to as DEVELOPER throughout this AGREEMENT; WHEREAS DEVELOPER responded to the RFQ to participate in design and development of the CDC SITE, to partner in development and ownership of all affordable housing, to prepare and provide educational and community building programs and resident services for all affordable housing in PROJECT, and to prepare and provide a mechanism for ongoing program management for a home ownership "incubator" in order to provide financial fitness and ownership training and resident services to empower tenants within the project to more effectively pursue home ownership; WHEREAS, the DEVELOPER is interested in assembling this site, plus adjacent lands within the City of National City, and to develop a mixed -use retail and affordable housing development, consisting of approximately 300-360 affordable residential units, retail floor area to provide support services and a personal finance incubator for the project, and enhancement of the Paradise Creek ("PROJECT"), consistent with the transit oriented development proposed in the Westside Specific Plan currently being drafted; WHEREAS, the DEVELOPER is interested in preparing and providing a mechanism for ongoing program management for a home ownership "incubator" in order to provide financial fitness and homeownership training and resident services to empower tenants with the project to more effectively pursue home ownership; and, WHEREAS, the CDC and the DEVELOPER desire to enter into this AGREEMENT to initiate exclusive negotiations for up to three hundred sixty-five (365) days (hereinafter referred to as "EXCLUSIVE NEGOTIATION PERIOD") to allow the DEVELOPER to (i) undertake its DUE DILIGENCE activities defined within Section ILC. of this agreement; (ii) develop the CONCEPTUAL DEVELOPMENT PLAN per Section ILB of this agreement; (iii) establish the responsibilities, schedule, and financial parameters for developing the PROJECT; (iv) negotiate the purchase price of the CDC SITE; (v) negotiate a Disposition and Development Agreement (hereinafter referred to as "DDA"), and (vi) develop conceptual program for providing financial fitness and home ownership training and for resident services for residents of the project; (vii) assure that the site and design plans include community space facilities needed to effectively accommodate resident services including financial fitness and ownership training; and, (viii) prepare a conceptual business plan and budget for ongoing incubator programming, including identifying sources of funding for program components and likely staffing needs. Page 2 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y IISNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC NOW, THEREFORE, in consideration of the recitals and mutual covenants and conditions contained herein, the parties hereto agree as follows: I. CDC SITE The CDC SITE constitutes the real property that is the subject of this AGREEMENT. It is the intent of the parties that the CDC SITE is comprised of properties located within the City of National City. The CDC SIl'E includes approximately 10.6 acres of properties owned by the City of National Cit' in the vicinity of 2200 Hoover Avenue roughly bounded by 22❑d Street, Hoover Avenue, 19 Street, Harding Avenue, 21st Street and Wilson Avenue located within the City of National City - Assessor Parcel Numbers 560-396-06, 560- 391-08, 560-206-03, 559-124-05 plus public right of ways, as shown on Exhibit A. The exact number of affordable residential units and square footage of the CDC SITE will be determined during the site planning activities outlined below. II. EXCLUSIVE NEGOTIATION PERIOD A. Exclusive Negotiation Period The EXCLUSIVE NEGOTIATION PERIOD begins when the CDC executes this AGREEMENT (hereinafter referred to as "COMMENCEMENT DA 11") and shall Iast for three hundred and sixty five (365) days thereafter. B. First Negotiation Period During the first one hundred eighty (180) days of the EXCLUSIVE NEGOTIATION PERIOD (hereinafter referred to as "FIRST NEGOTIATION PERIOD"), the DEVELOPER and CDC shall meet regularly, in good faith, and jointly formulate a plan to develop the PROJECT (hereinafter referred to as "CONCEPTUAL DEVELOPMENT PROGRAM"). elements: The Conceptual Development Program shall include and delineate the following 1. The type and scope of the PROJECT; 2. The interface of a phased development with the complete build out of the CDC SITE; 3. Required on and off -site infrastructure improvements; 4. PROJECT, infrastructure, and state and local regulatory requirement cost; Page 3 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y NSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC 5. Proposed funding responsibilities and sources for the PROJECT; 6. The parties/entities responsible for the various PROJECT development activities; and, 7. A detailed PROJECT development schedule. C. DUE DILIGENCE AIso, during the FIRST NEGOTIATION PERIOD, the CDC and DEVELOPER, as applicable, shall conduct their respective DUE DILIGENCE activities, including but not limited to: 1. DEVELOPER'S timely delivery and submission to the CDC of sufficient evidence that the DEVELOPER is financially viable with proposed sources of equity and financing required to complete site development; DEVELOPER'S timely review of preliminary title report information prepared for the CDC SITE; 3. DEVELOPER'S timely investigation of the CDC SITE including review of CDC's WSP EIR, Phase 1 and II Environmental Assessments, and other CDC generated studies required to certify the EIR. In conjunction therewith, and subject to the DEVELOPER receiving all prior governmental approvals and agreeing to all conditions of such approvals, DEVELOPER and its consultants and agents shall have the right to enter upon the CDC SITE to conduct tests, studies, and investigations pursuant to an Early Entry Agreement, the form of which is attached hereto and incorporated herein as Exhibit 1; and, 4. DEVELOPER'S timely submission of the Conceptual Development Program to the CDC for review and comment. D. CONCEPTUAL DEVELOPMENT PROGRAM Submission/Entitlements/Environmental Review By the end of the FIRST NEGOTIATION PERIOD, DEVELOPER shall submit its CONCEPTUAL DEVELOPMENT PROGRAM for the PROJECT, which includes a conceptual site plan, representative floor plans, representative exterior elevations and project description and phased project schedule for review and consideration of acceptance by the Board of Directors of the CDC (hereinafter referred to as "CDC BOARD"). Upon the acceptance of the Design Concept Plan by the CDC BOARD, the DEVELOPER shall prepare and process with the City any necessary land use entitlements, environmental studies and reports. Page4of17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC E. DDA Following Design Concept Plan acceptance by the CDC BOARD, and the close of the FIRST NEGOTIATION PERIOD, the CDC agrees to negotiate exclusively with the DEVELOPER for the remaining one hundred eighty (180) days of the EXCLUSIVE NEGOTIATION PERIOD (hereinafter referred to as "SECOND NEGOTIATION PERIOD") in order to negotiate and attempt to finalize the DDA. During the FIRST NEGOTIATION PERIOD AND THE SECOND NEGOTIATION PERIOD, the CDC and the Developer shall negotiate diligently and in good faith to attempt to finalize the DDA. If, at the close of the SECOND NEGOTIATION PERIOD, the CDC and DEVELOPER have not agreed to the terms of the DDA, this AGREEMENT shall automatically terminate. Notwithstanding the above, the CDC's Executive Director, or designee, in his or her sole discretion, may extend the Negotiation Period for up to an additional three hundred and sixty five (365) days to complete DDA negotiations, the land use entitlements and the environmental studies, if the CDC's Executive Director determines additional time is reasonably required. Special consideration shall be given to the extension given the intent of the parties of this AGREEMENT to apply for Proposition 1C Transit Oriented Development Program and Infill Infrastructure Grant Program funding in 2010. F. Execution of DDA After the DEVELOPER and the CDC staff tentatively agree upon the DDA, the EXCLUSIVE NEGOTIATION PERIOD shall be extended for up to an additional one hundred eighty (180) days at the discretion of the CDC's Executive Director, or designee (hereinafter referred to as "THIRD NEGOTIATION PERIOD") in order to enable the CDC and the City to: 1. Notice and conduct a public hearing pursuant to Section 33433 of the California Health and Safety Code on the DDA; 2, Process site development, environmental and entitlement applications through the City's Planning Commission and City Council; and, 3. Present the DDA to the Community Development Commission Board for approval at a Community Development Commission meeting. The CDC agrees that during the EXCLUSIVE NEGOTIATION PERIOD, and during all of its extensions, the CDC shall not negotiate or enter into an agreement with any other person or entity regarding development of the CDC SITE, unless it is with the expressed consent of DEVELOPER. The obligation to negotiate in good faith requires the respective parties to communicate with each other with respect to those issues for which agreement has not been reached, and such communication to follow reasonable negotiation procedures, including meetings, telephone conversations, and correspondence. The parties understand that final accord Page 5 of 17 ENA TOD WESTSIDE CDC, RELA 1 ED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC on all issues may not be reached. It is also understood that: (1) neither party is under any obligation to reach agreement on the CDC SITE purchase price and/or DDA; and, (2) the CDC reserves the right to approve or reject a DDA, the Project, or any disposition of the CDC SITE, in its sole discretion, as more particularly set forth in Part III of this AGREEMENT. G. CDC and DEVELOPER Obligations During the EXCLUSIVE NEGOTIATION PERIOD, the CDC and DEVELOPER'S obligations shall include, but not be limited to, the following: 1. CDC Obligations a. Provide the DEVELOPER with documents in the CDC's possession that would assist the DEVELOPER with the DUE DILIGENCE activities described in this AGREEMENT; b. Upon acceptance of the Conceptual Development Program and verification of PROJECT's proposed financial sources of financing to both purchase and develop the PROJECT, prepare a first draft of a DDA; c. Complete preparation of the Westside Specific Plan and accompanying EIR, and take both documents to City Council for consideration; d. Complete Phase I and Phase II Environmental Assessment prior to Proposition IC's 2010 Transit Oriented Development (TOD) and Infi11 Infrastructure Grant (IIG) application deadline; e. Work with the DEVELOPER to coordinate the DEVELOPER's Conceptual Development Program with the EIR in order to minimize the potential for future amendments to the EIR; f. Use balance of CDC's contract with Pyatok Architects, Inc., as deemed appropriate by the Executive Director, to pay for site plan coordination meetings, site plan updates, changes to site plan, developing floor plans and elevations; and, g- Assist DEVELOPER in outreach efforts by helping to coordinate with other City of National City departments and leaders. Page 6 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC Developer Obligations a. Use its best efforts to investigate the CDC STYE including review of CDC's WSP EIR, Phase I and II Environmental Assessments, and other CDC generated studies required to certify the EIR; b. Submit conceptual Project CDC SITE plans, elevations, conceptual drawings, detailed Project development cost estimates, pro formas for CDC SITE improvements as well as a pro forma summarizing the total Project and respective returns and other documents necessary for CDC and City review; c. Submit viable financial plan with proposed sources of funding or funding commitments for the PROJECT; d. Apply for Califomia Department of Housing and Community Development Proposition 1 C TOD and HG funds and/or grants in 2009 and other grants or fmancial incentives as appropriate, which includes, working with CDC to develop conceptual phasing of site plans for submission, providing financial analysis of each of the proposed phases of the PROJECT, identifying other possible sources of financing for the PROJECT, and coordinating and reaching out to the community and stakeholders; e. Apply for subsequent rounds of Proposition 1C TOD and IIG funds and/or grants, if unsuccessful in earlier rounds which includes the same work described in the paragraph above; f. Lead outreach efforts for PROJECT; g. Work concurrently with the CDC to coordinate the DEVELOPER's Conceptual Development Program with the EIR in order to minimize the potential for future amendments to the EIR; h. Develop conceptual programming for providing financial fitness and home ownership training prior to and following construction of the PROJECT, and for resident services for residents of the PROJECT; Page 7 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 25 09 (by CDC)DOC Assure that the site and affordable multifamily development design plans include community space facilities needed to effectively accommodate resident services including financial fitness and homeownership training; and j. Prepare a conceptual business plan and budget for ongoing incubator programming. The business plan should identify sources of funding for program components and likely staffing needs. III. RETENTION OF DISCRETION TO APPROVE THE PROJECT AND DDA; NO PRE -COMMITMENT It is anticipated that the PROJECT and the DDA providing for its implementation will be presented to the CDC BOARD for approval. The parties understand that the CDC is reserving the right to exercise its discretion as to all matters which it is, by law, entitled or required to exercise its discretion, including, but not limited to the following: A. Approval by the CDC of the Final Project as Contained in the DDA The parties understand that the CDC has the complete and unfettered discretion to reject the DDA without explanation or cause. The risk of loss of all processing, design and developmental costs incurred' by the DEVELOPER prior to DDA approval and execution shall be absorbed by DEVELOPER subject to the reimbursement terms per Section VI. B. Review and Approval by the CDC of all Discretionary Findings and Conclusions The duty of the CDC to dispose of the parcel it owns within the CDC SITE shall be conditioned upon the successful review and approval of all necessary findings and conclusions which the CDC BOARD is required to make, including all necessary findings and determinations required under CEQA, state and local land use provisions, and the California Community Redevelopment Law. As to any matter which the CDC may be required to exercise its unfettered discretion in advancing the PROJECT to completion, neither anything contained herein, nor to be contained in the DDA shall obligate the CDC to exercise its discretion in any particular manner, and any exercise of discretion reserved hereunder or required by law, shall not be deemed to constitute a breach of CDC duties under this AGREEMENT. C. No Pre -Commitment by the CDC By its execution of this AGREEMENT, the CDC is not committing itself to, or agreeing to undertake, any activity requiring the subsequent exercise of discretion by the CDC, or any department thereof including, but not limited to, the approval and execution of a DDA; the proposal, amendment, or approval of any land use regulation governing the CDC SITE; the Page 8 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y 1-JSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC r provision of any financial assistance for the development of any public or private interest in real property; the acquisition of real property; or any other such activity. This AGREEMENT does not constitute a disposition of property or exercise of control over property by the CDC and does not require a public hearing. CDC execution of this AGREEMENT is merely an agreement to enter into a period of exclusive negotiations according to the terms hereof, reserving final discretion and approval by the CDC as to any proposed DDA and all proceedings and decisions in connection therewith. IV. THE DEVELOPER A. Developer's Experience As a condition precedent to the CDC's execution of this AGREEMENT, DEVELOPER shall have submitted to the CDC a detailed description of the development experience of the DEVELOPER and its principals, associates, employees, partners, and joint ventures. B. Offices of the Developer The principal offices of DEVELOPER are located at: 18201 Von Karman Avenue, Suite 900 Irvine CA 92612 (telephone) 949-660-7272 The Project Manager for the DEVELOPER will be Rick Westberg. Other employees, consultants, or representatives of DEVELOPER who are proposed to be directly involved in the Project will be identified by DEVELOPER and submitted to the CDC. C. Full Disclosure The DEVELOPER shall maintain full disclosure to the CDC of its principals, officers, stockholders, partners, joint ventures, and all other pertinent information concerning the DEVELOPER. D. Assignment The DEVELOPER shall not assign this Agreement without prior written approval of the CDC. The CDC agrees that, notwithstanding the foregoing, the DEVELOPER may assign their rights under this AGREEMENT to a corporation, trust, limited liability company or Page 9 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC partnership of which the DEVELOPER or Related Company (or affiliates thereof) owns the majority beneficial interest and operational control. E. Progress Reports The DEVELOPER agrees to provide, upon request, written reports advising the CDC on progress and/or problems with the proposed development every sixty (60) days during the term of the AGREEMENT. V. ENVIRONMENTAL REQUIREMENTS The City of National City is currently undertaking a planning process for that area known as the Westside. Specifically, the City is preparing the Westside Specific Plan ("WSP") and the accompanying ElR. A mixed use transit oriented development is part of the WSP and EIR. Thus, DEVELOPER's PROJECT may possibly not require any further environmental review if the PROJECT's impacts have already been analyzed in a certified EIR. CDC will be responsible for all subsequent environmental assessments, studies and reports that are required by the WSP EIR, the Phase I Environmental Assessment, or the Phase II Environmental Assessment. DEVELOPER shall be responsible for preparing any additional environmental review, beyond those required by the WSP EIR, the Phase I or Phase 1I Environmental Assessments, if necessitated by changes in the PROJECT. VI. REIMBURSEMENT OF PREDEVELOPMENT EXPENSES PAID PRIOR TO APPROVAL OF PROPOSITON IC FUNDING A. City Discretionary Entitlements DEVELOPER is entitled to reimbursement from the CDC of its predevelopment expenses if DEVELOPER, after exhausting all reasonable efforts, is unable to obtain approval by the City of National City of necessary discretionary entitlements, which are within the City's discretion to approve, in time to apply for the third round of Proposition 1C funding and/or grants. The determination of what entitlements must be approved by the City of National City will be determined by what the third round application for Proposition IC funding requires as unequivocally necessary to apply for funding. The deadline anticipated for the third round of Proposition 1C funding is anticipated to occur around February, 2010. The predevelopment expenses referred to in this section specifically exclude any internal costs incurred and expended by DEVELOPER or any of DEVELOPER's affiliates. Predevelopment expenses specifically exclude any expenses related to the Proposition 1C funding and/or grant application process undertaken by DEVELOPER. Predevelopment expenses also exclude any legal costs or expenses incurred by DEVELOPER, DEVELOPER's affiliates, or third parties. Predevelopment expenses do include third party costs by companies not affiliated with DEVELOPER for architectural work, engineering work, market studies, and cost estimates. Page 10 of 17 ENA TOD WESTS1DE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 25 09 (by CDC).DOC Any reimbursement of predevelopment expenses is subject to DEVELOPER having received prior approval by the CDC Executive Director of its budget and timeline for DEVELOPER's predevelopment expenses. The total of all reimbursements pursuant to Section VI cannot exceed a total of twenty-five thousand dollars ($25,000). B. WSP Approvals DEVELOPER is entitled to reimbursement from the CDC of its predevelopment expenses if the City of National City denies approval of the WSP or approval is not obtained at least sixty (60) days prior to Proposition 1 C 2010 application deadline. The predevelopment expenses referred to in this section specifically exclude any internal costs incurred and expended by DEVELOPER or any of DEVELOPER's affiliates. Predevelopment expenses specifically exclude any expenses related to the Proposition 1 C funding and/or grant application process undertaken by DEVELOPER. Predevelopment expenses also exclude any legal costs or expenses incurred by DEVELOPER, DEVELOPER's affiliates, or third parties. Predevelopment expenses do include third party costs by companies not affiliated with DEVELOPER for architectural work, engineering work, market studies, and cost estimates. Any reimbursement of predevelopment expenses is subject to DEVELOPER having received prior approval by the CDC Executive Director of its budget and timeline for DEVELOPER's predevelopment expenses. The total of all reimbursements pursuant to Section VI cannot exceed a total of twenty-five thousand dollars ($25,000). C. WSP EIR and Environmental Assessment Report DEVELOPER is entitled to reimbursement from the CDC of its predevelopment expenses if CDC does not obtain WSP EIR certification and the Phase I and Phase II Environmental Assessment, at least sixty (60) days before the Proposition IC 2010 application deadline. The predevelopment expenses referred to in this section specifically exclude any internal costs incurred and expended by DEVELOPER or any of DEVELOPER's affiliates. Predevelopment expenses specifically exclude any expenses related to the Proposition 1C funding and/or grant application process undertaken by DEVELOPER. Predevelopment expenses also exclude any legal costs or expenses incurred by DEVELOPER, DEVELOPER's affiliates, or third parties. Predevelopment expenses do include third party costs by companies not affiliated with DEVELOPER for architectural work, engineering work, market studies, and cost estimates. Any reimbursement of predevelopment expenses is subject to DEVELOPER having received prior approval by the CDC Executive Director of its budget and timeline for DEVELOPER's predevelopment expenses. The total of all reimbursements pursuant to Section VI cannot exceed a total of twenty-five thousand dollars ($25,000). Page 11 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD W estsi&e ENA final 2 25 09 (by CDC).DOC D. Documents to CDC prior to reimbursement Prior to any reimbursement paid to DEVELOPER by CDC, DEVELOPER shall deliver to the CDC the following: 1) all predevelopment documents; 2) an absolute and unconditional assignment to DEVELOPER's right, title, and interest in and to any and all predevelopment documents; and, 3) written consent to such assignment of any architect or engineer who has any right, title, or interest in or to said predevelopment documents. VII. REAL ESTA fE COMMISSIONS The CDC has not engaged a broker, agent, or finder in connection with this transaction. As such, the CDC will not be responsible for any claims by a broker, agent or finder, and the DEVELOPER agrees to defend, indemnify, protect and hold the CDC harmless from any claim by any broker, agent, or finder retained by the DEVELOPER. VIII. GENERAL PROVISIONS A. Legal Actions 1. Institution of Legal Actions In addition to any other rights or remedies, either party may institute legal action to cure, correct or remedy any default, to recover actual damages for any default, or to obtain any other remedy consistent with the purposes of this AGREEMENT; provided, however, that Paragraph C of this Part VIII shall supersede any conflicting provisions of this Paragraph A.1 . Such legal actions must be instituted and maintained in the Superior Court of the County of San Diego, State of California, or in any other appropriate court in that county. 2. Applicable Law The laws of the State of California shall govern the interpretation and enforcement of this AGREEMENT. 3. Acceptance of Service of Process In the event that any legal action is commenced by the DEVELOPER against the CDC, service of process on the CDC shall be made by personal service upon the Executive Director or Secretary of the CDC, or in such other manner as may be provided by law. In the event that any legal action is commenced by the CI)C against the DEVELOPER, service of process on the DEVELOPER shall be made by personal service upon the DEVELOPER or in such other manner as may be provided by law, and shall be valid whether made within or without the State of California. DEVELOPER's agent for service of process is CSC -Lawyers Incorporating Service, whose address is P_O Box 13397, Philadelphia., PA 19101-3397. Page 12 of 17 ENA TOD WESTS1DE CDC, RELATED, COMM'YHSNGWRKS TOD Weslside ENA final 2 25 09 (by CDC).DOC , B. Rights and Remedies are Cumulative Except as otherwise expressly stated in this AGREEMENT, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of its rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other party. C. Specific Performance as Developer's Exclusive Remedy Subject to the DEVELOPER'S right to terminate this AGREEMENT in accordance with the terms of Paragraph E of this Part VIII , the DEVELOPER'S exclusive remedy for an uncured CDC default under this AGREEMENT is to institute an action for specific performance of the terms of this AGREEMENT, and in no event shall the DEVELOPER have the right, and the DEVELOPER expressly waives the right, to seek monetary damages of any kind, including but not limited to actual damages, economic damages, consequential damages, or lost profits, from the CDC in the event of a default by the CDC under this AGREEMENT or any action related to this AGREEMENT. Notwithstanding the foregoing, the DEVELOPER shall retain the right to request reimbursement of predevelopment expenses as permitted under Section VI of this Agreement, and to seek a writ of mandate in the event of any final denial by the CDC of any CDC permit or approval pertaining to the PROJECT. D. Attorney's Fees If any party to this AGREEMENT is required to initiate or defend litigation in any way connected with this AGREEMENT, the prevailing party in such litigation in addition to any other relief which may be granted, whether legal or equitable, shall be entitled to its actual and reasonable attorney's fees. If any party to this AGREEMENT is required to initiate or defend litigation with a third party because of the violation of any terms or provision of this AGREEMENT by the other party, then the party so litigating shall be entitled to its actual and reasonable attorney's fees from the other party to this AGREEMENT. As used herein, the term "attorney's fees" shall include attorney's fees incurred related to the foregoing described litigation and for any appeal, and in addition a party entitled to attorney's fees shall be entitled to all other reasonable costs for investigating such action, retaining expert witnesses, taking depositions and discovery, and all other necessary costs incurred in such litigation. All such fees shall be deemed to have accrued on commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. The parties hereto acknowledge and agree that each such party shall bear its own legal costs incurred in connection with the negotiation, approval, and execution of this AGREEMENT. E. Termination Rights Notwithstanding the nominal EXCLUSIVE NEGOTIATION PERIOD hereinabove set forth, any party may terminate this AGREEMENT if another party has materially defaulted in its obligations herein set forth, and the terminating party has provided the defaulting party with written notification of such determination, and the defaulting party has Page 13 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC refused to cure same. The written notification shall set forth the nature of the actions required to cure such default if curable. The defaulting party shall have thirty (30) days from the date of the written notification to cure such default; provided, however, if such default cannot reasonably be cured within such thirty (30) day period, the non -defaulting party shall not terminate this AGREEMENT or pursue any other remedies for default hereunder if the defaulting party commences cure within such thirty (30) day period and thereafter diligently prosecutes such cure to completion within the next thirty (30) days. If such default is not cured within the thirty (30) days, or within the subsequent thirty (30) days if commencement of a cure has occurred, the termination shall be deemed effective. For purposes of this paragraph, the parties hereby acknowledge that time is of the essence. Each party shall also have the right to terminate this AGREEMENT in the event that (a) the CDC or the DEVELOPER determines that the PROJECT is infeasible, based on financial or environmental impact considerations, or not in the public interest; or (b) the parties reach an impasse in their negotiation of the DDA which cannot be resolved after good faith efforts; or (c) the parties constituting the DEVELOPER terminate the Memorandum of Understanding between them related to development of this PROJECT for any reason; provided, however, that if either party wishes to terminate this AGREEMENT as a result of the occurrence of any of the events described in subparagraphs (a), (b) or (c) herein, (i) such party shall send written notice thereof to the other party setting forth the occurrence of the applicable event (the "Event Notice"), (ii) the parties shall negotiate diligently and in good faith for a period of thirty (30) days following the delivery of the Event Notice to resolve the issues described therein, and (c) no termination of this AGREEMENT shall be deemed to have occurred unless and until the parties have been unable to resolve the issues described in the Event Notice within such thirty (30) day period. F. Notices Demand and Communications Between the Parties Formal notices, demands, and communications between CDC and DEVELOPER shall be given either by (i) personal service, (ii) delivery by reputable document delivery service such as Federal Express that provides a receipt showing date and time of delivery, or (iii) or by mailing in the United States mail, certified mail, postage prepaid, return receipt requested, addressed to: To CDC: Community Development Commission 1243 National City Boulevard National City, CA 91950 Attn: Brad Raulston, Executive Director Page 14 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC With copy to: To Developer: With copy to: To Non-profit: With copy to: CDC Attorney 1243 National City Boulevard National City, CA 91950 Attn: George Eiser The Related Companies of California 18201 Von Karman Avenue, Suite 900 Irvine CA Attn: William Witte, President Community Housing Works (Co -developer) 4305 University Avenue, Suite 550 San Diego CA 92105 Attn: Susan M. ReynoIds, President and CEO Dennis Doucette Luce, Forward, Hamilton & Scripps 600 West Broadway, Suite 2600 San Diego, CA 92101 Notices personally delivered or delivered by document delivery service shall be deemed effective upon receipt. Notices mailed in the manner provided above shall be deemed effective on the second business day following deposit in the United States mail. Such written notices, demands, and communications shall be sent in the same manner to such other addresses as either party may from time to time designate by mail. G. Nonliability of City and CDC Officials and Employees No member, official, employee, or contractor of the City or the CDC shall be personally liable to the DEVELOPER in the event of any default or breach by the CDC or for any amount, which may become due to the DEVELOPER or on any obligations under the terms of the AGREEMENT. No member, official, employee, or contractor of the DEVELOPER shall be personally liable to the City or the CDC in the event of any default or breach by DEVELOPER or for any amount, which may become due to the City or the CDC or on any obligations under the terms of the AGREEMENT. Page 15 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y IISNGWRKS TOD Westside ENA final 2 25 09 (by CDC) DOC H. Interpretation The terms of this AGREEMENT shall be construed in accordance with the meaning of the language used and shall not be construed for or against either party by reason of the authorship of this AGREEMENT or any other rule of construction which might otherwise apply. The Part and Paragraph headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this AGREEMENT. I. Entire Agreement, Waivers, and Amendments This AGREEMENT integrates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations or previous agreements between the parties with respect to all or any part of the subject matter hereof. All waivers of the provisions of this AGREEMENT must be in writing and signed by the appropriate authorities of the party to be charged, and all amendments and modifications hereto must be in writing and signed by the appropriate authorities of CDC and DEVELOPER. J. Counterparts This AGREEMENT may be executed in counterparts, each of which, after all the parties hereto have signed this AGREEMENT, shall be deemed to be an original, and such counterparts shall constitute one and the same instrument. K. Successors This AGREEMENT shall be binding upon and shall inure to the benefit of the permitted successors of each of the parties hereto. L. Further Assurances The parties hereto each agree, without further consideration, to execute such other and further documents, and to perform such other and further acts, as may be necessary or proper in order to consummate the transaction set forth in and contemplated by this Agreement. M. SeverabilitY In the event any section or portion of this AGREEMENT shall be held, found, or determined to be unenforceable or invalid for any reason whatsoever, the remaining provisions shall remain in effect, and the parties hereto shall take further actions as may be reasonably necessary and available to them to effectuate the intent of the parties as to all provisions set forth in this AGREEMENT. N. Time is of the Essence Time is of the essence for each of the DEVELOPER'S obligations under this AGREEMENT. Page 16 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Wesuide ENA final 2 25 09 (by CDC).DOC O. Confidentiality The DEVELOPER acknowledges and agrees that the CDC is a public entity with a responsibility and, in many cases, legal obligation to conduct its business in a manner open and available to the public. Accordingly, any information provided by the DEVELOPER to the CDC with respect to the CDC SITE, the PROJECT, the DEVELOPER may be disclosed to the public either purposely, inadvertently, or as a result of a public demand or order. With respect to any information provided that the DEVELOPER reasonably deems and identifies in writing as proprietary and confidential in nature, the CDC agrees to exercise its best efforts to keep such information confidential. IN WITNESS WIIEREOF, the CDC, and the DEVELOPER have signed this AGREEMENT on the respective dates set forth below. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY By: Ron Morrison, Chairman ATTEST: By: sto1 - ecre APPROVED AS TO FORM: The Related Companies of California, LLC, a limited liability company. By: The Nicholas Company, Inc., N a Delaware Co pelts manager By. William A. Witte, President Community IlousingWorks, a California non-profit public benefit corporation. By: George Eiser, City Attorney Susan M Reynold President and CEO Dated: March 3, 2009. Page 17 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y FISNGWRKS TOD Westside ENA final 2 25 09 (by CDC) O. Confidentiality The DEVELOPER acknowledges and agrees that the CDC is a public entity with a responsibility and, in many cases, legal obligation to conduct its business in a manner open and available to the public. Accordingly, any information provided by the DEVELOPER to the CDC with respect to the CDC SI 1 E, the PROJECT, the DEVELOPER may be disclosed to the public either purposely, inadvertently, or as a result of a public demand or order. With respect to any information provided that the DEVELOPER reasonably deems and identifies in writing as proprietary and confidential in nature, the CDC agrees to exercise its best efforts to keep such information confidential. IN WITNESS WHEREOF, the CDC, and the DEVELOPER have signed this AGREEMENT on the respective dates set forth below. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY The Related Companies of California, LLC, a limited liability company. By: By: Ron Morrison, Chairman The Nicholas Company, Inc., a Delaware Corporation, Its manager ATTEST: By: Brad Raulston, Secretary APPROVED AS TO FORM: By: /"J ei“-1 George Eiser, City Attorney Dated: March 3, 2009. By: William A. Witte, President Community HousingWorks, a California non-profit public benefit corporation. r By. W Sus M Reynolds President and CEO Page 17 of 17 ENA TOD WESTSIDE CDC, RELATED, COMM'Y HSNGWRKS TOD Westside ENA final 2 25 09 (by CDC).DOC THE NICHOLAS COMPANY, INC., a Delaware corporation SECRETARY'S CERTIFICATE I, William A. Witte, Secretary and President of The Nicholas Company, Inc., a Delaware corporation (the "Corporation"), hereby certify that attached hereto is a true, correct and complete copy of the resolutions of the Board of Directors of the Corporation; such resolutions have not been amended, modified or rescinded and remain in full force and effect; and such resolutions are the only resolutions of the Corporation's Board of Directors relating to the transactions described therein. IN WITNESS WHEREOF, I have hereunto signed my nam Dated: February 26, 2009_ William A. Witte, Secretary and President 50016993.1 RESOLUTIONS OF THE BOARD OF DIRECTORS OF THE NICHOLAS COMPANY, INC., a Delaware corporation WHEREAS, The Nicholas Company, Inc., a Delaware corporation (°TNC"), is the manager of The Related Companies of California, LLC, a California limited liability company ("TRGG`), pursuant to that certain Operating Agreement of TRCC, dated as of November 19, 1998, as amended; and WHEREAS-, TRCC and Community Housingworks jointly wish to enter into an Exclusive Negotiation Agreement (the "ENA') with the Community Development Commission of the City of National City, a public body, corporate and politic (the "CDC") with respect to approximately 10.6 acres located at 2200 Hoover Avenue, National City, California. NOW, THEREFORE, BE IT RESOLVED, that TNC, in its capacity as manager of TRCC, is authorized, empowered and directed to enter into, execute and deliver, on behalf of TRCC, the ENA, and to cause TRCC to perform each of its obligations thereunder; RESOLVED, FURTHER, that each officer of TNC be, and each of them hereby is, authorized, empowered and directed, on behalf of TNC, as manager of TRCC, to take such actions, and to execute and deliver such additional documents and instruments or cause the performance thereunder, as the person taking such actions or executing and delivering such documents or instruments or causing the performance thereunder may deem necessary or appropriate in connection with the transactions approved hereby, including, without limitation, the ENA, and the signature of such officer on any document or instrument, shall beconclusive evidence of such officer's authority to take such actions or execute and deliver such documents or cause the performance thereunder on behalf of TNC as the manager of TRCC; and RESOLVED FURTHER, that any and all acts heretofore taken by any officer of INC in connection with the matters authorized by the foregoing resolutions are hereby ratified, confirmed and approved. 2 50016093.1 Related California 18201 Von Kerman, Suite 900 Irvine, California 92612 February 27, 2009 Susan M. Reynolds, President & CEO Community HousingWorks 4305 University Avenue, Suite 550 San Diego, California 92105 Re: National City Paradise Creek Development, California Ms. Reynolds: The purpose of this memorandum of understanding is to set forth the proposed terms for a joint venture between Related California or its affiliates ("Related") and Community HousingWorks, a California nonprofit corporation ("CHW") for the development of a mixed -use retail and affordable housing project which may be developed in phases, consisting of approximately 300-360 affordable residential units and retail areas within the Westside Specific Plan in the City of National City, California (the "Project")_ 1. Partnership Structure_ The Project will be developed and owned by a limited partnership or partnerships (the "Partnership") in which (i) Related will own a 0.005% interest and will act as the administrative general partner and (ii) CHW will own a 0.005% interest and will act as the managing general partner. Bids will be solicited for an equity partner who will act as the investor limited partner and the special limited partner (collectively, the "Syndication Limited Partners") and will own 99.99% of the interests in the limited partnership. 2. Financial Participation. (a) Development Fee. The Project is expected to be structured to include Developer Fee(s) of which a percentage may be payble during the course of construction and a percentage may be payable from the Project's cash flow. Related will receive 70% of the Developer Fee(s), while CHW (or an affiliate of CHW, if required by tax counsel) will receive 30% of the Developer Fee(s). Each will receive a pro rata share (in accordance with the foregoing percentages) of each installment of the Developer Fee(s) as and when each such installment is paid. (b) Net Cash Flow and Sale/Refinancing Proceeds. Except as set forth below, all net cash flow and/or sale or refinancing proceeds payable to the general partner(s) of the Partnership will be paid to 70% to Related and 30% to CHW. Page 2 (c) Predevelopment Expenses. Third party, out-of-pocket predevelopment expenses to be paid by the Partnership prior to closing of the construction loan for the Project will be paid 70% by Related and 30% by CHW. All such amounts funded by Related and CHW shall be reimbursed with interest not later than the date of funding of the first draw under the construction loan. Both partners will sign contracts or come to mutual agreement about contract risk during predevelopment funding. During the early predevelopment stage (Le., during the projected Exclusive Negotiating Period), an Early Predevelopment Budget is established as provided in Exhibit C. (d) Gap Financing. The Project is expected to be structured with multiple loans and grants from various authorities and jurisdictions, possibly including Prop lc Brownsfields, Prop lc TOD, Prop lc Urban Infill, and a loan or loans from the City of National City, collectively referred to herein as Gap Financing ("Gap Financing"). Related will be responsible for identifying, pursuing, applying for and negotiating Gap Financing. CHW will be responsible for assisting Related in its efforts to identify and secure Gap Financing. 3. Guaranties. Related will provide all guaranties relating to completion of construction of the Project. CHW and Related will jointly provide all other guaranties required in connection with the Project, including, without limitation, all lease -up guaranties, all operating deficit guaranties, all tax credit guaranties and all guaranties in connection with the repayment of loans. 4. Property Management. The Partnership will retain Related Management Company to provide property management services for the Project. The property manager will be paid a management fee that is consistent with fees paid for similar projects and similar management companies, but shall not exceed five percent (5%) of Effective Gross Income from the property (the 'Property Management Fee") for property management services at the Project. The Property Management Contract shall be able to be terminated by the Partnership with cause by providing 30 days written notice. 5. Partnership Management/Asset Management. Following the funding of the permanent loan(s) for each phase, in consideration for Asset Management, Partnership Management and their continuing participation in the Project, the Partnership will split a $25,000.00 in management fees. CHW shall receive 75% of the management fees per year per phase. Related shall receive 25% of the mangement fees per year per phase. These fees are subject to approval of subsidy providers and investors. Resident Services/Homeowner Incubator The Partnership shall retain CHW to provide resident services for the Project defined here to include the City's requirement Page 3 that the project provide and fund a "Homeownership Incubator" to include homebuyer counseling, lending and financial training for residents. The Resident Services Contract shall reimburse CHW for actual out-of-pocket expenses and direct overhead incurred by CHW directly related to resident services provided at the Paradise Creek Development and shall be able to be terminated by the Partnership with cause by providing 30 days written notice. 6. Construction Management. Advantage Construction Services, Inc., will serve as the construction manager for the Project In consideration for acting as the construction manager, Advantage shall receive a fee of $300,000 per phase. 7. Partnership Formation. The Partnership will be formed pursuant to a Limited Partnership Agreement, and a Certificate of Limited Partnership ("Form LP-1") will be filed with the California Secretary of State. Related and CHW will act as the general partners and Nicholas Real Estate Investments, LLC will act as the initial limited partner of the Partnership. Such limited partnership agreement will be amended and restated in its entirety to reflect the terms of this memorandum of understanding as well as the terms and conditions required by the Syndication Limited Partners. Negotiation of the amended and restated limited partnership agreement will begin immediately following receipt of an allocation of tax exempt bond authority from CDLAC and will be finalized as soon as possible thereafter. 8. Roles and Responsibilities. Related will serve as the Development Project Manager, responsible for coordinating the design, planning, entitlements, construction and financing of the Project. Without limiting the generality of the foregoing, Related will be primarily responsible for the day to day management of the Project, with assistance from CHW. Advantage will be the Construction Manager, responsible for coordinating and supervising the construction of the project including schedules, budgets and scope. Both partners will agree on budgets and major development decisions_ CHW will serve as the lead partner for community relations and outreach. During the operational phase of the Project, CHW will be primarily responsible for Asset Management and Resident Services, and shall act as the managing general partner of the Partnership. Further details of the partners' roles and responsibilities are set forth in the spreadsheet attached hereto as Exhibit A. 9. Development Team. The assumed development team members for the Project have been approved by Related and CHW as shown on Exhibit B. 10. Long Term Ownership. It is currently anticipated that both general partners will remain in the partnership in their original capacities for the entire duration of project ownership. 11. Legal. Related proposes to retain Bocarsly Emden Cowan Esmail & Arndt LLP to represent both General Partners and the Partnership for all partnership, tax, and bond matters. Page 4 12. Purchase Option. The Partnership shall grant Related and CHW (jointly) an option to purchase the Project at the end of the 15-year tax credit compliance period at a purchase price equal to the greater of (a) fair market value of the project taking into consideration rent restrictions binding on the project; and (b) the sum of (i) the debt encumbering the Project at the time of such sale, which debt may be assumed by the partners, plus, (ii) the tax liability of the Syndication Limited Partners as the result of such sale transaction. The terms of this memorandum of understanding are intended to summarize the key partnership terms. If the foregoing is acceptable to you, please execute this letter where indicated below. I look forward to hearing from you. Sincerely yours, William A. Witte President cc: Frank Cardone Agreed and Accepted February 27, 2009 COMMUNITY HOUSINGWORKS By: Page 4 12. Purchase Option. The Partnership shall grant Related and CHW (jointly)' an option to purchase the Project at the end of the 15-year tax credit compliance period at a purchase price equal to the greater of (a) fair market value of the project taking into consideration rent restrictions binding on the project; and (b) the sum of (i) the debt encumbering the Project at the time of such sale, which debt may be assumed by the partners, plus, (ii) the tax liability of the Syndication Limited Partners as the result of such sale transaction. The terms of this memorandum of understanding are intended to summarize the key partnership terms. If the foregoing is acceptable to you, please execute this letter where indicated below. look forward to hearing from you. cc: Frank Cardone Agreed and Accepted February 27, 2009 COMMUNITY HOUSINGWORKS By: William A. Witte President Susan M. Reynolds, President & CEO EXHIBIT A Paradise Creek Partnership Roles and Responsibilities Task Lead Role Related CHW Comments Finance Construction/Perm fender Prop lc, MHP, AHP, other Nat City loan Syndicator TCAC,CDLAC Tax Partner (audit, cost cert, etc) Project Management Operations Asset Manager (tax partner) Services/incubator Partnership Management Partners mutually select financial partners; Related to be lead in negotiations Partners mutually select financial partners; Related to be lead in negotiations CAUserslWestberg.TRCNT.0001App6ata1LocaftMicrosoftlWindows\Temporary Internet Files10LK71771Exh A and B FINAL 2-27-09 2/26/09pm EXHIBIT B Paradise Creek Anticipated Project Team Function Team Comments Partners The Related Companies of California Administrative General Partner Community HousingWorks jManaging General Partner Development Project Manager The Related Companies of California Property Management Related Management Company Asset Manager Community HousingWorks Partnership Management The Related Companies of California - Resident Services/HO Incubator Community HousingWorks Construction Manager Advantage Construction Legal: Tax Credit/Bonds Bocarsly Emden Cowan Esmail & Arndt LLP Insurance Acordia Title First American Title Company (Gina Balding) Landscape Architect Spurlock Poirier Civil Engineer / Survey C & V Consulting Architect Studio E Pyatok Architects - Ennironmental AEC SCS Community Outreach Community Housingworks - lead Related - assist C:1Users\Westberg.TRCNT.000\AppData\LocaRMicrosoft\Windows\Temporary Internet riles\OLK7177\Exh A and B FINAL 2-27-09 2/26/09pm FIRST AMENDMENT to EXCLUSIVE NEGOTIATION AGREEMENT by and between COMMUNITY DEVELOPMENT COMMISSION of THE CITY OF NATIONAL CITY, THE RELATED COMPANIES OF CALIFORNL4, AND COMMUNITY HOUSING WORKS On March 3, 2009, the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic ("CDC"), RELATED COMPANIES OF CALIFORNIA AND COMMUNITY HOUSING WORKS (collectively referred to as ("Developer") entered into an EXCLUSIVE NEGOTIATION AGREEMENT ("Agreement") to plan and implement a Transit Oriented Affordable Housing project and service incubator on approximately 10.6 acres identified as the National City Public Works Center (APNs 560-396-06, 560-391-08, 560-206-03, 555-124-05 plus public right of ways) in the City of National City ("the Site"). WHEREAS, CDC and Developer have been cooperating on the planning and development of the Site; and WHEREAS, Section II.E. of the Agreement provides that the CDC's Executive Director may extend the Negotiation Period for up to three hundred sixty five (365) days; and WHEREAS, the CDC and Developer require more time to complete necessary due diligence and to negotiate a Disposition and Development Agreement to accomplish the TOD proj ect: THE PARTIES HEREBY AGREE TO THIS FIRST AMENDMENT TO THE AGREEMENT AS FOLLOWS: 1. The Negotiation Period shall be extended to March 3, 2011. 2. This Amendment may be signed in counterpart. IN WITNESS WHEREOF, the Parties have entered into this Amendment as of March 3, 2010. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic: By: Brad Rau xecutive Director APPROVED AS TO FORM: By: / ) arr DEVELOPER: THE RELATED COMPANIES OF CALIFORNIA, LLC, a California limited liability company By: The Nicholas Company, Inc., By: A Delaware Corpo manager William A Witte, President Page 1 of 2 4th Amendment to DDA George Eiser, III — CDC Legal Counsel By: COMMUNITY HOUSING WORKS, a California non-profit public benefit corporation By. e B. Wilson, Senior Vice President Page 2 of 2 4tb Amendment to DDA OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 EC Michael R. Dalla, CMC -City Clerk 619-336-4228 phone / 619-336-4229 fax April 11, 2011 Ms. Anne Wilson Community Housing Works 4305 University Avenue, Suite 550 San Diego, CA 92105 Dear Ms. Wilson, APR 12 2011 .': On March 1st, 2011, Resolution No. 2011-61 was passed and adopted by the Community Development Commission of the City of National City, authorizing the execution of the Second Amendment to the Exclusive Negotiation Agreement (ENA) with Related Companies of California and Community Housing Works. We are enclosing for your records a certified copy of the above Resolution and a fully executed original ENA. Sincerely, Michael R. DaIla, CMC City Clerk Enclosures cc: Community Development Commission SECOND AMENDMENT to EXCLUSIVE NEGOTLATIONAGREEMENT by and between COMMUNITY DEVELOPMENT COMMISSION of THE CITY OF NATIONAL CITY, THE RELATED COMPANIES OF CALIFORNIA, AND COMMUNITY HOUSING WORKS This Second Amendment to EXCLUSIVE NEGOTIATION AGREEMENT is made and entered into this 1st day of February, 2011 by and between the COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic ("CDC"), and RELATED COMPANIES OF CALIFORNIA and COMMUNITY HOUSING WORKS (collectively referred to as "Developer") WHEREAS, on March 3, 2009, CDC and Developer entered into an EXCLUSIVE NEGOTIATION AGREEMENT ("Agreement") to plan and implement a Transit Oriented Development ("TOD") affordable housing project and service incubator on approximately 12.75 acres identified as the National City Public Works Center and Illes Family Trust site (APNs 560- 396-06, 560-391-05 560-391-08, 560-206-03, 559-124-05, 559-104-10, 559-125-15, 560-391-10, 560-206-05 plus public right of ways) in the City of National City ("the Site"); and WHEREAS, CDC and Developer entered into a FIRST AMENDMENT TO EXCLUSIVE NEGOTIATION AGREEMENT on or about March 3, 2010; and WHEREAS, CDC and Developer have been cooperating on the planning and development of the Site; and WHEREAS, substantial progress has been made with the project in the following areas: 1. Preparation of a Conceptual Site Plan; 2. Award of four grants including California Prop IC lnfill Infrastructure ($11.2 million), Local HOME funds grant ($115,000), California Prop IC Catalyst Projects for California ($500,000) and federal EPA Sustainability Pilot ($130,000 technical assistance); 3. Completion of environmental assessments of soil and groundwater conditions at the site by the CDC; and WHEREAS, CDC and Developer require more time to finalize negotiations for a proposed Disposition and Development Agreement to accomplish the TOD project. NOW THEREFORE, CDC AND DEVELOPER HEREBY AGREE TO THIS FIRST AMENDMENT TO THE. AGREEMENT AS FOLLOWS: 1. The Negotiation Period shall be extended to September 30, 2011. 2. This Amendment may be signed in counterparts. 3. With the foregoing exceptions, each and every provision of the Agreement entered into on March 3, 2009, as amended, shall remain in full force and effect. IN WITNESS WHEREOF, the Parties have entered into this Amendment as of March 1, 2011. Page 1 of 2 4th Amendment to DDA COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic: By: C Ron Morrison, Chairman APP i VED AS TO FORM: By: Claudia Ga Counsel DC General DEVELOPER: THE RELATED COMPANIES OF CALIFORNIA, LLC, a California limited liability company By: The Nicholas Company, Inc., Its Manager By: A Delaware Corporger William A Witte, President By: CONEVIUNITY IIOUSENG WORKS, a California non-profit public benefit corporation By: Anne B Wilson, Senior Vice President Page 2 of 2 4th Amendment to DDA COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY, a public body, corporate and politic: By: Ron Morrison, Chairman APPROVED AS TO FORM: By: Claudia Gacitua Silva, CDC General Counsel DEVELOPER: TIDE RELATED COMPANIES OF CALIFORNIA, LLC, a California limited liability company By: The Nicholas Company, Inc., Its Manager A Delaware Corporation, its manager By: William A Witte, President By: COMMUNITY HOUSING WORKS, a California non-profit public benefit corporation Wilson, Senior``ce President Page 2 of 2 4th Amendment to DDA RESOLUTION NO. 2011 — 61 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY ("CDC") AUTHORIZING THE CHAIRMAN TO EXECUTE THE SECOND AMENDMENT TO THE EXCLUSIVE NEGOTIATION AGREEMENT BY AND BETWEEN THE CDC AND THE RELATED COMPANIES OF CALIFORNIA AND COMMUNITY HOUSING WORKS TO EXTEND THE TIME FOR NEGOTIATION UNTIL SEPTEMBER 30, 2011, FOR THE WESTSIDE INFILL TRANSIT ORIENTED DEVELOPMENT WHEREAS, among its responsibilities the Community Development Commission of the City of National City ("CDC") develops, preserves and maintains affordable housing projects within the National City Redevelopment Project areas; and WHEREAS, as described in the Westside Specific Plan, the CDC is contemplating the potential development of an affordable infill housing project called the Westside Infill Transit Oriented Development ("WI-TOD"); and WHEREAS, a community design process and a competitive recruitment for developers was conducted; and WHEREAS, The Related Companies of California and Community Housing Works were awarded an Exclusive Negotiation Agreement ("ENA") on March 3, 2009, as a result of said process; and WHEREAS, on March 3, 2010, the First Amendment to ENA was executed by the Executive Director as allowed by the ENA, with an expiration date of March 11, 2011; and WHEREAS, CDC and The Related Companies of California and Community Housing Works (collectively, "Developer") have been cooperating on the planning and development of the Site; and WHEREAS, Substantial progress has been made in the following: 1. Preparation of a Conceptual Site Plan; 2. Award of four grants including California Prop IC !nth! Infrastructure ($11.2 million), local HOME funds grant ($115,000), California Prop IC Catalyst Projects for California ($500,000) and federal EPA Sustainability Pilot ($130,000 technical assistance); and 3. Completion of environmental assessments of soil and groundwater conditions at the site. WHEREAS, the CDC and Developer desire to extend the expiration of the ENA until September 30, 2011, to provide more time to finalize negotiations for a proposed Disposition and Development Agreement to accomplish the WI-TOD Project; and WHEREAS, with the foregoing exception, each and every provision of the Exclusive Negotiation Agreement entered into on March 3, 2009, snail remain in full force and effect. Resolution No. 2011 — 61 Page Two NOW, THEREFORE, BE IT RESOLVED that the Community Development Commission of the City of National City hereby authorizes the Chairman to execute the Second Amendment to the Exclusive Negotiation Agreement by and between the Community Development Commission of the City of National City and The Related Companies of California and Community Housing Works extending the expiration period to September 30, 2011. Said Second Amendment is on file in the office of the City Clerk. PASSED and ADOPTED this 1st day of March, 2011. on Morrison, Chairman Ay1PROVED AS TO FORM: Cl ud'a G. S CDC General Passed and adopted by the Community Development Commission of the City of National City, California, on March 1, 2011 by the following vote, to -wit: Ayes: Commissioners Morrison, Natividad, Rios, Sotelo-Solis, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Chairman, Community Development Commission BRAD RAULSTON Secretary, Community Development Commission By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2011-61 of the Community Development Commission of the City of National City, California, passedand adopted on March 1, 2011. Secretary mun'i opment Commission By: Deputy Exhibit C: Certificate of Insurance ACORD CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DDM'YY) 06/08/2011 13:33 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Barney & Barney LLC CA Insurance Lie: 0003950 9171 Towne Centre Drive, Suite 500 San Diego, CA 92122 858-457-3414 INSURED Community HousingWorks 4305 University Avenue, Suite 550 San Diego, CA 92105 Client# 54119 CONTACT Rose Kin NAME: PHONE (A/C, No, Ext.): (B58 )587-7521 E-MAIL rosebarne andhame ADDRESS: kG Y Ycom (A/CC, No): (858) 909-9840 A INSURER(S) AFFORDING COVERAGE NAIC # INSURER A : Everest National Insurance Company 10120 INSURER B : INSURER C : INSURER D : INSURER E : INSURER F: COVERAGES CERTIFICATE NUMBER: 358220 MST NUMBER: 18575 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTVNTHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POUCIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL IINSR SUBR SWVD POLICY NUMBER POLICY EFF (MMMIDDIYEYYY) POLICY EXP 1MMIDD/YYYYI LIMITS GENERAL LIABILITY COMMERCIAL GENERAL JABILITY EACH OCCURRENCE $ DAMAGE TO RENTED PREMISES (Ea occurrence) $ MED EXP (Any one person) $ I CLAIMS -MADE OCCUR PERSONAL & ADV INJURY I$ GENERAL AGGREGATE $ PRODUCTS - COMP/OP AGO $ GE It. AGGREGATE L POLICY LIMIT APPLIES PRO- JECT _--- PER: LOC i $ AUTOMOBILE LIABILITY SCHEDULED AUTOS NON -OWNED AUTOS COMBINED SINGLE LIMIT (Ea accident) BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ $ UMBRELLA LIAR EXCESS LIAR O OCCUR CLAIMS -MADE EACH OCCURRENCE $ AGGREGATE $ $ DED RETENT ON$ A WORKERS COMPENSATION AND EMPLOYERS LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFRCER/MEMBER EXCLUDED? (Mandatory in NH) 1 yes, describe under DESCRIPTION OF OPERATIONS below y/N 6600001409111 NIA 6rl12011 6/1/2012 x WC STATU- TORY LIMITS OTH- FR E. L. EACH ACCIDENT $ 1,000,000 E L. DISEASE - EA EMPLOYEE $ I,000,OOO E. L. DISEASE- POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONSI LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, d more space is required) Re: Home Investment Partnerships Program Project - Paradise Creek, National City, CA Waiver of Subrogation applies to workers compenation per attached endorsement. City of National City cio City Attomey's Office 1243 National City Blvd National City, CA 91950-4301 1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE Rose Xing Subject ACORD 25 (2010/05) ©1988-2010 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD WORKERS COMPENSATION AND EMPLOYERS LIABILITY INSURANCE POLICY WC 04 03 06 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT - CALIFORNIA We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. (This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us.) You must maintain payroll records accurately segregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement shall be 2 % of the California workers' compensation premium otherwise due on such remuneration. SCHEDULE PERSON OR ORGANIZATION JOB DESCRIPTION CITY OF NATIONAL CITY C/O CITY ATTORNEY'S OFFICE 1243 NATIONAL CITY BLVD NATIONAL CITY, CA 91950-4301 HOME INVESTMENT PARTNERSHIPS PROGRAM PROJECT: PARADISE CREEK, NATIONAL CITY, CA This endorsement changes the policy to which it is attached and is effective on the date issued unless otherwise stated. (The information below is required only when this endorsement is issued subsequent to preparation of the policy.) Endorsement Effective 06-08-11 Policy No. 6600001409111 Endorsement No. 002 Insured COMMUNITY HOUSINGWORKS (A Premium $ INCL. Insurance Company EVEREST NATIONAL INSURANCE COMPANY Countersigned By -1998 by the Workers' Compensation Insurance Rating Bureau of Califomia. All rights reserved. From the WCIRB's California Workers' Compensation Insurance Forms Manual - 1999. INSURED COPY ACORDH CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DDIYYYY) 06/0812011 13:28 PRODUCER Bamey & Barney LLC CA Insurance Lic: 0003950 9171 Towne Centre Drive, Suite 500 San Diego, CA 92122 858-457-3414 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED Community HousingWorks 4305 University Avenue, Suite 550 San Diego, CA 92105I INSURER A: Philadelphia Indemnity insurance Company 18058 INSURER B: INSURER C, NsuRERD INSURER E: THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID _..--- INSRTMP AD01 LTR SRD TYPE OF INSURANCE �� POLICY NUMBER NAMED ABOVE DOCUMENT WITH IS SUBJECT CLAIMS. POLICY EFFECTIVE DATE IMMIDDIYY) FOR THE POLICY RESPECT TO WHICH TO ALL THE TERMS, POLICYEXPIRATION DATE (MOONY) PERIOD INDICATED. NOTWITHSTANDING THIS CERTIFICATE MAY BE ISSUED OR EXCLUSIONS AND CONDITIONS OF SUCH LIMITS GENERAL `-k_ A � X GEN'L LIABILITY C MMERCIAL GENERAL LIABILITY X 'CLAIMS MADE l OCCUR AGGREGATE LIMIT APPLIES PER: POLICY PRO- ' X '',, LOC JECT PHPK627308 9/22,2010 ),/22/2011 EACH OCCURRENCE DAMAGE TO RENTED PREMISES (Ea occurence) MED EXP (Any one person) PERSONAL &ADVINJURY GENERAL AGGREGATE PRODUCTS- COMP!OP AGG $ $ $ $ $ S 1,000,000 I.000,OOO 20,000 1,000,000 2,000,000 2,000,000 A X AUTOMOBILE LIABILITY ANY AUTO ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS 1COMBINED PHPK627308 9/22/2010 9/22/2011 LIMIT (Ea accident) S 1,000,000 X BODILY INJURY (Per person) $ BODILY INJURY (Per accident) S PROPERTY DAMAGE (Per accident) ,- GARAGE LIABILITY ANY AUTO, AUTO ONLY - EA ACCIDENT $ ,_, -_- EA ACC OTHER THAN $ AUTO ONLY: AGG $ A EXCESS/UMBRELLA LIABILITY OCCUR 1 CLAIMS MADE DEDUCTIBLE RETENTION $ 10,000 PHUB322061 ! 9/22/2010 9/22/2011 EACH OCCURRENCE $ $ 2,000.000 X AGGREGATE 2,000,000 $ __ 1$ X $ WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIEI OK/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below 1 WC STATU- 1OTH- TORY LIMITS ER'.. EL EACH ACCIDENT $ E.L. DISEASE - EA EMPLOYEE $ : E.L. DISEASE - POLICY LIMIT $ OTHER DESCRIPTION OF OPERATIONS / LOCATIONS 1 VEHICLES f EXCLUSIONS ADDED BY ENDORSEMENT! SPECIAL PROV SIONS *I 0 days notice for non-payment of Premium / Terrorism included as respects GL & Umbrella. Re: Home Investment Partnerships Program Project - Paradise Creek, National City, CA Additional Insured: The City of National City, its elected officials, officers, agents and employees per attached endorsements. CERTIFICATE HOLDER CANCELLATION City of National City c/o City Attorney's Office 1243 National City Blvd National City, CA 91950-4301 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE Rose Xing ACORD 25 (2001108) Client 54119 Mst # 15775 Cert # 358218 Subject: © ACORD CORPORATION 1988 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ACORD 25 (2001/08) INSURED: Community HousingWorks COMPANY: Philadelphia Indemnity Insurance Company POLICY #: PHPK627308 POLICY PERIOD: 9/22/2010 EFFECTIVE DATE: 06/08/2011 TO 9/22/2011 COMMERCIAL AUTO CA 20 48 02 99 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED INSURED This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM GARAGE COVERAGE FORM MOTOR CARRIER COVERAGE FORM TRUCKERS COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modified by this endorsement. This endorsement identifies person(s) or organization(s) who are "insureds" under the Who Is An Insured Provision of the Coverage Form. This endorsement does not alter coverage provided in the Coverage Form. This endorsement changes the policy effective on the inception date of the policy unless another date is indicated below. Endorsement Effective: Named Insured: Countersigned By: BARNEY & BARNEY, LLC (Authorized Representative) SCHEDULE Name of Person(s) or Organization(s) : City of National City (If no entry appears above, information required to complete this endorsement will be shown in the Declarations as applicable to the endorsement. ) Each person or organization shown in the Schedule is an "insured" for Liability Coverage, but only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured Provision contained in Section II of the Coverage Form. CA 20 48 02 99 © Insurance Services Office, Inc., 1998 INSURED: Community HousingWorks COMPANY: Philadelphia Indemnity Insurance Company POLICY #: PHPK627308 POLICY PERIOD: 9/22/2010 EFFECTIVE DATE: TO 9/22/2011 PI-GLD-HS (04/07) THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. GENERAL LIABILITY DELUXE ENDORSEMENT: HUMAN SERVICES This endorsement modifies insurance provided under the following' COMMERCIAL GENERAL LIABILITY COVERAGE It is understood and agreed that the following extensions only apply in the event that no other specific coverage for the indicated loss exposure is provided under this policy. If such specific coverage applies. the terms, conditions and limits of that coverage are the sole and exclusive coverage applicable under this policy, unless otherwise noted on this endorsement. The following is a summary of the Limits of Insurance and additional coverages provided by this endorsement. For complete details on specific coverages, consult the policy contract wording. Coverage Applicable Damage to Prernises Rented to You Extended Property Damage Non -Owned Watercraft Medical Payments Medical Payments - Extended Reporting Period Limit of Insurance 1t000 000 included Less than 55 feet Page # 2 2 2 $20,000 3 years 2 3 Athletic. Activities Supplementary Payments - Bail BOrtd5 Supplementary Payment - Loss of Earnings Employee Indemnification Defense Coverage for Employee Additional Insured - Medical Directors and Adnunistrators Additional Insured - Managers and Supervisors Additional Insured - Broadened Named Insured Additional Insured - Funding Source Additional Insured - Home Care Providers Amended 3 $2,500 3 $500 per day 3 $25.000 3 Included 3 Included Included Included Included 3 Additional - Managers. Landlords, or Lessors of Premises Included 4 Additional Insured - Lessor of Leased Equipment - Automatic Status When Required in Lease Agreement With You Additional Insured - Grantor of Permits Included Included 4 4 • Limited Rental Lease Agreement Contractual Liability Damage to Property You Own, Rent, or Occupy Transfer of Rights of Recovery Against Others To Lis $50,000 limit 5 $30,000 limit 5 Clarification Duties in the Event of Oncturre.nce. Claim or Suit Included Unintentional Failure to Disclose Hazards Included Liberalization Bodily Injury - includes Mental Anyui5h Included Included Personal and Advertising Injury - includes Abuse of Process. Included Discrimination Key and Lock Replacement - Janitorial Services Client Coverage $5,000 limit • Page 1 of 7 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 6 A. Damage to Premises Rented to You 1, If damage by fire to premises rented to you is not otherwise excluded from this Coverage Part, the word "fire" is changed to "fire, lightning, explosion, smoke, or leakage from automatic fire protective systems" where iiappears in: a. The last paragraph o/SECTION |— COVERAGES, COVERAGE ABODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2'Exclusions: b. SECTION III ~ LIMITS OFINSURANCE, Paragraph 5.: c. SECTION V—DEFINITIONS, Paragraph S.a. 2. Ifdamage byfire topremises rented toyou isnot otherwise excluded from this Coverage Part, the words "Fire insurance" are changed to "insurance for fire, lightning, explosion, smoke, or leakage from automatic fire protective systems" where it appears in� o. SECTION N-COMMERCIAL GENERAL LIABILITY CONDITIONS, Subsection 4. Other Insurance, Paragraph b. Excess Insurance 3. The Damage To Premises Rented To You Limit section of the Declarations is amended to the greater of: o. $1,000.000;or b. The amount shown inthe Declarations asthe Damage toPremises Rented to You Limit. This iythe most we will pay for all damage proximately caused by the same event, whether such damage results from fire, |igt8ning.explosion, smoke, nrleaks from automatic firaprotective systems nrany combination thereof, B. Extended "Property Damage" SECTION !— COVERAGES, COVERAGE ABODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2. Exclusions, Paragraph a, is deleted and replaced by the following: a. Expected ovIntended Injury "Bodily Injury" or "Property Damage" expected or intended from the standpoint of the insured, This exclusion does not apply to "bodily injury" or "property damage" resulting from the use uf reasonable force (mprotect persons orproperty. C.Non-Owned Watercraft SECTION |' COVERAGES, COVERAGE ABODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2- Exclusions, Paragraph g. (2) is amended to read as follows: (2) Awatemraft you donot own that is: (o) Less than 50feet long; arid (b) Not being used to carry persons or property for a charge; This provision applies to any person, who with your consent, either uses or is responsible for the use of a watercraft. This insurance is excess over any other valid and collectible insurance available (othe insured whether primary, excess nrcontingent. D. Medical Payments - Limit Increased to $20,000, Extended Reporting Period Page 2of7 Includes copyrighted material of Insurance Services Office, Inc-, with its permission. If COVERAGE C MEDICAL PAYMENTS is not otherwise excluded from this Coverage Part: 1. The Medical Expense Limit ischanged subject toall ofthe terms ofSECTION III -LIMITS CF INSURANCE hothe greater of: a. $20.000: or b. The Medical Expense Limit shown in the Declarations of this Coverage Part. 2. COVERAGE C MEDICAL PAYMENTS, Subsection 1. Insuring Agreement, the second part of Paragraph m.isamended to read provided that: (2) The expenses are incurred and reported to us within three years of the date of the accidert; E.Athletic Activities SECTION I - COVERAGES, COVERAGE C MEDICAL PAYMENTS, Subsection 2. Exclusions, Paragraph e. Athletic Activities is deleted and replaced with the following� e. Athletic Activities Tnaperson injured while taking part ina|h|vdcs. F. Supplementary Payments Under the SUPPLEMENTARY PAYMENTS - COVERAGE A AND B provision, Items 1.b. and 1.d. are amended mufollows: 1 The limit for the cost ofbail bonds inchanged from $2GOVz$2.5O8;and 2. The limit for loss ofearnings iochanged from $250aday to$500oday, G. Employee Indemnification Defense Cnveraqe Under the SUPPLEMENTARY PAYMENTS ^COVERAGES AAND 8provision, the following is 3, We will pay, on your behalf, defense costs incLrFed by an "employee" in a criminal proceeding, Themodwew|||payfoxany^ernp|oyee^vvhoiop||pgedk/hodireodyinvu|vadioechnnina| prnvoodingin$25'08Uragard|assofdhenurnberaof^cn`p|oyeaa^.c|oinnsor^uvita^brnuUhtor persons ororganizations noakingclaims orbringing ^nuiis" H. SECTION U^WHO |SANINSURED iuamended aafollows: 1� If coverage for newly acquired or formed organizations is not otherwise excluded from this Coverage Part, Paragraph Ia.iachanged torond. a. Coverage under this provision is afforded until the end of the policy period. 2.Each ofthe following ioalso oninsured: a. Medical Directors and Administrators - Your medical directors and administrators, but only while acting within the scope of and during the course of their duties as such. Such duties do not include the furnishing or failure to furnish professional services of any physician or psychiatrist in the treatment of a patient, Page %nf7 PI'GLD-HS(0407) b. Managers and Supervisors - If you are an organization other than a partnership or joint venture, your managers arid supervisors are also insureds, but only with respect bztheir duties vsyour managers and supervisors, n Broadened Named Insured ' Any organization andsuhsicmaryth*reofwhichynuronho and actively manage onthe effective date ofthis Coverage Part, However, coverage does not apply to any organization or subsidiary not named in the Declarations as Named Insured, if they are also insured under another similar policy, but for its termination or the exhaustion of its limits d. Funding Source ' Any person ororganization with respect \ntheir liability arising out of: (1) Their financial control ofyou; or (2) Promises they own, maintain or control while you lease or occupy these premises. This insurance does not apply mstructural alterations, new construction and demolition operations performed byorfor that person ororQanizmUon- o. Home Care Providers ^/Vthe first Named |nouxedsoption, any person or organizationvodar your direct supervision and control while providing for you private home respite cr foster home care for the developmentally disabled. t Managers, Landlords, nrLessors ofPremises Any person ororganization with respect to their haoility arising out of the ownership, maintenance or use of that part of the premises leased or rented to you subject to the following additional exclusions: This insurance does not apply to: (1) Any 'occurrence" which takes place after you cease to be a tenant in that premises. (2) Structural alterations, new construction or demolition operations performed by or on behalf nfthat person ororganization. gLessorofieasedEquipment—Automatic Status When Required in Lease Agreement With You — Any person or organization from whom you lease equipment when you and such person or organization have agreed in writing in a contract or agreement that such person or organization is to be added as an additional insured on your policy. Such person or organization is an insured only with rpsr)ert to liability for "bodily injury", "property damage" or "pel-sonal and advertising injury" caused, in whole or in part, by your maintenance, operation or use ofequipment leased byou bysuch person ororganization. Apvoon'scvorganizahon's status msnnadditional insured under this endorsement ends when their contract oragreement with you for such leased equipment ends. With respect to the insurance afforded to these additional insureds, this insurance does not apply to any 'occurrence" which takes place after the equipment tease expires. h. Grantors of Permits — Any state or political subdivision granting you a permit in connection with your premises subject tothe following additional provision: (1) This insurance applies only with respect mthe following hazards for which the state or political subdivision has issued a permit in connection with the premises you own, rent or control and to which this insurance applies� (a) The existence, maintenance, repair, construction, erection, or removal of advertising signs, awnings, :anuuiau, cellar entrances, coal holes, driveways. .nonhu|os, merquaeo, hoist away openings, sidewalk vauits, street banners or decorations and similar exposures; or Page 4uf7 |nc|"dcnoopyriyh8ad material ofInsurance Services Office. Inc., with its permission. (b)The construction, erection, orremoval ofelevators, o/ (c) The ownership, r-nointenance, or use of any elevators covered by this insurance. i Limited Rental Lease AqnenemtContractual Liability The following isadded bSECTION |— COVERAGES, COVERAGE 4°BODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2. Exclusions, Paragraph b.Contractual Liability: (3)Based on the named imd' request atthe time of claim, toindemnify the named insured for their liability assumed in a contract or agreement regarding the rental or lease of a premises onbehalf oftheir client, opUo$SO.O0O� This coverage extemsinnonly applies torental lease agreements, This coverage isexcess over any renter's liability insurance ofthe client. J. Damage toProperty YouOwm.RentovOccmpv SECTION |— COVERAGES, COVERAGE ABODILY INJURY AND PROPERTY DAMAGE LIABILITY, Subsection 2. Exclusions, Paragraph j. Damage to Property, Item (1) is deleted in its entirety and replaced with the following: (1) Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another's property, unless the damage to property is caused by your client, up to $20.000|iroiL /\ client isdefined anaperson under your direct care and supervision. K. Transfer ofFllnhtsofRecovery AominstOthers ToUs As a clarification, the following is added to SECTION IV — COMMERCIAL GENERAL LIABLITY CONDITIONS, Paragraph 8. Transfer of Rights of Recovery Against Others To US: Therefore, the insured can waive the insurer's Rights of Recovery prior to the occurrence of a loss, provided the waiver is made in a written contract. L. Duties inthe Event ufOccurrence, Claim o,Suit 1� The requirement in Paragraph 2.a.of SECTION IV -COMMERCIAL GENERAL LIABILITY CONDITIONS that you must see tui(that weare notified *esoon aopracticable mfzn~uocurrenco~ oranoffense, applies only when the ^n:cur, onoo~aroffense ioknown to: a.You, ifyou are enindividual: b. A partner,J you are opartnership, or c An executive ufficmrcn insurance manager, if you are a corporation. Z The requirement in Paragraph 2.b. of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS trial you must see to iithat vvo ro*ok/o notice of claim nr "suit" as soon as practicable will not be considered breached unless the breach occurs after such claim of "suit" is known to: a. You, ifyou are onindividual, b Apartner, ifyou are apartnership; nr c. Anexecutive officer nrinsurance manager, ifyou are acorporation. Page 5of7 M. Unintentional Failure TuDisclose Hazards hiyagreed that, based ooour reliance onyour representations as toexisting hazards, Uyou should unintentionally fail to disclose all such hazards prior to the beginning of the policy period of this Coverage Part, we shall not deny coverage under this Coverage Part because of such failure. N.UbemWzation K*arevise this endorsement mprovide more coverage without additional premium oharQo.*/ewill automatically provide the additional coverage to all enclorserient holders as of the day the revision is effmctiveinynurs/ate- SECTION V—DEFINITIONS, Paragraph 3.is changed »oread, ^BodUykl a� Means bodily injul sickness or disease sustained by a person, and includes mental anguish resulting from any ofthese; and b. Except for mental anguish, includes death resulting from the foregoing (item 3. above) a(any tirl P. Personal and AdvortisinnInjury — Abuse ufProcess, Discrimination If COVERAGE B PERSONAL AND ADVERTISING INJURY LIABILITY COVERAGE is not otherwise excluded from this Covprage Part, the definition of "personal and advertising injury" is amended as 1� SECTION V~DEFINITIONS, Paragraph 14.b. is revised to read: u. Malicious prosecution orabuse ofprocess: 2.SECTION V—DEFINITIONS, Paragraph 14.|oamended binclude the following: "Personal and advertising ilalso means discrimination based onrace, color, religion, sex, age ornational origin, except when: (1) Done intentionally by or at the direction of, or with the knowledge or consent of: (a)Any insured: or (b) Any executive officer, director, stockholder, partner or mel of the insured� or (2)Directly orindirectly related tothe employment, former mrprospective employment, termination of employment, or application for employment of any person or persons by an n5ul or (3) Directly or indirectly related to the sale, rental, lease or sublease or prospective sales, rental, lease or sub -lease of any room, dwelling or premises by or at the direction of any insLired: or (4) Insurance for such discrimiration is prohibited by or held in violation of law, public policy. legislation, court decision uradministrative ruling. The above does not apply /ofires or penalties imposed because of discrimination, The following additional coverage is added to A. COVERAGE 4. ADDITIONAL COVERAGES: Page 8cf7 Includes copyrighted material of Insurance Services Office, Inc., with its permission. 0. Ill and Lock Replacement — Janitorial Services Client Coveraqe 1� We will pay for the cost to replace keys and locks otthe `dien\s` premises due to thettorother loss to keys entrusted to you by your ^c|icnt", up to o $5.000 limit pernccwnenco%$5.00O policy aggregate. 2. We will rat pay for loss or damage resulting from theft or any other dishonest or criminal act that you or any of your partnors, members, officers. ^omp|myoea`. ~managos^, direc|ora, trustees, authorized representatives orany one towhom you entrust the keys of `diont^for any purpose commit, whether acting alone orincollusion with other persons. 3, The following, when used on this coverage, are defined as follows: a. "Client" means an individual, company or organization with whom you have a written contract or work order for your services for a described premises and have billed for your services. b. "Employee" 1.Any natural person: a. While in your service or for 30 days after termination ofeervice� b.Who you compensate directly bysalary, wages orcommissions; and c, Who you have the right to direct and control while performing services for you - or 2.Any natural person who is furnished temporarily to you: a. To substitute for a permanent "employee" as defined in Paragraph 1. above, who is on leave; or b. To meet seasonal or short-term workload conditions; while that person is subject to your direction and control and performing services for ynv 3. "Emp|nyae~does not mean: a.Any agent, broker, person leased Uzyou byalabor leasing firm, factor, commission merchant, consignee, independent contractor or representative of the same general character; or b. Any "manager", director or trustee except while performing acts coming within the scope ofthe usual duties ofon"emp|oyee" o. "Manager" means a person serving in a directorial capacity for a limited liability company. Page 7of7 N OFFICE OF THE CITY CLERK 1243 National City Blvd. National City, California 91950 11QCOR,POlt ATEI Michael R. Dalla, CMC - City Clerk 619-336-4228 phone / 619-336-4229 fax COMMUNITY HOUSING WORKS Community Development Housing Organization (CHDO) Operating Grant Funds Alfredo Ybarra (Housing & Grants) Forwarded Copy of Agreement to Community Housing Works