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ED Rental Affordable Housing Program Management ServicesAGREEMENT FOR PROFESSIONAL SERVICES FOR PROGRAM MANAGEMENT SERVICES FOR RENTAL AFFORDABLE HOUSING PROGRAM This Agreement is made and entered into this 2 ted( day of May, 2016, by and between the CITY OF SAN RAFAEL (hereinafter "CITY"), and the HOUSING AUTHORITY OF THE COUNTY OF MARIN (hereinafter "CONTRACTOR"). RECITALS WHEREAS, San Rafael General Plan 2020 contains policies for the provision of affordable housing programs in San Rafael; and WHEREAS, CITY currently contracts with CONTRACTOR to manage CITY's affordable ownership housing program; and WHEREAS, the CITY desires to contract with CONTRACTOR to manage CITY's affordable rental housing program; and WHEREAS, CONTRACTOR has the skills and expertise to perform the required services; and WHEREAS, CITY and CONTRACTOR acknowledge and agree that the majority of the services provided for herein is typically performed during the period of March 1 and June 30 of each July 1 to June 30 fiscal year ("Fiscal Year"); AGREEMENT NOW, THEREFORE, the parties hereby agree as follows: 1. PROJECT COORDINATION. A. CITY'S Project Manager. Tom Adams, Economic Development Coordinator, is hereby designated the PROJECT MANAGER for the CITY, and said PROJECT MANAGER, or any successor PROJECT MANAGER that CITY may, in its sole discretion, designate, shall supervise all aspects of the progress and execution of this Agreement. B. CONTRACTOR'S Project Director. CONTRACTOR shall assign a single PROJECT DIRECTOR to have overall responsibility for the progress and execution of this Agreement for CONTRACTOR. Carmen Hall Soruco is hereby designated as the PROJECT DIRECTOR for CONTRACTOR Should circumstances or conditions subsequent to the execution of this Agreement require a substitute PROJECT DIRECTOR, for any reason, the CONTRACTOR shall notify the CITY within ten (10) business days of the substitution. 2. DUTIES OF CONTRACTOR. CONTRACTOR shall perform the duties and/or provide services as follows: Per the Scope of Services attached as Exhibit A hereto and incorporated herein by reference. 3. DUTIES OF CITY. CITY shall pay the compensation as provided in Paragraph 4, and perform the duties as follows: • Provide CONTRACTOR with, and update as necessary, a list of developments with affordable rental housing units, and their contact and other information, including phone number and email addresses. The required list, current as of the date of this Agreement, includes a total of 651 BMR rental units; • Provide paper copies of affordable rental agreement ("BMR Agreement") for each property in the program; • Provide a template for annual monitoring fee invoices in excel format; • Provide a template of form (Tenant Income Certification) and template form (Certification of Continuing Compliance), in excel format for each property in the program; • Provide collection services and legal services to address properties that are out of compliance; • Provide CONTRACTOR with signed Agreements and certificates for properties entering the program. 4. COMPENSATION. For the full performance of the services described herein by CONTRACTOR, CONTRACTOR shall be paid as follows: A. For Fiscal Year 2015-2016, CONTRACTOR shall receive total compensation of Forty Thousand Dollars ($40,000), consisting of a one-time "Set up Fee" of Ten Thousand Dollars ($10,000) and a fee of Thirty Thousand Dollars ($30,000) as compensation for all project management services during that Fiscal Year. The total compensation amount will be payable by a combination of the total Annual Monitoring and Certification Fees payable by rental unit owners, as set forth in Exhibit B, to be collected directly by CONTRACTOR, and a payment from CITY to make up the remaining total compensation amount. For the avoidance of doubt, if CONTRACTOR collects Annual Monitoring and Certification Fees totaling Fifteen Thousand Five Hundred Dollars ($15,500) from the property owners identified in Exhibit B, then CITY shall pay CONTRACTOR an additional amount not to exceed Twenty-four Thousand Five Hundred Dollars ($24,500) for a total compensation of Forty Thousand Dollars ($40,000) for the fiscal year. B. Commencing on July 1, 2016, for each successive Fiscal Year during the term of this Agreement, CONTRACTOR shall receive a fee of Thirty Thousand Dollars ($30,000) in full compensation for the required annual management services during that Fiscal Year. The total compensation amount will be payable by a combination of the total Annual Monitoring and Certification Fees, as set forth in Exhibit B, to be collected directly by CONTRACTOR, and a payment from CITY for the remaining total compensation amount. For the avoidance of doubt, if CONTRACTOR collects Annual Monitoring and Certification Fees totaling Fifteen Thousand Five Hundred Dollars ($15,500) from the property owners identified in Exhibit B, then CITY shall pay CONTRACTOR an additional amount not to exceed Fourteen Thousand Five Hundred Dollars ($14,500) for a total compensation of Thirty Thousand Dollars ($30,000) for the fiscal year. C. As a separate and additional element of compensation hereunder, CONTRACTOR shall charge the CITY an annual flat fee of $200.00 per unit as compensation for administering any new rental units added to the program after the effective date of this Agreement. D. Annually, on or before April 30'h of each Fiscal Year of this Agreement, CONTRACTOR shall submit an invoice to CITY for the compensation due hereunder for that Fiscal Year, which invoice shall reflect the amount of Annual Monitoring and Certification Fees collected by CONTRACTOR from each development as set forth in Exhibit B. 5. TERM OF AGREEMENT. The term of this Agreement shall be for two (2) years and two (2) months, commencing on the date first hereinabove written and ending on June 30, 2018, subject to the termination provisions in Paragraph 6 6. TERMINATION. A. Discretionary. Either party may terminate this Agreement without cause upon one hundred and eighty (180) days written notice mailed or personally delivered to the other party. B. Cause. Either party may terminate this Agreement for cause upon sixty (60) days written notice mailed or personally delivered to the other party, and the notified party's failure to cure or correct the cause of the termination, to the reasonable satisfaction of the party giving such notice, within such fifteen (15) day time period. C. Effect of Termination. Upon receipt of notice of termination, neither party shall incur additional obligations under any provision of this Agreement without the prior written consent of the other. In the event of termination of this Agreement by either party, with or without cause, CITY shall pay CONTRACTOR a prorated amount of the full compensation amount otherwise due for the fiscal year in which the termination becomes effective, calculated by dividing the number of days that have elapsed in the fiscal year in which the termination becomes effective by 365, less credits for any Annual Maintenance and Certification Fees collected by CONTRACTOR as provided in Paragraph 4(B). In addition, in the event of termination CONTRACTOR also shall be paid the annual flat fee provided in Paragraph 4(C) for any rental units added to the program in the fiscal year before the effective date of the termination. If a termination becomes effective in fiscal year 2016-2017, no further payments shall be due to CONTRACTOR for fiscal year 2017- 2018.. D. Return of Documents. Upon termination, any and all CITY documents or materials provided to CONTRACTOR and any and all of CONTRACTOWs documents and materials prepared for or relating to the performance of its duties under this Agreement, shall be delivered to CITY as soon as possible, but not later than thirty (30) days after termination. 7. OWNERSHIP OF DOCUMENTS. The written documents and materials prepared by the CONTRACTOR in connection with the performance of its duties under this Agreement shall be the sole property of CITY. CITY may use said property for any purpose, including projects not contemplated by this Agreement. 8. INSPECTION AND AUDIT. Upon reasonable notice, CONTRACTOR shall make available to CITY, or its agent, for inspection and audit, all documents and materials maintained by CONTRACTOR in connection with its performance of its duties under this Agreement. CONTRACTOR shall fully cooperate with CITY or its agent in any such audit or inspection. 9. ASSIGNABILITY. The parties agree that they shall not assign or transfer any interest in this Agreement nor the performance of any of their respective obligations hereunder, without the prior written consent of the other party, and any attempt to so assign this Agreement or any rights, duties or obligations arising hereunder shall be void and of no effect. 10. INSURANCE. A. Scope of Coverage. During the term of this Agreement, CONTRACTOR shall maintain, at no expense to CITY, the following insurance policies: 1. A commercial general liability insurance policy in the minimum amount of one million dollars ($1,000,000) per occurrence/two million dollars ($2,000,000) aggregate, for death, bodily injury, personal injury, or property damage. 2. An automobile liability (owned, non -owned, and hired vehicles) insurance policy in the minimum amount of one million dollars ($1,000,000) dollars per occurrence. 3. If any licensed professional performs any of the services required to be performed under this Agreement, a professional liability insurance policy in the minimum amount of two million dollars ($2,000,000) per occurrence/four million dollars ($4,000,000) aggregate, to cover any claims arising out of the CONTRACTOWs performance of services under this Agreement. Where CONTRACTOR is a professional not required to have a professional license, CITY reserves the right to require CONTRACTOR to provide professional liability insurance pursuant to this section. 4. If it employs any person, CONTRACTOR shall maintain worker's compensation and employer's liability insurance, as required by the State Labor Code and other applicable laws and regulations, and as necessary to protect both CONTRACTOR and CITY against all liability for injuries to CONTRACTOR's officers and employees. CONTRACTOR'S worker's compensation insurance shall be specifically endorsed to waive any right of subrogation against CITY. B. Other Insurance Requirements. The insurance coverage required of the CONTRACTOR in subparagraph A of this section above shall also meet the following requirements: 1. Except for professional liability insurance, the insurance policies shall be specifically endorsed to include the CITY, its officers, agents, employees, and volunteers, as additionally named insureds under the policies. 2. The additional insured coverage under CONTRACTOR'S insurance policies shall be primary with respect to any insurance or coverage maintained by CITY and shall not call upon CITY's insurance or self-insurance coverage for any contribution. The "primary and noncontributory" coverage in CONTRACTOR'S policies shall be at least as broad as ISO form CG20 0104 13. 3. Except for professional liability insurance, the insurance policies shall include, in their text or by endorsement, coverage for contractual liability and personal injury. 4. The insurance policies shall be specifically endorsed to provide that the insurance carrier shall not cancel, terminate or otherwise modify the terms and conditions of said insurance policies except upon ten (10) days written notice to the PROJECT MANAGER 5. If the insurance is written on a Claims Made Form, then, following termination of this Agreement, said insurance coverage shall survive for a period of not less than five years. 6. The insurance policies shall provide for a retroactive date of placement coinciding with the effective date of this Agreement. 7. The limits of insurance required in this Agreement may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and noncontributory basis for the benefit of CITY (if agreed to in a written contract or agreement) before CITY'S own insurance or self-insurance shall be called upon to protect it as a named insured. 8. It shall be a requirement under this Agreement that any available insurance proceeds broader than or in excess of the specified minimum insurance coverage requirements and/or limits shall be available to CITY or any other additional insured party. Furthermore, the requirements for coverage and limits shall be: (1) the minimum coverage and limits specified in this Agreement; or (2) the broader coverage and maximum limits of coverage of any insurance policy or proceeds available to the named insured; whichever is greater. C. Deductibles and SIR's. Any deductibles or self-insured retentions in CONTRACTOR's insurance policies must be declared to and approved by the PROJECT MANAGER and City Attorney, and shall not reduce the limits of liability. Policies containing any self-insured retention (SIR) provision shall provide or be endorsed to provide that the SIR may be satisfied by either the named insured or CITY or other additional insured party. At CITY's option, the deductibles or self-insured retentions with respect to CITY shall be reduced or eliminated to CITY's satisfaction, or CONTRACTOR shall procure a bond guaranteeing payment of losses and related investigations, claims administration, attorney's fees and defense expenses. D. Proof of Insurance. CONTRACTOR shall provide to the PROJECT MANAGER or CITY'S City Attorney all of the following: (1) Certificates of Insurance evidencing the insurance coverage required in this Agreement; (2) a copy of the policy declaration page and/or endorsement page listing all policy endorsements for the commercial general liability policy, and (3) excerpts of policv language or specific endorsements evidencing the other insurance reauirements set forth in this Agreement. CITY reserves the right to obtain a full certified copy of any insurance policy and endorsements from CONTRACTOR Failure to exercise this right shall not constitute a waiver of the right to exercise it later. The insurance shall be approved as to form and sufficiency by PROJECT MANAGER and the City Attorney. 11. INDEMNIFICATION. A. CONTRACTOR shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CITY, and hold harmless CITY, its officers, agents, employees and volunteers (collectively, the "City Indemnitees'), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS'), arising out of CONTRACTOR'S willful misconduct or negligent performance of its obligations or conduct of its operations under this Agreement. To the extent that liability is caused by the negligence or willful misconduct of the City Indemnitees, the CONTRACTOR's indemnification obligation shall be reduced in proportion to the City Indemnitees' share of liability for the negligence or willful misconduct. In addition, the acceptance or approval of the CONTRACTOR's work or work product by the CITY or any of its directors, officers or employees shall not relieve or reduce the CONTRACTOR's indemnification obligations. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CONTRACTOR'S performance of or operations under this Agreement, CONTRACTOR shall provide a defense to the City Indemnitees or at CITY'S option reimburse the City Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. B. CITY shall, to the fullest extent permitted by law, indemnify, release, defend with counsel approved by CONTRACTOR, and hold harmless CONTRACTOR, its officers, agents, employees and volunteers (collectively, the "Contractor Indemnitees"), from and against any claim, demand, suit, judgment, loss, liability or expense of any kind, including but not limited to attorney's fees, expert fees and all other costs and fees of litigation, (collectively "CLAIMS"), arising out of CITY'S willful misconduct or negligent performance of its obligations or conduct of its operations under this Agreement. To the extent that liability is caused by the negligence or willful misconduct of the Contractor Indemnitees, the CITY's indemnification obligation shall be reduced in proportion to the Contractor Indemnitees' share of liability for the negligence or willful misconduct. In the event the Contractor Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from CITY'S performance of or operations under this Agreement, CITY shall provide a defense to the Contractor Indemnitees or at CONTRACTOR'S option reimburse the Contractor Indemnitees their costs of defense, including reasonable attorneys' fees, incurred in defense of such claims. C. The defense and indemnification obligations of this Agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained in this Agreement, and shall survive the termination or completion of this Agreement for the full period of time allowed by law. 12. NONDISCRIMINATION. CONTRACTOR shall not discriminate, in any way, against any person on the basis of age, sex, race, color, religion, ancestry, national origin or disability in connection with or related to the performance of its duties and obligations under this Agreement. I3. COMPLIANCE WITH ALL LAWS. CONTRACTOR shall observe and comply with all applicable federal, state and local laws, ordinances, codes and regulations, in the performance of its duties and obligations under this Agreement. CONTRACTOR shall perform all services under this Agreement in accordance with these laws, ordinances, codes and regulations. CONTRACTOR shall release, defend, indemnify and hold harmless CITY, its officers, agents and employees from any and all damages, liabilities, penalties, fines and all other consequences from any noncompliance or violation of any laws, ordinances, codes or regulations. 14. NO THIRD PARTY BENEFICIARIES. CITY and CONTRACTOR do not intend, by any provision of this Agreement, to create in any third party, any benefit or right owed by one party, under the terms and conditions of this Agreement, to the other party. 15. NOTICES. All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Postal Service. Notice shall be given as follows: TO CITY's Project Manager: TO CONTRACTOR's Project Director: 16. INDEPENDENT CONTRACTOR. Tom Adams, Economic Development Coordinator City of San Rafael 1400 Fifth Avenue P.O. Box 151560 San Rafael, CA 94915-1560 Carmen Hall Soruco Homeownership Programs Manager Housing Authority of the County of Marin 4020 Civic Center Drive San Rafael, CA 94903-4173 For the purposes, and for the duration, of this Agreement, CONTRACTOR, its officers, agents and employees shall act in the capacity of an Independent Contractor, and not as employees of the CITY. CONTRACTOR and CITY expressly intend and agree that the status of CONTRACTOR, its officers, agents and employees be that of an Independent Contractor and not that of an employee of CITY. 17. ENTIRE AGREEMENT -- AMENDMENTS. A. The terms and conditions of this Agreement, all exhibits attached, and all documents expressly incorporated by reference, represent the entire Agreement of the parties with respect to the subject matter of this Agreement. B. This written Agreement shall supersede any and all prior agreements, oral or written, regarding the subject matter between the CONTRACTOR and the CITY. C. No other agreement, promise or statement, written or oral, relating to the subject matter of this Agreement, shall be valid or binding, except by way of a written amendment to this Agreement. D. The terms and conditions of this Agreement shall not be altered or modified except by a written amendment to this Agreement signed by the CONTRACTOR and the CITY. E. If any conflicts arise between the terns and conditions of this Agreement, and the terms and conditions of the attached exhibits or the documents expressly incorporated by reference, the terms and conditions of this Agreement shall control. 18. SET-OFF AGAINST DEBTS. CONTRACTOR agrees that CITY may deduct from any payment due to CONTRACTOR under this Agreement, any monies which CONTRACTOR owes CITY under any ordinance, agreement, contract or resolution for any unpaid taxes, fees, licenses, assessments, unpaid checks or other amounts. 19. WAIVERS. The waiver by either party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. 20. COSTS AND ATTORNEY'S FEES. The prevailing party in any action brought to enforce the terms and conditions of this Agreement, or arising out of the performance of this Agreement, may recover its reasonable costs (including claims administration) and attorney's fees expended in connection with such action. 21. CITY BUSINESS LICENSE / OTHER TAXES. CONTRACTOR shall obtain and maintain during the duration of this Agreement, a CITY business license as required by the San Rafael Municipal Code CONTRACTOR shall pay any and all state and federal taxes and any other applicable taxes. CITY shall not be required to pay for any work performed under this Agreement, until CONTRACTOR has provided CITY with a completed Internal Revenue Service Form W-9 (Request for Taxpayer Identification Number and Certification). 22. APPLICABLE LAW. The laws of the State of California shall govern this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day, month and year first above written. CITY OF SAN RAFAEL 4S HUTZ, City ager ATTEST: e-9//Sz--_�,e�<r ESTH�E/ RC. BEIRNE, City Clerk APPROVED AS TO FORM: ROBERT F. EPSTEIN, tiv A ` ey 10 CONTRACTOR B dame: Title: EXHIBIT A TO AGREEMENT FOR PROGRAM MANAGEMENT SERVICES FOR RENTAL AFFORDABLE HOUSING PROGRAM BETWEEN THE CITY OF SAN RAFAEL AND THE HOUSING AUTHORITY OF MARIN COUNTY SCOPE OF SERVICES CONTRACTOR will provide Below Market Rental (BMR) Program Monitoring services including: • Prepare and maintain up-to-date a list of apartment developments with affordable units within the City of San Rafael, including contact information and rental levels for posting on the CITY's and CONTRACTOR's websites; • In connection with the monitoring services, recalculate a schedule of maximum allowable BMR rents each time HUD publishes a revised Area Median Income. Utility allowances shall also be revised at the same time based on the current Section 8 Housing Assistance Payment Program schedule of utility allowances determined by the CONTRACTOR; • Provide the schedule to the CITY for posting on the CITY website and CONTRACTOR website; • Provide information on the Section 8 program and fair market rents to each program participant; • Bill and collect the Annual Monitoring and Certification Fee for each development as specified in Exhibit B of this Agreement; • Review annual Tenant Income Certifications and Certificates of Continuing Compliance submitted by property management company; • Notify CITY of any property management company/owner that is delinquent in filing annual certifications or Annual Monitoring and Certification Fee payment; • Submit to CITY an invoice annually, on or before April 30th of each Fiscal Year, for services during that Fiscal Year pursuant to this Agreement; , CONTRACTOR shall not be responsible for negotiating new BMR contracts with property owners. If the CITY desires that CONTRACTOR perform those services, and CONTRACTOR is willing to perform those services, the parties shall execute an amendment of this Agreement to add such services or shall enter into a separate agreement for such services.