HomeMy WebLinkAbout01. Approve Home Investments Partnerships Act Prog Agmt w-National Community RenaissanceTV=
TO: • • •- • - AND MEMBERS OF • P ! O: BY
i �'
FROM: • OF
r• E. SCHINDLER,DIRECTOR • • DEVELOPMENT
DATE:
HOME PROGRAM•COMMUNITY
RENAISSANCE OF • - FOR • OF i
HOUSINGDEVELOPMENT ORGANIZATION FUNDS• - HOUSING
RECOMMENDATION
That the City Council approve a HOME Investments Partnerships Act Program Participation
Agreement with National Community Renaissance of California for the commitment of $100,087
in Community Housing Development Organization funds for rehabilitation activities at the low-
income, affordable housing complex located at 13032 Columbia Way.
17 F`�*1��`��T•T�l
The City participates in the HOME Investments Partnerships Act Program (HOME),
administered by the United States Department of Housing and Urban Development (HUD).
HOME program funds are to be used, to carry out multi-year strategies through acquisition,
rehabilitation, and new construction of housing for target low-income persons and families in
community. As part of this program, the City must set aside 15% of its HOME allocation for
housing development activities in which qualified Community Housing Development
Organizations (CHDO) are the owners, developers, and/or sponsors of the housing.
To be certified as a CHDO, a nonprofit organization must meet certain requirements regarding
their legal status, organizational structure, capacity and experience, as follows:
1. It must be organized under State or local laws as evidenced by a charter or through
articles of incorporation;
2. No part of its net earnings shall benefit any member, founder, contributor, or individual,
as evidenced by a charter or through articles of incorporation;
3. It has a tax exemption ruling from the Internal Revenue Service (IRS) under Section
501(c) of the Internal Revenue Code, as evidenced by a 501(c) Certificate from the IRS;
4. Has among its purposes the provision of decent housing that is affordable to low-income
people, as evidenced by a statement in the organization's charter, articles of
incorporation, by-laws, resolutions, and/or HUD approved audit summary;
5. Conforms to the financial accountability standards per the U.S. Office of Management
and Budget requirements, as evidenced by a notarized statement by the president or
chief financial officer of the organization, a certification from a Certified Public
Accountant, or a HUD approved audit summary;
J U LY 24, 2018
PAGE 2
6. Has a demonstrated capacity for carrying out activities assisted with HOME funds, as
evidenced by resumes and/or statements that describe the experience of key staff
members who have successfully completed projects similar to those to be assisted with
HOME funds, or contract(s) with consulting firms or individuals who have housing
experience similar to projects to be assisted with HOME funds to train appropriate key
staff of the organization;
7. Has a history of serving the community where housing to be assisted with HOME funds
will be used, as evidenced by a statement that documents at least one year of
experience in serving the community or,.for newly created organizations formed by local
churches, service, or community organizations, a statement that documents that its
parent organization has at least one year of experience in serving the community;
8. Maintains at least one-third of its governing board's membership for residents of low
income neighborhoods, other low-income community residents, or elected
representatives of low-income neighborhood organizations;
9. Provides a formal process for low-income, program beneficiaries to advise the
organization in all of its decisions regarding the design, siting, development, and
management of all HOME -assisted affordable housing projects; and
10. The CHDO is not controlled, nor receives directions from individuals or entities seeking
profit from the organization.
Eligible low-income, affordable housing activities that may be CHDO-funded include: acquisition
and/or rehabilitation of rental housing; new construction of rental housing; acquisition and/or
rehabilitation of homebuyer properties; new construction of homebuyer properties; and direct
financial assistance to purchasers of HOME -assisted housing sponsored or developed by a
CHDO with HOME funds. CHDO low-income, set-aside funds cannot be used for any other
activities. Additionally, when funding a CHDO project, said funds must be committed to a
specific project.
Since the HOME program's inception, City staff has continually recruited and offered information
to local and regional non -profits to assist in certifying their organizations as local CHDOs. These
efforts have yielded the certification of four regional non -profits in the past, with staff currently
working closely with an additional three non -profits to certify them in the near future.
Under the aforementioned CHDO requirements, there currently exist only two non-profit
organizations that demonstrate sufficient capacity and experience to undertake a CHDO-funded
project withinthe City: Habitat for Humanity and National Core. After discussing HUD's
requirements with both organizations and reviewing their portfolios, staff determined that
National Core is the most qualified organization to receive said funding, as they currently own
low-income, affordable units in Downey, where this funding assistance would directly and
immediately benefit low-income residents. As such, Staff proposes to commit $100,087 of
HOME CHDO funds to National Core for rehabilitation workatthe 41 -unit low-income,
affordable housing complex the organization currently owns, located at 13032 Columbia Way.
After completing a site audit of the property, and receiving a professional bid for necessary
work, staff has concluded that this funding will be used for the following work: replacing 225
windows, two (2) sliding doors, and installing/replacing 69 interior stairs throughout the complex,
to meet current building egress requirements. These upgrades, will allow for National Core to
continue providing decent, affordable housing to residents that currently live in the community.
NW7VZ4W7171-VATV7-?L-0NaW
JULY 24, 2018
PAGE 3
Fiscal Responsibility
Quality of Life, Infrastructure & Parks
FISCAL IMPACT
$100,087 in HOME CHDO funds will be committed and disbursed for this rehabilitation project.
ATTACHMENTS
Attachment A — HOME Program Participation Agreement
Manor Apartments)
-
This HOME PROGRAM PARTICIPATION AGREEMENT ("Agreement") is
entered into as of this day of July, 2018 ("Effective Date"), between the CITY
OF DOWNEY, a California municipal corporation ("City"), and NATIONAL
COMMUNITY RENAISSANCE OF CALIFORNIA, a California nonprofit public benefit
corporation ("Developer").
RECITALS
A. City participates in the HOME Investment Partnerships Act program
("HOME Program") administered by the United States Department of Housing and
Urban Development ("HUD") under Title II of the Cranston -Gonzalez National Affordable
Housing Act, as amended (42 U.S.C. § 12741, et seq.), and the implementing
regulations promulgated thereunder (24 C.F.R. § 92, et seq). The HOME Program has,
among its purposes, the strengthening of public-private partnerships to provide more
affordable housing, and particularly to provide decent, safe, sanitary, and affordable
housing, with primary attention to housing for very low income and lower income
households in accordance with the HOME Program. The HOME Program funds are
used by City, as a participating jurisdiction, to carry out multi-year strategies through
acquisition, rehabilitation, and new construction of housing for target income persons
and families. Pursuant to the HOME Program, City receives funds from HUD ("HOME
Funds") to be used to expand the supply of affordable housing for low income and very
low income persons and families.
B. Developer, which was formerly known as The Southern California Housing
Development Corporation ("SCHDC" ), is a California nonprofit public benefit corporation
organized and existing under Section 501(c)(3) of the Internal Revenue Code. The
purpose of Developer is to develop and operate safe, decent affordable housing in
California. City has determined that Developer qualifies as a community housing
development organization ("CHDO") pursuant to and as defined in the HOME Program.
C. Developer owns a rental apartment development containing forty-one (41)
affordable apartment units at 13032 Columbia Way, in the City of Downey (the
"Development").
D. The Development was acquired and rehabilitated by Developer (as
SCHDC) utilizing, in addition to other funding sources, HOME Program funds (the
"Initial HOME Funds") Developer obtained _from The Long Beach Affordable Housing
Coalition, Inc. ("LBAHC") pursuant to that certain Loan Agreement for the Purchase and
Development of Real Property dated July 16, 2003 (the "LBAHC/SCHDC Loan
Agreement").
E. LBAHC obtained the Initial HOME Funds from City, pursuant to that
certain Agreement Reserving Home Investment Partnership Program Funds, between
City and LBAHC, dated July 14, 1998 (the "City/LBAHC HOME Agreement").
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Attachment "A"
F. Each of Section 4 of the City/LBAHC HOME Agreement and Section 6 of
the-LBAHC/SCHDC Loan Agreement require the recordation of a regulatory agreement
imposing affordable rent restrictions against the Development (a "Regulatory
Agreement"). Since the time Developer obtained the Initial HOME Funds, Developer
has continuously operated the Development as an affordable rental housing
development, in compliance with the requirements of the City/LBAHC HOME
Agreement and the LBAHC/SCHDC Loan Agreement; provided, however, that due to
an inadvertent omission, a Regulatory Agreement has not been recorded against the
Development.
G. Developer desires to perform certain rehabilitation activities to and within
the Development, as set forth in the Scope of Work attached hereto and incorporated
herein as Exhibit "A"(the "Permitted Activities"), and has requested City financial
assistance. City desires by this Agreement to commit, and grant to Developer, HOME
Funds in an amount not to exceed the sum of One Hundred Thousand Eighty -Seven
Dollars ($100,087) (the "City Funds") to be used by Developer in carrying out the
Permitted Activities, conditioned upon, among other requirements set forth in this
Agreement, City and Developer entering into and recording a Regulatory Agreement.
H. Developer's performance of the Permitted Activities pursuant to this
Agreement, and the fulfillment generally of this Agreement, are in the best interests of
City and the welfare of its residents, and are in accordance with the public purposes and
provisions of applicable federal, state, and local laws and requirements.
AGREEMENT
Based upon the foregoing' Recitals, which are incorporated herein by this
reference, and for good and valuable consideration, the receipt and sufficiency of which
is acknowledged by both parties, City and Developer hereby agree as follows:
The following terms as used in this Agreement shall have themeaningsgiven
below unless expressly provided to the contrary:
"Agreement" shall mean this HOME Program Participation Agreement between
City and Developer, including all exhibits and other documents attached hereto.
"City shall mean the City of Downey, a municipal corporation, organized under
the laws of the State of California and having its offices at 11111 Brookshire Avenue,
Downey, CA 90241.
"City Funds shall mean the HOME Funds referred to in Recital C of this
Agreement to be provided by City to Developer for the Permitted Activities, as more fully
explained in Section 2 of this Agreement.
Contract Officer" shall mean City's Housing Manager or his or her designee.
"Developer" shall have the meaning set forth in the preamble to this Agreement.
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"Developer Personnel" shall mean any employee, volunteer, contractor,
subcontractor, or agent of Developer or any other person under Developer's supervision
and direction. Developer is responsible for the full compliance of all Developer
Personnel with this Agreement.
"Developer Representative" shall mean Dianna Noeth, (909) 483-2444, who is
designated by Developer to represent Developer in the administration of this
Agreement.
"Funding Conditions" shall mean the conditions set forth in Section 2.2 of this
Agreement that must be satisfied prior to City providing any portion of the City Funds to
Developer.
"HOME Funds" shall mean the funds allocated to City by HUD under the HOME
Investment Partnerships Act program.
"HOME Requirements" shall collectively refer to the requirements of the HOME
Investment Partnerships Act (42 U.S.C. § 12741, et seq.) as amended from time to
time, and the implementing regulations (24 C.F.R. § 92, et seq.) as amended from time
to time, and the legal requirements referenced or summarized in Exhibit `°B"attached
hereto and incorporated herein by this reference.
"Permitted Activities shall mean the activities referred to in Recital C of this
Agreement and all obligations and activities required to carry out the Permitted
Activities.
"Quarter" shall mean a calendar quarter (e.g. January 1 March 31; April 1 —
June 30, July 1 —September 30, and October 1 December 31).
"Term shall mean the period that commences as of the Effective Date and
continues for a period of one (1) year, unless earlier terminated as provided herein.
This Agreement can be extended for up to one (1) additional year by written approval of
the City Manager of City and Developer. Any such extension shall be documented by a
written amendment to this Agreement executed by the City Manager of City and
Developer. As used in this Agreement, the term "Term shall include any extension
period agreed to by City and Developer.
2. IMPLEMENTATION OF PERMITTED ACTIVITIES.
2.1 Conditions to Effectiveness of this Aareement._ City's obligation to provide
any portion of the City Funds pursuant to this Agreement shall be subject to satisfaction,
or waiver by City, of the following conditions:
2.1.1 Developer shall have provided City the evidence of insurance
required pursuant to Section 5.1 of this Agreement;
2.1.2 Developer shall not be in default of any of its obligations set forth in
this Agreement and no event has occurred that would constitute a default with the giving
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of notice or the passage of time, and all of the representations and warranties of
Developer contained in this Agreement remain true and correct;
2.1.3 Developer shall have submitted to City an invoice setting forth the
need for the City Funds;
2.1.4 City shall have received all approvals required from HUD for the
disbursement of the City Funds;
2.1.5 City shall have received the City Funds from HUD; and
2.1.6 City and Developer shall have negotiated and entered into a
Regulatory Agreement, and the Regulatory Agreement shall be recorded concurrently
with City's provision of the City Funds.
2.2 Disbursement of City Funds. Within fifteen (15) days after Developer has
satisfied all of the conditions set forth in Section 2.1 with respect to a- request for a
disbursement of City Funds, City shall disburse the requested amount to Developer.
1 PROGRAM INCOME; _COMPLIANCE WITH LAWS AND REGULATIONS AND
The Permitted Activities are not anticipated to result in any program income;
provided, however, that should any program income be generated by the Permitted
Activities, City and Developer shall enter into a separate agreement governing the use
of the program income, consistent with the HOME Requirements.
Developer shall carry out the Permitted Activities and all of its obligations under
this Agreement in conformity with all applicable laws, regulations, and rules of
governmental agencies having jurisdiction, including without limitation, the HOME
Requirements and the legal requirements set forth in Exhibit B attached to this
Agreement and the statutes referenced therein. In the case of any conflict between the
HOME Requirements; and this _Agreement, the HOME Requirements shall control; it
being understood, however, that in order to be in compliance with this Agreement and
the HOME Requirements, Developer shall, to the extent possible, comply with the most
restrictive provisions in this Agreement and the HOME Requirements. Each and every
provision required by law to be included in this Agreement shall be deemed to be
included, and this Agreement shall be read and enforced as though all such provisions
were included. Developer acknowledges and agrees that it shall be and remain, and
shall cause the Developer Personnel to be and remain, fully knowledgeable and
apprised of all local, state and federal laws, rules and regulations in any manner
affecting the performance under this Agreement, including the HOME Requirements.
4.1 Records.
4.1.1 Records to be Maintained. During the Term of this Agreement, and
for a period of five (5) years following the end of the Term, Developer shall keep and
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maintain records providing a full description of the activities undertaken pursuant to this
Agreement, records demonstrating compliance with this Agreement and HOME
Requirements, data demonstrating client eligibility for services provided including the
name, income level, family size of each client and other information for determining
eligibility and a record of the services provided to each client, and such other records as
may be reasonably required by City to enable City to evaluate Developer's performance
of the Permitted Activities and Developer's compliance with the HOME Requirements,
and to identify and account for the use of the City Funds and all costs pertaining to this
Agreement, and to enable City to comply with City's record keeping and reporting
requirements under the HOME Requirements, _including without limitation the records
specified in 24 C.F.R. 92.508 as they pertain to the activities under this Agreement.
Books and records pertaining to the activities under this Agreement shall be kept and
prepared in accordance with generally accepted accounting principles or as otherwise
required by City.
4.1.2 Retention. The books and records required to be maintained by
Developer under this Agreement shall be retained until the expiration of the Term.
4.1.3 Location of Records. The books and records required to be
maintained by Developer shall be kept at Developer's office at 9421 Haven Avenue,
Rancho Cucamonga, CA 91730 or on-site at the Development.
4.1.4 Access to -Records. City and HUD and/or their representatives
shall have full and free access to, and the right to examine, inspect, and audit, all books
and records of Developer pertaining to this Agreement at all times during normal
business hours. City will provide reasonable notice, not to be less than forty-eight (48)
hours, to Developer before appearing to examine, inspect, and audit any books and
records.
4.1.5_ Audits. During the Term of this Agreement, Developer shall
perform all audits of its books and records required by the HOME Requirements or City
or HUD and a copy of such audits shall be forwarded to the City within twenty (20) days
after completion. Developer shall be subject to all audit and review requirements
imposed on City in connection with this Agreement and shall, at its sole cost and
expense, cause such audits and reviews to be timely performed.
4.2 Reports.
4.2.1 Qua rterl Reports. No later than thirty (30) days after the end of
each Quarter during the Term of this Agreement, Developer shall submit to City the
following quarterly reports on forms approved by the Contract Officer:
(a) Performance Reports. A report on the status of the
Permitted Activities, including a summary of all of the activities undertaken
by Developer under this Agreement for the previous Quarter, and a
statement of all City Funds expended and remaining City Funds, and any
additional pertinent information related to performance of Developer's
activities under this Agreement.
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(b) Quarterly Client Characteristics. [Intentionally Omitted].
4.2.2 'Other -Reports. In addition to the reports referenced in Section
4.2.1 during the Term of this Agreement, Developer shall, at such times and in such
forms as reasonably required by City, prepare and submit to the Contract Officer, such
other reports concerning the activities under this Agreement, the costs and obligations
incurred or to be incurred in connection therewith, and any other matters covered by this
Agreement and compliance with HOME Requirements, as City may reasonably require
from time to time.
5. INSURANCE AND INDEMNITY.
5.1 Insurance. Concurrently with the execution of this Agreement, Developer
shall furnish or cause to be furnished to City evidence reasonably satisfactory to City's
Contract Officer of (i) Commercial General Liability and Professional Liability and Errors
and Omissions coverage in the amount of at least One Million Dollars ($1,000,000)
combined single limits, naming City and its officers, officials, members, employees,
volunteers, agents, and representatives as named insureds. Developer shall continue
to maintain such insurance in full force and effect during the Term of this Agreement.
All such insurance:
(a) shall be primary insurance and not contributory with any other
insurance which City or its officers, officials, members, employees, volunteers,
agents, or representatives may have;
(b) shall contain no special limitations on the scope of protection
afforded to City or its officers, officials, members, employees, volunteers,- agents,
and representatives;
(c) shall be "per occurrence" rather than "claims made insurance;
(d) shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the insurer's liability;
(e) shall provide that the policy will not be cancelled or limited in scope
by the insurer or Developer unless there is a minimum of thirty (30) days prior
written notice by certified mail, return receipt requested to City;
(f) shall be written by a California licensed insurer with a Best rating of
not less than A:VII;
(g) shall be endorsed to state that any failure to comply with the
reporting provisions of the policies shall not affect coverage provided to City and
its officers, officials, members, employees, volunteers, agents, and
representatives; and
(h) shall contain a waiver by the insurer of any right to subrogation
against City, and its officers, officials, members, employees, volunteer, agents,
and representatives which arises or might arise by reason of any payment under
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such policy or policies or by reason of any act or omission of City or its officers,
employees, volunteers, agents, and representatives.
Any deductible or self-insured retention must be declared to City. None of the
above described policies shall include a deductible or self-insured retention amountof
more than Ten Thousand Dollars ($10,000) unless approved_ in writing by the Contract
Officer.
Developer shall also furnish or cause to be furnished to City's Contract Officer
evidence reasonably satisfactory to the Contract Officer that Developer has current
Workers' Compensation insurance as required by the State of California Labor Code as
well as Employer's Liability Coverage of not less than One Million Dollars ($1,000,000)
per accident. Such insurance shall be endorsed to include a waiver of subrogation
rights against City and its officers, officials, members, employees, volunteers, agents,
and representatives, and notice of cancellation as described in subsection (e) above.
Such policies shall be written by California licensed insurers with Best ratings of not less
than A:VII in the most recent edition of Best Rating Guide.
Nothing in this Section 5.1 shall in any way limit Developer's indemnity
obligations set forth in Section 5.2 herein.
5.2 Indemnification. Developer shall indemnify, defend, and hold harmless
City and its officers, officials, _ members, employees, representatives and agents
(collectively, the "Indemnitee") from and against any and all liability, expense or
damage of any kind or nature, and for, from and against any suits, claimsor demands,
including legal fees and expenses, on account of or arising out of this Agreement or
otherwise in connection with the Permitted Activities, except to the extent of such loss
as may caused by the sole negligence or willful misconduct of an Indemnitee. Upon
receiving knowledge of any suit, claim or demand asserted by_a third party that City
believes is covered by this indemnity, City shall give Developer notice of the matter and
an opportunity to defend it, at Developer's sole cost and expense, with legal counsel
satisfactory to City. Subject to applicable statutes of limitations, the obligations in this
Section shall survive termination of this Agreement.
Developer makes the following representations and warranties as of the date of
this Agreement and agrees that such representations and warranties shall survive and
continue thereafter during the Term of this Agreement:
(a) Authorization and Validation. The execution, delivery and
performance by Developer of this Agreement (i) are within the powers of
Developer and upon its execution will constitute a legal, valid and binding
obligation of Developer enforceable in accordance with its terms, and (ii) will not
violate any provisions of law, any order of any court or other agency of
government, or any indenture, agreement or any other instrument to which
Developer is a party or by which Developer, or the Development, is bound, or be
in conflict with, result in any breach of or constitute (with due notice and/or lapse
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of time) a default under any such indenture, agreement or other instrument, or
result in the creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of its property or assets, except as contemplated by
the provisions of this Agreement.
(b) Correct Information. All reports, papers, data and information given
to City with respect to Developer and this Agreement, including with respect to
the Permitted Activities are accurate and correct in all material respects and
complete insofar as completeness may be necessary to give City a true and
accurate knowledge of the subject matters thereof, and there has been no
change in such information.
(c) Defaults. Developer is not a party to any agreement or instrument
that will interfere with its performance under this Agreement, and is not in default
in the performance, observance or fulfillment of any of the obligations, covenants
or conditions set forth in any agreement or instrument to which it is a party.
(d) Pending Litigation. There isnot now pending against or affecting
Developer any claim, investigation, action, suit or proceeding at law, or in equity,
or before any court or administrative agency which, if adversely determined,
would impair or affect Developer.
(e) Threatened Litigation. To the best of Developer's knowledge, there
is not now threatened against Developer any claim, investigation, action, suit or
proceeding at law, or in equity, which, if adversely determined, would impair or
affect Developer. Notwithstanding the initial paragraph of this Section 6, the
representation and warranty in this paragraph (e) is made only as of the date of
this Agreement.
(f) Compliance. Developer has examined and is familiar with all
conditions, restrictions, reservations and ordinances affecting the Permitted
Activities.
7.1 Defaults -General The occurrence of any of the following shall be deemed
a default under this Agreement:
(a) The failure or delay by either party to perform any term or provision
of this Agreement if such failure is not cured, corrected or remedied within any
specific time period set forth in this Agreement.
(b) 1f no other specific time period in set forth herein, the failure to cure
a monetary default _under this _ Agreement (other than any monetary defaults
specifically listed in any of the other subparagraphs of this Section 7.1) within ten
(10) days after the nonperforming party's receipt of written notice from the other
party specifying the nature of the default.
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(c) If no other specific time period is set forth herein, the failure to cure
a non -monetary default under this Agreement (other than any non -monetary
defaults specifically listed in any of the other subparagraphs of this Section 7.1)
within thirty (30) days after the nonperforming party's receipt of written notice
from the other party specifying the nature of the default; provided, however, that
if the failure cannot be corrected within such period, it shall not constitute a
default if the failure is correctable,- and if corrective action is instituted by
Developer within such period and diligently pursued until the failure is corrected,
and provided further that any such failure is cured within sixty (60) days of receipt
of notice of such failure.
(d) The failure by Developer to diligently carry out the Permitted
Activities, such that all of the City Funds shall be expended pursuant to the terms
of this Agreement prior to the expiration of the Term.
(e) Any of the warranties or representations made by Developer herein
are `or'become, at any time during the Term, false, incorrect or misleading in any
material respect.
(f) Developer commits any act of bankruptcy or if any relief under the
Bankruptcy Act is sought by or against Developer, or if a receiver is appointed to
take charge of the assets or affairs of Developer, or if Developer should make an
assignment for the benefit of creditors, or if Developer should become insolvent,
or upon any liquidation or termination of Developer; provided, however, that if
any such proceeding is brought involuntarily against Developer, Developer shall
have forty-five (45) days to obtain the dismissal of such proceeding.
(g) The filing of a notice of judgment lien against Developer, or the
recording of any abstract of judgment against Developer, or the service of _a
notice of levy and/or of a writ of attachment or execution, or other like process,
against the assets of Developer, or the entry of a judgment, order or decree
against Developer, any or all of which would have a material and adverse effect
upon Developer's ability to perform under this Agreement, unless the same is
dismissed within forty-five (45) days.
(h) Developer shall default in the payment or performance of any
obligation, or any defined event of default, under the terms of any contract or
instrument pursuant to which Developer has incurred any debt or other liability to
City or any other person or entity, which default is not cured within any grace and
cure period expressly provided in such contract or instrument.
The party in default shall provide to the other party immediate written notice of the
occurrence of any event that would constitute a default hereunder.
7.2 Remedies Upon Default. In the event of any dispute of the parties under
this Agreement, including, without limitation, a default by either party under this
Agreement, either party may request that the dispute or default be resolved through
final and binding arbitration conducted at a location determined by the arbitrator in Los
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Angeles, California, and administered by the American Arbitration Association ("AAA")
in accordance with the California Arbitration Act (Title 9, California Code of Civil
Procedure Section 1290 et. seq.)_and the then existing Commercial Rules of the AAA.
Judgment upon any award rendered by the arbitrator(s)'may be entered in any state or
federal court having jurisdiction thereof. Notwithstanding the foregoing, in no event
shall Developer be entitled to damages of any kind from City, including, without
limitation, damages for economic loss, lost profits, or any other economic or
consequential damages of any kind. The prevailing party in such arbitration, in addition
to any other relief which may be granted, shall be entitled to reasonable attorney's fees
from the losing party. Attorney's fees shall include attorney's fees on 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 with respect to such arbitration.
In addition to any other rights or remedies available pursuant to this Agreement,
upon a default of this Agreement by Developer, City may take one or more of the
following actions:
(a) Wholly or partially suspend or terminate this Agreement.
(b) Require Developer to repay any City Funds expended in violation of
the terms of this Agreement.
7.2.2 Applicable Law Venue The internal laws of the State of California
without regard to conflict of law principles shall govern the interpretation and
enforcement of this Agreement.
7.3 Rights and Remedies are Cumulative. Except as otherwise may be
provided herein, 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.
7.4 Third PaLty Litigation; Attorney's, Fees. If either party to this Agreement is
required to initiate or defend litigation with a third party because of the violation of any
term or provision of this Agreement by the other party, then the party so litigating shall
be entitled to reasonable attorney's fees from the other party to this Agreement. For
purposes of this Section 7.4, attorney's fees shall include attorney's fees on 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 with respect to such litigation.
8.1 Termination by City. In addition to any other termination provision set
forth in this Agreement, this Agreement may be terminated by City as follows:
(a) Lack of Funding. If, for any reason, the HOME Funds required by
City to enable Developer to perform the Permitted Activities are not received by
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City or are withdrawn from City, the City may unilaterally terminate or modify the
terms of this Agreement to reflect the lossoffunding. If a reduction in funding is
required, City and Developer shall enter into an appropriate amendment to this
Agreement to reflect such reduced funding.
(b) Default. If a default by Developer shall occur, City may terminate
this Agreement in whole or in part.
(c) Termination for Convenience. This Agreement may be terminated
by City for convenience as provided in 24 C.F.R. §85.44.
8.2 Termination by Developer. This Agreement may be terminated by
Developer if a default by City shall occur.
8.3 Obligations Survive Termination. Notwithstanding the expiration or earlier
termination of this Agreement, Developer's obligations to City shall not terminate until all
closeout requirements are completed. No termination under this Agreement shall
release either party then in default from liability for such default.
9.1 Notices. All notices required to be delivered under this Agreement to City
or Developer shall be delivered to the respective parties at the address set forth next to
the party's signature to this Agreement or to such other address as the parties may
hereafter designate by written notice to the other party.
9.2 Nonliabilit of _,_Citv Officials and Em to ees. No member, official,
employee, or contractor of City shall be personally liable to Developer in the event of
any default or breach by City or for any amount which may become due to Developer or
on any obligations under this Agreement.
9.3 Contract Administration. The Contract Officer shall be the person
designated by City to administer this Agreement on behalf of City, and the Developer
Representative shall be the person designated by Developer to administer this
Agreement on behalf of Developer.
9.4 Entire A regiment. Waivers and Amendments`. This Agreement and its
exhibits integrate all of the terms and conditions mentioned herein, or incidental hereto,
and supersedes all negotiations and previous agreements between the parties with
respect to all or any party 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 City and Developer.
9.5 Severability. If any term, provision, covenant, or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of this Agreement shall not be affected thereby to the
extent such remaining provisions are not rendered impractical to perform taking into
consideration the purposes of this Agreement. In the event that all or any portion of this
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Agreement is found to be unenforceable, this Agreement or that portion which is found
to be unenforceableshallbe deemed to be a statement of intention by the parties; and
the parties further agree that in such event, and to the maximum extent permitted by
law, they shall take all steps necessary to comply with such procedures or requirements
as may be necessary in order to make valid this Agreement or that portion which is
found to be unenforceable.
9.6 Monitoring. During the Term, City shall monitor and evaluate Developer's
performance under this Agreement to determine compliance with this Agreement and
the HOME Requirements. Developer shall cooperate with City and shall make available
to City (at City's election) at the Development, at the corporate offices of Developer, or
via mailing with the United States Postal Service (as reasonably practical) all
information, documents, and records reasonably requested by City for purposes of this
Agreement and evaluating Developer's performance hereunder.
9.7 Prohibition Against Assignment and Transfer. The qualifications and
identity of Developer are of particular concern to City. It is because of those
qualifications and identity that City has entered into this Agreement with Developer.
Accordingly, during the Term, Developer shall not, whether voluntarily, involuntarily, or
by operation of law, undergo any change in ownership or assign, transfer or convey all
or any part of this Agreement or any rights hereunder without City's prior written
approval. In considering whether it will grant approval, City shall consider factors such
as (a) the financial credit, strength, and capability of the proposed transferee to perform
Developer's obligations hereunder, including performance of the Permitted Activities;
and (b) the proposed transferee's experience and expertise in the performance of
similar activities. In the absence of specific written agreement by City, no transfer by
Developer of all or any portion of its interest in this Agreement shall be deemed to
relieve it or any successor party from the obligation to carry out the Permitted Activities
or perform any other obligations under this Agreement. No assignment shall be
approved if Developer is in default (or a default notice has been issued) of this
Agreement. Developer shall be responsible for all costs incurred by City in connection
with any request for approval of an assignment.
9.8 Authority to Execute. The person(s) executing this Agreement on behalf
of the parties hereto warrant that (a) such party is duly organized and existing, (b) they
are duly authorized to execute and deliver this Agreement on behalf of said party, and
(c) by so executing this Agreement, such party is formally bound to the provisions of this
Agreement.
9.9 Execution in Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and such counterparts
shall constitute one and the same instrument.
9.10 Exhibits. This Agreement incorporates by reference the following two (2)
Exhibits attached hereto:
Exhibit "A" Scope of Work
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882/028110-0018
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on the date first herein above written.
CITY OF DOWNEY, a California municipal
corporation
B y'.
GILBERT A. LIVAS, City Manager
Address for Notices:
11111 Brookshire Avenue, Downey, CA 90241
MARIA ALICIA DUARTE, City Clerk I
APPROVED AS TO FORM'
RUTAN & TUCKER, LLP
ALLISON LEMOINE-BUI, Special Counsel
NATIONAL COMMUNITY RENAISSANCE OF
CIALIFORNIA, a California nonprofit public benefit
corporation
MICHAEL FINN, Chief Financial Officer
Address for Notices:
9421 Haven Avenue
Rancho Cucamonga, CA 91730
882/028110-0018
12460843.4 a07/18/18
All to be Amsco Studio series, white vinyl, dual pane, lowe3+argon gas, no grid
dual walli cam lock. i
0 Install 69 steps to meet egress code requirements (steps to match existing
flooring)
882/028110-0018
12460843.4 a07/18/18 Exhibit A
In addition to the requirements set forth in other provisions of the Agreement,
Developer shall comply, and shall cause all Developer _Personnel to comply, with the
following regulations and requirements.'
1. Use of the HOME Funds. The City Funds shall be used only for eligible
costs (see, e.g., 24 C.F.R. § 92.209 and 92.214, and all expenditures of the City Funds
shall be completed within the times referred to in the HOME Program Participation
Agreement between City and Developer.
2.- Affordability. The Development shall meet the affordable rent requirements
of the HOME Requirements (24 C.F.R. § 92.252 ).
a. Title VI of the Civil Rights Act of 1964, as amended, including
Public Law 88-352 implemented in 24 CFR Part 1. This law provides in part that no
person shall, on the grounds of race, color, or national origin be excluded from participation
in, be denied the benefits of, or be subjected to discrimination under any program or activity
receiving federal financial assistance.
b. Fair Housing Act, Title VIII of the Civil Rights Act of 1968, as
amended, including Public Law 90-234. The Fair Housing Act provides in part that there
shall be no discrimination in housing practices on the basis of race, color, religion, sex, and
national origin. The Fair Housing Act was amended in 1988 to provide protections from
discrimination in any aspect of the sale or rental of housing for families with children and
persons with disabilities. The Fair Housing Act also establishes requirements for the design
and construction of new rental or for -sale multi -family housing to ensure a minimum level of
accessibility for persons with disabilities.
C. Section 109 of Title I of the Housing and Community
Development Act of 1974, as amended, including 42 U.S.C. 5301 et. seq., 42 U.S.C.
6101 et. seq., and 29 U.S.C. 794. This law provides in part that no person on the grounds
of race, color, national origin, sex, or religion shall be excluded from participation in, be
denied the benefits of, or otherwise be subject to discrimination under any activity funded in
whole or part with funds under this Title.
r Section 104(b) of of • • and Communi
Development Act of 1974, as amended, including 42 U.S.C. 5301 et. seq. This law
1 This exhibit is a list and summary of some of the applicable legal requirements and is not a
complete list of all Developer requirements. The description set forth next to a statute or
regulation is a summary of certain provisions in the statute or regulation and is in no way
intended to be a complete description or summary of the statute or regulation. In the event of
any conflict between this summary and the requirements imposed by applicable laws,
regulations, and requirements, the applicable laws, regulations, and requirements shall apply.
provides in part that any grant under Section 106 shall be made only if the grantee certifies
to the satisfaction of the Secretary of HUD that the grantee will, among other things,
affirmatively further fair housing.
e. Executive Order 11246, as amended. This order includes a
requirement that grantees and Developers and their contractors and subcontractors not
discriminate against any employee or applicant for employment because of race, color,
religion, sex, or national origin.
f. ExecutiveOrder 11063, as amended, including 24 CFR Part 107.
This order and its implementing regulations include requirements that all actions necessary
be taken to prevent discrimination because of race, color, religion, sex, or national origin in
the use, occupancy, sale, leasing, rental, or other disposition of property assisted with
Federal loans, advances, grants, or contributions.
g. Section 504 of the Rehabilitation Act of 1973, as amended. This
Act specifies in part that no otherwise qualified individual shall solely by reason of his or her
disability or handicap be excluded from participation (including employment), denied
program benefits, or subjected to discrimination under any program or activity receiving
Federal assistance. Developer must ensure that its programs are accessible to and usable
by persons with disabilities.
h. The Americans with Disabilities Act (ADA) of 1990, as amended.
This Act prohibits discrimination on the basis of disability in employment by state and local
governments and in places of public accommodation and commercial facilities. The ADA
also requires that facilities that are newly constructed or altered, by, on behalf of, or for use
of a public entity, be designed and constructed in a manner that makes the facility readily
accessible to and usable by persons with disabilities. The Act defines the range of
conditions that qualify as disabilities and the reasonable accommodations that must be
made to assure equality of opportunity, full participation, independent living, and economic
self-sufficiency for persons with disabilities.
L The Age Discrimination Act of 1975, as amended. This law
provides in part that no person shall be excluded from participation in, be denied program
benefits, or subjected to discrimination on the basis of age under any program or activity
receiving federal assistance.
j. EEO/AA Statement. Developer shall, in all solicitations or
advertisements for employees placed by or on behalf of Developer, state that it is an Equal
Opportunity or Affirmative Action employer.
k. inoritylWomen Business Enterprise. Developer will use its best
efforts to afford small businesses and minority and women -owned business enterprises the
maximum practicable opportunity to participate in the performance of the Agreement. As
used in the Agreement, the term "small business" means a business that meets the criteria
set forth in Section 3(a) of the Small Business Act, as amended (15 U.S.C. 632), and
"minority and women -owned business enterprise" means a business at least fifty-one
percent (51%) owned and controlled by minority group members or women. For the
purpose of this definition, "minority group members" are Afro-Americans, Spanish-speaking,
Spanish surnamed or Spanish -heritage Americans, Asian -Americans, and American
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Indians. Developer may rely on written representations by businesses regarding their
status as minority and female business enterprises in lieu of an independent investigation.
1. Nondiscrimination. Developer shall comply with the federal
requirements and nondiscrimination provisions in 24 C.F.R. § 92.350, which include
requirements on nondiscrimination and equal opportunity, disclosure requirements,
debarred, suspended or ineligible contractors, and maintaining a drug-free workplace.
a. Air and Water. Developer shall comply with the following regulations
insofar as they apply to the performance of the Agreement: Clean Air Act, 42 U.S.C. 7401,
et seq.; Federal Water Pollution Control Act, as amended, _33 U.S.C. 1251, et seq., as
amended, 1318 relating to inspection, monitoring, entry, reports, and information, as well as
other requirements specified in said Section 114 and Section 308, and all regulations and
guidelines issued thereunder; and the U.S. Environmental Protection City regulations
pursuant to 40 CFR Part 50, as amended.
b.- Flood Disaster Protection Act of 1973. Developer shall assure that
for activities located in an area identified by FEMA as having special flood hazards, flood
insurance under the National Flood Insurance Program is obtained and maintained.
C. Lead -Based Paint. Developer shall comply with the Lead -Based'
Paint Regulations referenced in 24 C.F.R. 92.355, including 24 C.F.R. Part 35, et. al.
d. Historic Preservation. Developer shall comply with the historic
preservation requirements set forth in the National Historic Preservation Act of 1966, as
amended (16 U.S.C. 470) and the procedures set forth in 36 C.F.R. Part 800, Advisory
Council on Historic Preservation Procedures for Protection of Historic Properties and related
laws and Executive Orders, insofar as they apply to the performance of this Agreement. In
general, this requires concurrence from the State Historic Preservation Officer for all
rehabilitation and demolition of historic properties that are fifty years old or older or that are
included on a federal, state, or local historic property list.
e. Limitation on Activities Pending Clearance. In accordance with 24
C.F.R. § 58.22 entitled "Limitations on activities pending clearance, "neither a recipient nor
any participant in the development process, including public or private nonprofit or for-profit
entities, or any of their contractors, may commit HUD assistance under_a program listed in
24 C.F.R. § 58.1(b) on an activity or project until HUD or the state has approved the
recipient's Request for Release of Funds_(RROF) and the related certifications havebeen
approved. Neither a recipient nor any participant in the development process may commit
non -HUD funds or undertake an activity or project that would have an adverse
environmental impact or limit the choice of reasonable alternatives. Upon completion of
environmental review or receipt of environmental clearance, City shall notify Developer.
HUD funds shall not be utilized before this requirement is satisfied. The environmental
review or violation of the provisions may result in approval, modification of cancellation of
the City Funds. If a project or activity is exempt under 24 G.F.R. § 58.34, or is categorically
excluded (except in extraordinary circumstances) under 24 C.F.R. § 58.35(b), no RROF is
required and the recipient may undertake the activity immediately after the City has
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documented its determination that each activity or project is exempt and meets the
conditions specified for such exemption under this section by issuing a Notice to Proceed.
5. Uniform Administrative Requirements. Developer shall comply with
applicable uniform administrative requirements as described in 24 C.F.R. § 92.205, if
applicable.
6. Other Program Requirements. Developer shall carry out each activity
under the Agreement in accordance with all applicable federal laws and regulations
described in Subpart H of 24 C.F.R. § 92.
7. Project Requirements. Developer shall comply with project requirements
set forth in 24 C.F.R. §§ 92.250-92.258, as applicable in accordance with the type of project
assisted.
8. Property Standards. Developer shall perform any construction work and
maintain the rental apartment units in compliance with the property standards in 24 C.F.R. §
92.251 and the lead-based paint requirements in 24 C.F.R. § 92 Part 35, Subparts A, B, J,
K, -M and R, as applicable.
9. Records and Reports. During the Term of the Agreement, Developer shall
provide to City all records and reports relating to the Permitted Activities that may be
reasonably requested by City in order to enable it to perform its recordkeeping and reporting
obligations pursuant to the HOME Requirements, including 24 C.F.R. §§ 92.508 and
92.509.
10. Conflict of Interest. Developer will comply with 24 C.F.R. 84.42, 85.36 and
92.356, as applicable, regarding the avoidance of conflict of interest, which provisions
include (but are not limited to) the following:
L Developer 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.
ii. No employee, officer or agent of the Developer 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.
iii. 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, the Developer, or
any designated public agency.
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11. Affirmative Marketing. Developer shall establish for City's review and
approval a plan and procedures to affirmatively market any available rental apartment units
at the Development. The objective of the plan shall be to provide information and attract
eligible persons from all racial, ethnic and general groups in the housing market area to the
Development, to the extent units are available. In connection therewith, Developer shall
perform those affirmative marketing responsibilities set forth in 24 C.F.R. § 92.351(a) and
the marketing plan shall include the following:
a. methods for informing the public, owners, and potential buyers about
federal fair housing loans and the City's affirmative marketing policy;
b. requirements and practices Developer must adhere to in order to carry
out the affirmative marketing procedures and requirements;
C. procedures to be used by Developer to inform and solicit applications
from persons in the housing market area that are not likely to apply for the housing
without special outreach;
d. records that will be kept describing actions taken by Developer to
affirmatively market the units and records to assess the results of those actions; and
e. a description of how Developer will assess the success of affirmative
marketing actions and what corrective actions will be taken where affirmative
marketing requirements are not met.
13. Debarment and Suspension. As required in 24 C.F.R. § 92.357, Developer
shall comply with all debarment and suspension certifications.
14. Enforcement of Agreement. In addition to the other` provisions set forth in
the Agreement, City shall have the authority to enforce Developer's obligation to comply
with the HOME Requirements.
15. Return of HOME Funds; Reversion of Assets. Upon termination of the
Agreement, Developer shall transfer to City any HOME Funds on hand that have not been
expended pursuant to the Agreement.
16. Monitoring. Not less than once every six (6) months during the initial one (1)
year Term of the Agreement, and once during any extension period, City shall review
Developer's activities and operations under the Agreement and Developer's compliance
with the HOME Requirements. The monitoring required pursuant to this paragraph shall be
in compliance with the requirements of 24 C.F.R. § 92.504.
17. Anti -Lobbying Certification. By its execution of the Agreement, Developer
hereby certifies that:
i. 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 agreement, and the extension,
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continuation, renewal, amendment, or modification of any Federal contract, grant,
loan, or cooperative agreement.
ii. 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.
iii. It will require that the language of this certification be included in the
award documents for all subawards at all tiers (including subcontracts, subgrants,
and contracts under grants, loans, and cooperative agreements) and that all
Developers shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered into. 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. At the request of City,
Developer shall execute a separate document that contains the certifications set forth
above.
19. Drug -Free Workplace Requirements. Developer shall comply with and be
subject to the requirements of the federal drug-free workplace requirements, which
include the following actions betaken:
i. Publishing a statement notifying employees that the unlawful
manufacture, distribution, dispensing, possession, or use of a controlled substance
is prohibited in Developer's workplace and specifying the actions that will betaken
against employees for violation of such prohibition.
ii. Establishing an ongoing drug-free awareness program to inform
employees about: (a) the dangers of drug abuse in the work place; (b) Developer's
policy of maintaining a drug-free workplace; (c) any available drug counseling,
rehabilitation, and employee assistance programs; and (d) the penalties that may be
imposed upon employees for drug abuse violations occurring in the workplace.
iii. Making it a requirement that each employee to be engaged in the
performance of the Agreement be given a copy of the statement required by
paragraph (i).
iv. Notifying the employee in the statement required by paragraph (i) that,
as a condition of employment under the Agreement, the employee will: (a) abide by
the terms of the statement; and (b) notify the employer in writing of his or her
conviction for a violation of a criminal drug statute occurring in the workplace no later
than five calendar days after such conviction.
V. Notifying the agency in writing, within ten calendar days after receiving
notice under sub -paragraph (iv)(b) from an employee or otherwise receiving actual
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notice of such conviction. Employers of convicted employees must provide notice,
including position title, to every officer or other designee on whose activity the
convicted employee was working, unless the Federal agency has designated a
central point for the receipt of such notices. Notice shall include •i
number(s) of each affected transaction.
vi. Taking one of the following actions, within 30 calendar days of
receiving notice under subparagraph (iv)(b), with respect to any employee who is so
convicted: (a) taking appropriate personnel action against such an employee, up to
and including termination, consistent with the requirements of the Rehabilitation Act
of 1973, as amended; or (b) requiring such employee ::• participate • in a
drug abuse assistance or rehabation program approved for such purposes • a
Federal, State or local health, law enforcement, or other appropriate •
vii. Making a good faith effort to continue to maintain a drug-free
workplace through implementation of paragraphs (i), (ii), (iii), (iv), (v), and (vi).
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