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AmeriNat - 2017 Agreement
AGREEMENT FOR SERVICES (For contracts of $5,000 or less - CONSULTANT) This AGREEMENT made this 1 st day of January, 2017, between: CITY: City of Gilroy, having a principal place of business at 7351 Rosanna Street, Gilroy, California and CONSULTANT: AmeriNat., having a principal place of business at 217 South Newton Ave., Albert Lea, MN 56007. ARTICLE 1. TERM OF AGREEMENT This Agreement will become effective on January 1, 2017 and will continue in effect through December 31, 2019 unless terminated in accordance with the provisions of Article 7 of this Agreement. ARTICLE 2. INDEPENDENT CONTRACTOR STATUS It is the express intention of the parties that CONSULTANT is an independent contractor and not an employee, agent, joint venturer or partner of CITY. Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between CITY and CONSULTANT or any employee or agent of CONSULTANT. Both parties acknowledge that CONSULTANT is not an employee for state or federal tax purposes. CONSULTANT shall not be entitled to any of the rights or benefits afforded to CITY'S employees, including, without limitation, disability or unemployment insurance, workers' compensation, medical insurance, sick leave, retirement benefits or any other employment benefits. CONSULTANT shall retain the right to perform services for others during the term of this Agreement. ARTICLE 3. SERVICES TO BE PERFORMED BY CONSULTANT Specific Services CONSULTANT agrees to: Perform the services as outlined in Exhibit "A" within the time periods described therein. Method of Performing Services CONSULTANT shall determine the method, details and means of performing the above - described services. CITY shall have no right to, and shall not, control the manner or determine the method of accomplishing CONSULTANT'S services. 4822 - 9339- 4246vl MBRANSON104706038 Employment of Assistants CONSULTANT may, at the CONSULTANT'S own expense, employ such assistants as CONSULTANT deems necessary to perform the services required of CONSULTANT by this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 below. CITY may not control, direct, or supervise CONSULTANT'S assistants in the performance of those services. CONSULTANT assumes full and sole responsibility for the payment of all compensation and expenses of these assistants and for all state and federal income tax, unemployment insurance, Social Security, disability insurance and other applicable withholding. Place of Work CONSULTANT shall perform the services required by this Agreement at any place or location and at such times as CONSULTANT shall determine is necessary to properly and timely perform CONSULTANT'S services. ARTICLE 4. COMPENSATION In consideration for the services to be performed by CONSULTANT, CITY agrees to pay CONSULTANT as provided for in Exhibit "B ", "Payment Schedule ". Invoices CONSULTANT shall submit invoices for all services rendered. Payment Payment shall be due within thirty (30) days after receipt of invoice describing the work performed during the preceding period. If CITY objects to all or any portion of any invoice, CITY shall notify CONSULTANT of the objection within thirty (30) days from receipt of the invoice, give reasons for the objection, and pay that portion of the invoice not in dispute. It shall not constitute a default or breach of this Agreement for CITY not to pay any invoiced amounts to which it has objected until the objection has been resolved by mutual agreement of the parties. Expenses CONSULTANT shall be responsible for all costs and expenses incident to the performance of services for CITY, including but not limited to, all costs of equipment used or provided by CONSULTANT, all fees, fines, licenses, bonds or taxes required of or imposed against CONSULTANT and all other of CONSULTANT'S costs of doing business. CITY shall not be responsible for any expenses incurred by CONSULTANT in performing services for CITY. -2- 4822- 9339 -42460 MBRANSOM04706038 ARTICLE 5. OBLIGATIONS OF CONSULTANT Tools and Instrumentalities CONSULTANT shall supply all tools and instrumentalities required to perform the services under this Agreement at its sole cost and expense. CONSULTANT is not required to purchase or rent any tools, equipment or services from CITY. Licenses CONSULTANT shall possess a State of California Contractor's license in the appropriate category for performing services under this Agreement. CONSULTANT shall obtain a City of Gilroy Business License. Workers' Compensation CONSULTANT agrees to provides workers' compensation insurance for CONSULTANT'S employees and agents and agrees to hold harmless, defend with counsel acceptable to CITY and indemnify CITY, its officers, representatives, agents and employees from and against any and all claims, suits, damages, costs, fees, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising out of any injury, disability, or death of any of CONSULTANT'S employees. Indemnification of Liability, Duty to Defend A. As to professional liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, to the extent arising or resulting directly or indirectly from any willful or negligent acts, errors or omissions of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. B. As to other liability, to the fullest extent permitted by law, CONSULTANT shall defend, through counsel approved by CITY (which approval shall not be unreasonably withheld), indemnify and hold harmless CITY, its officers, representatives, agents and employees against any and all suits, damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses, including without limitation attorneys' fees, arising or resulting directly or indirectly from any act or omission of CONSULTANT or CONSULTANT'S assistants, employees or agents, including all claims relating to the injury or death of any person or damage to any property. -3 4822 - 9339- 4246v1 MBRANSON104706038 Insurance In addition to any other obligations under this Agreement, CONSULTANT shall, at no cost to CITY, obtain and maintain throughout the term of this Agreement: (a) Commercial Liability Insurance on a per occurrence basis, including coverage for owned and non -owned automobiles, with a minimum combined single limit coverage of $1,000,000 per occurrence for all damages due to bodily injury, sickness or disease, or death to any person, and damage to property, including the loss of use thereof; and (b) Professional Liability Insurance (Errors & Omissions) with a minimum coverage of $1,000,000 per occurrence or claim, and $2,000,000 aggregate; provided however, Professional Liability Insurance written on a claims made basis must comply with the requirements set forth below. Professional Liability Insurance written on a claims made basis (including without limitation the initial policy obtained and all subsequent policies purchased as renewals or replacements) must show the retroactive date, and the retroactive date must be before the earlier of the effective date of the contract or the beginning of the contract work. Claims made Professional Liability Insurance must be maintained, and written evidence of insurance must be provided, for at least five (5) years after the completion of the contract work. If claims made coverage is canceled or non - renewed, and not replaced with another claims -made policy form with a retroactive date prior to the earlier of the effective date of the contract or the beginning of the contract work, CONSULTANT must purchase so called "extended reporting" or "tail" coverage for a minimum of five (5) years after completion of work, which must also show a retroactive date that is before the earlier of the effective date of the contract or the beginning of the contract work. As a condition precedent to CITY'S obligations under this Agreement, CONSULTANT shall furnish written evidence of such coverage (naming CITY, its officers and employees as additional insureds on the Comprehensive Liability insurance policy referred to in (a) immediately above via a specific endorsement) and requiring thirty (30) days written notice of policy lapse or cancellation, or of a material change in policy terms. Assignment Notwithstanding any other provision of this Agreement, neither this Agreement nor any duties or obligations of CONSULTANT under this Agreement may be assigned or subcontracted by CONSULTANT without the prior written consent of CITY, which CITY may withhold in its sole and absolute discretion. State and Federal Taxes As CONSULTANT is not CITY'S employee, CONSULTANT shall be responsible for paying all required state and federal taxes. Without limiting the foregoing, CONSULTANT acknowledges and agrees that: *CITY will not withhold FICA (Social Security) from CONSULTANT'S payments; *CITY will not make state or federal unemployment insurance contributions on CONSULTANT'S behalf, *CITY will not withhold state or federal income tax from payment to CONSULTANT; *CITY will not make disability insurance contributions on behalf of CONSULTANT; -4- 4822- 9339- 4246vl MBRANSON104706038 *CITY will not obtain workers' compensation insurance on behalf of CONSULTANT. ARTICLE 6. OBLIGATIONS OF CITY Cooperation of City CITY agrees to respond to all reasonable requests of CONSULTANT and provide access, at reasonable times following receipt by CITY of reasonable notice, to all documents reasonably necessary to the performance of CONSULTANT'S duties under this Agreement. Assignment CITY may assign this Agreement or any duties or obligations thereunder to a successor governmental entity without the consent of CONSULTANT. Such assignment shall not release CONSULTANT from any of CONSULTANT'S duties or obligations under this Agreement. events: ARTICLE 7. TERMINATION OF AGREEMENT Termination on Occurrence of Stated Events This Agreement shall terminate automatically on the occurrence of any of the following I. Bankruptcy or insolvency of either party; 2. Sale of the business of either party; 3. Death of either party. Termination by City for Default of Consultant Should CONSULTANT default in the performance of this Agreement or materially breach any of its provisions, CITY, at CITY'S option, may terminate this Agreement by giving written notification to CONSULTANT. For the purposes of this section, material breach of this Agreement shall include, but not be limited to the following: Not performing any of its services professionally and /or timely. 2. CONSULTANT'S breach of any of its representations, warranties or covenants contained in this Agreement. CONSULTANT shall be entitled to payment only for work satisfactorily completed through the date of the termination notice, as reasonably determined by CITY, provided that such payment shall not exceed the amounts set forth in this Agreement for the tasks described on Exhibit B" which have been fully, competently and timely rendered by CONSULTANT. Notwithstanding the foregoing, if CITY terminates this Agreement due to CONSULTANT'S default in the performance of this Agreement or material breach by CONSULTANT of any of its provisions, then in addition to any other rights and remedies CITY may have, CONSULTANT -5- 4822- 9339 - 4246x1 MBRANSON104706038 shall reimburse CITY, within ten (10) days after demand, for any and all costs and expenses incurred by CITY in order to complete the tasks constituting the scope of work as described in this Agreement, to the extent such costs and expenses exceed the amounts CITY would have been obligated to pay CONSULTANT for the performance of that task pursuant to this Agreement. Termination for Failure to Make Agreed -Upon Payments Should CITY fail to pay CONSULTANT all or any part of the compensation set forth in Article 4 of this Agreement on the date due, then if and only if such nonpayment constitutes a default under this Agreement, CONSULTANT, at the CONSULTANT'S option, may terminate this Agreement if such default is not remedied by CITY within thirty (30) days after demand for such payment is given by CONSULTANT to CITY. Termination for Convenience Notwithstanding the foregoing, either party shall have the right to terminate the Agreement prior to the end of its term by giving the other party not less than ninety (90) days' prior written notice, which notice shall set forth the effective date of termination. CONSULTANT shall continue work up until the effective date of termination and shall submit invoices for all work performed prior to the effective date of termination, which CITY shall pay in accordance with the provisions of Article 4 of this Agreement. Transition After Termination Upon termination, CONSULTANT shall immediately stop work, unless cessation could potentially cause any damage or harm to person or property, in which case CONSULTANT shall cease such work as soon as it is safe to do so. CONSULTANT shall incur no further expenses in connection with this Agreement. CONSULTANT shall promptly deliver to CITY all work done toward completion of its services, and shall act in such a manner as to facilitate any new CONSULTANT'S assumption of duties. ARTICLE 8. GENERAL PROVISIONS Notices Any notice to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to a party at the address appearing below such party's signature below, but each party may change the address by written notice in accordance with this paragraph. Notices delivered personally will be deemed delivered as of actual receipt; mailed notices will be deemed delivered as of three (3) days after mailing. Entire Agreement of the Parties -6- 4822- 9339- 4246vl MBRANSON104706038 This Agreement supersedes any and all prior agreements, either oral or written, between the parties hereto with respect to the rendering of services by CONSULTANT for CITY and contains all the covenants and agreements between the parties with respect to the rendering of such services in any manner whatsoever. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. Any modification of this Agreement will be effective only if it is in writing signed by both parties. Partial Invalidity If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way. Americans With Disabilities Act of 1990 Throughout the term of this Agreement, the CONSULTANT shall comply fully with all applicable provisions of the Americans With Disabilities Act of 1990 ( "the Act ") in its current form and as it may be amended from time to time. The CONSULTANT shall also require such compliance of all subcontractors performing work under this Agreement, subject to the prohibition against assignment and subcontracting contained in Article 5 above. The CONSULTANT shall defend with counsel acceptable to CITY, indemnify and hold harmless the CITY OF GILROY, its officers, employees, agents and representatives from and against all suits, claims, demands, damages, costs, causes of action, losses, liabilities, expenses and fees, including without limitation attorneys' fees, that may arise out of any violations of the Act by the CONSULTANT, its subcontractors, or the officers, employees, agents or representatives of either. Compliance With Laws The CONSULTANT shall keep itself informed of all State and National laws and all municipal ordinances and regulations of the CITY which in any manner affect those engaged or employed in the work, or the materials used in the work, or which in any way affect the conduct of the work, and of all such orders and decrees of bodies or tribunals having any jurisdiction or authority over the same. Without limiting the foregoing, CONSULTANT agrees to observe the provisions of the Municipal Code of the CITY OF GILROY, obligating every contractor or subcontractor under a contract or subcontract to the CITY OF GILROY for public works or for goods or services to refrain from discriminatory employment or subcontracting practices on the basis of the race, color, sex, religious creed, national origin or ancestry of any employee, applicant for employment, or any potential subcontractor. Attorneys' Fees -7- 4822- 9339- 4246v1 MBRANSON104706038 If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees, which may be set by the court in the same action or in a separate action brought for that purpose, in addition to any other relief to which that party may be entitled. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws or provisions of any jurisdiction. The exclusive jurisdiction and venue with respect to any and all disputes arising hereunder shall be in state and federal courts located in Santa Clara County, California. Executed at Gilroy, California, on the date and year first above written. CONSULTANT: AmeriNat By: / 4C.AAZ l ��liQl E/fl�tlE 17k2lej- l (Print Name) Address for Notices: AmeriNat 217 S. Newton Ave. Albert Lea, MN 56007 Attn: Amber Loverink Marketing & Contracts Manager Social Security or Taxpayer Identification Number: 41- 195 -1655 4822 - 9339 -42460 MBRANSON104706038 CITY: CITY OF GILROY By. — - Kristi Abrams Community Development Director Address for Notices: 7351 Rosanna Street Gilroy, CA 95020 Attn: City Administrator -8- Approved as to Form City A orney EXHIBIT "A" SCOPE OF SERVICES AmeriNat (CONSULTANT) will provide a loan serving program for the CITY's Housing Trust Homebuyer Assistance loan portfolio. The CONSULTANT will act as servicing agent for the purpose of accepting receipting and depositing payments on all accounts delivered by CITY to CONSULTANT as stated in Exhibit A. A. CONSULTANT will receive any and all payments due CITY on the Housing Trust Homebuyer Assistance loans and BEGIN loans; to include monthly payments consisting of principal and interest, all late payments and partial payments. Borrowers payments are to be made payable to AmeriNat. B. CONSULTANT will offer the capability to borrowers to collect payments through ACH debiting of borrower bank accounts on pre - authorized dates borrowers will be responsible for paying any bank fees in addition to their monthly payment to the CONSULTANT. Coupons will be provided to those borrowers who are unable to make electronic payments to CONSULTANT The Welcome letter can be offered in Spanish and English. C. Disburse the CITY's portion of monthly payments of principal and interest collected from the CITY's borrowers by the 15th of each following month directly to the CITY's bank account via wire transfer or check. D. Provide a current Monthly Reconciliation Report that serves as summary report for the loan payments remitted by borrowers. CONSULTANT will collect all payments and remit the total amount collected to the CITY with a detailed breakdown of principal interest servicing fees and any other fees collected or deducted for each loan in the portfolio. The report will be sent electronically by the CONSULTANT each month when the monthly payment is remitted via wire transfer or check to the CITY. E. CONSULTANT will provide a Portfolio Status Report that provides a complete accounting per loan of the total portfolio. CONSULTANT will establish a project number for Housing Trust Homebuyer Assistance Loans and separate project number for BEGIN loans. The report identifies annual payments made, remaining balances, borrower' s name and account number, original loan balance, interest rate, and loan terms. For those deferred loans accruing interest, the report will show ongoing interest accrued and the loan balance. The report will be sent electronically on a monthly basis to the CITY. F. Provide a Delinquent Aging Report: This report reflects delinquent accounts at the 30, 60, 90, and over 90 day levels. Borrower accounts that have been moved into the forbearance or foreclosure process are designated in the report. The report will be sent electronically on a monthly basis to the CITY. G. CONSULTANT will provide the CITY and CITY's borrowers continuous access to all loan account information during normal working hours through toll free customer service telephone lines or hard copy via facsimile. The CITY and Borrowers will have 24 -hour -10- 4822- 9339.4246x1 MBRANSON104706038 electronic access to their loan information via the CONSULTANT's website at www.amerinatls.com When requested by a borrower CONSULTANT will provide without charge a detailed statement of all transactions relating to the borrower s payments and /or escrow account. H. CONSULTANT will provide 1098 Tax Returns per IRS regulations and on behalf of the CITY. CONSULTANT will submit IRS required 1098 tax information returns for any borrower paying interest on any CITY loan. I. CONSULTANT to provide a Year -End Account Summary to each borrower if there has been interest or escrow activity on their account The report will indicate principal and interest paid the amount remitted by borrower for taxes and insurance and the current status of the loan. J. CONSULTANT will perform monthly scheduled credit bureau reporting of borrower loan payment activity for each loan in the CITY's portfolio. K. CONSULTANT will notify CITY if a name change is received for the borrowers account. L. CONSULTANT will send letters of varying tone and composition at 15, 30, 45, and 90 days past the payment due date. The 45 -day letter will include the Consumer Financial Protection Bureau (CFPB) mandated notification informing the borrower of the available loss mitigation options. The 90 -day letter will detail for the borrower possible escalated collection activity up to and including foreclosure. The letters emphasize the seriousness of the situation, the potential for loss of the borrower's, property, and demands immediate payment. M. CITY will notify CONSULTANT of requests for subordination or payoff on borrower loans. CITY will process the requests and payoff and forward to CONSULTANT subsequent correspondence and documentation regarding the transaction. N. CONSULTANT will notify CITY with a notification letter if a loan receives notice of Bankruptcy from a court of law. Bankruptcy Administration Services per loan will be performed by CONSULTANT if requested by the CITY. Services will be as follows: 1. Chapter 13 Bankruptcy: a. Upon receipt of notification from a court of law, debtor (borrower), or City of a Chapter 13 bankruptcy for a debtor serviced by Consultant, Consultant will forward a notification letter to the City indicating intention to file a Notice of Claim as well as supporting bankruptcy documentation. Such Notice of Claim will indicate the total amount past due at time of Chapter 13 filing. Consultant will then file a Proof of Claim to the appropriate court. Upon receipt of a returned filed Proof of Claim from the court, Consultant will forward a copy of same to the City and will begin monitoring post and pre - petition payments to borrower's loan account. b. Upon any default of borrower in the remittance of post petition payments, Consultant will contact the borrower's (debtor's) counsel to notify counsel of the default, instructing that any -11- 4822- 9339- 4246vl MBRANSON104706038 further default will result in the filing of a Motion to Lift the bankruptcy stay. If the borrower has no legal counsel and has filed their bankruptcy petition "pro se ", (on their own behalf) or with the assistance of a licensed paralegal; Consultant can communicate directly with the borrower. In addition, notification of the default will be forwarded to the Trustee's office. Should there be a continued default in post - petition payments and at the instruction of the City, the Motion to Lift will be filed by Consultant and Consultant will begin foreclosure proceedings as directed by the City. 2. Chapter 7 Bankruptcy: a. Upon receipt of notification of a Chapter 7 bankruptcy for a debtor serviced by Consultant, Consultant will establish a file for the borrower and monitor payments. Additionally, a reaffirmation agreement will be generated and forwarded to the borrower's attorney (debtor's counsel) for signature, and to the appropriate court upon receipt of the executed document. This fully enforceable agreement, if executed, will retain the lien as secured and will keep the lien from being discharged as part of the Chapter 7 discharge. If the borrower has no legal counsel and has filed their bankruptcy petition "pro se ", (on their own behalf) or with the assistance of a licensed paralegal; Consultant can communicate directly with the borrower. b. Upon any default of borrower's remittance of payments during the bankruptcy, Consultant will contact the borrower's (debtor's) counsel advising of the default, but if filed pro se, then the debtor would be contacted directly. c. Should the Chapter 7 Trustee determine that assets are available for distribution to creditors, Consultant will file a Proof of Claim on behalf of the City, indicating total amount due. O. CONSULTANT will provide Forbearance Plans as applicable and notify the City. The process will be as follows: Formal forbearance plans are typically used for defaults of 90+ days. A forbearance plan of less than six months duration is executed by the borrower and immediately implemented by Consultant, with notice immediately provided to City. Formal modifications to promissory note terms and forbearance plans of greater than six months duration are forwarded to City for pre - approval. Before the borrower executes the agreement, City is requested to approve the plan. Once approved, CONSULTANT will implement the new payment schedule. Should a borrower default from the new payment schedule without cause, CONSULTANT will recommend foreclosure. Forbearance Evaluation Process: A hardship is defined as a situation or set of events or circumstances beyond the normal control of the borrower that prohibits the borrower from adhering to a planned repayment schedule. If a borrower states, either verbally or in writing, that a hardship situation exists, CONSULTANT will document the circumstances and provide the following: i. Letter from borrower requesting City's consideration of hardship -12 4822 - 9339 -42460 MBRANSON104706038 ii. Nature of the hardship iii. Expected duration of the hardship iv. Evidence to substantiate hardship v. Forbearance Plan Proposal If City approves the Forbearance Plan Proposal and executes the agreement with the borrower, CONSULTANT will resume loan servicing under the new payment plan. The file will be tickled for follow -up at the expiration of the temporary plan. The CONSULTANT's objective is to formulate a plan to bring the loan current as soon as possible. However, in light of City's original purpose in making these loans (to assist the low /moderate income and disadvantaged citizens of its community), CONSULTANT may recommend forbearance plans that defer all or part of the regular repayments for a specified period of time. P. CONSULTANT will provide Loan Foreclosure services as applicable and notify the City. The process will be as follows: A decision to foreclose is based on an analysis of an individual loan. The CONSULTANT will look at the borrower with particular emphasis on basic motivation, ability to pay; and attitude or level of cooperation. If a borrower has been uncooperative, non - responsive, or unwilling to cure the existing default by all reasonable means, CONSULTANT will recommend foreclosure. This step is generally not taken until after a loan becomes over 120 days delinquent. Upon City's approval, and in accordance with respective local, state and federal statutes, CONSULTANT will send the borrower a notice of intent to foreclose /demand letter, with a copy to City. If no response is received within 30 days, CONSULTANT will advise City of the non - response. Upon City's direction, CONSULTANT will proceed to foreclosure. CONSULTANT will properly document all steps taken to affect a cure. If the loan is not reinstated or paid off, CONSULTANT will continue foreclosure up to and including the sale of the property. Upon sale of the property, CONSULTANT will return all proceeds of the sale to City less foreclosure fees and any previously un- reimbursed costs incurred. In the event the borrower reinstates the loan, CONSULTANT will remit to City all payments received from the borrower. For those loans that are reinstated by the borrower, CONSULTANT will resume normal servicing functions. NOTICE TO PROCEED /COMPLETION OF SERVICE A. NOTICE TO PROCEED CONSULTANT shall commence services upon delivery to CONSULTANT of written Notice to Proceed. B. COMPLETION OF SERVICES -13- 4822- 9339- 4246vl MBRANSON104706038 When CITY determines that CONSULTANT has satisfactorily completed all of the services defined under this Agreement, CITY shall give CONSULTANT written Notice of Final Acceptance, and CONSULTANT shall not incur any further costs hereunder. CONSULTANT may request this determination of completion when, in its opinion, it has satisfactorily completed all of the services under this Agreement, and if so requested, CITY shall make this determination within two (2) weeks of such request, or if CITY determines that CONSULTANT has not satisfactorily completed all of such services, CITY shall so inform CONSULTANT within this two (2) week period. III. SCHEDULE Schedule of Services consistent with Exhibit B, Payment Schedule, to be performed during the effective term of the Agreement. IV. DIRECT EXPENSES Direct expenses are charges and fees not included in the Scope of Services described above. CITY shall be obligated to pay only for those direct expenses which have been previously approved in writing by CITY. CONSULTANT shall obtain written approval from CITY prior to incurring or billing of direct expenses. Copies of pertinent financial records, including invoices, will be included with the submission of billing(s) for all direct expenses. III. GENERAL PROVISIONS A. STANDARD OF WORKMANSHIP CONSULTANT represents and warrants that it has the qualifications, skills and licenses necessary to perform the services, and its duties and obligations, expressed and implied, contained herein, and CITY expressly relies upon CONSULTANT'S representations and warranties regarding its skills, qualifications and licenses. CONSULTANT shall perform such services and duties in conformance to and consistent with the standards generally recognized as being employed by professionals in the same discipline in the State of California. B. RESPONSIBILITY OF CONSULTANT CONSULTANT shall be responsible for the professional quality, technical accuracy, and the coordination of the services furnished by it under this Agreement. The CITY'S review, acceptance or payment for any of the services required under this Agreement shall not be construed to operate as a waiver of any rights under this Agreement or of any cause of action arising out of the performance of this Agreement, and CONSULTANT shall be and remain liable to CITY in accordance with applicable law for all damages to CITY caused by CONSULTANT'S negligent performance of any of the services furnished under this Agreement. -14- 4822- 9339- 4246vl MBRANSON104706038 C. RIGHT OF CITY TO INSPECT RECORDS OF CONSULTANT CITY, through its authorized employees, representatives or agents, shall have the right, at any and all reasonable times, to audit the books and records (including, but not limited to, invoices, vouchers, canceled checks, time cards, etc.) of CONSULTANT for the purpose of verifying any and all charges made by CONSULTANT in connection with this Agreement. CONSULTANT shall maintain for a minimum period of three (3) years (from the date of final payment to CONSULTANT), or for any longer period required by law, sufficient books and records in accordance with standard accounting practices to establish the correctness of all charges submitted to CITY by CONSULTANT, all of which shall be made available to CITY at the CITY's offices within five (5) business days after CITY'S request. D. NO PLEDGING OF CITY'S CREDIT. Under no circumstances shall CONSULTANT have the authority or power to pledge the credit of CITY or incur any obligation in the name of CITY. E. OWNERSHIP OF MATERIAL. All material (including information developed on computer(s)) prepared (or caused to be prepared) under this Agreement shall be the property of CITY. F. NO THIRD PARTY BENEFICIARY. This Agreement shall not be construed or deemed to be an agreement for the benefit of any third party or parties, and no third party or parties shall have any claim or right of action hereunder for any cause whatsoever. G. WAIVER. CONSULTANT agrees that waiver by CITY of any one or more of the conditions of performance under this Agreement shall not be construed as waiver(s) of any other condition of performance under this Agreement. H. AMENDMENTS. No alterations or changes to the terms of this Agreement shall be valid unless made in writing and signed by both parties hereto. CONFLICT OF INTEREST. CONSULTANT certifies that to the best of its knowledge, no CITY employee or office of any public agency interested in this Agreement has any pecuniary interest in the business of CONSULTANT and that no person associated with CONSULTANT has any interest that would constitute a conflict of interest in any manner or degree as to the execution or performance of this Agreement. -15- 4822- 9339 -42460 MBRANSOM04706038 J. CAPTIONS. The captions of the various sections, paragraphs and subparagraphs of this Agreement are for convenience only and shall not be considered nor referred to for resolving questions or interpretation. K. SEVERABILITY Should any part of this Agreement be declared by a final decision by a court or tribunal of competent jurisdiction to be unconstitutional, invalid or beyond the authority of either party to enter into or carry out, such decision shall not affect the validity of the remainder of this Agreement, which shall continue in full force and effect, provided that the remainder of this Agreement, absent the un- exercised portion, can be reasonably interpreted to give effect to the intentions of the parties. L. FORCE MAJEURE Any delays in or failure of performance by either party, except in respect of the obligation of payments under this Agreement, shall not constitute default of this Agreement, if and to the extent such delays or failures are caused by occurrence(s) beyond the reasonable control of the party affected, and which by the exercise of due diligence such party is unable to prevent, such occurrence(s) including but not limited to: acts of God, sabotage, war, acts of terrorism, riots, insurrections, civil unrest, riots, embargoes, strikes, lockouts, fires, floods, tornados, hurricanes or other natural disaster or governmental actions. In any such event, the party claiming Force Majeure shall promptly notify the other party of the nature of the event in writing, and, if reasonably possible, such notice shall set forth the extent and duration thereof, and shall resume performance at the earliest possible date. M. LICENSING The CONSULTANT operates under the regulation and jurisdiction of various licensing authorities including City's State authorities, the requirements of which may vary from time to time. If CONSULTANT's authority to service loans in California were to be modified and/or revoked due to changes in circumstances or regulation, CONSULTANT will provide prompt notice of its requirement to terminate services and will terminate services before the latest available date as allowed by regulatory authority. Termination under this provision will not be deemed to be a default by CONSULTANT, and no liability will exist to reimburse City for any losses incurred as a result of the termination. If services are terminated under this provision City will not be liable to CONSULTANT for any transfer fees specified in the fee section of this agreement. N. COMPLIANCE WITH LATE FEES In order to ensure compliance with respective state statute, City's loans will be boarded and serviced in accordance with the late fee provision in the loan documents, and where appropriate, said late fee will be reduced to not exceed the maximum amount allowed by law. -16- 4822- 9339- 4246v1 MBRANSON104706038 O. PAYMENT OF HOMEOWNERS ASSOCIATION FEES City acknowledges that loans with a Homeowners Association (HOA), termite warranty contracts, and yearly crawl space contract, will be serviced with the "Client Fund Method ". Consultant will collect the payments and disburse one remittance payment to City, for City to disburse to the HOA or other service providers, as applicable. P. LOAN FILES / DOCUMENTATION City acknowledges that complete and legible loan file documentation containing all pertinent repayment terms and conditions must be provided to Consultant by the agreed upon date determined during establishment of the Portfolio Transfer Timeline. City also understands that Consultant cannot commence servicing City's loans until such time that all respective loans files / documentation have been provided to Consultant. Q. EQUITY SHARING PROVISIONS For any notes containing an equity sharing or similar provision upon sale or transfer of the property, City acknowledges that they will be responsible for calculating any equity share amount due that may result from the occurrence of a qualifying event triggering such. R. PENALTIES AND ASSESSMENTS RELATED TO 1098 AND /OR 1099 REPORTING If the services to be provided under this agreement include the acceptance of loan payments and /or 1099 reporting (1099 -Int, 1099 -C, etc.), CONSULTANT will submit the required 1098 and /or 1099 forms to the Internal Revenue Service as required. If the loan data provided by City does not include a valid social security number for a borrower(s), CONSULTANT will exercise all reasonable means to obtain such valid social security number(s). CONSULTANT will also notify City, at a minimum of one time annually, of any missing or invalid social security numbers which remain outstanding. If the lack of an available and /or valid social security number(s) results in a penalty or fine assessed by the Internal Revenue Service, City will be notified of the amount of the penalty and fine, and will immediately reimburse CONSULTANT for any such penalty or fine paid or to be paid. S. ANTI -MONEY LAUNDERING The CONSULTANT agrees to perform its services in accordance with established policies and procedures designed to detect, prevent, and mitigate the risk of money laundering, terrorist financing or other crimes. Such policies and procedures are available for review by the City on their request. City is responsible for OFAC screening of borrowers prior to loan origination to ensure they do not appear on the U.S. Department of Treasury's "Specially Designated Nationals List (SDN) (http: / /www.treasury.gov /resource - center /sanctions /SDN- List /Pages /default.aspx), and for compliance with Anti -Money Laundering program requirements of 31 U.S.C. § 5318(h), or other directives that may relate to the appropriate -17- 4822- 9339- 4246vl MBRANSON104706038 verification of borrower identity to ensure the prohibition of transactions with certain foreign countries and /or their nationals. City also agrees to immediately notify CONSULTANT if it becomes aware of any of its borrowers being added to the SDN during the term of this agreement. T. PROTECTION OF NONPUBLIC PERSONAL INFORMATION CONSULTANT performs its services in accordance with established policies and procedures designed to provide for adequate privacy, protection, security and confidentiality of consumer information. City acknowledges its obligation under the Gramm - Leach - Bliley Act 15 USC 6801 and confirms that it adheres to the provisions of this regulation and related guidance, including issuance of the proper privacy notices to its customers. -18- 4822- 9339 -42460 MBRANSON104706038 EXHIBIT "B" PAYMENT SCHEDULE CITY agrees to hire CONSULTANT to provide a loan portfolio management program for the Housing Trust Homebuyer Assistance and BEGIN loan portfolios. Loan Portfolio Management: Flow Loan Set -Up Fee: $45.00 per loan The set -up fees will be charged for transferring /converting the initial loan portfolio as well as any loans thereafter that are boarded on our system. The set -up fees above are based on the City's performance of certain portfolio transfer activities, as established in the portfolio transfer timeline. Should additional boarding time, effort, and /or resources, be required to accomplish the portfolio transfer, the Extraordinary Services fee will apply, and the boarding date may be delayed. Monthly Service Fee for Amortized Loans: $13.50 per loan per month Escrowing and/or monitoring of taxes and insurance are included with the service at no additional cost, except for a one -time tax service vendor fee if acceptable transferable tax contracts are not already in place. Loss Mitigation: Included in monthly service fee. Tax Service Fee: If it is determined that Tax Service is needed, then a onetime charge of $65.00 per loan upfront at time of servicing commencement (may be assessable to borrower) for all loan amounts up to $500,000. For loan amounts over $500,000 there is an additional charge of $10 per $100,000. Future charges may vary based on outside vendor pricing. Please note: Any additional or supplemental charges that may be imposed by the respective taxing authority for procurement of duplicate tax bills will be directly passed through to the Affiliate. Forbearance Plans (if requested by the City): If requested by the City, AmeriNat will charge a flat fee of $375.00 per loan per occurrence to institute a formal forbearance plan (usually in excess of 6 months in duration and with approval of the City). The City may require the borrower to pay this fee. Informal forbearances (usually less than 6 months in duration) to allow a delinquent borrower to catch up and bring their loan current are performed at no charge to the borrower or the City. Loan Foreclosure (if requested by the City): If requested by the City, AmeriNat will charge the following fees for Loan Foreclosure services: -19- 4822- 9339- 4246vl MBRANSON104706038 1. Document Preparation: A one -time charge of $410.00 to prepare documents to commence foreclosure proceedings and to manage the foreclosure process on behalf of the City. In addition to the above foreclosure service fee, AmeriNat will deduct and pay from remittance or bill the City for other costs incurred in the foreclosure process such as, but not limited to, conventional legal fees, sheriffs' deposits, bankruptcy closing costs, fees set by law, etc. These fees will be accurately quoted on a case -by -case basis upon request by the City and within all applicable statutory limits. Reinstatement figures provided more frequent than monthly may be subject to an additional charge of $15.00 per occurrence. 2. Reinstatement Terms: The City reimbursement for foreclosure services rendered, and its costs and other charges, will be made by the borrower upon reinstatement or full payment of any Deed of Trust or Mortgage under foreclosure. Bankruptcy Services (if requested by the City): If requested by the City, AmeriNat will charge the following fees for Bankruptcy services: 1. Filing of Proof of Claims Fee: $100.00 per occurrence 2. Filing of Reaffirmation Agreements Fee: $75.00 for each occurrence 3. Monitoring and Repayments Fee: $12.00 per loan per month for the duration of an active Chapter 7/13 case for monitoring Chapter 7/13 plans and Discharges or Debtors (Chapter 13), and the receipt of post and pre - petition payments. 4. Filing of Lift Stays Fee: $175.00 per occurrence plus out -of- pocket fees and costs. Such fees and costs include, but are not limited to, obtaining local council in the bankruptcy jurisdiction and as approved by the City. The City will be responsible for the payment of any fees for filing suit or related outside costs due AmeriNat that cannot be reimbursed from the borrower. Per -Event Fees: Tickler Notifications: $12.50 per notification Loan Transfer Fee: $50.00 per loan one -time fee if transferred from AmeriNat Extraordinary Account Research and /or Loan Reconstruction AmeriNat will conduct ongoing routine maintenance and general customer service activities on borrower information and balances as part of its servicing duties at no additional cost. Should the City request additional research to be conducted, or if the City engages AmeriNat to conduct a Loan Reconstruction Service on its portfolio, an extraordinary research fee of $138.00 per hour will be charged, with a minimum of one hour per occurrence. Any such fee will be approved by the City before the research is conducted. When research is conducted at the request of the City because of a discrepancy between the City's records and AmeriNat's records relating to the principal balance or other loan information, and the result of the research determines that the discrepancy was the result of activity being -20- 4822- 9339 -42460 MBRANSON104706038 posted at the City and not forwarded to AmeriNat for updating of its records, the extraordinary research fee will be charged for the time spent on the research. In the event the City requests additional services to be performed by AmeriNat not specifically set forth in the Scope of Services and AmeriNat agrees to perform the requested additional service(s), AmeriNat shall undertake such services(s) after receiving written authorization from the City. Additional compensation for such service(s) shall be allowed as agreed upon in writing by both the City and AmeriNat. -21- 4822- 9339 -42460 MBRANSOW04706038 AMERCOM -01 JYALCH �,� CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DDIYYY1� TE(MMI DNY 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 .License # CA#0658748 AHT Insurance One Evertrust Plaza Suite 1202 Jersey City, NJ 07302 CONTACT PHCN o E (703) 777 -2341 No): (703) 771 -1852 E -MAIL ADDRESS: INSURERS AFFORDING COVERAGE NAIC # INSURER A: Great Northern Insurance Company. 20303 EACH OCCURRENCE INSURED INSURER B: Federal Insurance Company 20281 AmeriNationai Community Services, LLC dba AmeriNat 217 S. Newton Avenue INSURER C: Chubb Indemnity Insurance Company 12777 INSURER D: Colony Insurance Company 39993 INSURER E: PERSONAL BADVINJURY Albert Lea, MN 56007 'INSURER F: GENERAL AGGREGATE $ 2,000,00 r?nVFRAGFS CERTIFICATE NUMBER: 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. NOTWITHSTANDING 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 POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSION_ S AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1LR TYPE OF INSURANCE - IN p W„p POLICY NUMBER POLICY MMIDD POLICY MD LIMITS • X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE ❑X OCCUR X 36031757 05129/2016 05/29/2017 EACH OCCURRENCE $ 1,000,000 PREMMISES Ea occurrence $ 1,000,000 MED EXP (Any one person) $ 10,000 PERSONAL BADVINJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER POLICY ❑ jERO- Fx1 LOC OTHER: GENERAL AGGREGATE $ 2,000,00 PRODUCTS - COMP/OP AGG $ 2,000,060 $ • AUTOMOBILE LIABILITY ANY AUTO ALL OWNED SCHEDULED AUTOS NON -OWNED X HIRED AUTOS X AUTOS 73588835 05129/2016 0512912017 e SINGLE CF,(dn 1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ B X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE 79898650 05129/2016 05/29/2017 EACH OCCURRENCE $ 5,000,000 AGGREGATE $ 5,000,000 71 RETENTION $ $ --TOED C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY YIN ANY PROPRIETORIPARTNERIEXECUTIVE OFFICERIMEMBER EXCLUDED? ❑ (Mandatory In NH) H es. describe. under DESCRIPTION OF OPERATIONS below N I A 77171555 05129/2016 05/29/2017 X STATUTE ERA E.L EACH ACCIDENT $ 1,000,000 EL DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMB $ 1,000,OOD D Managment Liability ML 7601398 -01 05129/2016 05/29/2017 See Next Page DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) ""General Liability, Automobile Liability and Umbrella Liability Include OSP as a Named Insured— SEE ATTACHED ACORD 101 IL SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE City of Gilroy THE EXPIRATION DATE THEREOF, NOTICE WILL BE . DELIVERED IN ty y ACCORDANCE WITH THE POLICY PROVISIONS. 7351 Rosanna St Gilroy, CA 95020 AUTHORIZED REPRESENTATIVE 01988 -2014 ACORD CORPORATION. All riahts reserved. ACORD 25 (2014/01) The ACORD name and logo are registered marks of ACORD ACO9aV i---�- AGENCY CUSTOMER ID: AMERCOM -01 LOC #: 1 ADDITIONAL REMARKS SCHEDULE Page 1 JYALCH AGENCY License # CA#0658748 NAMED INSURED r Newton Community Services, LLC dba AmeriNat HT Insurance rn Albert Lea, MN 56007 PoucY NUMBER USA EE PAGE 1 CARRIER NAIC CODE EFFECTIVE DATE: SEE PAGE 1 EE PAGE 1 SEE P 1 ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: &CORD 25 FORM TITLE: Certificate of Liability Insurance - Description of Operations /LocationsNehicles: Management Liability (D &O /EPLI /FID) Maximum Aggregate Limit: $5,000,000 Directors & Officers Liability (D &O) Limit: $3,000,000 Retention: $01$150,0001$150,000 Employment Practices Liability (EPLI) Limit: $2,000,000 Retention: $75,000 Fiduciary Liability (FID) Limit: $2,000,000 Retention: $50,000 Cyber Liability Policy Number: ASE16DO01692 Carrier: Underwriters at Lloyd's, London Effective Dates: 0512912016-0512912017 Limits: $3,000,000 Retention: $10,000 Errors & Omissions Liability: Policy Number: B0507 N16FT06290 Carrier: Underwriters at Lloyd's, London Effective: Dates: 05 /29/2016- 05/29/2017 Limits: $3,500,000 Retention: $150,000 Mortgage Bond: Policy Number. MBS- 1400013 Carrier: Underwriters at Lloyd's, London Effective Dates: 05129/2016 - 05/2912017 Limits: $7,500,000 Deductible: $50,000 Certificate Holder, its officers, representatives, agents and employees are included as Additional Insureds under the General Liability as required by written contract perform #80 -02 -2367 (05107) attached. ACORD 101 (2008101) © 2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registerea marKs or vAUKU ME C H U B B° Liability Insurance Endorsement Policy Period MAY 29, 2016 TO MAY 29, 2017 Effective Date FEBRUARY 27, 2017 Policy Number 3603 -17 -57 ECE Insured OSP, LLC DBA OBRIEN- STANLEY PARTNERS Name of Company GREAT NORTHERN INSURANCE COMPANY Date Issued MARCH 9, 2017 This Endorsement applies to the following forms: GENERAL LIABILITY Under Who Is An Insured, the following provision is added. Who is An Insured Additional Insured - Persons or organizations shown in the Schedule are hwareds; but they are h=reds only if you are Scheduled Person obligated pursuant to a contract or agreement to provide them with such insurance as is afforded by Or Organization this policy. However, the person or organization is an hwared only: • if and then only to the extent the person or organization is described in the Schedule; • to the extent such contract or agreement requires the person or organization to be afforded status as an insured; • for activities that did not occur, in whole or in part, before the execution of the contract or agreement; and • with respect to damages, loss, cost or expense for injury or damage to which this insurance applies. No person or organization is an insured under this provision: • that is more specifically identified under any other provision of the Who Is An Insured section (regardless of any limitation applicable thereto). • with respect to any assumption of liability (of another person or organization) by them in a contract or agreement. This limitation does not apply to the liability for damages, loss, cost or expense for injury or damage, to which this insurance applies. that the person or organization would have in the absence of such contractor agreement. Uabiffty Insurance Additional Insured - Scheduled Person Or Organization continued Form 80.02 -2367 (Rev. 5-07) Endorsement - Page 1 CHUBBe Liabluty,Endorsement (continued) Under Conditions, the following provision is added to the condition titled Other Insurance. Conditions Other Insurance — If you are obligated, pursuant to a contract or agreement, to provide the person or organization Primary, Noncontributory shown in the Schedule with - my insurance such as is afforded by this policy, then in such case Insurance — Scheduled this insurance is pay and w will not seek contribution from insurance avagable to such person. Person Or Organization or organization. Schedule CTTY OF GILROY, ITS EMPLOYEES, OFFICERS, OFFICIALS AND VOLUNTEERS 7351 ROSANNA STREET GILROY, CA 95020 -6141 All other terms and conditions remain unchanged Authorized Representative Uabflfty Insurance Additional insured - Scheduled Penn Or Organization last page Form 80 E -2367 (Rev. 5-07) Endorsement Page 9