HomeMy WebLinkAboutAgreement A-22-433 with AmeriNat.pdf Agreement No. 22-433
1 SERVICE AGREEMENT
2 This Service Agreement ("Agreement") is dated September 20, 2022, and i
3 between AmeriNational Community Services LLC, a Minnesota Corporation ("Contractor"), an
4 the County of Fresno, a political subdivision of the State of California ("County").
5 Recitals
6 A. The County receives Federal Community Development Block Grant (CDBG) and HOME
7 Investment Partnerships (HOME) program funds and other Federal and State housing funds to
8 provide direct loans to low and moderate-income persons and entities for housing and commercial
9 rehabilitation activities, homebuyer down payment and mortgage assistance, and affordable
10 housing development projects through its Affordable Housing Programs (AHP) and Facade And
11 Commercial Enhancement (FACE) Program; and
12 B. The County determined that the Suspension of Competition requirements for Loan
13 Portfolio Management Services for its AHP and FACE programs were met; and
14 C. Contractor represents that it is qualified and willing to perform such services under the
15 terms and conditions hereinafter defined in this Agreement; and
16 D. County wishes to engage Contractor to render such services in connection with affordable
17 housing and commercial rehabilitation projects implemented by the County.
18 The parties therefore agree as follows:
19 Article 1
20 Contractor's Services
21 1.1 Scope of Services. The Contractor shall perform all of the services provided in Exhibit
22 A to this Agreement, titled "Scope of Services."
23 1.2 Representation. The Contractor represents that it is qualified, ready, willing, and able
24 to perform all of the services provided in this Agreement. The Contractor shall provide all labor,
25 material, equipment, taxes, and incidentals necessary to provide loan servicing and portfolio
26 management services for the County's AHP and FACE programs, as described in the Scope of
27 Services, attached as Exhibit A, at the fees set forth in Contractor's Compensation, attached as
28 Exhibit B, Compensation. The Contractor represents that it has and shall continue to have
1
1 adequate and proper facilities and personnel to perform the services contained in this Agreement
2 and that it is duly authorized and qualified by law to enter into this Agreement and perform such
3 services. The Contractor warrants that it shall faithfully and diligently perform the services and
4 shall employ as a minimum, generally accepted standards and practices employed by
5 other professional services, organizations, or persons engaged in providing similar services.
6 1.3 Compliance with Laws. The Contractor shall, at its own cost, comply with all
7 applicable federal, state, and local laws and regulations in the performance of its obligations under
8 this Agreement, including but not limited to workers compensation, labor, and confidentiality laws
9 and regulations.
10 1.4 Record Keeping and Reporting. The Contractor shall maintain books, records,
11 papers, or other documents relevant to the performance of its duties under this Agreement, and
12 upon written request from the County shall allow the County to inspect, audit, copy, or abstract,
13 any and all of such books, records, papers, or other documents. The Contractor may maintain the
14 required books, records, papers, or other documents in electronic form. The Contractor shall use
15 generally accepted accounting principles in the maintenance of such books and records and shall
16 retain all such books, records, and documents for a period of five (5) years from the date such
17 books and records are originally created.
18 1.5 Non-Collusion. The Contractor covenants and declares that it has not employed any
19 person to solicit or procure this Agreement, and that Contractor has not made and will not make
20 any payment of any compensation for the procurement of this Agreement. This covenant shall
21 survive the expiration or earlier termination of this Agreement.
22 1.6 Conflict of Interest. The Contractor covenants and declares that it has not and will
23 not acquire any interest, directly or indirectly in any property acquired by the County during the
24 term of this Agreement. The Contractor warrants and covenants that it presently has no interest
25 in, nor shall any interest be hereinafter acquired in any matter that will render the services required
26 under this Agreement a violation of any applicable Federal, State or local law. In the event that
27 any conflict of interest should hereinafter arise, the Contractor will promptly notify the County in
28 writing of the existence of such conflict of interest.
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1 1.7 Confidentiality. The Contractor agrees that such reports, information, opinions or
2 conclusions relevant to this Agreement and services provided hereunder shall not be made
3 available to or discussed with any individual or organization, including the news media, without
4 prior written approval of the County. The Contractor shall exercise reasonable precautions to
5 prevent the unauthorized disclosure and use of the County information whether deemed
6 confidential or not.
7 1.8 Equal Employment Opportunity. During the performance of this Agreement, the
8 Contractor agrees to not discriminate against any employee who is employed in the work covered
9 by this Agreement, or against any applicant for such employment, because of race, color, religion,
10 sex age, national origin, marital status, or physical or mental handicap unrelated in nature and
11 extent so as to reasonably preclude the performance of such work. This includes, but not be
12 limited to the following: employment, promotion, demotion, or transfer; recruitment or recruitment
13 advertising; layoff or termination; rates of pay or other forms of compensation; and selection for
14 training, including apprenticeship. The Contractor shall include a similar non-discrimination
15 provision in all subcontracts for services covered by this Agreement and will post and cause
16 subcontractors to post in conspicuous places available to employees and applicants for
17 employment, notices setting forth the substance of this clause.
18 Article 2
19 County's Responsibilities
20 2.1 The County shall pay the Contractor for actual services rendered according to the
21 Contractor's Cost Proposal (Exhibit B).
22 2.2 The County reserves the right to negotiate additional items to this Agreement as
23 deemed necessary. Such additions shall be made in writing and signed by both parties, and
24 approved by the County's Board of Supervisors.
25 Article 3
26 Compensation, Invoices, and Payments
27 3.1 The County agrees to pay, and the Contractor agrees to receive, compensation for the
28 performance of its services under this Agreement as described in Exhibit B to this Agreement,
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1 titled "Compensation"
2 3.2 Maximum Compensation. The maximum compensation payable to the Contractor
3 under this Agreement shall not exceed Seventy-Five Thousand dollars ($75,000)for each year of
4 the initial three-year term, for a total not to exceed Two-Hundred Twenty-Five Thousand dollars
5 ($225,000). The recommended Agreement is a three-year contract, with two potential one-year
6 renewals subject to written authorization based upon satisfactory performance and availability of
7 grant funds. If the two renewals are exercised, the compensation paid during each renewal term
8 shall not exceed $75,000, for a potential Agreement compensation amount not to exceed Three
9 Hundred Seventy-Five Thousand dollars ($375,000) over a five-year period. The Contractor
10 acknowledges that the County is a local government entity, and does so with notice that the
11 County's powers are limited by the California Constitution and by State law, and with notice that
12 the Contractor may receive compensation under this Agreement only for services performed
13 according to the terms of this Agreement and while this Agreement is in effect, and subject to the
14 maximum amount payable under this section. The Contractor further acknowledges that County
15 employees have no authority to pay the Contractor except as expressly provided in this
16 Agreement.
17 3.3 Additional compensation for an additional service shall be allowed as agreed upon
18 written authorization from the County.
19 3.4 Invoices. The Contractor shall submit monthly invoices to County of Fresno,
20 Community Development Division, Attention: Grant Administrator, 2220 Tulare Street, 6t" Floor,
21 Fresno, CA 93721. The Contractor shall submit each invoice in duplicate monthly after the month
22 in which the Contractor performs services and in any case within 60 days after the end of the term
23 or termination of this Agreement.
24 3.5 Payment.The County shall pay each correctly completed and timely submitted invoice
25 within 45 days after receipt. The County shall remit any payment to the Contractor's address
26 specified in the invoice.
27 3.6 Incidental Expenses. The Contractor is solely responsible for all of its costs and
28 expenses that are not specified as payable by the County under this Agreement.
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1 Article 4
2 Term of Agreement
3 4.1 Term. This Agreement is effective on November 1, 2022, and terminates on October
4 31, 2025 except as provided in section 4.2, "Extension," or Article 6, "Termination and
5 Suspension," below.
6 4.2 Extension. The term of this Agreement may be extended for no more than two, one-
7 year periods only upon written approval of both parties at least 30 days before the first day of the
8 next one-year extension period. The Director of Public Works and Planning or his or her designee
9 is authorized to sign the written approval on behalf of the County based on the Contractor's
10 satisfactory performance. The extension of this Agreement by the County is not a waiver or
11 compromise of any default or breach of this Agreement by the Contractor existing at the time of
12 the extension whether or not known to the County.
13 Article 5
14 Notices
15 5.1 Contact Information. The persons and their addresses having authority to give and
16 receive notices provided for or permitted under this Agreement include the following:
17 For the County:
Community Development Division
18 County of Fresno
Attn: Division Manager
19 2220 Tulare Street, 6` Floor
Fresno, CA 93721
20
For the Contractor:
21 Amber Loverink, Marketing & Contracts Manager
AmeriNat Loan Services, Inc.
22 217 South Newton Avenue
Albert Lea, MN 56007
23 5.2 Change of Contact Information. Either party may change the information in section
24 5.1 by giving notice as provided in section 5.3.
25 5.3 Method of Delivery. Each notice between the County and the Contractor provided for
26 or permitted under this Agreement must be in writing, state that it is a notice provided under this
27 Agreement, and be delivered either by personal service, by first-class United States mail, or by
28 an overnight commercial courier service.
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1 (A) A notice delivered by personal service is effective upon service to the recipient.
2 (B) A notice delivered by first-class United States mail is effective three County
3 business days after deposit in the United States mail, postage prepaid, addressed to the
4 recipient.
5 (C)A notice delivered by an overnight commercial courier service is effective one
6 County business day after deposit with the overnight commercial courier service, delivery
7 fees prepaid, with delivery instructions given for next day delivery, addressed to the
8 recipient.
9 5.4 Claims Presentation. For all claims arising from or related to this Agreement, nothing
10 in this Agreement establishes, waives, or modifies any claims presentation requirements or
11 procedures provided by law, including the Government Claims Act (Division 3.6 of Title 1 of the
12 Government Code, beginning with section 810).
13 Article 6
14 Termination and Suspension
15 6.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
16 contingent on the approval of funds by the appropriating government agency. If sufficient funds
17 are not allocated,then the County, upon at least 30 days'advance written notice to the Contractor,
18 may:
19 (A) Modify the services provided by the Contractor under this Agreement; or
20 (B) Terminate this Agreement.
21 6.2 Termination for Breach.
22 (A) Upon determining that a breach (as defined in paragraph (C) below) has occurred,
23 the County may give written notice of the breach to the Contractor. The written notice may
24 suspend performance under this Agreement, and must provide at least 30 days for the
25 Contractor to cure the breach.
26 (B) If the Contractor fails to cure the breach to the County's satisfaction within the time
27 stated in the written notice, the County may terminate this Agreement immediately.
28 (C) For purposes of this section, a breach occurs when, in the determination of the
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1 County, the Contractor has:
2 (1) Obtained or used funds illegally or improperly;
3 (2) Failed to comply with any part of this Agreement;
4 (3) Submitted a substantially incorrect or incomplete report to the County; or
5 (4) Improperly performed any of its obligations under this Agreement.
6 6.3 Termination without Cause. In circumstances other than those set forth above,
7 either party may terminate this Agreement by giving at least 60 days advance written notice to
8 the other party.
9 6.4 No Penalty or Further Obligation. Any termination of this Agreement by the County
10 under this Article 6 other than 6.3 is without penalty to or further obligation of the County.
11 6.5 County's Rights upon Termination. Upon termination for breach under this Article
12 6, the County may demand repayment by the Contractor of any monies disbursed to the
13 Contractor under this Agreement that, in the County's sole judgment, were not expended in
14 compliance with this Agreement. The Contractor shall promptly refund all such monies upon
15 demand. This section survives the termination of this Agreement.
16 Article 7
17 Independent Contractor
18 7.1 Status. In performing under this Agreement, the Contractor, including its officers,
19 agents, employees, and volunteers, is at all times acting and performing as an independent
20 contractor, in an independent capacity, and not as an officer, agent, servant, employee, joint
21 venturer, partner, or associate of the County.
22 7.2 Verifying Performance. The County has no right to control, supervise, or direct the
23 manner or method of the Contractor's performance under this Agreement, but the County may
24 verify that the Contractor is performing according to the terms of this Agreement.
25 7.3 Benefits. Because of its status as an independent contractor, the Contractor has no
26 right to employment rights or benefits available to County employees. The Contractor is solely
27 responsible for providing to its own employees all employee benefits required by law. The
28 Contractor shall save the County harmless from all matters relating to the payment of Contractor's
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1 employees, including compliance with Social Security withholding and all related regulations.
2 7.4 Services to Others. The parties acknowledge that, during the term of this Agreement,
3 the Contractor may provide services to others unrelated to the County.
4 Article 8
5 Indemnity and Defense
6 8.1 Indemnity. The Contractor shall indemnify and hold harmless and defend the County
7 (including its officers, agents, employees, and volunteers) against all claims, demands, injuries,
8 damages, costs, expenses (including attorney fees and costs), fines, penalties, and liabilities of
9 any kind to the County, the Contractor, or any third party that arise from or relate to the
10 performance or failure to perform by the Contractor (or any of its officers, agents, subcontractors,
11 or employees) under this Agreement. The County may conduct or participate in its own defense
12 without affecting the Contractor's obligation to indemnify and hold harmless or defend the County.
13 8.2 Survival. This Article 8 survives the termination or expiration of this Agreement.
14 Article 9
15 Insurance
16 The Contractor shall comply with all the insurance requirements in Exhibit C to this
17 Agreement.
18 Article 10
19 Inspections, Audits, and Public Records
20 10.1 Inspection of Documents. The Contractor shall make available to the County, and
21 the County may examine at any time during business hours and as often as the County deems
22 necessary, all of the Contractor's records and data with respect to the matters covered by this
23 Agreement, excluding attorney-client privileged communications. The Contractor shall, upon
24 request by the County, permit the County to audit and inspect all of such records and data to
25 ensure the Contractor's compliance with the terms of this Agreement.
26 10.2 State Audit Requirements. If the compensation to be paid by the County under this
27 Agreement exceeds $10,000, the Contractor is subject to the examination and audit of the
28 California State Auditor, as provided in Government Code section 8546.7, for a period of three
8
1 years after final payment under this Agreement. This section survives the termination of this
2 Agreement.
3 10.3 Public Records. The County is not limited in any manner with respect to its public
4 disclosure of this Agreement or any record or data that the Contractor may provide to the County.
5 The County's public disclosure of this Agreement or any record or data that the Contractor may
6 provide to the County may include but is not limited to the following:
7 (A) The County may voluntarily, or upon request by any member of the public or
8 governmental agency, disclose this Agreement to the public or such governmental agency
9 (B) The County may voluntarily, or upon request by any member of the public or
10 governmental agency, disclose to the public or such governmental agency any record or
11 data that the Contractor may provide to the County, unless such disclosure is prohibited
12 by court order.
13 (C)This Agreement, and any record or data that the Contractor may provide to the
14 County, is subject to public disclosure under the Ralph M. Brown Act (California
15 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
16 (D)This Agreement, and any record or data that the Contractor may provide to the
17 County, is subject to public disclosure as a public record under the California Public
18 Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning with
19 section 6250) ("CPRA").
20 (E) This Agreement, and any record or data that the Contractor may provide to the
21 County, is subject to public disclosure as information concerning the conduct of the
22 people's business of the State of California under California Constitution, Article 1, section
23 3, subdivision (b).
24 (F) Any marking of confidentiality or restricted access upon or otherwise made with
25 respect to any record or data that the Contractor may provide to the County shall be
26 disregarded and have no effect on the County's right or duty to disclose to the public or
27 governmental agency any such record or data.
28 10.4 Public Records Act Requests. If the County receives a written or oral request under
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1 the CPRA to publicly disclose any record that is in the Contractor's possession or control, and
2 which the County has a right, under any provision of this Agreement or applicable law, to possess
3 or control, then the County may demand, in writing, that the Contractor deliver to the County, for
4 purposes of public disclosure, the requested records that may be in the possession or control of
5 the Contractor. Within five business days after the County's demand, the Contractor shall (a)
6 deliver to the County all of the requested records that are in the Contractor's possession or control,
7 together with a written statement that the Contractor, after conducting a diligent search, has
8 produced all requested records that are in the Contractor's possession or control, or (b) provide
9 to the County a written statement that the Contractor, after conducting a diligent search, does not
10 possess or control any of the requested records. The Contractor shall cooperate with the County
11 with respect to any County demand for such records. If the Contractor wishes to assert that any
12 specific record or data is exempt from disclosure under the CPRA or other applicable law, it must
13 deliver the record or data to the County and assert the exemption by citation to specific legal
14 authority within the written statement that it provides to the County under this section. The
15 Contractor's assertion of any exemption from disclosure is not binding on the County, but the
16 County will give at least 10 days' advance written notice to the Contractor before disclosing any
17 record subject to the Contractor's assertion of exemption from disclosure. The Contractor shall
18 indemnify the County for any court-ordered award of costs or attorney's fees under the CPRA that
19 results from the Contractor's delay, claim of exemption, failure to produce any such records, or
20 failure to cooperate with the County with respect to any County demand for any such records.
21 Article 11
22 Disclosure of Self-Dealing Transactions
23 11.1 Applicability. This Article 11 applies if the Contractor is operating as a corporation, or
24 changes its status to operate as a corporation.
25 11.2 Duty to Disclose. If any member of the Contractor's board of directors is party to a
26 self-dealing transaction, he or she shall disclose the transaction by completing and signing a"Self-
27 Dealing Transaction Disclosure Form" (Exhibit D to this Agreement) and submitting it to the
28 County before commencing the transaction or immediately after.
10
1 11.3 Definition. "Self-dealing transaction" means a transaction to which the Contractor is
2 a party and in which one or more of its directors, as an individual, has a material financial interest.
3 Article 12
4 General Terms
5 12.1 Modification. Except as provided in Article 6, "Termination and Suspension," this
6 Agreement may not be modified, and no waiver is effective, except by written agreement signed
7 by both parties. The Contractor acknowledges that County employees have no authority to modify
8 this Agreement except as expressly provided in this Agreement.
9 12.2 Non-Assignment. Neither party may assign its rights or delegate its obligations under
10 this Agreement without the prior written consent of the other party, which such consent shall not
11 be unreasonably withheld.
12 12.3 Governing Law. The laws of the State of California govern all matters arising from or
13 related to this Agreement.
14 12.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno County,
15 California. Contractor consents to California jurisdiction for actions arising from or related to this
16 Agreement, and, subject to the Government Claims Act, all such actions must be brought and
17 maintained in Fresno County.
18 12.5 Construction. The final form of this Agreement is the result of the parties' combined
19 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be ambiguous,
20 that ambiguity shall not be resolved by construing the terms of this Agreement against either party.
21 12.6 Days. Unless otherwise specified, "days" means calendar days.
22 12.7 Headings. The headings and section titles in this Agreement are for convenience only
23 and are not part of this Agreement.
24 12.8 Severability. If anything in this Agreement is found by a court of competent jurisdiction
25 to be unlawful or otherwise unenforceable, the balance of this Agreement remains in effect, and
26 the parties shall make best efforts to replace the unlawful or unenforceable part of this Agreement
27 with lawful and enforceable terms intended to accomplish the parties' original intent.
28 12.9 Nondiscrimination. During the performance of this Agreement, the Contractor shall
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1 not unlawfully discriminate against any employee or applicant for employment, or recipient of
2 services, because of race, religious creed, color, national origin, ancestry, physical disability,
3 mental disability, medical condition, genetic information, marital status, sex, gender, gender
4 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
5 all applicable State of California and federal statutes and regulation.
6 12.10 No Waiver. Payment, waiver, or discharge by the County of any liability or obligation
7 of the Contractor under this Agreement on any one or more occasions is not a waiver of
8 performance of any continuing or other obligation of the Contractor and does not prohibit
9 enforcement by the County of any obligation on any other occasion.
10 12.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
11 between the Contractor and the County with respect to the subject matter of this Agreement, and
12 it supersedes all previous negotiations, proposals, commitments, writings, advertisements,
13 publications, and understandings of any nature unless those things are expressly included in this
14 Agreement. If there is any inconsistency between the terms of this Agreement without its exhibits
15 and the terms of the exhibits, then the inconsistency will be resolved by giving precedence first to
16 the terms of this Agreement without its exhibits, and then to the terms of the exhibits.
17 12.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to create
18 any rights or obligations for any person or entity except for the parties.
19 12.13 Authorized Signature. The Contractor represents and warrants to the County that:
20 (A) The Contractor is duly authorized and empowered to sign and perform its
21 obligations under this Agreement.
22 (B) The individual signing this Agreement on behalf of the Contractor is duly authorized
23 to do so and his or her signature on this Agreement legally binds the Contractor to the
24 terms of this Agreement.
25 12.14 Electronic Signatures. The parties agree that this Agreement may be executed by
26 electronic signature as provided in this section.
27 (A) An "electronic signature" means any symbol or process intended by an individual
28 signing this Agreement to represent their signature, including but not limited to (1) a digital
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1 signature; (2) a faxed version of an original handwritten signature; or (3) an electronically
2 scanned and transmitted (for example by PDF document) version of an original
3 handwritten signature.
4 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
5 equivalent to a valid original handwritten signature of the person signing this Agreement
6 for all purposes, including but not limited to evidentiary proof in any administrative or
7 judicial proceeding, and (2) has the same force and effect as the valid original handwritten
8 signature of that person.
9 (C)The provisions of this section satisfy the requirements of Civil Code section 1633.5,
10 subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3, Part 2,
11 Title 2.5, beginning with section 1633.1).
12 (D) Each party using a digital signature represents that it has undertaken and satisfied
13 the requirements of Government Code section 16.5, subdivision (a), paragraphs (1)
14 through (5), and agrees that each other party may rely upon that representation.
15 Article 13
16 (A) This Agreement is not conditioned upon the parties conducting the transactions
17 under it by electronic means and either party may sign this Agreement with an original
18 handwritten signature.
19 13.2 Counterparts. This Agreement may be signed in counterparts, each of which is an
20 original, and all of which together constitute this Agreement.
21 13.3 Ownership of Work. All reports, designs, drawings, plans, specifications, schedules,
22 work product and other materials prepared or in the process of being prepared for the services to
23 be performed by Contractor shall be considered property of the County and the County shall be
24 entitled to fun access and copies of all such materials.
25 13.4 Force Majeure. Any delays in or failure of performance by either party, except in
26 respect of the obligation of payments under this Agreement, shall not constitute default of this
27 Agreement, if and to the extent such delays or failures are caused by occurrence(s) beyond the
28 reasonable control of the party affected, and which by the exercise of due diligence such party is
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1 unable to prevent such occurrence(s) including but not limited to: acts of God, sabotage, war, acts
2 of terrorism, riots, insurrections, civil unrest, embargos, strikes, lockouts, fires, floods, tornados,
3 hurricanes or other natural disaster or governmental actions. In any such event, the party claiming
4 Force Majeure shall promptly notify the other party of the nature of the event in writing, and, if
5 reasonably possible, such notice shall set forth the extent and duration thereof, and shall resume
6 performance at the earliest possible date.
7 13.5 Licensing. The Contractor operates under the regulation and jurisdiction of various
8 licensing authorities, including the State of California, the requirements of which vary from time to
9 time. If the Contractor's authority to service loans in California is modified and/or revoked due to
10 changes in circumstances or regulation, the Contractor shall provide prompt notice of its
11 requirement to terminate services and will terminate services before the latest available date as
12 allowed by regulatory authority. Termination under this provision will not be deemed to be a default
13 by Contractor, and no liability will exist to reimburse the County for any losses incurred as a result
14 of the termination. If services are terminated under this provision the County will not be liable to
15 the Contractor for any transfer fees specified in Exhibit B of this Agreement
16 13.6 Penalties and Assessments Related to 1098 Reporting. If the services to be
17 provided under this Agreement include the acceptance of loan payments, the Contractor will
18 submit the required 1098 tax forms to the Internal Revenue Service for any and all borrowers
19 making interest payments. If the loan data provided by the County does not include a social
20 security number for a borrower(s), the Contractor will exercise all reasonable means to obtain
21 such social security number(s). the Contractor will also notify the County, at a minimum of one
22 time annually, of any social security numbers which remain missing. If the lack of any available
23 social security number(s) results in a penalty or fine assessed by the Internal Revenue Service,
24 the County upon notification of the amount of the penalty or fine shall immediately reimburse the
25 Contractor for any such penalty or fine paid or to be paid.
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28 [SIGNATURE PAGE FOLLOWS]
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
AMERINATIONAL COMMUNITY SERVICES, LLC COUNTY OF FRESNO
3
Oj-
5 Adrienne Thorson, CEO Brian Pacheco, Chairman of the Board of
Supervisors of the County of Fresno
6 217 South Newton Avenue
Albert Lea, MN 56007 Attest:
7 Bernice E. Seidel
Clerk of the Board of Supervisors
8 County of Fresno, State of California
9
By: `24Zt'l �
10 Deputy
11 For accounting use only:
12 Org No.: 5512 & 7205
Account No.: 7295
13 Fund No.: 0001
Subclass No.: 10000
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Exhibit A
1 Scope of Services
2 Loan Servicing for Amortized and Deferred Loans
3 1. Introductory Package: Upon boarding of a new loan, AmeriNat will send a welcome
4 package to the borrower. This welcome package contains a Notice of Servicing Transfer, Fair
5 Debt Notice, FACT Act Letter, and a variety of options to submit payments.
6 2. Collection and Remittance of Payments: AmeriNat will collect payments from the
7 borrowers through monthly or other scheduled remittances of principal, interest, fees, escrow
8 balances and other identified payments. Payments can be made via check to a secure lock-box,
9 multiple payment options online, reoccurring ACH, and through "check-by-phone", and via the
10 AmeriNat app. These remittances will be posted to the loan and ancillary records in accordance
11 with the loan documents and the County's written instructions. Payments will be posted the same
12 day as receipt. Funds will be maintained in an FDIC insured banking institution in a custodial
13 account for the benefit of the County and the borrowers as applicable. AmeriNat balances cash
14 received and transmitted and loan portfolio totals on a daily and monthly basis. Remittances will
15 be forwarded to the County monthly net of fees and other authorized charges due to AmeriNat.
16 3. Payment of Property Taxes: At the County's request, AmeriNat will order a tax service
17 contract and monitor the timely payment of property taxes.
18 4. Insurance Monitoring: AmeriNat will notify the insurance agent in writing that AmeriNat
19 is monitoring premium payments and is to be made aware of delinquencies, non-renewals or
20 cancellations. AmeriNat will force place insurance in accordance with respective regulation (see
21 Insurance section).
22 5. Escrow/Impound Account: If the County chooses, AmeriNat will establish a borrower
23 escrow/impound account for the payment of taxes and insurance. AmeriNat will collect the
24 monthly escrow payment from the borrower and make the tax and insurance payments on the
25 borrower's behalf. The borrower escrow accounts will be analyzed annually in accordance with
26 the Real Estate Settlement Procedures Act (RESPA).
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A-1
Exhibit A
1 Please note: For single-family loans, unless respective state law requires otherwise,
2 AmeriNat's escrow analysis utilizes a 2-month cushion in accordance with RESPA. This cushion
3 is an industry standard and is intended to minimize the likelihood of escrow shortages / deficits
4 when and if escrow disbursement items increase. If this cushion is not consistent with the County's
5 current escrow analysis process, borrowers' escrow analysis may result in a shortage and/or
6 escrow payment increase at the time of AmeriNat's first analysis. This may impact borrowers'
7 ability to make increased monthly payments to escrow. Should the County request alternative
8 handling of loan accounts with escrow payment increases, this may result in the County incurring
9 extraordinary services charges.
10 If the County chooses to establish an escrow/impound account, AmeriNat will also
11 establish a County Escrow Deficit account. This account is used to track and reconcile advances
12 made by AmeriNat on borrower accounts with escrow deficits as a result of payments made on
13 the borrower's behalf in excess of their escrow balance. The escrow deficit account will be
14 reconciled monthly, compared to advances made by AmeriNat and escrow payments collected
15 from the borrowers. The net change will be included or deducted from the County's monthly
16 remittance; a net shortage/negative will be deducted and a net overage/positive will be remitted.
17 Advances made by AmeriNat that are not reimbursed by the County the following month will be
18 subject to an interest charge of 1% per month compounded until such time said reimbursement
19 occurs. Regardless of whether or not the net shortage/negative is deducted from remittance at
20 the end of the month, the County remains responsible for escrow advances made by AmeriNat.
21 At portfolio transfer AmeriNat will require a cash deposit equal to the total amount of
22 positive escrow balances. Negative escrow balances will be set up, but the total amount of
23 negative escrow balances will not be netted out of the positive cash escrow balances. Should
24 recurring advances become necessary, AmeriNat reserves the right to request the County to
25 deposit an amount into reserve in the County Escrow Deficit account to cover the anticipated
26 necessary advances.
27
28
A-2
Exhibit A
1 6. Late Fees: In keeping with the provisions of the County's promissory note, AmeriNat
2 will assess and retain a late fee when payment is not made within the grace period.
3 Account Inquiries
4 Borrowers and the County have 24-hour electronic access to their loan information via
5 AmeriNat's website at www.amerinatls.com. Continuous access to loan account information is
6 also provided during normal working hours through toll free customer service telephone lines. In
7 addition, hard copy account payment histories or other information can be provided through
8 facsimile transmission or email. When requested by a borrower, AmeriNat will provide, without
9 charge, a detailed statement of transactions relating to the borrower's payments and/or escrow
10 account.
11 Non-sufficient Funds (NSF) Checks
12 In the event that a check is returned unpaid due to non-sufficient funds, a returned check
13 fee will be assessed. A letter will be sent to the borrower requesting immediate payment plus the
14 returned check fee. If this fee is not received, a memo will be placed on the individual's account
15 and the fee will be collected at the time the loan is paid off.
16 Additional Portfolio Management Services
17 1. Loan Payoff Quotations, Satisfactions, Reconveyances: AmeriNat will provide Loan
18 Payoff Quotations and will perform Satisfactions and Reconveyances of Mortgage at the
19 borrower's expense at the County's request.
20 2. Loan Amortization Schedules: AmeriNat will provide Loan Amortization Schedules
21 upon request.
22 3. Tax Forms: Pursuant to IRS regulations and, on behalf of the County, AmeriNat will
23 submit required tax forms for borrowers paying interest on County loans.
24 4. Year-End Account Summary: If required by regulation, AmeriNat will supply a year-
25 end account summary statement to a borrower if there has been principal, interest or escrow
26 activity on their account. The report will indicate principal, and interest paid, amount of payments
27 AmeriNat made on the borrower's behalf for taxes and insurance, and remaining escrow balance.
28 5. Tickler Notifications: AmeriNat will provide for an annual tickler notification at the
A-3
Exhibit A
1 County's request.
2 6. Loan Confirmation Audits: AmeriNat will complete loan confirmation audits when
3 requested by the County, Borrower, or auditors of either. Information requested generally
4 includes unpaid principal balance, interest rate, date to which interest has been paid, terms of
5 payment of principal, current escrow deposit amounts, and escrow amounts paid during a
6 specified period.
7 Loan Transfer
8 In the event the County requires AmeriNat to transition loans back to the County or to
9 another servicer, AmeriNat will gather and package loan files (hard-copy and/or electronic copy)
10 for shipment. AmeriNat has an in-house IT department that is dedicated to the maintenance and
11 enhancement of its proprietary loan servicing system. AmeriNat's IT department will work with
12 the County's staff to electronically transmit servicing data in an agreed upon format.
13 Loan Reconstruction
14 AmeriNat will prepare a loan reconstruction to determine posting accuracy and compliance
15 with promissory notes, truth in lending statements, and other applicable related loan documents.
16 This involves a detailed review of loan terms and reconstructing the posting of payments in
17 accordance with the terms.
18 Loss Mitigation
19 AmeriNat provides treatment for delinquent mortgages through positive pressure that is
20 fair but firm, with escalation of activities matching the advancement of the delinquency stage.
21 A. Collections:
22 1. First Payment Default: Early delinquency can be a sign of a chronic delinquent
23 borrower. AmeriNat forwards its first letter to new delinquent borrowers at 5 days past the first
24 payment due date. If there is no response, a second letter is sent at 15 days. Borrowers are
25 reminded to contact AmeriNat to discuss difficulties they may be facing in meeting their obligations
26 If no response is received to either letter, due diligence phone calls begin, generally not later than
27 17 days delinquent.
28 2. Delinquency/Default Letter Production: Letters of varying tone and composition
A-4
Exhibit A
1 will be sent at 15, 30 and 45 and 90 days past the payment due date. For single-family loans, the
2 45-day letter will include the Consumer Financial Protection Bureau (CFPB) mandated notification
3 informing the borrower of the available loss mitigation options. The 90-day letter will detail for the
4 borrower possible escalated collection activity up to and including foreclosure. The letters
5 emphasize the seriousness of the situation, the potential for loss of the borrower's property, and
6 demand immediate payment.
7 3. Due Diligence Phone Calls: Telephone calls will be placed on a regular basis
8 as loan remains under active delinquent follow up. Calls to single family mortgage borrowers are
9 made in accordance with CFPB guidance and best practices. Live contact is attempted with the
10 borrower beginning at the 17th day of delinquency, under a good faith goal of establishing contact
11 with the borrower by the 36th day of delinquency. One or more subsequent attempts to contact
12 the borrower will generally be made every 30 days thereafter. The objective of the call is to secure
13 or demand prompt payment, obtain information needed to determine the reason for the
14 delinquency, and to gain a commitment for future payments.
15 4. Credit Reporting: AmeriNat will report borrower payment activity and status
16 codes to the credit bureaus for non-commercial loans.
17 5. Confirmation Letters: Contact with borrowers is used to solicit commitments to
18 repay past due amounts. A borrower will be provided with the opportunity to bring the loan current
19 immediately, and within six months. Once a commitment is gained, AmeriNat will forward a
20 confirmation letter to document both the call and the commitment. The revised payment plan of
21 no greater than six month's duration is then implemented. Default under this plan may cause
22 AmeriNat to recommend foreclosure.
23 Subordination Processing
24 1. Subordination Request Package: Upon a borrower's request for a subordination,
25 AmeriNat will notify the borrower to contact the County.
26
27
28
A-5
Exhibit A
1 Reports
2 AmeriNat's standard reports are designed to meet the County's objectives and funding
3 source requirements. Data reporting is flexible and can be reported in several ways, including
4 program type, funding source and funding year. Reports are available to the County online
5 through AmeriNat's internet LoanLink service. Through LoanLink, the County has unlimited
6 access to account and portfolio data and can view the information as well as generate reports
7 that can be downloaded into Excel.
8 1. Portfolio Status Report: The report provides a comprehensive accounting per loan of
9 the total portfolio on a monthly basis. The report identifies annual payments made, remaining
10 balances, borrower's name and account number, original loan balance, interest rate, and loan
11 term. For those deferred loans accruing interest, the report shows the ongoing accrued interest
12 balance.
13 2. Current Month Reconciliation Report: This monthly report serves as reconciliation for
14 the loan payments remitted by borrowers.
15 3. Delinquent Aging Report: This report reflects delinquent accounts at the 30, 60, 90,
16 and over 90-day levels as of the end of the month. Borrower accounts moved into the forbearance
17 or foreclosure process are designated.
18 4. Loan Amortization Schedule: The Loan Amortization Schedule delineates the breakout
19 of principal and interest paid during the term of the loan. This schedule is useful in determining
20 how much principal is still owed and how much interest has been paid, at a particular period of
21 time. This report can also be used in determining balloon amounts due per the terms of the note.
22 Frequency: Upon request.
23 5. Account Status Information Report: Provides a borrower profile, loan term and current
24 balance and status information for individual borrower accounts within a County's portfolio. This
25 report includes a vast amount of information on particular accounts within the County's portfolio.
26 6. Current Year Payment History: Details transactions on individual accounts for the
27 current year's activity.
28
A-6
Exhibit A
1 7. Payment History with Memos: AmeriNat uses a series of memo codes to help classify
2 various borrower requests or processing activity. Activities subject to memo code classification
3 include, for example, insurance request letters, payoff requests, and other miscellaneous
4 borrower questions. This report summarizes the loan history with identification of these types of
5 activities along with associated comments by AmeriNat personnel.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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A-7
Exhibit B
1 Compensation
2 Loan Portfolio Management
3 Loan Set-up fee: $55.00 per loan
4 Monthly Service Fee for Amortized Loans: $12.00 per loan per month
5 Additional monthly fee for loans over 45 days delinquent: $25.00 per loan per month
6 Monthly Service Fee for Deferred Loans:
7 i. Warehouse: $3.00 per loan per month
8 ii. Warehouse and monitor of taxes and/or insurance: $7.00 per loan per month
9 plus a one-time (per loan) Tax Service Fee, as further described below.
10 iii. Warehouse and escrow of taxes and/or insurance: $12.00 per loan per month
11 plus a one-time (per loan) Tax Service Fee, as further described below.
12 iv. Flat fee for receiving occasional payments on deferred loans: $12.00 per
13 payment.
14 Minimum Monthly Billing $750.00
15 If the cumulative amount of fees to be charged within one calendar month is less than the
16 minimum monthly billing amount above, said amount will be charged.
17 The set up and monthly service fees above will be subject to a 3% increase annually
18 beginning on July 1, 2023 and recurring annually thereafter on each July 1.
19 Tax Service Fee
20 If it is determined that Tax Service is needed, then a one-time fee of $72.50 per loan for
21 loan amounts up to $500,000 will be passed through to the County. For loan amounts over
22 $500,000, there is an additional charge of$10 per$100,000. Future charges may vary based on
23 outside vendor pricing.
24 Please note: Additional or supplemental charges that may be imposed by the respective
25 taxing authority for procurement of duplicate tax bills will be directly passed through to the County.
26 Per-Event Fees
27 Tickler Notifications: A $15.00 per notification may be charged
28 Loan Transfer Fee: $75.00 per loan one-time fee if transferred from AmeriNat
B-1
Exhibit B
1 Note: Pass-through (reimbursable) expenses not reimbursed monthly, will be
2 considered servicer advances and will be subject to an interest charge at a rate of 1%per month
3 compounded. A finance charge of 1%per month compounded will be applied to invoices
4 outstanding and unpaid for more than 60 days.
5 Extraordinary Account Research and/or Loan Reconstruction
6 AmeriNat will conduct ongoing routine maintenance and general customer
7 service activities on borrower information and balances as part of its servicing duties at no
8 additional cost. Should the County request additional research to be conducted, or if the County
9 engages AmeriNat to conduct a Loan Reconstruction Service on its portfolio, an extraordinary
10 research fee of$225.00 per hour will be charged, with a minimum of one hour per occurrence.
11 Such fee will be approved in writing by the County before the research is conducted.
12 When research is conducted at the request of the County because of a
13 discrepancy between the County's records and AmeriNat's records relating to the principal
14 balance or other loan information, and the result of the research determines that the
15 discrepancy was the result of activity being posted at the County and not forwarded to
16 AmeriNat for updating of its records, the extraordinary research fee will be charged for the time
17 spent on the research. If the result of the research determines that the discrepancy is due
18 to the error of AmeriNat, the error will be corrected, and no extraordinary research fee will
19 be charged to County.
20
21
22
23
24
25
26
27
28
B-2
Exhibit C
Insurance Requirements
1. Required Policies
Without limiting the County's right to obtain indemnification from the Contractor or any third
parties, Contractor, at its sole expense, shall maintain in full force and effect the following
insurance policies throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of
Two Million Dollars ($2,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Contractor shall obtain an endorsement to
this policy naming the County of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the County
is excess only and not contributing with insurance provided under the Contractor's policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for property damages.
Coverage must include any auto used in connection with this Agreement.
(C) Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Employer's Liability. Employer's liability insurance with limits of not less than One
Million Dollars ($1,000,000) per occurrence for bodily injury and for disease.
(E) Technology Professional Liability (Errors and Omissions). Technology professional
liability (errors and omissions) insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence and in the aggregate. Coverage must encompass all of the
Contractor's obligations under this Agreement, including but not limited to claims
involving Cyber Risks.
(F) Cyber Liability. Cyber liability insurance with limits of not less than Two Million Dollars
($2,000,000) per occurrence. Coverage must include claims involving Cyber Risks. The
cyber liability policy must be endorsed to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited to
information or data) that is in the care, custody, or control of the Contractor.
Definition of Cyber Risks. "Cyber Risks" include but are not limited to (i) Security
Breach, which may include Disclosure of Personal Information to an Unauthorized Third
Party; (ii) data breach; (iii) breach of any of the Contractor's obligations under [identify
the Article, section, or exhibit containing data security obligations] of this Agreement; (iv)
system failure; (v) data recovery; (vi)failure to timely disclose data breach or Security
Breach; (vii) failure to comply with privacy policy; (viii) payment card liabilities and costs;
(ix) infringement of intellectual property, including but not limited to infringement of
copyright, trademark, and trade dress; (x) invasion of privacy, including release of private
information; (xi) information theft; (xii) damage to or destruction or alteration of
C-1
Exhibit C
electronic information; (xiii) cyber extortion; (xiv) extortion related to the Contractor's
obligations under this Agreement regarding electronic information, including Personal
Information; (xv) fraudulent instruction; (xvi) funds transfer fraud; (xvii) telephone fraud;
(xviii) network security; (xix) data breach response costs, including Security Breach
response costs; (xx) regulatory fines and penalties related to the Contractor's obligations
under this Agreement regarding electronic information, including Personal Information;
and (xxi) credit monitoring expenses.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Contractor signs this Agreement,
and at any time during the term of this Agreement as requested by the County's Risk
Manager or the County Administrative Office, the Contractor shall deliver, or cause its
broker or producer to deliver, to the County Risk Manager, at 2220 Tulare Street, 16th
Floor, Fresno, California 93721, or HRRiskManagement@fresnocountyca.gov, and by
mail or email to the person identified to receive notices under this Agreement,
certificates of insurance and endorsements for all of the coverages required under this
Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2) the County, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3) the
Contractor has waived its right to recover from the County, its officers, agents,
employees, and volunteers any amounts paid under any insurance policy
required by this Agreement and that waiver does not invalidate the insurance
policy.
(ii) The commercial general liability insurance certificate must also state, and include
an endorsement, that the County of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the County
shall be excess only and not contributing with insurance provided under the
Contractor's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
(iv) The technology professional liability insurance certificate must also state that
coverage encompasses all of the Contractor's obligations under this Agreement,
including but not limited to claims involving Cyber Risks, as that term is defined in
this Agreement.
(v) The cyber liability insurance certificate must also state that it is endorsed, and
include an endorsement, to cover the full replacement value of damage to,
alteration of, loss of, or destruction of intangible property (including but not limited
to information or data)that is in the care, custody, or control of the Contractor.
C-2
Exhibit C
(B) Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(C) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Contractor shall provide to the County, or ensure that the policy requires
the insurer to provide to the County, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Contractor shall, or shall cause the insurer to, provide written notice to the
County not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Contractor shall, or shall
cause the insurer to, provide written notice to the County not less than 30 days in
advance of cancellation or change. The County in its sole discretion may determine that
the failure of the Contractor or its insurer to timely provide a written notice required by
this paragraph is a breach of this Agreement.
(D) County's Entitlement to Greater Coverage. If the Contractor has or obtains insurance
with broader coverage, higher limits, or both, than what is required under this
Agreement, then the County requires and is entitled to the broader coverage, higher
limits, or both. To that end, the Contractor shall deliver, or cause its broker or producer
to deliver, to the County's Risk Manager certificates of insurance and endorsements for
all of the coverages that have such broader coverage, higher limits, or both, as required
under this Agreement.
(E) Waiver of Subrogation. The Contractor waives any right to recover from the County, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Contractor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Contractor's waiver of subrogation under this paragraph is effective
whether or not the Contractor obtains such an endorsement.
(F) County's Remedy for Contractor's Failure to Maintain. If the Contractor fails to keep
in effect at all times any insurance coverage required under this Agreement, the County
may, in addition to any other remedies it may have, suspend or terminate this
Agreement upon the occurrence of that failure, or purchase such insurance coverage,
and charge the cost of that coverage to the Contractor. The County may offset such
charges against any amounts owed by the County to the Contractor under this
Agreement.
(G)Subcontractors. The Contractor shall require and verify that all subcontractors used by
the Contractor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Contractor to provide services under this Agreement using subcontractors.
C-3
Exhibit D
Self-Dealing Transaction Disclosure Form
In order to conduct business with the County of Fresno ("County"), members of a
contractor's board of directors ("County Contractor"), must disclose any self-dealing transactions
that they are a party to while providing goods, performing services, or both for the County. A
self-dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest."
The definition above will be used for purposes of completing this disclosure form.
Instructions
(1) Enter board member's name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
D-1
Exhibit D
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
D-2