THIRD AMENDMENT TO LICENSE AND GRANT AGREEMENT
(Tanklage Property-RV Safe Parking Pilot Program)
This Third Amendment to License and Grant Agreement (this "Third Amendment") is _ 2022 (the "Amendment Date"), between the City of East entored into an unicipal corporation (the "City" or the "Oner"), and WeHope, a California nonprofit public benefit corporation doing business as "Project We Hope" ("Grantee"). Grantee and the City are sometimes referred to herein, individually, as a "Party" and, collectively, as the "Parties".
RECITALS
The City is the owner of that certain real property commonly known as 1798 Bay Road, East Palo Alto, California (the "Site"). The Site is subject to a use restriction that requires the Site to be utilized for a public purpose.
B. Prior to the Amendment Date, the Parties entered into that certain "License and Grant Agreement" dated as of July 18, 2018 as amended by the First Amendment to License and Grant Agreement dated April 30, 2020 and as further amended by the Second Amendment to icense and Grant Agreement dated April 20, 2021 (the "Agreement") regarding the Sit 'apitalized terms used, but not defined, in this Third Amendment shall have the meaning se forth in the Agreement. Pursuant to the Agreement, among other things, the City granted the Grantee a license to use the Site for the Permitted Use.
C. The Parties desire to enter into this Third Amendment to: (i) extend the Term of the Agreement for one (1) additional year.
NOW, THEREFORE, in consideration of the foregoing recitals and of the covenants and conditions set forth herein and in the Agreement, and for other valuable consideration the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:
Extension of Term. Notwithstanding any provision of the Agreement to the contrary, the Term of the Agreement is hereby extended until April 30, 2023; provided, however, nothing in this Section shall be deemed to waive, limit, or otherwise impair the City's right to terminate the Agreement in accordance with Section 4.4 of the Agreement.
Section 2. Limitation on Permitted Use. Section 2.2 of the Agreement is hereby amended to reads as follows:
The Grantee acknowledges that in utilizing the Site for the Permitted Use, the Grantee shall only allow RVs to be parked on the Site during hours approved by the City Manager. The Grantee shall not allow more individuals or households utilizing an RV on the Site (each such individual or household, a "RV Parker") to utilize the Site than the Total Parking Stalls (defined below). 1 55110113263159.1
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Section 3. Parking Agreement and Rules and Regulations. Grantee may propose changes to the Parking Agreement including the rules attached to the Parking Agreement for the City Manager's approval from time to time. Grantee shall not implement any changes to the Parking Agreement or the Rules prior to obtaining the City Manager's approval.
Section 4. Representations and Warranties. Grantee represents and warrants to the City as of the Third Amendment Date that:
(a) No Default. No Event of Default has occurred and is continuing or results from the execution and delivery of this Third Amendment or the consummation of any transactions contemplated hereby;
Approvals. Grantee has received such consents and approvals as may be required prior to execution of this Third Amendment; and (c) Valid and Binding Agreement. This Third Amendment and the Agreement are legal, valid and binding agreements of Grantee and are enforceable against the Grantee in accordance with their terms.
Section S. Ratification. In the event of any conflict between the terms of this Third Amendment, and the terms of the Agreement, the terms of this Third Amendment shall control.
Except as hereby amended or waived, the Agreement and each provision thereof is hereby ratified and confirmed in every respect and shall continue in full force and effect, and this Third Amendment shall not be, and shall not be deemed to be, a waiver of any covenant, term or provision of the Agreement. Grantee acknowledges that the Temporary Occupants, if any, are bound by the release set forth in Section 4.18 of the Agreement.
Section 6. Governing Law. This Third Amendment shall be deemed to constitute a contract made under and governed by the laws of the State of California.
Section 7. Successors and Assigns. This Third Amendment shall be binding upon each of the Parties, and their respective successors and assigns, and shall inure to the benefit of each of the Parties; provided, however, nothing in this Section shall be deemed to modify, waive, or limit the Grantee's obligations under Section 4.10 of the Agreement.
Section 8. Headings. Section headings in this Third Amendment are included herein for convenience of reference only and shall not constitute a part of this Third Amendment for any other purpose.
Section 9. Integration. This Third Amendment, in conjunction with the Agreement, contains the entire understanding of the Parties with regard to the subject matter contained herein. This Third Amendment supersedes all prior or contemporaneous negotiations, promises, covenants, agreements and representations of every nature whatsoever with respect to the matters referred to in this Third Amendment, all of which have become merged and finally integrated into this Third Amendment. The Parties have read and reviewed this Third Amendment and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply to the interpretation of this Third Amendment (including Civil Code section 1654 as the same may be amended from time to time). Each of the Parties 2 551\0113263159.1
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understands that in the event of any subsequent litigation, controversy or dispute concerning any of the terms, conditions or provisions of this Third Amendment, no Party shall be entitled to offer or introduce into evidence any oral promises or oral agreements between the Parties relating to the subject matter of this Third Amendment not included or referred to herein and not reflected by a writing included or referred to herein.
Section 10. No Course of Dealing. The City has entered into this Third Amendment on the express understanding with Grantee that in entering into this Third Amendment, the City is not establishing any course of dealing with Grantee. The City's right to require strict performance with all of the terms and conditions of the Agreement shall not in any way be impaired by the execution of this Third Amendment. The City shall not be obligated in any manner to execute any further amendments or waivers and if such waivers or amendments are requested in the future, assuming the terms and conditions thereot are satistactory to them, the City may require the payment of tees in connection therewith. In addition, it the City agrees to any further or subsequent amendment to this Third Amendment or the Agreement, then such amendment shall only be effective if made in writing and executed by the Parties.
Section 11. No Limitation on Municipal Powers. Nothing in this Third Amendment or the Agreement shall limit, waive, or otherwise impair the authority and discretion of: (a) the City's Building Department, in connection with the review and approval of any proposed design plans for the Temporary Structures (or any change to such plans), or any use, or proposed use, of the Site; or (b) any other office or department of the City acting in its capacity as a governmental regulatory authority with jurisdiction over the development, use, or operation of the Site.
Section 12. Counterparts. This Third Amendment may be executed in any number of counterparts, each of which, when so executed and delivered, shall be deemed an original, and all of which together shall constitute one and the same instrument. This Third Amendment shall become effective when the Parties have duly executed and delivered signature pages of this Third Amendment to each other. Delivery of this Third Amendment may be effectuated by hand delivery, mail, overnight courier or electronic communication (including by PDF sent by electronic mail, facsimile or similar means of electronic communication). Any signatures (including electronic signatures) delivered by electronic communication shall have the same legal effect as physically delivered original signatures.
Remainder of Page Left Intentionally Blank
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WHEREFORE, the Parties have entered into this Third Amendment as of the Amendment Date.
CITY:
CITY OF EAST PALO ALTO, a municipal
corporation
atrick beising.
By:
Patt ll
Name:
Its: Interim At Meep
APPROVED AS TO FORM:
Valerie Armento
Interim City Attorney
GRANTEE:
WEHOPE, a California nonprofit public benefit
corporation doing business as "Project We Hope"
Alicia Harcia
By:
Name: Alicia Garcia
Title: Chief Operating officer
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LICENSE AND GRANT AGREEMENT
(Tanklage Property-RV Safe Parking Pilot Program)
THIS LICENSE AGREEMENT AND GRANT AGREEMENT (this "Agreement") is entered into as of July 18, 2018 (the "Effective Date"), by and between the City of East Palo Alto, a municipal corporation (the "City" or the "Owner"), and WeHlope, a California nonprofit public benefit corporation doing business as "Project We Hope" ("Grantee"). Grantee and the City are sometimes referred to herein, individually, as a "Party" and, collectively, as the "Parties"
RECITALS
A. The City is the owner of that certain real property commonly known as 1798 Bay Road, East Palo Alto, California, as more particularly described in the attached Exhibit A (the "Site"). The Site is subject to a use restriction that requires the Site be utilized for a public purpose.
B. On July 17, 2018, pursuant to Resolution No. 4998, the City made certain findings regarding the significant number of persons within the City that are without the ability to obtain shelter, which results in the threat to their health and safety, including, but not limited to, numerous homeless families and individuals that utilize their motor vehicles as their primary means of shelter. Therefore, the City proclaimed a "declaration of a shelter crisis" in accordance with California Government Code 8698, et. seq.
On July 17, 2018, the East Palo Alto City Council adopted Resolution No. 4991 authorizing the City Manager to execute a License and Grant Agreement, in a form approved by the City Attorney, on behalf of the City with the Licensee for the operation of the Program.
In an effort to mitigate the negative impacts on the City caused by the lack of decent, safe, and sanitary housing within the City, and the overall shelter crisis within the City, the City desires to permit the Grantee to utilize the Site as a temporary location for overnight parking of vehicles owned by homeless individuals or households, as more particularly set forth in this Agreement. The Grantee has submitted to the City a proposal for the use and operation of the Site for overnight parking of vehicles for homeless individuals and households, a copy of which is attached here to as Exhibit D ( the "Grantee Proposa!") The Grantee shall utilize the Site for the operation of the "RV Safe Parking Pilot Program" (the "Program" which the Grantee has established to provide temporary free parking for homeless individuals, or households, in conjunction with certain social services, other benefits and assistance to the individuals and households parking at the site.
B. Pursuant to this Agreement, the City desires to provide a grant in the maximum amount of Two Hundred Eighteen Thousand Five Hundred Dollars ($218,500) (the "Grant" to assist the Grantee in connection with the use and operation of the Site in accordance with this Agreement,
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F. The operation of the Program by the Grantee, and the funding of the Grant by the City to the Grantee, are consistent with the Site's use restriction, and will assist in alleviating the shelter crisis and increased homelessness within the City.
AGREEMENT
NOW, THEREFORE, in consideration of the recitals hereof, and the other mutual covenants and promises contained herein and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as set forth below..
ARTICLE 1. •
PURPOSE AND TERM OF AGREEMENT
Section 1.1 Recitals. The above Recitals are hereby expressly incorporated herein and made a part of this Agreement by this reference.
Section 1.2 Purpose. The putpose of this Agreement is to set forth the Parties' mutual agreement and understandings in connection with: (a) the Grantee's limited right to enter and use the Site as set forth in Article 2; and (b) the City's funding of the Grant as set forth in Article 3.
Section 1.3 Term; Termination of Agreement. The term of this Agreement shall extend from the Effective Date and shall expire upon the earliest to occur of: (a) the first (1) anniversary of the Commencement Date (defined below); or (b) the termination by the City in accordance with Section 4.4 (the "Term"). No expiration or carlier termination of this Agreement shall affect any provision that is expressly intended to survive any such expiration ot earlier termination. Grantee expressly acknowledges that any expenditures or improvements that it may make will in no way alter the City's right to terminate this Agreement in accordance with its terms. Upon the expiration or earlier termination of this Agreement, Grantee shall: (i) cause the site to be in a safe, secure and sanitary condition, to the reasonable satisfaction of the City; and (il) promptly remove (ot cause the removal of) any ot all equipment, materials, vehicles, or any other personal property brought to the Site by or on behalf of any of the Grantee Parties (defined below) at Grantee's sole risk and expense and without any compensation from the City.
Grantee shall promptly restore any damage to the Site caused by such removal to substantially the condition that existed immediately prior to such removal. In the event the City agrees to permit any personal property to remain at the Site after the expiration or termination of this Agreement, then: (1) the City shall be deemed to be the owner of such personal property; (2) upon request of the City, the Grantee shall promptly execute a bill of sale (or equivalent document) in favor of the City conveying such personal property to the City at no cost; and (3) Grantee shall have no obligation to remove such personal property (but shall remain obligated to remove all other personal property not accepted by the City). This Section shall survive the expiration or earlier termination of this Agreement.
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ARTICLE 2.
LICENSE PROVISIONS
Section 2.1 Permitted Use. Subject to all of the terms and conditions of this Agreement, the City hereby grants to Grantee, its employees and agents, a non-exclusive license to enter the Site for the sole purpose of operating the Program which consists of a temporary overnight parking lot tor use by homeless individuals, or households, utilizing a recreational vehicle (a "RV") as their primary residence, in conjunction with Grantee providing (or otherwise arranging for) social services to such individual(s) or household(s) (the "Permitted Use"). For the purposes of this Agreement, the term "RV" shall mean a "motor home", "travel trailer", "trailer coach", "truck camper", "camping trailer" or "park trailer", as those vehicles are defined in Sections 18010 and 18009.3 of the California Health and Safety Code or other applicable sections of the California Health and Safety Code or California Vehicle Code, and which are designed for human habitation for recreational, emergency, or other occupancy. For the avoidance of doubt, the Parties agree and acknowledge that a "housecar" as defined in California Vehicle Code Section 362 shall be included in the definition of "RV", but all other passenger vehicles, as defined in California Vehicle Code Section 465 are excluded from the definition of "RV".
Section 2.2 Limitation on Permitted Use. The Grantee acknowledges that in utilizing the Site for the Permitted Use, the Grantee shall only allow RVs to be parked on the Site during the hours of 7:30 pm through 7:30 am (local time), unless otherwise agreed to in writing by the City. The Grantee shall require each RV located on the Site to be removed from the Site, and all individuals or households utilizing a RV on the Site (each such individual or household, a "RV Parker") to drive their RV off the Site on a daily basis. The Grantee's failure to cause each RV to be removed from the Site during all other hours shall constitute an Event of Default under Section 4.3; provided, however, in the event a RV remains at the Site because such RV is inoperable, then such event shall not constitute an Event of Default so long as Grantee promptly causes the RV to be relocated from the Site. The Grantee shall not permit more RVs to utilize the Site than the Total Parking Stalls (defined below).
Section 2.3 No Other Use Permitted. No use of the Site for any purpose other than the Permitted Use is permitted hereunder. Any use of the Site for any other purpose other than the Permitted Use, in accordance with this Agreement, shall constitute an Event of Default under Section 4.3. Grantee acknowledges that Grantee is responsible for insuring that Grantee, its employees, agents, and invitees, and the RV Parkers (collectively, the "Grantee Parties") use the Site solely for the Permitted Use in accordance with this Agreement.
Section 2.4 Preliminary Site Preparation Work by City. Following the Bffective Date, the City shall perform certain preliminary work necessary for the Site to be utilized for the Permitted Use, as more particularly set forth on Exhibit B (collectively, the "Preliminary Site Work"). In connection with the Preliminary Site Work, the City shall cause the preparation of a schematic drawing, or other documentation reasonably acceptable to the Parties (the "Site Map"), setting forth (among other things) the layout for the parking of the RVs, and the total number of parking stalls to be permitted at the Site (the "Total Parking Stalls"). Following the completion of the Preliminary Site Work, the City shall deliver a written notice to the Grantee notifying the Grantee that the Preliminary Site Work has been completed, and that the Grantee 3 55110112361763,4
may commence its use and occupancy of the Site pursuant to this Agreement the "Commencement Notice"). The Commencement Notice shall include a copy of the Site Map.
The date of such Commencement Notice shall be referred to as the "Commencement Date", and, notwithstanding any provision of this Agreement to the contrary, the Grantee shall have no right to use or occupy the Site prior to the Commencement Date.
Section 2.5 Conditions Precedent to Entry by Grantee Parties. The requirements set forth in this Section are conditions precedent to any Grantee Parties' entry onto the Site hereunder. Notwithstanding any other provision herein (including, but not limited to, the delivery of the Commencement Notice), Grantee shall have no right to enter the Site hereunder unless and until the satisfaction of all such conditions precedent, unless otherwise waived by the City. The conditions set forth in this Section are solely for the benefit of the City and may only be waived by the City pursuant to Section 4.13.
(a) Evidence of Security Personnel and Safety Plan. The Grantee shall hire, or otherwise retain the services of, security personnel necessary to provide all ongoing security for the Site during the Term. Such security personnel shall be reasonably acceptable to the City; provided, however, any such approval by the City shall not waive, limit, or impair any other right of the City under this Agreement. In addition, the Grantee shall prepare and submit for review and approval by the City's Police Department a safety plan setting forth, among other things, the Grantee's plan for the safety and security of the RV Parkers, and emergency and first responders' access to the Site during the operation of the Program (as approved, the "Safety Plan").
Use of Initial Disbursement of Grant Funds. Grantee shall deliver to the City evidence of the use of the initial disbursement of the Grant funds, including, copies of bills or invoices setting forth costs previously paid by the Grantee utilizing the initial Grant funds, or to the extent applicable, the costs and expenses to be incurred by Grantee with such funds. (c) Insurance. Grantee shall have submitted to the City evidence that Grantee has complied with all of the insurance requirements of Section 41.
Section 2.6 No Representations or Warranties; Grantee Release of the City. Grantee acknowledges that, by this Agreement, the City makes no representation, warranty, ot covenant of any kind whatsoever to Grantee with respect to the condition of Site. Grantee further acknowledges that, pursuant to Government Code Section 8698.1(a), the City is immune from liability for ordinary negligence in connection with the provision of emergency housing. Grantee has the right to enter the Site, in accordance with the terms of this Agreement, in the Site's current "as-is" condition (other than the Preliminary Site Work) including all faults, or defects, or hazardous conditions known or unknown (if any). The City shall not be liable to Grantee (or any of the Grantee Parties) for, and Grantee, on behalf of itself and any and all Grantee Patties, hereby waives and releases the City and its council members, employees and agents (the "City Parties") from any and all liability, whether in contract, tort or on any other basis, for any injury, damage, or loss resulting from or attributable to an occurrence on the Site, the condition of the Site, or the use or occupancy of the Site pursuant to this Agreement (including, but not limited to any injury, death, or damage to property). In consideration for the right to use the Site, Grantee on behalf of itself and any and all of the Grantee Parties hereby waives and agrees not to commence any action, legal proceeding, cause of action or suit in law or equity, of whatever kind 4 551\01\2361763.4
and nature, directly or indirectly against the City Parties in connection with Grantee's use of the Site under this Agreement and expressly waives the provisions of section 1542 of the California Civil Code, which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THI CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME
OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST
HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
"PAB
Grantee's Initials:
Section 2.7 Operation of the Site by the Grantee.
(a) Grantee Obligations. As between the City and the Grantee, the Grantee shall be solely responsible for all day-to-day management and operational functions with respect to the use of the Site for the Permitted Use, including without limitation the selection of the RV Parkers, providing (or otherwise ensuring that each RV Parker receives) the social services deemed necessary by the Grantee and otherwise enforcing the requirements of the agreement between the Grantee and the RV Parker (the "Parking Agreement"), maintenance, landscaping, routine and extraordinary repairs to the Site, and security. Grantee shall operate the Site consistent with the Grantee Proposal and any temporary use permit issued for the Site. To the extent the operation of the Program requires any utility service, then the Grantee shall be responsible for causing such utilities to be provided to the Site, and for all costs incurred in connection with the use of such utilities by Grantee or any of the Grantee Parties. Other that the Preliminary Site Work, the City shall have no direct, or indirect, responsibility over management of the Site or the operation of the Program; however, the Grantee shall operate the Site in accordance with this Agreement in a manner acceptable to the City.
Selection of RV Parkers; Minimum Requirements. Grantee shall be responsible for selecting each RV Parker, and shall require that each RV Parker meet the following minimum requirements: (i) such household is currently homeless, and utilizing the RV as their primary living accommodations; (i) the RV is operational, and validly registered with the California Department of Motor Vehicles (the "DMV"); (iii) such household maintains insurance for the RV meeting the minimum limits required by the DMV; (iv) such household has written documentation evidencing that the RV has access to a certified, and operating, sewage disposal station (this requirement may be satisfied by Grantee obtaining such permission for off- site disposal for the household); and (v) such household is "clean and sober", or is actively participating in a recovery program (collectively, all such requirements are referred to as the "Minimum Requirements"). The Grantee may permit a household to self-certify that such household complies with the Minimum Requirements; provided, however, the Grantee shall maintain all documentation evidencing that each RV Parker meets the Minimum Requirements, and the Grantee is obligated to enforce the Minimum Requirements pursuant to the Parking Agreement.
Preference for City Residents; Wait List. In addition to the Minimum Requirements, the Grantee shall utilize a preference system in connection with the selection of 5 551101\2361763.4
the RV Parkers in the following order of priority: (i) families, disabled individuals, seniors (persons 55 years or older) or veterans whose last permanent residence was the City/East Belle Haven; (ii) other individuals whose last permanent residence was the City/East Belle Haven; (iii) families, disabled individuals, seniors, ot veterans whose last permanent residence was outside the City; and (iv) other individuals whose last permanent residence was outside the City. To the extent applicable, the Grantee shall maintain a wait list of potential RV Parkers consistent with the preference for City/East Belle Haven families and individuals set forth in this subsection; provided, however, in no event shall Grantee permit a parking stall to remain vacant in the event à household satisfies the Minimum Requirements. For purposes of this Agreement East Belle Haven will be considered that area generally bounded by Willow Road, the Bayshore Freeway (U.S. 101) and the Facebook Campus.
(d) Parking Agreement. Grantee shall execute, and shall cause each RV Parker to execute a Parking Agreement. The form of the Parking Agreement is attached as Exhibit C. The Grantee shall not modify or otherwise amend the Parking Agreement (other than to insert the name and other specific information for each RV Parker) without the priot written consent of the City. The Grantee shall be solely responsible for enforcing the duties and obligations of each RV Parker pursuant to the Parking Agreement; provided, however, the City reserves the right to enforce each Parking Agreement in the event Grantee fails to do so (and such enforcement shall be in addition to any other right or remedy provided to the City pursuant to this Agreement). The incorporation of the form of the Parking Agreement into this Agreement shall in no way be deemed to constitute City approval of, or concurrence with, any other term or condition of such document, including, but not limited to, the legal enforceability of each Parking Agreement.
(e) Safety. Grantee shall comply with the Safety Plan, and the Grantee shall use commercially reasonable efforts to maintain the Site in a safe and secure condition, including, but not limited to, providing adequate on-site personnel during all times the Grantee operates the Program at the Site. The Grantee shall implement, and pay for, such additional safety and security measures (including, but not limited to, the dismissal of any existing security personnel, or the hiring of additional security personnel) that the City may determine is reasonably necessary to protect the health and safety of the RV Parkers or the surrounding community (even if such additional measures are not set forth in the Safety Plan).
Site Condition. The Grantee may not allow or otherwise permit any condition to exist on the Site that may endanger the health and safety of the RV Parkers or the surrounding community. Grantee shall take all necessary actions to assure the Site is maintained in good condition, and, to the extent necessary, the Grantee shall promptly make all repairs and replacements necessary to keep the Site (and any improvements thereon) in good condition and repair. Grantee shall not permit any disposal of waste water or the disposal or release of any other hazardous materials or substance (including, but not limited to any waste water, sewage, ot petroleum-based substances from a RV) on or about the Site, or into any storm drains about the (g) No Permanent Improvements. Grantee shall not, and shall not permit any Grantee Party to, construct, or otherwise, install or erect any permanent improvements on any portion of the Site. Grantee shall install temporary portable toilets and an entrance booth or kiosk 6 551\0112361763.4
at the locations to be determined by the Parties, and to be indicated on the on Site Map. Unless otherwise accepted by the City, pursuant to Section 1.3, above, the Grantee shall remove all such temporary improvements in connection with the termination of this Agreement. (h) Compliance with all Laws. In utilizing the Site for the Permitted Use, Grantee shall comply with all applicable federal, state, and local laws, ordinances, rules, regulations, and orders.
Section 2.8
Performance Review; Site Inspection; Quarterly Reports. In addition to all other rights and remedies of the City, the City reserves the right, upon one (1) day notice to rantee, to conduct a review of the management practices of the Grantee, and an inspection o ne Site, if deemed necessary by City. The purpose of each periodic review or inspection will b to enable the City to determine if the Site is being operated and managed in accordance with the requirements and standards of this Agreement. Grantee shall reasonably cooperate with City in such reviews and inspections.
ARTICLE 3.
GRANT PROVISIONS
Section 3.1 Grant. On the terms and subject to the conditions set forth in this Agreement, the City agrees to provide the Grantee the following Grant funds:
RV Safe Parking Program Funds. The City agrees to provide to the Grantee a grant in an amount not to exceed Two Hundred Eighteen Thousand Dollars ($218,000) for the sole purpose of conducting the Permitted Use on the Site. Subject to the conditions precedent set forth in this Agreement, the City shall make an initial disbursement to the Grantee of Thirty Thousand Dollars ($30,000) within ten (10) business days of the execution of this Agreement. Subsequent to the initial disbursement, the City shall disburse funds to the Grantee within thirty (30) days of receipt of a payment request from Grantee that includes invoices for work performed as well as other back up documentation evidencing the expenditure of the funds for the purpose of conducting the Permitted Use on the Site. In the event that Grantee is in default under this Agreement, the City shall not have any further obligation to disburse the Grant.
(b) RV Homeless Assistance Fund. The City agrees to provide to the Grantee an additional grant of Thirty Five Thousand Dollars ($35,000) for the sole purpose of establishing a RV Homeless Assistance Fund. The City shall make a disbursement to the Grantee of Thirty Five Thousand Dollars ($35,000) within ten (10) business days of the execution of this Agreement. Grantee may use the RV Homeless Assistance Fund to pay for the following: (i) assistance to applicants to qualify their vehicles for participation in the RVS3P (including, but not limited to, vehicle registration, minor auto repairs, vehicle towing, or automobile insurance while participating in the RVS3P); (il) supportive services to address emergency shelter and human service needs of applicants that are experiencing homelessness; (iii) assistance to abate public health and safety risks, including vouchers for disposal of mixed waste while an applicant is on the Waiting List; and (iv) administrations costs not to exceed 10% ($3,500) of the RV Homeless Assistance Fund. Grantee shall allocate no more than $1,000 per vehicle. The City Manager shall have the authority to review proposéd expenditures and Grantee 7 551\0112361763.4
shall provide an accounting of the expenditures at the end of the Temporary Deferred Enforcement Period. Grantee shall return to the City any unexpended RV Homeless Assistance Funds within 30 days of the end of the Temporary Deferred Enforcement Period.
Section 3.2 Conditions to Disbursement of Grant. Grantee acknowledges that it has been satisfied in full:
Grantee Documentation. The Grantee shall have delivered to the City the following documents: (i) a copy of Grantee's Articles of Incorporation, and all attachments and amendments thereto, stamped filed by the California Secretary of State, and its Bylaws, executed by a duly appointed officer of Grantee, together with all amendments thereto; (i) a copy of all certificates, resolutions or other evidence reasonably satisfactory to the City of necessary actions taken by Grantee to authorize the execution, delivery and performance by Grantee under this Agreement; (iii) a certificate recently issued by the California Secretary of State, confirming that Grantee is duly organized and validly existing in the State of California; (iv) an updated budget for Grantee's operation of the Site during the Term; and (v) a certification by Grantee of the name and signature of the individual(s) authorized to sign this Agreement and to request disbursements under the Grant;
(b) Evidence of Insurance. The Grantee shall have delivered to the City evidence of all insurance required under Section 4.1;
No Default. There exists no Default nor any act, failure, omission or condition that would constitute an Event of Default by Grantee under this Agreement; Documentation on Use of Grant Funds. The Grantee shall deliver to the City evidence of the use by Grantee of all previously disbursed Grant funds, including, copies of bills or invoices setting forth costs previously paid by the Grantee utilizing the Grant funds; and Report on Operation. The Grantee shall, on a quarterly basis, have delivered a report on the Grantee's operation of the Site, in a form reasonably acceptable to the City, setting forth, among other things: (i) the number of RV Parkers that have utilized the Site during such period; (ii) the number of Parking Agreements that have been terminated (if any); (ili) a summary of the services provided to the RV Parkers; (iv) additional services the Grantee proposes to provide to the RV Parkers (if any); (v) Grantee's progress in obtaining other grants, loans or funds to cover costs associated with the operation of the Permitted Use on the Site; and (vi) such other information reasonably requested by the City. Grantee shall, no later than thirty (30) days after the expiration of the Term of this Agreement, provide the City with a final cumulative report on operations including all of the items set forth in (i) through (vi) above as well as a final accounting of all expenses for operation of the Site and all revenues received. 8 55110112361763.4
Section 3.3 Grantee Responsible for all other Costs. Grantee agrees and acknowledges that, other than the Grant, the Grantee shall be solely responsible for all costs and expenses incurred in connection with the use of the Site for the Permitted Use, whether foreseen or unforeseen.
ARTICLE 4.
MISCELLEANOUS
Section 4.1 Required Insurance Coverage. Prior to entry onto the Site, Grantee shall provide to the City evidence of the following and thereafter Grantee shall maintain and keep in force insurance of the following types, if applicable:
Workers' Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits of not less than One Million Dollars ($1,000,000) each accident.
(b) Commercial General Liability insurance with limits of not less than Two Million Dollars ($2,000,000) per occurrence and in the aggregate for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, and Broadform Property Damage. This insurance may be provided with a combination of primary and excess insurance. (c) Commercial Automobile Liability insurance with limits of not less than One Million Dollars ($1,000,000) each occurrence with combined single limit for Bodily Injury and leaberty Damage, including coverages for owned, no-owned and hired vehicles, as (d) The required insurance shall be provided under an occurrence form, and Grantee shall maintain such insurance until this Agreement is terminated, except as otherwise specified above.
(e) Commercial General Liability, and Commercial Automobile Liability insurance policies shall be endorsed to name as an additional insured the City Parties.
All policies shall be endorsed to provide thirty (30) days prior written notice of cancellation, reduction in coverage, or intent not to renew to the address established for notices to the City, provided such notification is permitted by the carrier, and, in the event such notification is not permitted, Grantee shall provide written notice to the City within five (5) days reduction in coverage or intent not to renew. following Grantee's receipt of notification from the insurance carrier of notice of cancellation, Each policy shall be underwritten and issued by companies authorized to do business in California, with Best's Rating of at least AVII or better. Grantee shall provide the City with certificates of insurance evidencing the limits and coverages required by this Section. (h) This Section shall survive the expiration or earlier termination of this Agreement.
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Section 4.2 Indemnification. In consideration for right to use the Site and the receipt of the Grant, Grantee shall indemnify, defend (with counsel acceptable to the City) and hold harmless the City Parties, from and against any losses, claims, damages, liabilities, judgments, causes of action or actions (including reasonable attorneys' fees and costs) (collectively, "Losses") arising from:
any act or failure to act by any of the Grantee Parties under this Agreement, including the failure, or alleged failure, to comply with the terms of this Agreement and any applicable law;
acts of omissions of Grantee or any of Grantee Parties in using the Site, including the death of any person or any accident, injury, loss or damage whatsoever caused to any person or to the property of any person that shall occur in or around the Site to the extent caused by the act of omission of any of Grantee Parties; (c) any mechanic's lien, or similar claim made against the City or the Site in connection with the use of the Site;
any claim made by a RV Parker, or any party claiming by, through, or under a RV Parker, including any claim in connection with the enforcement or termination of the Parking Agreement by Grantee, or the termination or expiration of this Agreement, or any claim for relocation benefits or assistance, or similar claims, made by any person in connection with the Site;
(e) any violation of a Parking Agreement by a RV Parker, or Grantee's failure to enforce the Parking Agreement; or
(t) Grantee's breach of this Agreement.
This Section shall survive the expiration or earlier termination of this Agreement.
Section 4.3 Notice of Default and Opportunity to Cure. A Party shall be deemed to be a "Defaulting Party" and an "Event of Default" shall have been deemed to have occurred if such Party breaches this Agreement and such Party fails to cure such breach within: (a) three (3) Business Days (as defined below) after receipt of notice from the non-Defaulting Party of such breach, if the breach is monetary in nature; and (b) ten (10) days after receipt of notice from the non-Defaulting Party of such breach, if the breach is not monetary in nature. However, if any such non-monetaty breach is susceptible of cure but not within the above-specified cure period, the period of time for cure shall be extended as is reasonably necessary to permit cure, but in no event to a date later than thirty (30) days after the breaching Party is notified of the breach, and only so long as the breaching Party is diligently pursuing the cure to completion at all times during that period.
Section 4.4 Remedies. Upon the occurrence and during the continuance of an Event of Default, the non-Defaulting Party may take whatever action at law or in equity as may appear reasonably necessary to enforce this Agreement, including: (a) by terminating this Agreement by delivery of notice thereof to the Defaulting Party; (b) by commencing an action against the Defaulting Party for damages; ot (c) by commencing an action against the Defaulting Party for 10 55110112361763.4
specific performance or injunctive relief. The remedies available to the non-Defaulting Party shall be cumulative, and no remedy expressly provided in this Section shall be deemed to exclude any other remedy available at law or in equity.
Section 4.5 Mediation of Disputes. In the event of any dispute between the Parties regarding the interpretation of this Agreement or any Party's rights or obligations pursuant to this Agreement, the Parties agree to submit such dispute to non-binding mediation before proceeding with any action in court. Either Party can request non-binding mediation by notifying the other Party in writing of the nature of the dispute and requesting that the Parties mediate the dispute.
Within thirty (30) days of receipt of such notification, the receiving Party shall provide the Party requesting mediation with a list of to fewer than three proposed mediators, all of whom shall have substantial experience mediating contract disputes involving public agencies. The Party requesting mediation shall respond to the list provided by the receiving Party within ten (10) days by either accepting one of the proposed mediators or proposing an alternate list of mediators. Within ten (10) days of receipt of the alternate list of mediators, the Parties shall attempt to mutually agree upon a mediator. If the Parties ate unable to agree upon a mediator, a mediator shall be selected by Judicial Arbitration and Mediations Services (JAMS). The Parties will set the dispute for mediation within thirty (30) days of the selection of the mediator. If the dispute cannot be resolved by mediation, either party may bring an action in Superior Court.
Section 4.6 Notices, Demands and Communications. Whenever any notice or any other communication is required or permitted to be given under any provision of this Agreement (as, for example, where a Party is permitted or required to "notify" the other Party), such notice or other communication shall be in writing, signed by or on behalf of the Party giving the notice or other communication, and shall be deemed to have been given on the earliest to occur of:
(a) the date of the actual delivery;
(b) if mailed, three (3) Business Days after the date mailed by certified or registered mail, return receipt requested, with postage prepaid; or on which such courier represents such notice will be available for delivery, in each case to the if sent with a reputable air or ground courier service, fees prepaid, the date respective addresses) of the Party to whom such notice is to be given as set forth below, or al such other address of which such Party shall have given notice to the other Party as provided it this Section. Legal counsel for any Party may give notice on behalf of such Party.
If to the City, to: City of East Palo Alto
2415 University Avenue
East Palo Alto, CA 94303
Attn: City Manager
with a copy to: Goldfarb & Lipman LLP
1300 Clay Street, 11" Floor
City Center Plaza
Oakland, California 94612
Attn: Karen Tiedemann
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If to Grantee, to: WeHope
1854 Bay Road
East Palo Alto, CA 94303
Attn: Paul Bains
Section 4.7
Agreement shall be deemed to render either Party a partner in the other Party's business or a joint venturer or member in any joint enterprise with the other Party. No Party shall have the right to upon the provisions of this Agreement except as explicitly provided to the contrary in this Agreement.
Section 4.8 Attorneys' Fees and Costs. In the event any action or proceeding in court is commenced by either Party to interpret or enforce the terms of this Agreement, the prevailing Party therein shall be entitled to recover from the non-prevailing Party all of the prevailing Party's reasonable costs and expenses in connection therewith, including on any appeal and including expert witness fees, document copying expenses, exhibit preparation costs, carrier expenses and postage and communication expenses, and reasonable attorneys' fees and costs for the services rendered to the prevailing Party in such action or proceeding (which shall include the reasonable costs for services of the City Attorney's Office, or any outside counsel utilized by the City).
Section 4.9 Time. Time is of the essence in this Agreement.
Section 4.10 Assignment, The Grantee may not assign its interest (in whole or in part) under this Agreement without the prior written consent of the City, which may be granted or denied in the City's sole discretion. Any attempted assignment or transfer by the Grantee, without the prior written consent of the City, of its interest (in whole or in part) under this Agreement shall constitute an Event of Default.
Section 4.11 Binding Effect. This Agreement shall inure to and bind the Parties, their respective representatives, successors and assigns; provided, however, nothing in this Section shall be deemed to permit Grantee to assign this Agreement except as set forth in Section 4.10.
Section 4.12 Interpretation. Where the context requires herein, the singular shall be construed as the plural, and neuter pronouns shall be construed as masculine and feminine pronouns, and vice versa. All Exhibits attached to this Agreement are hereby incorporated into this Agreement by this reference, Unless otherwise specified, whenever in this Agreement, including its Exhibits, reference is made to any Recital, Article, Section, Exhibit, or defined term, the reference shall be deemed to refer to the Recital, Article, Section, Exhibit or defined term of this Agreement. Any reference to a Recital, an Article or a Section includes all subsections and subparagraphs of that Recital, Article or Section. Section and other headings are for the purpose of convenience of reference only and are not intended to, nor shall they, modify or be used to interpret the provisions of this Agreement. References in this Agreement to days 12 5511012361763.4
shall be to calendar days, unless otherwise specified. If the last day of any period to give or reply to a notice, meet a deadline or undertake any other action occurs on a day that is not a day of the week (but not a Saturday or Sunday) on which the City is open to the public for carrying on substantially all business functions (a "Business Day"), then the last day for giving or replying to such notice, meeting such deadline or undertaking any such other action shall be the next succeeding Business Day. The use in this Agreement of the words "including", "such as" or words of similar import when used with reference to any general term, statement or matter shall not be construed to limit such statement, term or matter to the specific statements, terms or matters, unless language of limitation, such as "and limited to" or words of similar import are provisions of this Agreement, the remaining provisions shall prevail. used with reference thereto. In the event of a conflict between the Recitals and the remaining Section 4.13 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to any principles of conflict of laws. For this purpose the Parties shall be deemed to reside in such state and this Agreement shall be deemed to be performed exclusively in such state. Venue of any proceeding shall be exclusively in a forum of proper jurisdiction in such state or in the County of San Mateo, Section 4.14 Waiver. No waiver of any right under this Agreement shall be deemed effective unless contained in a writing signed by the Party charged with the waiver. No waiver of any breach or any failure to perform shall be deemed to be a waiver of any future breach or failure to perform or of any other right arising under this Agreement.
Section 4.15 Entire Agreement. This Agreement sets forth the entire agreement of the Parties with respect to this subject and this Agreement may not be modified except in writing signed by authorized representatives of each Party. This Agreement shall not be construed as if it had been prepared by one of the Parties, but rather as if both Paities had prepared it. The Parties have read and reviewed this Agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply to the amended from time to time). interpretation of this Agreement (including Civil Code section 1654 as the same may be Section 4.16 Severability. If any provision of this Agreement or the application of any provision to any Person or circumstances shall be deemed to be invalid or unenforceable to any extent, the remainder of this Agreement, or the application of such provision to Persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected, and each provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
Section 4.17 Non-Possessory Interest. Grantee acknowledges that this Agreement merely permits Grantee the limited right to enter the Site, as set forth herein, and does not grant any other right to use, occupy, or otherwise obtain any right to own or develop the Site.
Notwithstanding the limited right to enter granted herein, the City retains full ownership and possession of the Site, and Grantee will not acquire any ownership interest, or estate in the Site, whether temporary, permanent, revocable, or itrevocable, possessory, or otherwise, by reason of this Agreement, or by the exercise of the rights granted herein. Grantee will make no claim to 13 • 55110112361763.4
any such estate or interest and hereby waives and relinquishes any and all right or claim it has or may have in or to any such estate or interest.
ad acknowledges that: (ith use and to a empy ory he period ant to this eterner agnes emporary in nature, (il) the Grantee, or any person claiming by, under, or through the Grantee including, but not limited to, any RV Parker) shall not qualify as a "displaced person" under an state law including, but not limited to, California Government Code Section 7260, et seq., as may be amended from time to time), (iii) upon the termination or expiration of this Agreement the Grantee will not be eligible for any relocation benefits or assistance for persons displaced by governmental activities, (iv) the Grantee may suffer economic loss or other consequences related to the termination or expiration of this Agreement, and (v) specifically releases and waives any claim against the City Parties for such loss or economic consequences in connection with the failure of the use or occupy the Site after the expiration or termination of this Agreement. The Grantee, on behalf of itself and all Grantee Parties, hereby assumes the above-mentioned risks related to the temporary nature of the Grantee's right to use the Site, and hereby agrees that the waiver set forth in Section 2.6, above, is incorporated into this Section as if fully set forth.
Section 4.19 Counterparts. This Agreement may be executed in any number of all of which together shall constitute one and the same instrument. This Agreement shall become counterparts, each of which, when so executed and delivered, shall be deemed an original, and effective when the Parties have duly executed and delivered signature pages of this Agreement to each other. Delivery of this Agreement may be effectuated by hand delivery, mail, overnight courier or electronic communication (including by PDF sent by electronic mail, facsimile or similar means of electronic communication). Any signatures (including electronic signatures) delivered by electronic communication shall have the same legal effect as physically delivered original signatures.
Remainder of Page Left Intentionally Blank
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WHEREFORE, the Parties have entered into this Agreement as of the Effective Date.
CITY:
CITY OF EAST PALO ALTO, a municipal
corporation
By: san thugs
Name: Sean Chaspontier 3/14/11
Its: Interim City Manize
APPROVED AS TO FORM:
A teal
Rafael E. Alvarado Ji.
GRANTEE:
WEHOPE, a California nonprofit public benefit
corporation
By:
Name: Paul I. Bayer
Title: Present/Founder
Note: Grantee must initial Section 2.6
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