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PROFESSIONAL SERVICES AGREEMENT
FOR
CONTRACTOR SERVICES
This Professional Services Agreement for CONTRACTOR Services (“ Agreement”) is made and entered into as of the _____ day of ____________, 20___ (“Effective Date”) by and between the City of Foster City hereinafter called " CITY" and HABITAT FOR HUMANITY GREATER SAN FRANCISCO , INC. hereinafter called " CONTRACTOR".
CITY and CONTRACTOR are each a “ Party” and are collectively the “ Parties” to this Agreement.
RECITALS
This Agreement is entered into with reference to the following facts and circumstances:
WHEREAS, CITY desires to engage CONTRACTOR to provide professional services in the CITY; and
WHEREAS, CONTRACTOR is qualified to provide such services to the CITY;
NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and conditions hereinafter contained, the parties hereby agree as follows:
TERMS AND CONDITIONS
1. Services. The services to be performed by CONTRACTOR under this Agreement shall include those services set forth in Exhibit A, which is, by this reference, incorporated herein and made a part hereof as though it were fully set forth herein (“Services”).
Performance of the work specified in said Exhibit A is hereby made an obligation of CONTRACTOR under this Agreement, subject to any changes that may be made subsequently hereto upon the mutual written agreement of the said parties.
Where in conflict, the terms of this Agreement supersede and prevail over any terms set forth in Exhibit A.
2. Term; Termination.
(a) The term of this Agreement shall commence upon the date hereinabove written and shall expire December 31, 2028 (“Term”). City shall have an option for a three- year renewal which may be exercised by City in its sole discretion by December 1, 2028 (“Additional Term ”). If exercised, the Additional Term shall have an expiration date of December 31, 2031.
(b) Notwithstanding the provisions of (a) above, CITY may with or without cause, 4912-9665-2919 v4 2
direct CONTRACTOR to suspend, delay or interrupt Services, in whole or in part, for such periods of time as CITY may determine in its sole discretion.
(c) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for default, should CONTRACTOR commit a material breach of this Agreement, or part thereof, and not cure such breach within ten (10) calendar days of the date of CITY’s written notice to CONTRACTOR demanding such cure, in which case CONTRACTOR shall be liable to CITY for all loss, cost, expense, damage and liability resulting from such breach and termination.
(d) CITY may terminate performance of the Services under this Agreement in whole, or from time to time in part, for convenience, whenever CITY determines that such termination is in CITY’s best interests, in which case CONTRACTOR shall be entitled to recover its costs expended up to the termination date plus reasonable profit thereon to the termination date as this Agreement would otherwise provide, but may recover no other cost, damage or expense.
CONTRACTOR shall continue its work throughout the course of any dispute, and CONTRACTOR’s failure to continue work during a dispute shall be a material breach of this Agreement.
(e) Should City elect to exercise its option to renew the Agreement for a second three-year term, CONTRACTOR will perform the Services with respect to an additional 9 homes during the second three- year period. CONTRACTOR’s compensation during the second three-year period shall be the same as set forth below in Section 3 below, subject only to an adjustment for inflation (or deflation, if applicable) based on changes in the consumer price index for the San Francisco- Oakland-Hayward region during the initial three-year term.
3. Compensation; Expenses; Payment. CITY shall compensate CONTRACTOR for all services performed by CONTRACTOR hereunder in an amount based upon CONTRACTOR’s hourly rates during the time of the performance of said services.
A copy of CONTRACTOR’s hourly rates for which services hereunder shall be performed are set forth in CONTRACTOR’s fee schedule marked Exhibit “ B” hereof, attached hereto and by this reference incorporated herein.
Notwithstanding the foregoing, the combined total of compensation and reimbursement of costs payable hereunder shall not exceed the sum of EIGHT
HUNDRED SIXTY-ONE THOUSAND SEVEN HUNDRED FIFTY DOLLARS
($861,750) as set forth in Exhibit B. Invoices for amounts in excess of EIGHT
HUNDRED SIXTY -ONE THOUSAND SEVEN HUNDRED FIFTY DOLLARS ($861,750) shall not be paid unless the performance of services and/or reimbursement of costs and expenses in excess of said amounts have been approved in advance of performing such services or incurring such costs and expenses in writing by the City Manager (for contracts less than $50,000) or City Council (for contracts $50,000 or more) evidenced by motion duly made and 4912-9665-2919 v4 3
carried and a written contract amendment having been executed.
Compensation shall be payable within 30 days upon CITY’s receipt of an invoice for the amount stated in Exhibit B. CONTRACTOR agrees to demonstrate diligent progress thereon as stated in Exhibit A . CITY shall not be liable for, and CONTRACTOR shall not be entitled to, any payment for Services performed before this Agreement's execution. Upon termination of this Agreement any money CONTRACTOR has received hereunder that remain unspent due to issuing loans less than the maximum amount, excluding Administrative Fees and Fees for loans that have already been issued, shall be returned to the CITY within 30 days, upon request by the City.
4. Additional Services . In the event CITY desires the performance of additional services not otherwise included within the services described in Exhibit A, such services shall be authorized in advance of the performance thereof by the City Manager (for contracts less than $50,0 00) or City Council (for contracts $50,000 or more) by motion duly made and carried. Such amendment to this Agreement shall include a description of the services to be performed thereunder, the maximum compensation and reimbursement of costs and expenses payable therefor, the time of performance thereof, and such other matters as the parties deem appropriate for the accomplishment of such services. Except to the extent modified by written amendment, all other terms and conditions of this Agreement shall be deemed incorporated in each such amendment.
5. Records. CONTRACTOR shall keep and maintain accurate records of all time expended and costs and expenses incurred relating to services to be performed by CONTRACTOR hereunder. Said records shall be available to CITY for review and copying during regular business hours at CONTRACTOR’s place of business or as otherwise agreed upon by the parties.
6. Authorization. This Agreement becomes effective when endorsed by both parties in the space provided below.
7. Reliance on Professional Skill of CONTRACTOR. CONTRACTOR represents that it has the necessary professional skills to perform the services required and the CITY shall rely on such skills of the CONTRACTOR to do and perform the work.
In performing services hereunder CONTRACTOR shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CONTRACTOR hereunder.
CONTRACTOR represents that it has reviewed Exhibit A and that in its professional judgment the Services to be performed under this Agreement can be performed for a fee within the maximum amount set forth in the Compensation Schedule established in Exhibit A and within the times specified for each individual Project.
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CONTRACTOR represents that it possesses all necessary training, licenses and permits to perform the Services and that its performance of the Services will conform to the standards of practice of a professional having experience and expertise in performing professional services of like nature and complexity of the Services working on similar, successfully completed projects.
The granting of any progress payment by CITY, or the receipt thereof by CONTRACTOR, or any inspection, review, approval or oral statement by any representative of CITY or any other governmental entity, shall in no way waive or limit the obligations in this Paragraph 7 or lessen the liability of CONTRACTOR for unsatisfactory Services, including but not limited to cases where the defective or below standard Services may not have been apparent or detected at the time of such payment, inspection, review or approval.
8. Documents. All documents, plans, drawings, renderings, and other papers, or copies thereof, as finally rendered, prepared by CONTRACTOR pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY.
9. Relationship of Parties . CONTRACTOR is an independent Contractor and does not act as City’s agent in any capacity, whatsoever. CONTRACTOR is not entitled to any benefits that CITY provides to CITY employees, including, without limitation, worker’s compensation benefits or payments, pension benefits, health benefits or insurance benefits. Terms within this Agreement regarding direction apply to and concern the result of the CONTRACTOR’s provision of Services, not the means, methods, or scheduling of the CONTRACTOR’s work . CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Services under this Agreement .
CONTRACTOR shall pay all payroll taxes imposed by any governmental entity and shall pay all other taxes not specifically identified in this Agreement as CITY’s responsibility.
10. Schedule. CONTRACTOR shall adhere to the schedule set forth in Exhibit A; provided, that CITY shall grant reasonable extensions of time for the performance of such services occasioned by governmental reviews of CONTRACTOR’s work product or other unavoidable delays; provided, further, that such unavoidable delay shall not include strikes, lockouts, work stoppages, or other labor disturbances conducted by, or on behalf of, CONTRACTOR’s officers or employees.
CONTRACTOR acknowledges the importance to CITY of CITY’s Project schedule and agrees to put forth its best professional efforts to perform its services under this Agreement in a manner consistent with that schedule.
11. Indemnity. To the fullest extent allowed by law, CONTRACTOR hereby agrees to defend, indemnify, and save harmless CITY, its Council, boards, commissions, officers, employees, directors, volunteers and agents (collectively “Indemnitees”), 4912-9665-2919 v4 5
from and against any and all claims, suits, actions liability, loss, damage, expense, injury (including, without limitation, economic harm, injury to or death of any person, including an employee of CONTRACTOR or its subcontractors ), cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, at law or equity, (collectively “Claims”) which may be brought against, or suffered or sustained by any Indemnitees that arise out of, pertain to, or relate to any failure to perform pursuant to the terms of this Agreement, negligence, recklessness, or willful misconduct of CONTRACTOR, any subcontractor, anyone directly or indirectly employed or retained by them, or anyone that they control. In the event one or more defendants is unable to pay its share of defense costs due to bankruptcy or dissolution of the business, the CONTRACTOR shall meet and confer with other parties regarding unpaid defense costs.
The duty of CONTRACTOR to indemnify and save harmless, as set forth herein, shall include the duty to defend as set forth in Section 2778 of the California Civil Code; provided, however, that nothing herein contained shall be construed to require CONTRACTOR to indemnify City of Foster City, its Council, boards, commissions, officers, employees and agents against any responsibility or liability in contravention of Section 2782 of the California Civil Code.
CONTRACTOR’s responsibility for such defense and indemnity obligations shall survive the termination or completion of this Agreement for the full period of time allowed by law.
The defense and indemnification obligations of this agreement are undertaken in addition to, and shall not in any way be limited by, the insurance obligations contained within this Agreement.
If CONTRACTOR is a “design professional,” as defined in California Civil Code Section 2782.8(c), CONTRACTOR shall indemnify, defend, and hold the Indemnitees harmless against Liability only to the extent such Liability arises out of, pertains to, or relates to CONTRACTOR’s negligence, recklessness, or willful misconduct. In such an event, the cost to defend charged to CONTRACTOR shall not exceed CONTRACTOR’s proportionate percentage of fault.
12. Insurance. Prior to execution of this Agreement, CONTRACTOR shall furnish to CITY Certificates of Insurance showing satisfactory proof that it maintains the insurance required by this Contract as set forth in EXHIBIT C, Insurance, which are attached and made a part of this Agreement . CONTRACTOR shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT C. In the event CONTRACTOR fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may (but is not obligated to) purchase such insur ance and deduct or retain premium amounts from any sums due CONTRACTOR under this Agreement (or CONTRACTOR shall promptly reimburse CITY for such expense).
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CONTRACTOR shall maintain insurance as required by this Agreement to the fullest amount allowed by law and shall maintain insurance for a minimum of five (5) years following completion of this project or service. In the event CONTRACTOR fails to obtain or maintain completed operations coverage as required by this Agreement, the CITY at its sole discretion may purchase the coverage required and the cost will be paid by CONTRACTOR.
13. WORKERS' COMPENSATION . CONTRACTOR certifies that it is aware of the provisions of the Labor Code of the State of California which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that Code, and CONTRACTOR certifies that it will comply with such provisions before commencing the performance of the work of this agreement.
14. NON-DISCRIMINATION. The CONTRACTOR will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin . The CONTRACTOR will take affirmative action to ensure that applicants are employed and the employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment , advancement, demotion, transfer, recruitment, or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection for training, including apprenticeship. The CONTRACTOR shall at all times be in compliance with the requirements of the Federal Americans With Disabilities Act (Public Law 101-336) which prohibits discrimination on the basis of disability by public entities . The CONTRACTOR agrees to post in conspicuous places available to employees and applicants for employment any notices provided by the CITY setting forth the provisions of this non-discrimination clause.
15. Notice. All notices required by this Agreement shall be given to the CITY and CONTRACTOR in writing, by first class mail, postage prepaid, addressed as follows:
CITY: City of Foster City
610 Foster City Boulevard
Foster City, CA 94404-2299
Attention: Nori Jabba, Housing & Sustainability
Manager
CONTRACTOR: Habitat for Humanity Greater San Francisco
300 Montgomery Street, Suite 450
San Francisco, CA 94104
Attention: Maureen Sedonaen, CEO
Email: [email protected]
Tel. 415-625-1000
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16. Reserved.
17. Amendments. This Agreement may be amended or modified only by written agreement signed by both parties.
18. Validity. The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement.
19. Governing Law; Venue. This Agreement shall be deemed to have been executed in the County of San Mateo, California. The formation, interpretation and performance of this Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Any suit or action initiated by either party shall be brought in the County of San Mateo, California unless the parties agree otherwise in a written amendment to this Agreement.
20. Mediation. Should any dispute arise out of this Agreement, the parties shall meet in mediation and attempt to reach a resolution with the assistance of a mutually acceptable mediator. Neither party shall be permitted to file legal action without first meeting in mediation and making a good faith attempt to reach a mediated resolution. The costs of the mediator, if any, shall be paid equally by the parties. If a mediated settlement is reached neither party shall be deemed the prevailing party for purposes of the settlement and each party shall bear its own legal costs.
21. Conflict of Interest. CONTRACTOR represents and warrants that it presently has no interest, and shall not have any interest, direct or indirect, which would conflict in any manner with the performance of work and services required under this Agreement. Without limitation, CONTRACTOR represents to and agrees with CITY that CONTRACTOR has disclosed any potential conflict of interest, and will have no future conflict of interest, in providing CITY services hereunder, including but not limited to, any inter est (financial, share ownership, shared management, shared directors, or reporting responsibilities) CONTRACTOR may presently have, or will have in the future, with respect to any other person or entity (including but not limited to potential suppliers, vendors, CONTRACTORs, contractors, or regulatory agency) which may have an interest in the subject matter of the Services.
22. Liability of CITY.
Except as provided in Exhibit A, Services to be Provided by CONTRACTOR and Exhibit C, Insurance, CITY's obligations under this Agreement shall be limited to the payment of the compensation provided for in Paragraphs 1, 3, and 4 of this Agreement.
Notwithstanding any other provision of this Agreement, in no event shall CITY be liable, regardless of whether any claim is based on contract, tort or otherwise, for any special, consequential, indirect or incidental damages, lost profits or revenue, 4912-9665-2919 v4 8
arising out of or in connection with this Agreement, the Services, or the Project.
CITY shall not be responsible for any damage to persons or property as a result of the use, misuse or failure of any equipment used by CONTRACTOR, or by any of its employees, even though such equipment be furnished, rented or loaned to CONTRACTOR by CITY . The acceptance or use of such equipment by CONTRACTOR or any of its employees shall be construed to mean that CONTRACTOR accepts full responsibility for and shall exonerate, indemnify, defend and save harmless CITY from and against any and all claims for any damage or injury of any type, including attorneys' fees, arising from the use, misuse or failure of such equipment, whether such damage be to the CONTRACTOR, its employees, CITY employees or third parties, or to property belonging to any of the above.
Nothing in this Agreement shall constitute a waiver or limitation of any right or remedy, whether in equity or at law, which CITY or CONTRACTOR may have under this Agreement or any applicable law . All rights and remedies of CITY or CONTRACTOR, whether under this Agreement or other applicable law, shall be cumulative.
23. Waiver of Default. Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default . Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified as provided below.
24. Force Majeure. Except for defaults of subcontractors at any tier, CONTRACTOR shall not be liable for any excess costs if the failure to perform the Agreement arises from causes force majeure events, as defined below. Force Majeure events include the following:
Acts of God, fires, floods, earthquake, other natural disasters, epidemics and pandemics (other than COVID -19 or variants), abnormal weather conditions, nuclear accidents, wars, strikes, lockouts, freight embargos, interruptions in service by a regulated utility, or governmental statutes or regulations enacted or imposed after the fact (together, “force majeure events”).
Any Force Majeure event with a duration in excess of 30 days entitles either party to terminate this Agreement with written notice to the other party, without further penalty or compensation.
25. Attorney’s Fees. In the event of litigation between the parties hereto to enforce any provision of the Agreement, the unsuccessful party will pay the reasonable attorney’s fees and expenses of litigation of the successful party.
26. Compliance with Laws; Prevailing Wage. CONTRACTOR shall carry out, and shall 4912-9665-2919 v4 9
use its best efforts to ensure that its employees, volunteers, contractors and subcontractors carry out, the design and construction of all Project activities funded hereunder in conformity with all applicable State of California Labor Code requirements; t he City zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City of Foster City Municipal Code (“ Code”); all applicable disabled and handicapped access requirements, including the Americans Wit h Disabilities Act, 42 U.S.C. Section 12101, et seq., Government Code Section 4450, et seq., Government Code Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.; that all contractors or subcontractors hired by CONTRACTOR are licensed in the State of California; and that all activities funded hereunder are only performed on property located within the CITY’s corporate limits.
In the performance of its obligations set forth in this Agreement, CONTRACTOR shall have the status of an independent contractor and shall not be deemed to be an employee, agent or officer of the CITY. To the extent State prevailing wage laws apply to the Project, CONTRACTOR shall ensure that it complies with prevailing wage requirements in connection with the design and construction, and rehabilitation contemplated hereunder (the “Work”), that no less than the general prevailing rate of per diem wages, and not less than the general prevailing rate of per diem wages for holidays and overtime work, for each craft, classification or type of worker needed to execute the Work shall be paid t o all workers, laborers and mechanics employed in the execution of the Work by CONTRACTOR, contractors and subcontractors doing or contracting to do any part of the Work.
Copies of such prevailing rate of per diem wages are available at:
https://www.dir.ca.gov/OPRL/DPreWageDetermination.htm.
To the extent applicable, CONTRACTOR, its contractors and subcontractors, shall comply with all requirements of the California Labor Code, including but not limited to, Labor Code sections: 1773.2 (regarding posting wage determinations at each job site); section 1776 (regarding the certification, maintenance, and availability for inspection of payroll records); section 1777.5 (regarding employment of apprentices); section 1810 (regarding a legal day’s work as 8 hours of labor); and section 1775 (regarding penalties for violations).
CONTRACTOR shall defend, with counsel reasonably acceptable to CITY, indemnify and hold harmless Indemnitees from and against any Claims arising out of CONTRACTOR’s failure to comply with State of California Labor Code requirements pertaining to the design and construction of the Work. Further, CONTRACTOR shall indemnify and hold harmless the Indemnitees with respect to all final judgments or settlements in actions brought by any “contractor” in which City is (i) determined to be an “awarding body” and (ii ) damages are awarded, pursuant to Labor Code sections 1726 or 1781. CONTRACTOR’s defense, indemnity and hold harmless obligations under this section shall survive expiration or termination of this Agreement.
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CONTRACTOR hereby waives, releases and discharges the Indemnitees from any and all present and future Claims arising out of or in any way connected with CONTRACTOR’s obligation to comply with all State of California Labor Code requirements pertaining to the design and construction of the Work. This release applies to all potential future claims by CONTRACTOR on behalf of itself and its agents, representatives, assigns, heirs, spouses, successors -in-interest, executors, administrators, employees, contractor s, subcontractors, material suppliers and vendors (“Releasors”), agrees to waive any and all rights pursuant to Section 1542 of the California Civil Code, which reads as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
CONTRACTOR shall include within each of its contracts, subcontracts, and within any other agreements with Releasors involved in the Work, a release in favor of the Indemnitees substantially identical to this Section 26.
27. No Assignment. CONTRACTOR may not assign its rights or obligations under this Agreement without the express written consent of the City, which may be granted or denied in its sole discretion.
28. Authority. The Parties each represent that the signatory has the authority to bind each respective entity, and assents to each and every term contained within this Agreement.
29. No Third Party Beneficiary . It is the intention of the Parties that under no circumstances are any rights created for persons or entities who are not parties to this Agreement under a third party beneficiary theory or under any other theory of law.
30. No Joint Venture. It is expressly understood and agreed that neither Party shall become as a result of this Agreement a partner of the other nor a joint venturer with the other Party in the conduct of such Party’s business or otherwise. This Agreement is not intended, and shall not be construed, to create the relationship of principal and agent, partnership, joint venture, or association as between CITY and CONTRACTOR.
31. Severability. Should any provision of any of this Agreement be found invalid by a court or other body of competent jurisdiction, said invalidity or ineffectiveness shall not affect the validity of the remaining provisions of this Agreement which shall remain in force to the maximum extent possible.
32. Interpretation. The Parties acknowledge that each Party and its counsel have 4912-9665-2919 v4 11
reviewed and revised this Agreement and that the rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any document executed and delivered by either Party in connection with this Agreement. The captions in this Agreement are for convenience of reference only and shall not be used to interpret such Agreement. The defined terms in this Agreement shall apply equally to both the singular and the plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “approval,” “consent” and “notice” shall be deemed to be preceded by the word “written.”
33. Successors and Assigns. Subject to the restrictions on assignment set forth in Section 27 above, all of the terms, covenants and conditions of this Agreement shall be binding upon CITY and CONTRACTOR and their respective permitted successors and assigns.
34. Further Assurances . From and after the Effective Date of this Agreement, the Parties agree to do such things, perform such acts, and make, execute, acknowledge and deliver such documents as may be reasonably necessary or proper and usual to timely complete the actions contemplated by this Agreement.
35. Entire Agreement . This Agreement, including Exhibits A, A-1, B, C , and C -1 comprises the entire Agreement.
36. Counterparts. This Agreement may be executed in any number of counterparts and by different Parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
SIGNATURES ON NEXT PAGE
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the date first above written by their respective officers duly authorized in that behalf.
CITY OF FOSTER CITY
Dated: ____________________________________ Stacy Jimenez, Mayor
ATTEST:
Dated: ____________________________________ Priscilla Schaus, City Clerk
APPROVED AS TO FORM
Dated:
Benjamin Stock, City Attorney
CONTRACTOR
Dated:
Maureen Sedonaen, Chief Executive Officer
Habitat for Humanity Greater San Francisco
Email: [email protected]
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EXHIBIT A
SERVICES TO BE PROVIDED, PAYMENTS, PROJECTS AND SCHEDULE, AND
DELIVERABLES FOR
CITY OF FOSTER CITY HOME REHABILITATION PROGRAM
SCOPE OF WORK
1.0 Basic Services
HABITAT FOR HUMANITY GREATER SAN FRANCISCO (“ CONTRACTOR”) will provide services of program administration, distribution of loan funding, and performance of construction work for the City of Foster City (“ City” or “CITY”) Home Rehabilitation Program.
a) Program Summary: Foster City’s Home Rehabilitation Program uses a CONTRACTOR to aid in the preservation of homes owned by low and very low - income households in Foster City. The City provides funding for the Program and CONTRACTOR manages the loan Program, serves as the lender, and manages and provides construction services for each project.
b) Program Goal and Scope of this Agreement : The goal of the City’s 2023-2031 Housing Element Program H-B-2-a (“Program”) is to finance 18 home repair loans by December 31, 2031. Nine (9) of these loans are to be issued to low-income households, and nine (9) are to be issued to very low-income households. Nine (9) of the loans, and the projects they finance, are to be completed by December 31, 2028. The scope of this Agreement is for financing and repair of nine (9) low- income rehabilitation projects comprised of at least four (4) very low-income rehabilitation projects and at least four (4) low-income rehabilitation projects and the ninth project being either very low-income or low-income.
c) Program Funding: Funding for this Agreement shall be $675,000 loans, excluding CONTRACTOR fees and lending and servicing fees. The objective will be to issue nine (9) loans for the term of the Agreement with the CONTRACTOR.
d) CONTRACTOR Fees: City shall pay CONTRACTOR fees for program management, including loan administration and construction management, as described in Exhibit B of this executed Agreement.
e) Program Participants: participants in the program include a) City of Foster City (“City”): provides funding for loans and helps promote the Program; b) CONTRACTOR: administers and manages the program, makes loans, serves as construction manager for rehabilitation projects; c) Low and very low -income Foster City homeowners (“Homeowner” or “Applicant”): commit to repayment of the loan upon expiration of the loan or another repayment event, as defined in the Program Guidelines attached hereto as Exhibit A-1, which are hereby incorporated 4912-9665-2919 v4 14
into Exhibit A and the Agreement (“Program Guidelines”).
f) Program Period: the Home Rehabilitation Program will start by January 1, 2026, and continue until December 31, 20 28, to coincide in part with the 2023- 2031 Housing Element cycle. The City may elect to extend the Program through the next Housing Element Cycle. The City will re -evaluate program needs and funding for years 2029-2031.
g) Scope of Work for Additional Term : If City exercises its right to extend for an Additional Term, the renewal shall be for an additional nine (9) loans to complete the Program goal of 18 loans with nine (9) being very low income and (9) being low income.
2.0 Program Provisions
2.1 CONTRACTOR will perform the Services consistent with the Program Guidelines.
2.2 Program Applicants: The City And CONTRACTOR will both invite Foster City Homeowners to apply to the Program. The City will promote the Program using a variety of methods including methods such as advertising in the Islander and the City’s newsletter, social media, and the City’s website, and direct mail to targeted census tracts.
CONTRACTOR will conduct outreach to potential program participants through a robust range of touch points including presentations and flyers to community and faith-based organizations, direct mail, email, and social media.
2.3 Application Processing: CONTRACTOR will process applications, loan and project approvals, issue and administer loans pursuant to CONTRACTOR’S application processing procedures and consistent with the Program Guidelines .
CONTRACTOR shall submit a copy of its application processing procedures to City before commencing application processing for review and approval by the City.
2.4 Application Selection: Selection will be made consistent with the process described in the Program Guidelines. CONTRACTOR will hold a lottery, or other method approved by the City, to select Applicants to apply for the Program and create a waitlist or interest list.
2.5 Loan Terms
2.5.1 Loan Terms will be consistent with the requirements of the Program Guidelines.
2.6 Loan Underwriting and Servicing
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a) CONTRACTOR will underwrite and issue loans according to approved Program Guidelines.
b) CONTRACTOR will monitor and implement repayment events. A repayment event, including the expiration of the loan, breach of the Program rules, sale of the property, and other factors as specified in the Program Guidelines, require repayment of the loan in full.
c) CONTRACTOR will process Loan repayments that occur prior to termination of this Agreement with repayments being transferred to a Loan Fund established by CONTRACTOR for use and re -use of funds. Issuing of new loans will end at the termination of the Agreement with the CONTRACTOR unless a renewal is executed. At the end of the three (3)-year grant period, any funds in the reuse account will remain there at termination of Agreement. At the City’s discretion, the Loan Fund will be transferred to the City.
2.7 Construction Provisions
a) CONTRACTOR will manage and perform construction using CONSULTANT’S spec book of materials, finishes, and fixtures to address critical repair needs of the home.
b) CONTRACTOR’s construction team includes their employees and contractors, and, at their discretion, volunteers, if applicable and the homeowner agrees.
c) CONTRACTOR will maintain a valid business license with the City of Foster City during the term of the Agreement.
d) CONTRACTOR will comply with prevailing wage laws, to the extent applicable, including without limitation Labor Code sections 1771 and 1720 et seq. CONTRACTOR will comply with any associated registration, recordkeeping and reporting requirements to the extent required by law.
3.0 Payments
a) CONTRACTOR will issue loans to eligible applicants by the expiration of this Agreement.
b) CONTRACTOR will refund any unused loan funds and management fees to the City within 30 days of the termination of this Agreement, in an amount requested by the City. Funds remaining in the reuse account at the City’s request, would be covered in a separate agreement with CONTRACTOR to retain the management of a specified amount of funds to perform additional home repairs.
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c) CONTRACTOR is responsible for disbursing loans to homeowners and obtaining proper documentation and receipts, or, if work is performed by CONTRACTOR, keeping appropriate accounting records.
4.0 Reporting
CONTRACTOR shall submit annual reports to the City of Foster City per the Program Guidelines.
5.0 Contacts
CONTRACTOR contacts for this Agreement are as follows:
• Home Repair Operations: Home Preservation Construction Manager and Vice President of Construction
• Program Outreach: Senior Home Preservation Outreach Specialist • Contracts, Grants, and Compliance: Director of Public Funding and Grants • Loans and Servicing: Senior Loan Officer
• Accounting and Billing: Accounting Manager
• Chief Executive Officer: Maureen Sedonaen: [email protected]
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EXHIBIT A-1
PROGRAM GUIDELINES
PART ONE: APPLICANT AND PROPERTY REQUIREMENTS
1. Applicant Qualifications
o The Applicant is one of the owners on title of the Property o The Property is the primary residence of the one of the owners. o The Applicant does not have any other loans issued through or by the City of Foster City.
o The Applicant’s household income at time of application does not exceed the MTSP HERA Special Income limits for the household size at 50% AMI for very low-income households or 80% AMI (HUD) for low-income households. o Applicant agrees to allow CONTRACTOR to certify their income using CONTRACTOR’s standard income certification process.
2. Eligible Properties
o The property is a single dwelling unit, attached or detached or duplex located in Foster City.
o Property taxes must be current and paid in full.
o Mortgage must be in good standing (no defaults or foreclosure). o HOA dues must be current with no outstanding balances. o Property must have current homeowner’s insurance coverage. o There is no other active loan through the City of Foster City for the property. o The property has two or fewer other loans, including a mortgage, and the loan- to-value of the loans is no higher than 90% for all loans.
PART TWO: PROJECT ELIGIBILITY
1. Project Requirements
o Projects, including construction, will be managed by CONTRACTOR. o The project meets accessibility requirements, if applicable. o The project complies with local and state building codes and permit requirements. CITY may offer an accelerated permit approval process for these home rehabilitation projects if feasible.
o CONTRACTOR agrees to comply with Federal and State prevailing wage laws, to the extent applicable.
2. Eligible Uses of Loan Funds
o Loan funds may be used for construction materials and labor for rehabilitation of an existing unit. Typical items include but are not limited to window replacement, roof repair or replacement, kitchen remodeling, bathroom remodeling, flooring repair or replacement, energy improvement work , and weatherization improvements. CONTRACTOR may provide homeowners with 4912-9665-2919 v4 18
referrals to partners that provide installation of solar photovoltaic panels as a grant to the homeowner.
o Rehabilitation is defined as any construction work or replacement requiring a city-issued permit that does not add square footage to the Property, or work that does not require a city permit that results in an upgrade to the home such as painting, replacing appliances, installation of new hardware, new flooring, or safety-related equipment in bathrooms, etc. Please note that install ation must be performed according to the manufacturer’s instructions. o Demolition work necessary for the rehabilitation.
o Site work, such as water/sewer/septic repair or replacement or utility improvements.
o Permit costs beyond those that are waived through participation in this Program.
o Other hard or soft costs approved at the discretion of the City
3. Ineligible Projects/Uses of Funds
o Building additions resulting in additional square footage to the building. o Home renovation, foundation repair, and any work that requires engineering. o Unreasonable costs. CONTRACTOR will determine, in its sole discretion, costs deemed excessive or unreasonable or uses deemed ineligible. Ineligible uses of funding include, but are not limited to, costs associated with construction items or materials of a luxury nature or furnishings.
PART THREE: LOAN TERMS
1. Basic Terms
Loan terms, including term of loan, interest rate, deferred payment schedule or balloon payment, downpayment and other loan terms shall be determined by the City prior to execution of the Agreement with the CONTRACTOR.
a) Minimum loan amount: $25,000 and maximum loan amount: $75,000, including hard and soft costs.
b) Loan term: up to 30 years. Loan terms of less than 30 years may be extended in five (5) year increments up to a maximum of 30 years. c) Interest rate for low -income loans: 0% or as approved by the City in writing Interest rate for very low-income loans: 0%
d) Payments deferred up to 30 years or full payment is due upon repayment event as described below.
+
2. Additional Loan Provisions
o Subordination is permitted to primary mortgage and home equity loan/line of credit (other situations subject to written approval by the City). o Loan signatories: all individuals on title shall sign the Loan Documents. 4912-9665-2919 v4 19
o Non-occupant parents, ex-spouses, siblings, and/or children who are listed on title to the real Property or as registered owners of the unit will be required to co- sign the Loan Documents and shall be equally liable to repay the Rehabilitation Loan. o The rehabilitation work must be completed within 12 months of loan approval .
Completion is defined as the date of issuance of signed permit card or certificate of occupancy.
o Loans to be secured by Deed of Trust.
3. Repayment events
The loan shall be payable in full to CONTRACTOR, to be held in a reuse account, with any accrued interest, within 30 days of any of the following events:
1) The loan expires without execution of an extension.
2) There is a change in Property ownership: the unit or any interest therein is sold, conveyed, or transferred, other than a Permitted Transfer. A Permitted Transfer includes:
a. Transfer to a surviving joint tenant;
b. When a spouse or domestic partner becomes an owner of the home with the original borrower;
c. Transfer to a surviving spouse or surviving domestic partner; d. Transfer to a spouse because of a divorce decree; and e. Transfer to surviving children of a deceased borrower who also meet income eligibility requirements.
The Homeowner passes away and the Loan is not assumed by another eligible borrower.
3) The Property is no longer Owner -Occupied. “Owner-Occupied” means that the Borrower occupies, and continuously maintains, the Property as his or her principal residence, except in limited circumstances. The Borrower must physically reside in the Property as the primary place of residence and must not lease, rent, or otherwise vacate the Property without the prior written consent of the CONTRACTOR. The Property shall not be considered Owner - Occupied if it is used as an investment, second home, or rental property. 4) The lot is split.
5) The Homeowner breaches one or more provisions of the Loan Documents that remains uncured for 30 or more days.
6) Property taxes or mortgage on the Property become delinquent. 7) The Homeowner fails to maintain or provide proof of hazard insurance for the Property.
4. Cancellation
In the event that a loan is not completed, the CONTRACTOR may elect to charge the applicant a cancellation fee if the provision for the fee is included in the executed loan documents. Cancellation fees shall then be paid to CONTRACTOR by applicant to replenish the program fund.
4912-9665-2919 v4 20
PART FOUR: SELECTION PROCESS
1. Selection Process
o CONTRACTOR will manage the application and lottery process to create a waitlist, or other process approved by the City.
o Application deadlines shall be set by CONTRACTOR.
o Applications meeting the following criteria will receive a preference:
1) The Property is located in census tract with geographic targeting for disabilities (6080.25 or 6083) and/or the Applicant falls into one or more of the following demographic categories: a veteran of the US Armed Forces; someone with a disability; a senior, aged 62 or over, and/or Applicant is a participant in or will participate upon completion of the rehabilitation project in the HIP Housing’s Home Sharing Program..
2) Second Priority: All other income-qualified Applicants.
2. Steps in Processing Applications:
a) Applicant submits a Program application to CONTRACTOR by the application deadline. The application shall include Homeowner information, property information, and income data. There is no application fee for this program. b) CONTRACTOR sorts applications by preference category, runs a digital lottery to create a waitlist, or other method approved by the City, and notifies applicants of their place on the waitlist. Applicants that are not selected for eligibility review will remain on the wait list. Applicants are responsible for providing current contact information.
c) CONTRACTOR notifies Applicants in preference waitlist order to initiate the application eligibility review process.
d) Upon CONTRACTOR’s approval of the application, CONTRACTOR will provide pre-approval authorization and reserve available Loan funds for the individual project after construction contract is signed.
e) CONTRACTOR will conduct project feasibility, schedule, and cost estimate report. f) If the project is approved for eligibility, the Applicant and CONTRACTOR will execute Loan and Project Agreements.
g) Homeowners will also have access to no- cost “office hours” with a Technical Assistance advisor to answer any questions about their project. h) CONTRACTOR will obtain all required permits and City approvals and manage construction of the project.
i) CONTRACTOR has 12 months to complete the construction work identified in the Construction Scope of Work from the time that the Loan and Project Agreements are signed.
PART FIVE: LOAN MANAGEMENT PROCESS
CONTRACTOR is responsible for complying with federal and state lending regulations and lending to homeowners who occupy their homes as their primary residence. Below is a list of key tasks and activities CONTRACTOR will manage. 4912-9665-2919 v4 21
1. Loan Application Process and Loan Origination
• Underwriting
• Credit reports
• Appraisal or review of recent comparable properties similar in size, location, and condition to the subject property
• Title Reports
2. Determine application eligibility or denial
• Inform homeowner in writing of eligibility or denial
3. Draft and execute loan documents (deed of trust and promissory note) • Preparation of loan documents in consultation with the City of Foster City • Loan education for homeowners
• Disclosures
• Loan closing
4. Draft and Execute loan modification at end of project • True-up
• Change orders
5. Transfer Loan to Servicing
PART SIX: ONGOING OBLIGATIONS
1. Ongoing Homeowner Obligations
Homeowners have the following ongoing obligations during the Application Period and, if approved, during the term of the loan:
o Provide all relevant documentation, within seven (7) days of CONTRACTOR request, for eligibility, including property ownership and financing documentation, income certification and preference verification. o Submit a complete application.
o Execute and comply with all terms of the Loan Agreement and the Project Agreement.
o Notify CONTRACTOR of any of the repayment events as outlined in Table 1 below and submit an annual affidavit that no loan repayment events have occurred in the last year and indicate if any repayment events are anticipated in the next year.
o Pay the loan principal and interest in full to CONTRACTOR upon an eligible Repayment Event.
4912-9665-2919 v4 22
Table 1. Repayment Events
# Repayment Event Homeowner must
notify CONTRACTOR
and the City of event
Repayment
Deadline
1 There is a change in Property
ownership: the unit or any
interest therein is sold,
conveyed, or transferred other
than a Permitted Transfer (see
section 3 above)
30 days prior to event Upon date of
close of escrow,
conveyance, or
transfer
2 The Homeowner dies and the
Loan is not assumed by another
eligible borrower
Within 30 days after
event
Within 60 days
after event
3 The Property is no longer
owner-occupied, or the
Homeowner no longer occupies
the unit as their principal
residence for reasons with
limited exceptions
30 days prior to event Within 30 days of
event
4 The loan expires without
execution of an extension. The
loan term may be extended for
five (5) year increments to a
maximum of 30 years.
n/a – CONTRACTOR
will notify Homeowner
Upon expiration
date
5 The lot is split 30 days prior to event Within 30 days of event
6 The Homeowner breaches one
or more provisions of the Loan
or Project Agreement that
remains uncured for 30 or more
days
Within 30 days of
breach
Within 30 days of
event
7 Property taxes or mortgage on
the Property become delinquent
Within 30 days after
event
Within 60 days of
event
8 The Homeowner fails to
maintain hazard insurance for
the Property
Within 30 days after
event
Within 60 days of
event
2. Ongoing Obligations of CONTRACTOR
CONTRACTOR has the following ongoing obligations during the Program Period:
o Determine lottery dates, if applicable, annually and coordinate with the City to ensure promotion of the Program prior to the deadlines. o Manage the application, lottery, and approval process. o Underwrite and administer loans.
4912-9665-2919 v4 23
o Submit annual reports to the City on loan and construction activities, including property addresses, loan amounts and terms, construction documents, loan fund balance, cancellations of loans or projects, if any, and other information as requested by the City.
o Maintain application, loan, and project files for a time period according to the City of Foster City’s Records Retention Policy.
o Permit the City to inspect or audit files upon request and with reasonable notice. o Inform the City of any loan repayment events that occur prior to or on date of termination of this Agreement and deposit any loan repayments into a dedicated reuse account.
o Remit to the City within 30 days any remaining unused loan funds after termination of this Agreement, unless the City extends the term of this Agreement.
o Submit invoices to the City of Foster City for CONTRACTOR fees within 30 days of loan approval.
o Provide a warranty for construction work for a minimum of one year. o Coordinate with the City regarding required documentation and support materials for additional opportunities to expand funding for the Program. o Notify the City of each Repayment Event within 30 days of event and remit payment to the City for the full amount of the loan within 60 days of receipt of repayment of the loan , unless the City specifically requests in writing that the funds remain in the reuse account for reuse for loan funding.
3. Ongoing Obligations of The City
The City has the following ongoing obligations during the Program Period:
o Promotion of the Program on the City’s website, social media platforms, electronic billboard, electronic newsletter, etc. as long as funding remains available.
o Payment to CONTRACTOR within 30 days of receipt of invoices. o Continue to seek additional funding opportunities for the Program. o Conduct annual monitoring of loans and administer any repayment events. o Respond to CONTRACTOR regarding any Repayment Events in which the CITY desires to retain the repaid loan funding in the reuse account rather than replenish the City’s Linkage Fee Fund 137.
4. Submit Reporting to City of Foster City on Program Funding
a) CONTRACTOR shall submit a spreadsheet to the City of Foster City annually with data for each award including homeowner name, Foster City property address, loan amount, project description, project timeline, and permit data. The report shall be due by January 31 each year.
b) CONTRACTOR shall provide a final report upon the completion of rehabilitation projects. The report shall include the number of homeowners served, names and 4912-9665-2919 v4 24
addresses, project descriptions, dates of loans, loan interest rate s, loan term s, payments, outstanding payments, and amount of loans for each homeowner.
5. Maintain Records and Documentation
a) For each approved loan, CONTRACTOR shall maintain a copy of the application, eligibility determination documentation, project description, project documentation, a form that shows the total project cost and date of completion of the project and the name of the CONTRACTOR representative who approved the loan, the loan funding amount awarded, receipts or invoices and copies of checks for payments related to the project.
b) CONTRACTOR agrees to keep electronic and/or hardcopy of documentation for a period of five (5) years or as directed by the City to comply with the City’s Records Retention Policy.
6. Program Marketing
a) CONTRACTOR shall market the program on its website and through the distribution of flyers created by the CONTRACTOR and provided to the City , interested parties, for tabling, if applicable, and other means as appropriate.
b) CONTRACTOR will coordinate with the City to promote the program on the City’s website, electronic billboard, electronic newsletter, and, if budget permits, through advertising in the Islander and/or direct mail to homeowners in low-income census tracts.
END OF EXHIBIT A
4912-9665-2919 v4 25
EXHIBIT B
FEE SCHEDULE
THE CITY OF FOSTER CITY SHALL PAY HABITAT FOR HUMANITY GREATER SAN FRANCISCO (“CONTRACTOR”), THE TOTAL AMOUNT SHOWN BELOW WITHIN 30
DAYS OF RECEIPT OF AN INVOICE FOR THE AGREEMENT EXECUTED ON ___________________.
DESCRIPTION AMOUNT PER LOAN TOTAL – 9 Loans
Loan Funds Minimum of $25,000 and
Maximum of $75,000
$675,000
Administration 25% per loan or a maximum of
$18,750
$168,750
Lending & Loan Initiation $2,000 per approved loan $18,000 Total Contract Amount $861,750
The CONTRACTOR shall deposit funds in a re- use account for loans and administration established by CONTRACTOR. CONTRACTOR shall withdraw funds from the accounts for each project, including loan funds, administration, and lending.
A. Loan Funds
1. Loans shall be issued at a minimum of $25,000 and a maximum of $75,000 per homeowner. Loan fees include hard and soft costs.
B. Administrative Fees
1. Outreach, marketing, and selection are included in the 25% fee.
2. Project Manager and technician fees are included in the 25% fee until Notice to Proceed for a home rehabilitation is issued.
C. Lending and Loan Initiation Fees
1. Fees are $2,000 per loan and include title, credit, loan set -up, and appraisal/comparable sales research. These fees are charged by CONTRACTOR’s subcontractor AmeriNat, which provides certain loan initiation services pursuant to a separate agreement between CONTRACTOR and AmeriNat.
CONTRACT MAXIMUM: $861,750
END OF EXHIBIT B
4912-9665-2919 v4 26
EXHIBIT C
INSURANCE FORMS
CONTRACTOR shall provide, in addition to the Certificates of Insurance, original Endorsement affecting the coverages specified in herein on the attached form . No substitute form will be accepted.
This is an Exhibit to, and made a part of and incorporated by reference to the Agreement dated__________________, by and between HABITAT FOR HUMANITY GREATER SAN FRANCISCO, INC. , hereinafter referred to as " CONTRACTOR”, and the City of Foster City, hereinafter referred to as "City", providing for professional services.
1. CONTRACTOR's Duty to Show Proof of Insurance. CONTRACTOR, in order to protect City and its Council members, officials, agents, officers, and employees against all claims and liability for death, injury, loss and damage as a result of CONTRACTOR's acts, errors, or omissions in connection with the performance of CONTRACTOR's obligations, as required in this Agreement, shall secure and maintain insurance as described below. CONTRACTOR shall not perform any work under this Agreement until CONTRACTOR has obtained all insurance required under this section and the required certificates of insurance and all required endorsements have been filed with the City's authorized insurance representative, insurance Tracking Services Inc. (ITS) . Receipt of evidence of insurance that does not comply with all applicable insurance requirements shall not constitute a waiver of the insurance requirements set forth herein. The required documents must be signed by the authorized representative of the insurance company shown on the certificate. Upon request, CONTRACTOR shall supply proof that such person is an authorized representative thereof, and is authorized to bind the named underwriter(s) and their company to the coverage, limits and termination provisions shown thereon, CONTRACTOR shall promptly deliver to ITS a certificate of insurance, and all required endorsements, with respect to each renewal policy, as necessary to demonstrate the maintenance of the required insurance coverage for the term specified herein. Such certificates and endorsements shall be delivered to ITS prior to the expiration date of any policy and bear a notation evidencing payment of the premium thereof if so requested. CONTRACTOR shall immediately pay any deductibles and self - insured retentions under all required insurance policies upon the submission of any claim by CONTRACTOR or City as an additional insured.
1.1 Insurance Requirements
☒ Commercial General Liability Insurance
Commercial General Liability Insurance including, but not limited to, Contractual Liability Insurance (specifically concerning the indemnity provisions of this Agreement with the City ), Products -Completed Operations Hazard, liability for slander, false ar rest and invasion of privacy arising out of professional services rendered hereunder, Personal Injury (including bodily injury and death), and 4912-9665-2919 v4 27
Property Damage for liability arising out of CONTRACTOR's performance of services under this Agreement. The Commercial General Liability insurance shall contain no exclusions or limitation for independent contractors working on the behalf of the named insured. CONTRACTOR shall maintain the Products - Completed Operations Hazard coverage for the longest period allowed by law following termination of this Agreement . The amount of said insurance coverage required by this Agreement shall be the policy limits, whi ch shall be at least two million dollars ($2,000,000) each occurrence and four million dollars ($4,000,000) aggregate.
*Please note, the City will require a separate additional insured endorsement for the Commercial General Liability policy, listing the “City of Foster City, its Council members, officials, agents, officers, and employees”.
☒ Business Automobile Liability Insurance
Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering any vehicle and/or all owned, leased, hired and non- owned vehicles used in the performance of Services pursuant to this Agreement with coverage equal to the policy limits, which shall be at least two million dollars ($2,000,000) each occurrence.
☒ Workers' Compensation Insurance
CONTRACTOR shall submit written proof that CONTRACTOR is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the California Labor Code. CONTRACTOR shall require any subcontractors to provide workers' compensation for all of the subcontractor s' employees, unless the subcontractor s' employees are covered by the insurance afforded by CONTRACTOR. If any class of employees engaged in work or services performed under this Agreement is not covered by California Labor Code section 3700, CONTRACTOR shall provide and/or require each subcontractor to provide adequate insurance for the coverage of employees not otherwise covered.
CONTRACTOR shall also maintain employer's liability insurance with limits of one million dollars ($1,000,000) for bodily injury or disease.
☒ Professional Liability Insurance
Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, all negligent acts, errors or omissions in connection with services to be provided under this Agreement, with no exclusion for claims of one insured against another insured, with coverage equal to the policy limits, which shall not be less than two million dollars ($ 2,000,000) per occurrence and two million dollars ($2,000,000) aggregate.
☒ Installation Floater
4912-9665-2919 v4 28
Installation Floater, covering the work performed under this Contract, against all risks of direct physical loss. The policy shall cover the Contractor’s labor, materials and equipment, including materials and equipment in transit or away from the project site, to be installed in the existing structure(s). The coverage shall be written for an amount equal to the initial contract amount plus the value of any subsequent change orders, subject to a deductible of not more than [$10,000] payable by Contractor.
□ Cyber Liability Insurance
Cyber Liability Insurance, covering network risk and cyber liability (including coverage for unauthorized access, failure of security, breach of privacy perils, as well at notification costs and regulatory defense) in an amount of not less than $1,000,000. Such insurance shall be maintained in force at all times during the term of the Contract and for a period of two years thereafter for services completed during the term of the Contract.
1.2 Self-Insured Retention
Any self -insured retentions in excess of $100,000 must be declared on the Certificate of insurance or other documentation provided to City and must be approved by the City Risk Manager.
1.3 Claims-Made Basis Coverage
If any of the insurance coverages required under this Agreement is written on a claims-made basis, CONTRACTOR, at CONTRACTOR's option, shall either (i ) maintain said coverage for at least five (5) years following the termination of this Agreement with coverage extending back to the effective date of this Agreement; (ii) purchase an extended reporting period of not less than five (5) years following the termination of this Agreement; or (iii) acquire a full prior acts provision on any renewal or replacement policy.
2. City as Additional Insured
On CONTRACTOR's Commercial General Liability and Automobile policies, the City, its Council members, officers, directors, agents, employees, and volunteers, shall be named as additional insured's, but only with respect to liability arising out of the activities of the named insured. Any endorsement shall be provided using one of the following three options: (i) on ISO form CG 20 10 1 1 85; or (ii) on ISO form CG 20 37 10 01 plus either ISO form CG 20 10 10 01 or CG 20 33 10 01; or (iii) on such other forms which provide coverage at least equal to or better than form CG 20 10 1 1 85.
4912-9665-2919 v4 29
3. Insurance terms and conditions:
3.1 Cancellation of Insurance
The above stated insurance coverages required to be maintained by CONTRACTOR shall be maintained until the completion of all of CONTRACTOR's obligations under this Agreement except as otherwise indicated herein. Each insurance policy supplied by CONTRACTOR shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten (10) days written notice by CONTRACTOR in the case of non -payment of premiums, or thirty (30) days written notice in all other cases . This notice requirement does not waive the insurance requirements stated herein . CONTRACTOR shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non- renewed, or whose policy limits have been exhausted or upon insolvency of the insurer that issued the policy.
3.2 All insurance shall be issued by a company or companies admitted to do business in California and listed in the current "Best's Key Rating Guide" publication with a minimum rating of A -; VII Any exception to these requirements must be approved by the City Risk Manager.
3.3 If CONTRACTOR is, or becomes during the term of this Agreement, self - insured or a member of a self -insurance pool, CONTRACTOR shall provide coverage equivalent to the insurance coverages and endorsements required above. The City will not accept such coverage unless the City determines, in its sole discretion and by written acceptance, that the coverage proposed to be provided by CONTRACTOR is equivalent to the above-required coverages.
3.4 For any claims related to the Agreement, the CONTRACTOR’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers . Any insurance or self -insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
3.5 Insurance coverages in the minimum amounts set forth herein shall not be construed to relieve CONTRACTOR for any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the City from taking such other actions as are available to it under any other provision of this Agreement or otherwise in law.
3.6 Failure by CONTRACTOR to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by CONTRACTOR. City, at its sole option, may terminate this Agreement and obtain damages from CONTRACTOR resulting from said breach. Alternatively, City may 4912-9665-2919 v4 30
purchase such required insurance coverage, and without further notice to CONTRACTOR, City shall deduct from sums due to CONTRACTOR any premiums and associated costs advanced or paid by City for such insurance. If the balance of monies obligated to CONTRACTOR pursuant to this Agreement are insufficient to reimburse City for the premiums and any associated costs, CONTRACTOR agrees to reimburse City for the premiums and pay for all costs associated with the purchase of said insurance. Any failure by City to take this alternative action shall not relieve CONTRACTOR of its obligation to obtain and maintain the insurance coverages required by this Agreement.
3.7 Should any of the required insurance (other than errors and omissions insurance) be provided under a form of coverage that includes a general annual aggregate limit or provides that claims investigation or legal defenses costs be included in such general aggregate limit, such general annual aggregate limit shall be double the occurrence or claims limit specified above.
3.8 City may (but is under no obligation to) secure project -specific insurance, wrap-up insurance, or administer an owner-controlled insurance program ("OCIP"), in which case CONTRACTOR and its subcontractors shall communicate this fact to their insurance carriers and request that the risk of this project be excluded from their practice policies. CONTRACTOR's fees under this Agreement (and the fee of its subcontractors under subcontractor agreements) shall be reduced by the amount of insurance premiums that may be avoided by CONTRACTOR and its subcontractors by virtue of the City's obtaining the project- specific insurance, wrap-up insurance or administering an OCIP, and the exclusion of this project from coverage of CONTRACTOR's and subcontractors policies.
Construction Manager and its subcontractors shall afford City access to their books and records and cooperate with City in verifying the amount of savings realized.
ATTACHED
1. Exhibit C-1: Insurance Coverage Form
4912-9665-2919 v4 31
EXHIBIT C-1
This INSURANCE COVERAGE FORM modifies or documents insurance provided under the following:
Named Insured: ____________________________________ Effective Work Date(s): _____________
Description of Work/Locations/Vehicles:
___________________________________________________
ADDITIONAL INSURED: City of Foster City (CITY)
610 Foster City Boulevard, Foster City, CA 94404
Attention: _________________________________
Contract Administrator
Endorsement and Certificates of Insurance Required
The Additional Insured, its elected or appointed officers, officials, employees and volunteers are included as insureds with regard to damages and defense of claims arising from:
(Check all that apply)
Insurer Policy
No.
General Liability: (a) activities performed by or on
behalf of the Named Insured, (b) products and
completed operations of the Named Insured, (c)
premises owned, leased occupied or used by the
Named Insured, and/or (d) permits issued for
operations performed by the Named Insured. {Note:
MEETS OR EXCEEDS ISO Form # CG 20 10 11 85}
Auto Liability: the ownership, operation,
maintenance, use, loading or unloading of any auto
owned, leased, hired or borrowed by the Named
Insured, regardless of whether liability is attributable to the Named Insured or a combination of the Named
Insured and the Additional Insured, its elected or
appointed officers, officials, employees or volunteers.
Cyber Liability: Covering network risk and cyber
liability (including coverage for unauthorized access,
failure of security, breach of privacy perils, as well at notification costs and regulatory defense=
Installation Floater: Covering the work performed
under this Contract, against all risks of direct physical loss. The policy shall cover the Contractor’s labor,
materials and equipment, including materials and
equipment in transit or away from the project site, to
be installed in the existing structure(s).
4912-9665-2919 v4 32
Certificates of Insurance Required (no endorsement
needed) (Check all that apply)
Insurer Policy
No.
Workers Compensation: work performed by
employees of the Named Insured while those
employees are engaged in work under the
simultaneous directions and control of the Named
Insured and the Additional Insured.
Professional Liability: (Errors and Omissions)
Insurance, for liability arising out of, or in connection with, all negligent acts, errors or omissions in
connection with services to be provided under this
Agreement, with no exclusion for claims of one
insured against another insured, with coverage equal
to the policy limits
PRIMARY/NON-CONTRIBUTORY: This insurance is primary and is not additional to or contributing with any other insurance carried by or for the benefit of Additional Insureds.
SEVERABILITY OF INTEREST: The insurance afforded by this policy applies separately to each insured who is seeking coverage or against whom a claim is made or a suit is brought, except with respect to the insurer’s limit of liability.
PROVISIONS REGARDING THE INSURED'S DUTIES AFTER ACCIDENT OR LOSS :
Any failure to comply with reporting provisions of the policy shall not affect coverage provided to the Additional Insured, its elected or appointed officers, officials, employees, or volunteers.
CANCELLATION NOTICE. The insurance afforded by this policy shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice (ten (10) days if canceled due to non-payment) by regular mail return receipt requested has been given to the Additional Insured. Such notice shall be addressed as shown above.
WAIVER OF SUBROGATION: The insurer(s) named above agree to waive all rights of subrogation against the CITY, its elected or appointed officers, officials, agents, volunteers and employees for losses paid under the terms of this policy which arise from work performed by the Named Insured for the CITY.
Nothing herein contained shall vary, alter or extend any provision or condition of the Policy other than as above stated.
SIGNATURE OF INSURER OR AUTHORIZED REPRESENTATIVE OF THE
INSURER
4912-9665-2919 v4 33
I, _____________________________________________________(print/type name), warrant that I have authority to bind the above-named insurance company and by my signature hereon do so bind this company.
SIGNATURE OF AUTHORIZED REPRESENTATIVE (original signature required)
______________________________________________
ORGANIZATION:
TITLE:
ADDRESS:
TELEPHONE:
DATE ISSUED: