4917-5658-6616 v2 1
PROFESSIONAL SERVICES AGREEMENT
FOR
CONSULTANT SERVICES
This Professional Services Agreement for Consultant 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 REBUILDING TOGETHER PENINSULA hereinafter called "CONSULTANT". CITY and CONSULTANT 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 CONSULTANT to provide professional services in the CITY;
WHEREAS, CONSULTANT is qualified to provide such services to the CITY and;
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 CONSULTANT 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 CONSULTANT 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, 2027, with an option for a one- year renewal which may be exercised by City in its sole discretion with an expiration date of December 31, 2028 (“Additional Term”). (b) Notwithstanding the provisions of (a) above, CITY may with or without cause, direct CONSULTANT 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 CONSULTANT commit a material breach of this Agreement, or part 4917-5658-6616 v2 2
thereof, and not cure such breach within ten (10) calendar days of the date of CITY’s written notice to CONSULTANT demanding such cure, in which case CONSULTANT 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 CONSULTANT 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. CONSULTANT shall continue its work throughout the course of any dispute, and CONSULTANT’s failure to continue work during a dispute shall be a material breach of this Agreement.
Should City elect to exercise its option to renew the Agreement for an Additional Term, CONSULTANT will perform the Services with respect to any Work still pending, and for a quantity of additional homes to be selected by the City in its reasonable discretion. CONSULTANT’s compensation during the Additional Term year period shall be $5,833 per additional home, 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 term.
3. Compensation; Expenses; Payment . CITY shall compensate CONSULTANT for all services performed by CONSULTANT hereunder as outlined in Exhibit B , 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 SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($17,500) as shown on Exhibit B to this Agreement. Invoices for amounts in excess of SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS ($ 17,500) 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 by the City Manager (for contracts les s than $50,000) or City Council (for contracts $50,000 or more) evidenced by motion duly made and 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. CONSULTANT agrees to demonstrate diligent progress thereon as stated in Exhibit A . CITY shall not be liable for, and CONSULTANT shall not be entitled to, any payment for Services performed before this Agreement's execution. Upon termination of this Agreement, any Repair Award Funds provided by CITY to CONSULTANT which have not been used shall be reimbursed to CITY within 30 days.
4. Additional Services . In the event CITY desires the performance of additional services not otherwise included within the services described in Exhibit A, such 4917-5658-6616 v2 3
services shall be authorized in advance of the performance thereof by the City Manager (for contracts less than $50,000) or City Council (for contracts $50,000 or more) by motion duly made and carried. Such amendment to this Agreement shall include a descr iption 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 ser vices. 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. CONSULTANT shall keep and maintain accurate records of all time expended and costs and expenses incurred relating to services to be performed by CONSULTANT hereunder. Said records shall be available to CITY for review and copying during regular business hours at CONSULTANT’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 CONSULTANT . CONSULTANT represents that it has the necessary professional skills to perform the services required and the CITY shall rely on such skills of the CONSULTANT to do and perform the work. In performing services hereunder CONSULTANT shall adhere to the standards generally prevailing for the performance of expert consulting services similar to those to be performed by CONSULTANT hereunder.
CONSULTANT 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.
CONSULTANT 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 CONSULTANT, 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 CONSULTANT 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 4917-5658-6616 v2 4
copies thereof, as finally rendered, prepared by CONSULTANT pursuant to the terms of this Agreement, shall, upon preparation and delivery to CITY, become the property of CITY.
9. Relationship of Parties. CONSULTANT is an independent Contractor and does not act as City’s agent in any capacity, whatsoever . CONSULTANT 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 CONSULTANT’s provision of Services, not the means, methods, or scheduling of the C ONSULTANT’s work . CONSULTANT shall be solely responsible for the means, methods, techniques, sequences and procedures with respect to its provision of Services under this Agreement .
CONSULTANT 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. CONSULTANT 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 CONSULTANT’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, CONSULTANT’s officers or employees.
CONSULTANT 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, CONSULTANT hereby agrees to defend, indemnify, and save harmless CITY, its Council, boards, commissions, officers, employees, directors, volunteers and agents, 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 CONSULTANT or its Subconsultants), cost (including, without limitation, costs and fees of litigation) of every nature, kind or description, at law or equity, which may be brought against, or suffered or sustained by, City of Foster City, its Council, boards, commissions, officers, employees, directors, volunteers or agents that arise out of, pertain to, or relate to any negligence, recklessness, or willful misconduct of CONSULTANT, any Subconsultant, 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 CONSULTANT shall meet and confer with other parties regarding unpaid defense costs.
The duty of CONSULTANT 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 4917-5658-6616 v2 5
Code; provided, however, that nothing herein contained shall be construed to require CONSULTANT 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.
CONSULTANT’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 CONSULTANT is a “design professional,” as defined in California Civil Code Section 2782.8(c), CONSULTANT shall indemnify, defend, and hold the Indemnitees harmless against Liability only to the extent such Liability arises out of, pertains to, or relates to CONSULTANT’s negligence, recklessness, or willful misconduct. In such an event, the cost to defend charged to CONSULTANT shall not exceed CONSULTANT’s proportionate percentage of fault.
12. Insurance. Prior to execution of this Agreement, CONSULTANT 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. CONSULTANT shall maintain all required insurance throughout the term of this Agreement and as otherwise provided in EXHIBIT C. In the event CONSULTANT fails to maintain any required insurance, and notwithstanding Paragraph 3 above, CITY may (but is not obligated to) purchase such insurance and deduct or retain premium amounts from any sums due CONSULTANT under this Agreement (or CONSULTANT shall promptly reimburse CITY for such expense).
CONSULTANT 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 CONSULTANT 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 CONSULTANT.
13. WORKERS' COMPENSATION. CONSULTANT certifies that he 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 CONSULTANT certifies that he will comply with such provisions before commencing the performance of the work of this agreement.
14. NON-DISCRIMINATION. The CONSULTANT will not discriminate against any 4917-5658-6616 v2 6
employee or applicant for employment because of race, color, religion, sex or national origin. The CONSULTANT 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 compensatio n, and selection for training, including apprenticeship. The CONSULTANT 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 CONSULTANT 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 CONSULTANT 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
CONSULTANT: Rebuilding Together Peninsula
841 Kaynyne Street
Redwood City, CA 94063
Attention: Rachel Poythress
Safe Home Manager
Email:
[email protected]
Tel. 650-366-6597
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 4917-5658-6616 v2 7
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. CONSULTANT 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, CONSULTANT represents to and agrees with CITY that CONSULTANT 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) CONSULTANT may presently have, or will have in the future, with respect to any other person or entity (including but not limited to potential suppliers, v endors, consultants, 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 CONSULTANT 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, 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 CONSULTANT, or by any of its employees, even though such equipment be furnished, rented or loaned to CONSULTANT by CITY . The acceptance or use of such equipment by CONSULTANT or any of its employees shall be construed to mean that CONSULTANT 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 CONSULTANT, its employees, CITY employees or third parties, or to property belonging to any of the above.
4917-5658-6616 v2 8
Nothing in this Agreement shall constitute a waiver or limitation of any right or remedy, whether in equity or at law, which CITY or CONSULTANT may have under this Agreement or any applicable law . All rights and remedies of CITY or CONSULTANT, 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 subconsultants at any tier, CONSULTANT shall not be liable for any excess costs if the failure to perform the Agreement arises from causes beyond the control and without the fault or negligence of CONSULTANT, including without limita tion failure to reasonably mitigate any adverse impacts (Force Majeure). 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 beyond the parameters otherwise set forth in this Article, nuclear accidents, 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. CONSULTANT shall carry out, and shall 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; the City zoning and development standards; building, plumbing, mechanical and electrical codes; all other provisions of the City of Foster City Municipal Code (“ Code”); all ap plicable disabled and handicapped access requirements, including the Americans With 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 CONSULTANT 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.
4917-5658-6616 v2 9
In the performance of its obligations set forth in this Agreement, CONSULTANT 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, CONSULTANT 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 to all workers, laborers and mechanics employed in the execution of the Work by CONSULTANT, 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, CONSULTANT, 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).
CONSULTANT shall defend, with counsel reasonably acceptable to CITY, indemnify and hold harmless Indemnitees from and against any Claims arising out of CONSULTANT’s failure to comply with State of California Labor Code requirements pertaining to the design and construction of the Work. Further, CONSULTANT 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. CONSULTANT’s defense, indemnity and hold harmless obligations under this section shall survive expiration or termination of this Agreement.
CONSULTANT hereby waives, releases and discharges the Indemnitees from any and all present and future Claims arising out of or in any way connected with CONSULTANT’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 CONSULTANT 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 4917-5658-6616 v2 10
known by him or her, would have materially affected his or her settlement with the debtor or released party.”
CONSULTANT 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. CONSULTANT 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 CONSULTANT.
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 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 interpretati on 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 4917-5658-6616 v2 11
Section 27 above, all of the terms, covenants and conditions of this Agreement shall be binding upon CITY and CONSULTANT 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
4917-5658-6616 v2 12
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: ____________________________________ Stefan Chatwin, City Manager
ATTEST:
Dated: ____________________________________ Priscilla Schaus, City Clerk
APPROVED AS TO FORM
Dated:
Benjamin Stock, City Attorney
CONSULTANT
Dated:
Melissa Lukin, Chief Executive Officer
Rebuilding Together Peninsula
Email:
4917-5658-6616 v2 13
EXHIBIT A
SERVICES TO BE PROVIDED, PAYMENTS, PROJECTS AND SCHEDULE, AND
DELIVERABLES FOR
CITY OF FOSTER CITY MINOR HOME REPAIR PROGRAM
SCOPE OF WORK
1.0 Basic Services
CONSULTANT will provide services of program administration, distribution of grant funding, and performance of construction work for the City of Foster City (“CITY” or “City”) Minor Home Repair Program . The Minor Home Repair Program is described below. CONSULTANT will perform the Services consistent with the Program Guidelines attached hereto as Exhibit A-1, which are hereby incorporated into Exhibit A and the Agreement (“Program Guidelines”).
a) Program Summary: Foster City’s Minor Home Repair Program uses a CONSULTANT 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 CONSULTANT manages the grant Program issues awards and manages and provides construction services for each project.
b) Program Goal: The Program goal is to improve homes owned by very low-income Foster City homeowners by 2031 to support housing preservation. The City of Foster City’s 2023-2031 Housing Element Program H -B-2-b, Facilitate Non-Profit Rehabilitation/ Maintenance Assistance calls for six (6) units improved by 2031 or one very low-income owner unit improved with assistance per year.
c) Program Funding: Funding for this Agreement shall be $15,000 for grant awards, excluding CONSULTANT FEES as specified in Exhibit B of the Executed Agreement. The objective will be to issue one (1) or more grants per year for the term of the Agreement with the CONSULTANT.
d) CONSULTANT Fees: City shall pay CONSULTANT fees for program management, including grant administration and construction management, as described in Exhibit B of the executed Agreement.
e) Program Participants: participants in the program include: City of Foster City (“City”): provides funding for grants and helps promote the Program; CONSULTANT: administers and manages the program, issues awards, serves as general contractor for the minor home repair projects; and, very low-income Foster City homeowners (“Homeowner” or “Applicant”): commit to repayment of the grant upon expiration of the grant or another repayment event, as defined in the Program Guidelines.
4917-5658-6616 v2 14
f) Program Period: the Program will start by January 1, 2026, and continue until December 31, 2031 to coincide 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.
2.0 Program Provisions
2.1 Program Applicants: Foster City Homeowners will be invited to apply to the Program. The City of Foster 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.
2.2 Application Processing: CONSULTANT will process applications, grant and project approvals, issue and administer grants pursuant to CONSULTANT’S application processing procedures, which shall be submitted to and approved by the City.
2.3 Application Selection: CONSULTANT will employ a first-come, first-served method to issue awards to eligible applicants.
a) Income Eligibility: homeowners with household incomes of less than 50% of Area Median Income (AMI) using income limits issued by the STATE OF
CALIFORNIA HOUSING AND COMMUNITY DEVELOPMENT DEPARTMENT (HCD).
2.4 Grant Terms: CONSULTANT will issue grants according to approved Program Guidelines.
2.5 Construction Provisions
a) CONSULTANT will manage and perform construction using a limited selection of materials, finishes, and fixtures. b) CONSULTANT’s construction team includes their employees and contractors, and, at their discretion, volunteers, if applicable.
c) CONSULTANT will maintain a valid business license with the City during the term of the Agreement.
d) CONSULTANT will comply with prevailing wage laws, if applicable , including without limitation Labor Code sections 1771 and 1720 et seq. CONSULTANT will comply with any associated registration, recordkeeping and reporting requirements to the extent required by law.
3.0 Payments
a) The City will pay the CONSULTANT per Exhibit B for this Agreement within 30 days of receipt of invoices.
4917-5658-6616 v2 15
b) CONSULTANT will issue grants to eligible applicants by the expiration of this Agreement. CONSULTANT will refund any unused award or administration funds to the City of Foster City within 30 days of the termination of this Agreement.
c) CONSULTANT is responsible for payment of awards to homeowners and obtaining proper documentation and receipts, or, if work is performed by CONSULTANT, keeping appropriate accounting records.
4.0 Reporting
CONSULTANT shall submit annual reports to the City of Foster City per the Program Guidelines.
4917-5658-6616 v2 16
EXHIBIT A-1
PROGRAM GUIDELINES
FOSTER CITY MINOR HOME REPAIR PROGRAM
1. PROGRAM SUMMARY
Foster City Home Repair Program for Very Low -Income Homeowners is a partnership between the City of Foster City and CONSULTANT to aid in the preservation of homes owned by very low -income households in Foster City. The program provides grants awards of up to $5,000 for small rehabilitation and maintenance projects for very low - income Foster City homeowners. The City provides funding for the Program and CONSULTANT manages the Program, issues awards, and performs the project work.
2. PROGRAM GOAL
the Housing Element 2023- 2031 Program H -B-2-b, Facilitate Non -Profit Rehabilitation/Maintenance Assistance, calls for six units improved with assistance by 2031 or one very low-income owner unit improved with assistance per year.
3. PROGRAM PARTICIPANTS
• City of Foster City (“City”): provides funding for the awards and administration and helps promote the Program.
• CONSULTANT (“CONSULTANT”): Administrator of the program and general contractor.
• Very Low-Income Foster City Homeowners (“Homeowner” or “Applicant”): apply for assistance for eligible projects as specified in these Program Guidelines.
4. PROGRAM PERIOD
The Program period will start in 2026 and continue until December 31, 2031 to coincide with the 2023- 2031 Housing Element cycle. The City may elect to extend the Program through the next Housing Element Cycle. The agreement with the CONSULTANT shall be for a term during the Program Period to manage the program on behalf of the City of Foster City.
5. PROGRAM PROVISIONS
• City will 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.
• CONSULTANT will process applications, and issue and administer awards.
CONSULTANT will perform all construction work for the projects. • CONSULTANT will process applications on a first -come, first-served basis based on eligibility.
• Homeowners must have household incomes of less than 50% of Area Median Income (AMI) using income limits issued by California’s Housing and Community Development Department (HCD).
4917-5658-6616 v2 17
• CONSULTANT will manage and perform construction using a limited selection of materials, finishes, and fixtures.
• CONSULTANT’s construction team includes their employees and contractors, and, at their discretion, volunteers.
• CONSULTANT receives a construction and administration fee as per Exhibit B of the Agreement for administration of the project.
6. FUNDING
Funding is from the City’s Linkage Fee Fund (Fund 137) for grant awards. Project fees and administration shall be from a fund as designated by the City Council.
ELIGIBILITY GUIDELINES AND PROGRAM ADMINISTRATION
Part I:
Applicant Eligibility
1.1 Applicant Residency and Property Location Requirements • Applicant is the owner of property
• Application is for owner’s primary residence and property is located in Foster City. • Applicants have not applied for and received another grant through this program.
1.2 Homeowner Income Restrictions
• Household income at time of application does not exceed HCD Income limit of 50% AMI for very income households for the County of San Mateo. • Income shall be certified by CONSULTANT using CONSULTANT’s standard methodology.
• Only one grant per Homeowner through the Program.
Part II:
Project Eligibility
2. 1 Eligible Properties
• The property must be a single- family home, attached or detached, duplex, or condominium property located in Foster City.
2.2 Project Requirements
• Work shall be done by CONSULTANT, including their employees, contractors, subcontractors, and volunteers.
• All contractors must be licensed in California.
• Project must meet accessibility requirements, if applicable. • Project must comply with local and state building codes and permit requirements. • Project may be part of a larger project undertaken by CONSULTANT. • Projects for properties with HOAs must abide by HOA policies for construction work.
2.3 Eligible Uses of Funds
4917-5658-6616 v2 18
Eligible projects include construction, materials, labor, demolition, permits, or sitework associated with
Weatherization of doors & windows
Door or window repair or replacement
Accessibility improvements
Electrical, mechanical, or plumbing work
Solar panel purchase and installation
Water heater replacement
Smoke/carbon monoxide detectors
Exterior repairs to roofing, gutters, fencing
Other minor repair work with City staff approval
Work on the above list that is part of a larger rehabilitation effort for the property undertaken by CONSULTANT
Other minor repairs or upgrades with City staff approval
2.4 Ineligible Use of Funds
• Projects that result in an addition to a building
• Projects requiring entitlements
2.5 Permits
• CONSULTANT agrees to obtain required building permits as required. • Permit fees shall be waived for all work requiring for a building permit.
Project cannot be included in a larger project and have fees waived for the larger project.
Part III:
Terms
3.1 Funding
Funding consists of $15,000 in total award funding, with individual applicant awards of a maximum of $5,000 per homeowner and project administration fees payable to CONSULTANT as specified in Exhibit B of the executed Agreement with CONSULTANT.
3.2 Grant and Award Term
• Funds are available for use beginning in January 2026. • Funds must be awarded for homeowner projects by the termination date of the executed Agreement with CONSULTANT.
• CONSULTANT agrees to refund any unused award funds to the City of Foster City within 30 days of termination or expiration of Agreement.
3.3 Documentation Required
For each approved applicant award, CONSULTANT shall maintain a copy of the application, eligibility determination documentation, project description, a form that shows the total project cost and date of completion of the project and the name of the CONSULTANT representative who approved the grant, the grant funding amount 4917-5658-6616 v2 19
awarded, receipts or invoices and copies of checks for payments related to the project.
If payment is made to Homeowner, CONSULTANT shall keep a copy of the check.
3.4 Payment
Payment of funding for the Program to CONSULTANT shall be made as one- time lump sum to the CONSULTANT following execution of the Agreement and submitting an invoice to the City of Foster City.
3.5 Reporting and Records Retention
• CONSULTANT will submit a spreadsheet to the City annually with data for each award including homeowner name, Foster City property address, project description, date of project completion, total costs, and grant amount, and check number and date, if applicable. The report shall be due by January 31 each year. • CONSULTANT shall provide a final report upon the completion of all homeowner awards. The report shall include the number of homeowners served, names and addresses, project descriptions, date of award, and amount of funds awarded for each homeowner.
• CONSULTANT agrees to keep electronic and/or hardcopy copies of documentation for a period of time as requested by the City to comply with the City’s Records Retention Policy.
3.6 Completion of Awards
Each award shall be deemed complete when the project is finished, and CONSULTANT has completed the required file documentation for the award or made payment to the homeowner, if applicable.
Part IV:
Application Process
4.1 Application
Homeowners may apply through CONSULTANT’s standard application process.
4.2 Review of Applications
• Applications will be reviewed on a first-come, first-served basis. • CONSULTANT shall determine eligibility based on these Program Guidelines and issue awards.
4.3 Construction
Construction shall be scheduled by CONSULTANT. Construction should be completed in the same calendar year as the approval of the award.
END OF EXHIBIT A
4917-5658-6616 v2 20
EXHIBIT B
FEE SCHEDULE
THE CITY OF FOSTER CITY SHALL PAY REBUILDING TOGETHER PENINSULA (“CONSULTANT”), THE TOTAL AMOUNT SHOWN BELOW WITHIN 30 DAYS OF RECEIPT OF AN INVOICE.
DESCRIPTION AMOUNT PER AWARD TOTAL
MINIMUM OF 3 AWARDS,
MAXIMUM OF 6
Repair Award Funds Maximum of $5,000 $15,000
Administration Maximum of $833 per
home
$2,500
Total $5,833 per home $17,500
The Consultant shall deposit funds in re -use account s for awards and administration.
CONSULTANT shall withdraw funds from the accounts for each project. Any funds remaining in the re- use account following termination of this Agreement, shall be reimbursed to the City of Foster City.
CONTRACT MAXIMUM IS $17,500
END OF EXHIBIT B
4917-5658-6616 v2 21
EXHIBIT C
INSURANCE FORMS
CONSULTANT 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 Date of Agreement, by and between CONSULTANT Name, hereinafter referred to as " CONSULTANT”, and the City of Foster City, hereinafter referred to as " City", providing for professional services.
1. CONSULTANT's Duty to Show Proof of Insurance. CONSULTANT, 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 CONSULTANT's acts, errors, or omissions in connection with the perf ormance of CONSULTANT's obligations, as required in this Agreement, shall secure and maintain insurance as described below. CONSULTANT shall not perform any work under this Agreement until CONSULTANT has obtain ed 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 c ertificate. Upon request, CONSULTANT 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, CONSULTANT shall pr omptly 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 . CONSULTANT shall immediately pay any deductibles and self - insured retentions under all required insurance policies upon the submission of any claim by CONSULTANT 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 4917-5658-6616 v2 22
injury and death), and Property Damage for liability arising out of CONSULTANT's performance of services under this Agreement . The Commercial General Liability insurance shall contain no exclusions or limitation for independent contractors working on behalf of the named insured.
CONSULTANT 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, which 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
CONSULTANT shall submit written proof that CONSULTANT is insured against liability for workers' compensation in accordance with the provisions of section 3700 of the California Labor Code. CONSULTANT shall require any Subconsultants to provide workers' compensation for all of the Subconsultants' employees, unless the Subconsultants' employees are covered by the insurance afforded by CONSULTANT. If any class of employees engaged in work or services performed under this Agreement is not covered by California Labor Code section 3700, CONSULTANT shall provide and/or require each Subconsultant to provide adequate insurance for the coverage of employees not otherwise covered .
CONSULTANT 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
4917-5658-6616 v2 23
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 initi al 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, CONSULTANT, at CONSULTANT'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 CONSULTANT'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.
4917-5658-6616 v2 24
3. Insurance terms and conditions:
3.1 Cancellation of Insurance
The above stated insurance coverages required to be maintained by CONSULTANT shall be maintained until the completion of all of CONSULTANT 's obligations under this Agreement except as otherwise indicated herein. Each insurance policy supplied by CONSULTANT shall not be suspended, voided, cancelled or reduced in coverage or in limits except after ten (10) days written notice by CONSULTANT 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. CONSULTANT shall immediately obtain replacement coverage for any insurance policy t hat 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 CONSULTANT is, or becomes during the term of this Agreement, self - insured or a member of a self -insurance pool, CONSULTANT 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 CONSULTANT is equivalent to the above-required coverages.
3.4 For any claims related to the Agreement, the CONSULTANT ’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 CONSULTANT ’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 CONSULTANT 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 CONSULTANT to maintain all such insurance in effect at all times required by this Agreement shall be a material breach of this Agreement by CONSULTANT. City, at its sole option, may terminate this Agreement and obtain damages from CONSULTANT resulting from said breach. Alternatively, City may 4917-5658-6616 v2 25
purchase such required insurance coverage, and without further notice to CONSULTANT, City shall deduct from sums due to CONSULTANT any premiums and associated costs advanced or paid by City for such insurance. If the balance of monies obligated to CONSULTANT pursuant to this Agreement are insufficient to reimburse City for the premiums and any associated costs, CONSULTANT 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 CONSULTANT 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 CONSULTANT and its subconsultants shall communicate this fact to their insurance carriers and request that the risk of this project be excluded from their practice policies. CONSULTANT's fees under this Agreement (and the fee of its subconsultants under subconsultant agreements) shall be reduced by the amount of insurance premiums that may be avoided by CONSULTANT and its subconsultants 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 CONSULTANT 's and subconsultants policies .
Construction Manager and its subconsultants shall afford City access to their books and records and cooperate with City in verifying the amount of savings realized.
ATTACHED
1. Insurance Coverage Form
4917-5658-6616 v2 26
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.
Other: 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).
4917-5658-6616 v2 27
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:
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
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)
4917-5658-6616 v2 28
______________________________________________
ORGANIZATION:
TITLE:
ADDRESS:
TELEPHONE:
DATE ISSUED: