Homekey 2.0 funds must be used to provide housing for individuals and families experiencing homelessness or who are at risk of homelessness. Under Homekey 2.0, local organizations in partnership with a co-applicant (City of Modesto) will acquire and rehabilitate a variety of housing types, including but not limited to hotels, motels, hostels, single-family homes, multifamily apartments, adult residential facilities, manufactured housing, and/or to convert commercial properties and other existing buildings to permanent or interim housing for the target population. In order to successfully pursue this funding and assist with specialized project monitoring the City entered into a contract with Housing Tools.2 DISCUSSION:
On December 2, 2021, the City solicited qualifications from public sector consulting firms that demonstrate experience in writing successful grant proposals to obtain State, Federal, and/or local funding awards pertaining to the development of Affordable Housing Projects. The scope of work required that firms perform the following responsibilities:
Review and assess NOFA opportunities working with key city staff and project partners to develop a successful grant application.
Prepare a comprehensive grant application based on defined timeline to maximize NOFA award opportunities.
Review and evaluate actions necessary for the proposed project to meet local codes and entitlements for successful completion within the grant required timeframes. Meet and liaise with project applicants, developers, and operators when necessary.
The deadline to respond to the solicitation was December 10, 2021, due to the approaching deadline of the Homekey grant application. At the deadline, the City was informed by prospective firms that they did not have the capacity to respond to the City’s solicitation. At this time, City staff referenced the State’s list of consultants that have a successful track record with Homekey applications has and also have a firm understanding of the additional labor compliance and monitoring for both State and Federal programs. Of those consulting firms, Housing Tools was the only one to respond.
City staff received a waiver from formal bidding procedures on January 6, 2022, and entered into the contract effective February 8, 2022, for an amount not to exceed $45,000. Furthermore, with an increasing demand for affordable housing, City staff identified that an expanded scope of work was required for consulting services related to labor compliance, contract monitoring, and grant assistance. The City expects additional federal requirements that will require monitoring and labor compliance oversight.
To help meet this increased workload, the proposed amendment expands the scope of work to provide monitoring and inventory management support for the City’s affordable housing contracts ensuring that our subrecipients of prior funding as well as current recipients are meeting the regulation commitments. This also allows City staff to utilize Housing Tools’ expertise in next round of Homekey funding expected to be available in Spring 2023. As such, staff is recommending a First Amendment to the Housing Tools contract in an amount up to $150,000, from $45,000, to a new total amount not to exceed $195,000 for services related to grant assistance, labor compliance and regulatory contract monitoring. 2 Housing Tools (housing-tools.com)
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City Council, January 10, 2023
First Amendment to Contract with Housing Tools LLC.
In accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the Agreement is for Professional Services and, therefore, exempt from the bidding requirement. The approval for the proposed services with Housing Tools conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing professional services for grant assistance, labor compliance and regulatory contract monitoring.
FISCAL IMPACT:
The cost of this agreement is budgeted in the Program Year 2022-2023 Annual Action Plan budget includes funding for Administrative Activities from Community Development Block Grant (CDBG) Entitlement program funds and will be absorbed on a per project basis as activity delivery within Permanent Local Housing Allocation (PLHA), Community Development Block Grant (CDBG), or HOME Investment Partnership grant funds. There will be no impact to the General Fund.
COMMITTEE RECOMMENDATION:
This project was presented to the Citizens’ Housing and Community Development Committee on December 8, 2022 and was recommended to forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a First Amendment to the Agreement with Housing Tools LLC. (Housing Tools) for Consultant Services related to Grant Assistance, Labor Compliance and Regulatory Contract Monitoring increasing the amount by $150,000 from $45,000 for a total amount not to exceed $195,000 and authorizing the City Manager, or his designee, to execute this Amendment.
Approved by: _______________________________________________ Jaylen French, Community and Economic Development Director _______________________________________________
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement with Housing Tools, LLC
3. First Amendment Agreement with Housing Tools, LLC
4. Bid Waiver
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1/10/2023/CED/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXXX
RESOLUTION APPROVING A FIRST AMENDMENT TO THE AGREEMENT
WITH HOUSING TOOLS LLC, (HOUSING TOOLS) FOR CONSULTANT
SERVICES RELATED TO GRANT ASSISTANCE, LABOR COMPLIANCE AND
REGULATORY CONTRACT MONITORING INCREASING THE AMOUNT BY $150,000 FROM $45,000 FOR A TOTAL AMOUNT NOT TO EXCEED $195,000
AND AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE
THIS AMENDMENT
WHEREAS, each year the City of Modesto receives Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG) funding from the U.S. Department of Housing and Urban Development (HUD); and
WHEREAS, the objective of the CDBG Program is to support community development activities to build strong and more resilient communities through decent housing and a suitable living environment, and by expanding economic opportunities, principally for low- and moderate-income persons by supporting activities such as public facilities improvements, social services, affordable housing, fair housing, economic development and addressing homelessness; and
WHEREAS, the City also receives funding from the State of California Housing and Community Development (HCD) Department for housing and community development related projects; and
WHEREAS, the City of Modesto requires consultant services to assist with additional grant fund application processing and project compliance; and WHEREAS, the City of Modesto entered into a contract with Housing Tools, LLC (Housing Tools) on February 8, 2022 in the amount of $45,000; and WHEREAS, an amendment to the agreement is necessary to expand the scope of #12..
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1/10/2023/CED/JHill/Item # 2 2023-xxx
work for consulting services related to labor compliance and regulatory contract monitoring for current and future Project Homekey grant applications; and WHEREAS, this contract amendment would adjust the existing contract of $45,000 by the amount of $150,000, for a new total amount of $195,000; and WHEREAS, on December 8, 2022, the Citizens Housing and Community Development Committee reviewed and recommended forwarding this item to Council for approval.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the first amendment to the Housing Tools LLC. (Housing Tools) agreement increasing the contract amount for consultant services related to grant assistance, labor compliance and regulatory contract monitoring by $150,000 from $45,000 to a new total amount of $195,000.
BE IT FURTHER RESOLVED that this City Manager, or his designee, is hereby authorized to execute the amendment, in a form approved by the City Attorney. #12..
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1/10/2023/CED/JHill/Item # 3 2023-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of January, 2023, by Councilmember _____, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: Name, Name, Name, Name, Name, Name, Mayor Name
NOES: Councilmembers: None
ABSENT: Councilmembers: None
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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1 AMENDMENT NO. 1
to
STANDARD AGREEMENT FOR CONSULTANT SERVICES
Reference is made to the Standard Agreement for Consultant Services (the “Agreement”) dated February 8, 2022, by and between the CITY OF MODESTO, a California charter city ("CITY") and Housing Tool LLC. ("Consultant"). The Parties enter into this Amendment No. 1 as of .
WHEREAS, the parties entered into the Agreement pursuant to which Consultant would provide the City with certain services related to Labor Compliance and regulatory contract monitoring; WHEREAS, the parties have agreed to expand the work set forth in the Agreement; WHEREAS, the Exhibit A – Scope of Work set forth in the Agreement established the original scope of work;
WHEREAS Consultant represents that it is qualified, willing and able to perform the expanded scope of work.
NOW THEREFORE, the parties hereby agree as follows:
1. Exhibit A. Scope of Work. The scope of work set forth in Exhibit A of the Agreement is amended to include those additional services described in Attachment A, attached hereto and incorporated herein.
2. Section 2. Term of Agreement. The project schedule set forth in Exhibit A - Agreement is amended to include the schedule for additional activities as set forth, attached hereto and incorporated herein.
3. Section 3. Compensation. The total compensation provided to Consultant as set forth in Section 3 of the Agreement is amended to increase by $150,000 to an amount not to exceed One Hundred and Ninety-Five Thousand Dollars ($195,000).
All other terms and conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 on the day and year first hereinabove written.
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2 Exhibit A
Term of Service
Housing Tools (“Consultant”) presents the following proposal to the City of Modesto (“Client”) to extend contract services including this additional scope through December 31, 2023 at the request of the Client.
The Client provides housing services to its residents through use of various federal and state funding programs, including the HOME and CDBG NSP programs. Client has requested that Consultant provide compliance monitoring of its HOME and NSP funded portfolio (the “Services”).
Scope of Services, Cost, and Schedule
Overview
Consultant will provide compliance monitoring during the 2023 calendar year for the Client’s portfolio as described below by the Client.
20 single-family rental properties funded under the NSP1 and NSP2 programs 25 multi-family rental projects funded under the HOME program 25 multi-family projects and 20 single-family properties funded by HOME and NSP Consultant will develop an inventory of monitored units by NSP1, NSP2, HOME, and NSP/HOME, including information on addresses, funding sources, number of units, income targeting, and most recent monitoring. The information for the projects and units will then be organized into the Client’s Neighborly compliance reporting software.
After compiling the inventory and setting up the Compliance Reporting System in Neighborly, the Consultant will conduct a file monitoring of each HOME-funded project and each NSP-funded unit in the inventory. The file monitoring will be conducted throughout the 2023 calendar year and will be completed by the end of 2023. File monitoring for HOME projects are more in-depth and time-consuming than file monitoring for NSP projects, as described below. A breakdown of tasks, cost and schedule involved with this scope of services is outlined below.
Budget Assumptions and Billing
The Costs shown in the Detailed Scope of Services Outline below are estimated not-to-exceed costs. The costs shown below are based on the information made available to the Consultant to date. The cost for Task 1 is an estimated not-to-exceed amount based on the rates shown in the Time and Materials Rates section. The cost for Tasks 2-7 is based on flat rates per project or property. Client may want to revisit the cost estimates for Tasks 2-7 after completion of Task 1, which will provide a more accurate picture of the scope of monitoring work that will be required.
Costs will be invoiced monthly based on the time and materials rates listed. Cost for materials or copies will be billed for reimbursement at cost, with prior approval from Client. Receipts for reimbursement will be provided with monthly invoices.
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2 Detailed Scope of Services Outline
Task Cost Schedule
Task 1 Develop inventory of monitored units with: project address, number of units for each project, management contact info, and funding sources. Organize inventory by funding source:
NSP1, NSP2, HOME, and NSP/HOME. Coordinate
information with Client’s Neighborly software.
$7,000 Jan. 2023
Task 2 Conduct file review monitoring of 20 single-family rental properties funded under the NSP1 and NSP2 programs. Will include: tenant income certification for any new tenants, review of any reports, property management agreement,
leasing guidelines, application form, lease agreement, house rules, and homeownership plan (if applicable).
$500 per
property
($10,000)
Jan.-Dec. 2023
Task 3 Conduct file review monitoring of 25 multi-family rental properties funded under the HOME program. Will include:
a property manager interview that follows a standard
HOME Monitoring Report Questionnaire format
management completion and Consultant review of a
standard HOME Project Compliance Report with
rent and household information by unit
management completion and Consultant review of
an Affirmative Fair Housing Checklist, Affirmative
Marketing Analysis, and Affirmative Fair Housing
Marketing Plan
Consultant review of property management
documents, including: loan and regulatory
agreements, financial audits, reserve bank
statements, insurance, management agreement,
management plan, tenant selection plan, rent roll,
and standard lease
Consultant review of 3-5 tenant files, including: lease agreement, unit inspection notice, unit inspection
records, annual notice of rent increase, and income
certification
Consultant review of the results of HQS unit and
building inspections conducted by Client
$1,000
per
project
($25,000)
Jan.-Dec. 2023
Task 4 Conduct file review of 25 multi-family projects, and 20 singlefamily rental properties, funded by HOME and NSP, with activities as described above.
$1,500
per multifamily
project
$750 per
singlefamily
property
($52,500)
Jan.-Dec. 2023
Task 5 Contingency tasks related to original scope of work $55,500 December 31, 2023 Total $150,000
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3 Time and Materials Rates
Cost Rate
Principal $130/hour
Senior Project Manager $120/hour
Project Managers $100/hour
Office Manager/Administrative $80/hour
Travel Reimbursement $0.625/mile
Printing and Media Reimbursement 100% of cost
Staffing
The Project Manager and primary point of Client contact for Services coordination will be Project Manager Tam Le, with supervision and support from Principal James Coles, and administrative support from Office Manager Nadine Mendoza. James will also provide overall contract oversight. #12..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
January 10, 2023
Date: December 8, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jaylen French, Director of Community and Economic Development SUBJECT: Agreement with STANCO for the Acquisition of 319 Laurel Street, Modesto CONTACT: Jessica Hill, Community Development Manager
[email protected], 209-577-5211
DESCRIPTION:
Consider approving a Community Development Block Grant CARES Act (CDBG-CV) Grant to Stanislaus County Affordable Housing Corporation (STANCO), in an amount not to exceed $450,428 and $25,000 in activity delivery costs for a grand total of $475,428 for the acquisition and rehabilitation of the property located at 319 Laurel Street, Modesto, CA. (Funding Source:
Community Development Block Grant Funds Cares Act)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan, Goal C: Develop a Homelessness and Housing Plan
BACKGROUND:
The U.S. Department of Housing and Urban Development1 (HUD) requires the City of Modesto, as an entitlement community, to develop an Annual Action Plan that describes proposed activities funded with Community Development Block Grant2 (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG) funds. The City produces an Annual Action Plan (AAP) which aligns and support the priorities in the City’s five-year Consolidated Plan.
On May 14, 2019, by Resolution 2019-240, the City Council approved the Program Year 2019- 2020 AAP through which CDBG, ESG, and HOME Program funds for Fiscal Year 2019-2020 were allocated and programmed.
1 https://www.hud.gov/
2 https://www.hud.gov/program_offices/comm_planning/communitydevelopment/programs/ - “The Community Development Block Grant (CDBG) program is a flexible program that provides communities with resources to address a wide range of unique community development needs”. #13..
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City Council, January 10, 2023
Agreement with STANCO for the Acquisition of 319 Laurel Street, Modesto
On March 27, 2020, President Trump signed the Coronavirus Aid, Relief and Economic Security Act (CARES Act) (Public Law 116-136) which made available $5 billion in supplemental Community Development Block Grant (CDBG-CV) funding. As an Entitlement the City was awarded a total of $2,385,772 to respond to, prepare for, and prevent the spread of COVID-19.
With funds awarded by the CARES Act, the City approved the Program Year 2019-2020 Annual Action Plan Amendment #4, on October 27, 2020 by Resolution No. 2020-448. The intent of this program is to allow the City to partner with local affordable housing providers to acquire properties, make any necessary site improvements, and achieve innovative, affordable, and safe housing solutions to respond to the prevention of COVID-19.
DISCUSSION:
The City has identified safe, affordable housing as a critical accommodation for vulnerable communities to prevent the spread of COVID-19, which aligns with the allocation of CDBG funds received by the City through the CARES Act.
STANCO approached the City seeking funding to acquire the property located at 319 Laurel Street, Modesto. This property is a 2-bedroom, 1-bathroom, 756 square foot single family home located in a residential zone. The proposed use for this home, after some minor rehabilitation, will be permanent supportive housing. The lot size is approximately 5,600 square feet with alley access that allows for an Accessory Dwelling Unit (ADU) to be added to the property in the future.
The home has recently been renovated and is in fair condition, as identified in an inspection report conducted by a third-party inspector. With Council approval, the scope of the project will include minor rehabilitation, as described below:
Rehabilitation
Demolition of exterior sheds - The sheds are dated and reaching the stage where the structural integrity will render them unusable. Additionally, if we are to consider an ADU on the property, the sheds will need to be removed. The demolition cost includes obtaining a permit from the San Joaquin Valley Air Pollution Control District for removal. Trim trees and remove roots - There is a concentration of large trees in the rear yard of the property. The tree lines have encroached through areas of the fencing and tree roots are growing closer to the home. The potential for structural lifting and sewer line damage is present and mitigation of this will prevent future issues. Once the trees are trimmed and the roots are removed, significant areas of the fencing will need to be replaced. Replace fencing - The fencing along both sides of the property and the alley side of the property is leaning and there are missing pickets. In spots of the fence line trees and tree roots have lifted or grown through the fencing. After the trees are trimmed or removed, we recommend all the fencing be replaced. On the alley side we will add a gate for purposes of an alley entrance to the property to access the ADU. Remove bark in front yard and replace with artificial turf - The front yard is entirely covered with decorative bark. The bark attracts pests, particularly termites. Our proposal to continue the drought-tolerant theme of the landscaping and to prevent future #13..
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City Council, January 10, 2023
Agreement with STANCO for the Acquisition of 319 Laurel Street, Modesto
infestations of termites is to replace the bark with artificial turf. Artificial turf will also negate future watering and mowing of the yard, promoting the financial sustainability of the property. The turf installation may be subject to a rebate from the City of Modesto. Placement of gravel - Placement of gravel over bare soil along the sides of the home.
Gravel is a long-term sustainable ground cover which will filter moisture into the ground and requires virtually no maintenance.
FISCAL IMPACT:
The project budget is detailed below and will be funded through the CDBG-CV funds authorized through the FY 2019-2020 Annual Action Plan Amendment #4. Sufficient funds are available to fund the requested acquisition and there is no impact to the General Fund.
Project Budget
Item Cost
Purchase Price $329,000
Closing Cost $6,800
LBP Survey and Testing $750
Whole House Inspection $950
Appraisal $800
Demo exterior sheds $1,800
Trim trees, remove roots $3,500
Replace fencing $13,800
Remove bark/install turf $14,158
Place gravel over soil $3,800
Contingencies (10%) $37,535
Developer Management Fee (10%) $37,535
Activity Delivery Costs $25,000
Total $475,428
COMMITTEE RECOMMENDATION:
This item was presented to the Citizen Housing and Community Development Committee on December 8, 2022 and recommended forwarding to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a Community Development Block Grant CARES Act (CDBG-CV) Grant to Stanislaus County Affordable Housing Corporation (STANCO), in an amount not to exceed $450,428 and $25,000 in activity delivery costs for a grand total of $475,428 for the acquisition and rehabilitation of the property located at 319 Laurel Street, Modesto and authorizing the City Manager or designee to execute the Agreements.
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City Council, January 10, 2023
Agreement with STANCO for the Acquisition of 319 Laurel Street, Modesto
Approved by:
Jaylen French,
Director of Community and Economic Development
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Attachment 2 – Grant Agreement
3. Attachment 3 – Regulatory Agreement
4. Attachment 4 – Deed of Trust
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01.10.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING A COMMUNITY DEVELOPMENT BLOCK
GRANT CARES ACT (CDBG-CV) GRANT TO STANISLAUS COUNTY
AFFORDABLE HOUSING CORPORATION (STANCO), IN AN AMOUNT NOT TO EXCEED $450,428 AND $25,000 IN ACTIVITY DELIVERY COSTS FOR A GRAND TOTAL OF $475,428 FOR THE ACQUISITION AND REHABILITATION OF THE PROPERTY LOCATED AT 319 LAUREL STREET, MODESTO AND
AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE THE
AGREEMENTS
WHEREAS, The U.S. Department of Housing and Urban Development (HUD) requires the City of Modesto, as an entitlement community, to develop an Annual Action Plan that describes proposed activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG) funds and the Annual Action Plan should align and support the priorities in the City’s five-year Consolidated Plan, and
WHEREAS, on May 14, 2019, by Resolution 2019-240, the City Council approved the Program Year 2019-2020 Annual Action Plan through which CDBG, ESG, and HOME Program funds for Fiscal Year 2019-2020 were allocated and programmed, and
WHEREAS, On October 27, 2020, by Resolution No. 2020-448 approved Program Year 2019-2020 Annual Action Plan Amendment #4 by Resolution 2020-448, which includes funding for the acquisition and rehabilitation of a property to mitigate the spread of COVID-19, and
WHEREAS, The City has designated affordable safe housing as a priority for its COVID-19 response as housing vulnerable individuals is the best way to minimize their exposure to COVID-19 and permanent housing creates greater stability for these #13..
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01.10.2023/CEDD/JHill/Item # 2 2023-xxx
individuals within the community, and
WHEREAS, Stanislaus County Affordable Housing Corporation (STANCO) is seeking funding to acquire property located at 319 Laurel Street, Modesto 95354. This property is a 2-bedroom 1-bathroom, 756 square foot single family home already located in a residential zone. The proposed use for this home, after some minor rehabilitation, will be permanent supportive housing. The site location is approximately 5600 square feet with alley access that allows for additional ADU style units to be added to the property in the future, and
WHEREAS, this property is a 2-bedroom 1-bathroom, 756 square foot single family home already located in a residential zone, and
WHEREAS, the proposed use for this home, after some minor rehabilitation, will be permanent supportive housing and the site location is approximately 5600 square feet with alley access that allows for additional ADU style units to be added to the property in the future, and
WHEREAS, the home is in good condition, but property requires some rehabilitation for safety and sustainability that includes demolition exterior sheds, trim trees and remove roots, replace fencing, remove bark, replace with artificial turf, and placement of gravel, and
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Community Development Block Grant CARES Act (CDBGCV) grant to Stanislaus County Affordable Housing Corporation (STANCO), in an amount not to exceed $450,428 and $25,000 in activity delivery costs for a grand total of $475,428 for the acquisition and rehabilitation of the property located at 319 Laurel #13..
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01.10.2023/CEDD/JHill/Item # 3 2023-xxx
Street, Modesto.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the agreement with Stanislaus County Affordable Housing Corporation, in a form approved by the City Attorney.
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01.10.2023/CEDD/JHill/Item # 4 2023-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of January, 2023, by Councilmember ?, who moved its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: ?
NOES: Councilmembers: ?
ABSENT: Councilmembers: ?
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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3660584.1 1
CITY GRANT AGREEMENT
(City of Modesto CDBG-CV Grant)
(319 Laurel Street)
This Grant Agreement (this “Agreement”) is entered into as of ____________________, 2023, by and between the City of Modesto, a California charter city (the “City”) and Stanislaus County Affordable Housing Corporation, a California non-profit corporation (“Recipient”).
City and Recipient are collectively referred to in this Agreement as the “Parties.”
RECITALS
A. Defined terms used but not defined in these recitals have the meaning ascribed to them in Article 1 of this Agreement.
B. The City has received funds from HUD under Title I of the Housing and Community Development Act of 1974, as amended, and the Coronavirus Aid, Relief, and Economic Security Act, commonly known as the CARES Act (the “CDBG Funds”). The CDBG Funds must be used by the City in accordance with 24 CFR 570 et seq. and the CDBG Regulations.
C. The Recipient intends to acquire that certain real property located at 319 Laurel Street, Modesto, California, known as Stanislaus County Assessor’s Parcel Number 101-004- 003-000, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (collectively, the “Property”).
D. The Recipient has proposed to develop permanent supportive housing units that will serve persons with serious mental illness who are at risk of homelessness, at risk for involuntary inpatient hospitalization, or at risk for incarceration, and who have household incomes at or below sixty percent (60%) of the median income for Stanislaus County, as defined by HUD, who are experiencing crisis, housing instability, and or/homelessness, as more particularly Described in the project summary attached hereto as Exhibit B and incorporated herein by this reference (the “Project”).
E. City wishes to give to Recipient a grant of Four Hundred and Fifty Thousand Four Hundred and Twenty-Eight Dollars ($450,428) (the “Grant”) of CDBG funds to help finance the acquisition of the Property for the purposes of constructing the Project thereon F. Concurrently herewith: (i) Recipient and City shall execute a Regulatory Agreement and Declaration of Restrictive Covenants (the “Regulatory Agreement”), which shall be recorded against the Property and which shall require the Property to be used for the purpose of the Project for a term of not less than thirty (30) years; and (ii) Recipient shall execute a Deed of Trust (“Deed of Trust”), which shall secure Recipient’s performance of the Regulatory Agreement. This Agreement, the Regulatory Agreement and Deed of Trust are collectively hereinafter referred to as the “Grant Documents.” #13..
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3660584.1 2
G. The Grant is being made to finance acquisition of the Property in order to help achieve financial feasibility for the Project and to increase the number of permanent supportive housing units in the City.
H. The California Environmental Quality Act (Public Resources Code Sections 21000 et seq.) (“CEQA”) imposes no conditions on the City's consideration and approval of this Agreement because the Project is exempt from CEQA requirements under the categorical exemption set forth in 14 California Code of Regulations Section 15303(b).
I. In accordance with the National Environmental Policy Act of 1969, as amended (42 USC 4321-4347) (“NEPA”), the City has completed and approved all applicable environmental review for the activities proposed to be undertaken under this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 DEFINITIONS AND EXHIBITS
Section 1.1 Definitions
The following capitalized terms have the meanings set forth in this Section 1.1 wherever used in this Agreement, unless otherwise provided:
“Agreement” means this Grant Agreement.
“Approved Project Budget” means the proforma development budget, including sources and uses of funds, as approved by the City, and attached hereto and incorporated herein as Exhibit C.
“Approved Financing” means all of the funds acquired by the Recipient and approved by the City for the purpose of financing the acquisition of the Property and development of the project, in addition to the Grant from the City and other grants which are secured by the Project as of the date of this Agreement. “Recipient” has the meaning set forth in the first paragraph of this Agreement. “CDBG” means the Community DevelopmentBlock Grant program under Title I of the Housing and Community Project Act of 1974 (42 U.S.C. 5301 et. seq.), as amended. “CDBG Funds” has the meaning set forth in Recital B.
“CDBG Regulations” means the statutory and regulatory provisions that govern the CDBG program under Title I of the Housing and Community Project Act of 1974 (42 U.S.C. 5301 et. seq.), as amended including 24 C.F.R. Part 570 et seq. “City” means the City of Modesto, a California Charter City. #13..
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3660584.1 3
“Deed of Trust” is defined in Recital G.
“Default” has the meaning set forth in Section 6.1 below. “Default Rate” has the meaning set forth in Section 6.2(c). “Hazardous Materials” has the meaning set forth in Section 4.9 below. “Hazardous Materials Claim” has the meaning set forth in Section 4.9 below. “Hazardous Materials Law” has the meaning set forth in Section 4.9 below. “HUD” means the U.S. Department of Housing and Urban Development. “Grant” means the City's grant to Recipient pursuant to this Agreement in the total principal amount of Four Hundred and Fifty Thousand Four Hundred and Twenty-Eight Dollars ($450,428) consisting of CDBG Funds.
“Grant Documents” means this Agreement, the Regulatory Agreement, the Deed of Trust, and any other document or agreement evidencing the Grant. “Parties” mean the City and Recipient.
“Project” has the meaning set forth in Recital E.
“Property” has the meaning set forth in Recital C.
“Regulatory Agreement” means the Regulatory Agreement and Declaration of Restrictive Covenants dated of even date herewith between the City and the Recipient associated with the Grant, to be recorded against the Property. The form of the Regulatory Agreement will be provided by the City.
“Term” means the term of this Agreement, the Regulatory Agreement, and the Grant which commences as of the date of this Agreement and shall expire thirty (30) years from the date a certificate of occupancy is issued for the Project, but in no event later than December 31, 2053.
“Transfer” has the meaning set forth in Section 4.15 below.
Section 1.2 Exhibits
The following exhibits are attached to this Agreement and incorporated into this Agreement by this reference:
Exhibit A: Legal Description of the Property
Exhibit B: Project Summary
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Exhibit C: Approved Project Budget
Exhibit D: Federal Award Identification Information
ARTICLE 2 GRANT PROVISIONS
Section 2.1 Grant.
Upon satisfaction of the conditions set forth in Section 2.5 and Section 2.6 of this Agreement, the City shall grant to the Recipient the Grant for the purposes set forth in Section
2.3 of this Agreement.
2.1.1 Federal Award Identification. Federal award identification information regarding the funding provided to Recipient by this Agreement, as required by 24 CFR 200.331, is included in Exhibit D, attached hereto and incorporated herein.
Section 2.2 Reserved.
Section 2.3 Use of Grant Funds.
The Recipient shall use the proceeds of the Grant solely to fund the acquisition of the Property. Recipient shall not use the Grant proceeds for any other purposes without the prior written consent of the City.
Section 2.4 Security.
As security for performance of the Regulatory Agreement, Developer shall execute the Deed of Trust pursuant to which City shall be provided a lien against the Property, and all improvements located thereon. The Deed of Trust shall be recorded in the Official Records of the County of Stanislaus. The Deed of Trust may be subordinated only to such liens and subject only to such title exceptions as City may approve in writing as set forth below.
Section 2.5 Subordination.
Any agreement by the City to subordinate the Deed of Trust and/or Regulatory Agreement to the lien of Approved Financing (in each case, a “Senior Loan”), will be subject to the satisfaction of the following conditions:
(i) All of the proceeds of the proposed Senior Loan, less any transaction costs, are used to provide construction and/or permanent financing for the Project. (ii) The proposed lender of a Senior Loan (each, a “Senior Lender”) is a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with Recipient or any of Recipient's affiliates, other than as a depositor or a lender. (iii) Recipient demonstrates to the City's reasonable satisfaction that subordination of the Deed of Trust and/or Regulatory Agreement is necessary to secure adequate acquisition, construction and/or permanent financing to ensure the viability of the Project, including the operation of the Project as permanent supportive housing, as required by the Grant Documents. #13..
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To satisfy this requirement, Recipient must provide to the City, in addition to any other information reasonably required by the City, evidence demonstrating that the proposed amount of the Senior Loan is necessary to provide adequate acquisition, construction, construction and/or permanent financing to ensure the viability of the Project, and adequate financing for the Project would not be available without the proposed subordination.
(iv) The subordination agreement(s) is structured to minimize the risk that the Deed of Trust and/or Regulatory Agreement will be extinguished as a result of a foreclosure by the Senior Lender or other holder of the Senior Loan. To satisfy this requirement, the subordination agreement must provide the City with adequate rights to cure any defaults by Recipient, including:
(i) providing the City or its successor with copies of any notices of default at the same time and in the same manner as provided to Recipient; and (ii) providing the City with a cure period of at least sixty (60) days to cure any default.
(v) The subordination(s) of the Loan is effective only during the original term of the Senior Loan and any extension of its term that is approved in writing by the City. (vi) The subordination does not limit the effect of the Deed of Trust and/or Regulatory Agreement before a foreclosure, nor require the consent of the Senior Lender prior to the City exercising any remedies available to the City under the Grant Documents.
Upon a determination by the City that the conditions in this Section have been satisfied, the City Manager or the City Manager's designee will be authorized to execute the approved subordination agreement without the necessity of any further action or approval.
The City agrees to subordinate the Deed of Trust and Regulatory Agreement to the lien of the deed of trust and any regulatory agreement securing the Senior Loan(s), subject to the conditions set forth in this Section 2.5.
Section 2.6 Conditions Precedent to Disbursement of Grant Funds.
The maximum amount of funds to be disbursed pursuant to this Section 2.6 shall not exceed the amount of the Grant. The City shall not be obligated to make any disbursements of Grant funds for acquisition of the Property or take any other action under the Grant Documents unless the following conditions precedent have been and continue to be satisfied prior to each such disbursement of Grant funds:
There exists no Default nor any act, failure, omission or condition that would constitute an event of Default under this Agreement;
The Recipient holds title to the Property or is acquiring title simultaneously with the disbursement of the Grant proceeds;
Recipient has delivered to the City a copy of a corporate resolution authorizing Recipient's execution of the Grant Documents;
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There exists no material adverse change in the financial condition of Recipient from that shown by the financial statements and other data and information furnished by Recipient to the City prior to the date of this Agreement; The Recipient has furnished the City with evidence of the insurance coverage meeting the requirements of Section 4.16 below;
Recipient has caused to be executed and delivered to the City all City Grant Documents and any other instruments, and policies required under the Grant Documents; The Deed of Trust and the Regulatory Agreement have been recorded against the Property in the Office of the Recorder of the County of Stanislaus, or will be recorded simultaneously to the disbursement of the Grant;
The City has completed and approved all environmental reviews under NEPA, as necessary for the construction of the Project, and Recipient has provided the City evidence of compliance with all approved NEPA requirements and mitigation measures required by the NEPA environmental documentation;
The City has reasonably determined that the undisbursed proceeds of the Grant, together with other funds or firm commitments for funds that the Recipient has obtained in connection with the Project, are not less than the amount that is necessary to pay for development of the Project and to satisfy all of the covenants contained in this Agreement and the Regulatory Agreement;
Recipient has provided documentation reasonably satisfactory to the City demonstrating that Recipient has sufficient funds to purchase the Property; The City has received a written draw request from the Recipient, including certification that the condition set forth in Section 2.6 continues to be satisfied, and setting forth the proposed uses of funds, the amount of funds needed, and, where applicable, a copy of the bill or invoice covering a cost incurred or to be incurred.
ARTICLE 3 CONSTRUCTION OF THE IMPROVEMENTS
Section 3.1 Permits and Approvals.
Recipient shall obtain all permits and approvals necessary for the construction of the Project on the Property.
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ARTICLE 4 GRANT REQUIREMENTS
Section 4.1 Financial Accountings and Post-Completion Audits.
No later than ninety (90) days following completion of construction of the Project, Recipient shall provide to City a financial accounting of all sources and uses of funds for the Project.
Section 4.2 Annual Operating Budget.
At least one hundred fifty (150) days prior to the end of each year of the Term, Recipient shall provide to the City an annual budget for the operation of the Project. Unless rejected by the City in writing within fifteen (15) days after receipt of the budget, said budget shall be deemed accepted. If rejected by the City in whole or in part, Recipient shall submit a new or corrected budget within thirty (30) calendar days of notification of the City's rejection and the reasons therefor. The provisions of this Section relating to time periods for resubmission of new or corrected budgets shall continue to apply until such budget has been approved by the City.
Section 4.3 Information.
Recipient shall provide any information reasonably requested by the City in connection with the Project, including (but not limited to) any information required by HUD in connection with Recipient's use of the Grant funds.
Section 4.4 Records.
The Recipient shall keep and maintain at the the Administrative Office, or elsewhere with the City's written consent, full, complete and appropriate books, record and accounts relating to the Project, including all such books, records and accounts necessary or prudent to evidence and substantiate in full detail Recipient's compliance with the terms and provisions of this Agreement. Books, records and accounts relating to Recipient's compliance with the terms, provisions, covenants and conditions of this Agreement shall be kept and maintained in accordance with generally accepted accounting principles consistently applied, and shall be consistent with requirements of this Agreement. All such books, records, and accounts shall be open to and available for inspection and copying by the HUD, the City, its auditors or other authorized representatives at reasonable intervals during normal business hours. Copies of all tax returns and other reports that Recipient may be required to furnish to any governmental agency shall at all reasonable times be open for inspection by the City at the place that the books, records and accounts of the Recipient are kept. The Recipient shall preserve such records for a period of not less than five (5) years after the creation of such records in compliance with all HUD records and accounting requirements. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Grant is pending at the end of the record retention period stated herein, then the Recipient shall retain such records until such action and all related issues are resolved. Such records shall include all invoices, receipts, and other documents related to expenditures from the Grant funds.
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with the recordkeeping requirements contained in 24 CFR 92.506. Such records shall include but not be limited to:
(i) Records providing a full description of the activities undertaken with the use of the Grant funds;
(ii) Records demonstrating the eligibility of activities under CDBG Regulations set forth in 24 CFR 570 et seq. and that use of the CDBG Funds meets at least one of the national objectives of the CDBG program set forth in 24 CFR 570.208; (iii) Records demonstrating compliance with the HUD property standards and lead-based paint requirements;
(iv) Records demonstrating compliance with the income requirements for occupants;
(v) Records documenting compliance with the fair housing, equal opportunity, and affirmative fair marketing requirements; (vi) Financial records as required by 24 C.F.R. 570.502, and OMB Circular A-110 (24 C.F.R. Part 84);
(vii) Records demonstrating compliance with applicable relocation requirements which must be retained for at least five (5) years after the date by which persons displaced from the property have received final payments; (viii) Records demonstrating compliance with Section 3, and labor requirements, including certified payrolls from the Recipient's general contractor evidencing that applicable prevailing wages have been paid; and
The City shall notify Recipient of any records it deems insufficient. Recipient shall have fifteen (15) calendar days after the receipt of such a notice to correct any deficiency in the records specified by the City in such notice, or if a period longer than fifteen (15) days is reasonably necessary to correct the deficiency, then Recipient shall begin to correct the deficiency within fifteen (15) days and correct the deficiency as soon as reasonably possible.
Section 4.5 City Audits.
Each year, Recipient shall provide the City with a copy of Recipient's annual audit, which shall include information on all of Recipient's activities and not just those pertaining to the Project. In addition, the City or any designated agent or employee of the City at any time shall be entitled to audit all of Recipient's books, records, and accounts pertaining thereto. Such audit shall be conducted during normal business hours at the principal place of business of Recipient and other places where records are kept. Immediately after the completion of an audit, the City shall deliver a copy of the results of such audit to Recipient. The Recipient shall also follow audit requirements of the Single Audit Act and OMB Circulars A-122 and 110, to the extent required by applicable law and HUD regulations.
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Section 4.6 CDBG Requirements.
Recipient shall comply with all applicable laws and regulations governing the use of the CDBG funds, as set forth in 24 CFR Part 570, including but not limited to the requirements of the Regulatory Agreement. In the event of any conflict between this Agreement and applicable laws and regulations governing the use of the Grant funds, the applicable laws and regulations shall govern.
The laws and regulations governing the use of the Grant funds include (but are not limited to) the following:
(i) Environmental and Historic Preservation. Section 104 (f) of the Housing and Community Project Act of 1974 and 24 CFR Part 58, which prescribe procedures for compliance with the National Environmental Policy Act of 1969 (42 USC 4321-4361), and the additional laws and authorities listed at 24 CFR 58.5.
(ii) Applicability of OMB Circulars. The applicable policies, guidelines, and requirements of OMB Circulars Nos. A-87, A-102, Revised, A-110, A-122, and A-133. (iii) Debarred, Suspended or Ineligible Contractors. The prohibition on the use of debarred, suspended, or ineligible contractors set forth in 24 CFR Part 24. (iv) Civil Rights, Housing and Community Project, and Age Discrimination Acts. The Fair Housing Act (42 USC 3601 et seq.) and implementing regulations at 24 CFR Part 100; Title VI of the Civil Rights Act of 1964 as amended; Title VIII of the Civil Rights Act of 1968 as amended; Section 104(b) and Section 109 of Title I of the Housing and Community Project Act of 1974 as amended; Section 504 of the Rehabilitation Act of 1973 (29 USC 794, et seq.); the Age Discrimination Act of 1975 (42 USC 6101, et seq.); Executive Order 11063 as amended by Executive Order 12259 and implementing regulations at 24 CFR Part 107; Executive Order 11246 as amended by Executive Orders 11375, 12086, 11478, 12107; Executive Order 11625 as amended by Executive Order 12007; Executive Order 12432; Executive Order 12138 as amended by Executive Order 12608.
(v) Lead-Based Paint. The requirement of the Lead-Based Paint Poisoning Prevention Act, as amended (42 USC 4821 et seq.), the Residential Lead-Based Paint Hazard Reduction Act (42 USC 4851 et seq.), and implementing regulations at 24 CFR Part 35. (vi) Relocation. The requirements of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (42 USC 4601, et seq.) and implementing regulations at 49 CFR Part 24; Section 104(d) of the Housing and Community Project Act of 1974 and implementing regulations at 24 CFR Part 42; and 24 CFR 92.353; and California Government Code Section 7260 et seq. and implementing regulations at 25 California Code of Regulations Sections 6000 et seq. If and to the extent that construction of the Project results in the permanent or temporary displacement of residential occupants, homeowners, or businesses, then Recipient shall comply with all applicable local, state, and federal statutes and regulations with respect to relocation planning, advisory assistance, and payment of monetary benefits. Recipient shall prepare and submit a relocation plan to the City for approval. Recipient shall be solely responsible for payment of any relocation benefits to any displaced persons and any other obligations associated with complying #13..
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with such relocation laws. The Recipient shall indemnify, defend (with counsel reasonably chosen by the City), and hold harmless the City against all claims which arise out of relocation obligations to residential occupants, homeowners, or businesses permanently or temporarily displaced by the Project.
(vii) Discrimination against the Disabled. The requirements of the Fair Housing Act (42 U.S.C. 3601 et seq.) and implementing regulations at 24 C.F.R. Part 100, Section 504 of the Rehabilitation Act of 1973 (29 USC 794), and federal regulations issued pursuant thereto, which prohibit discrimination against the disabled in any federally assisted program, the requirements of the Architectural Barriers Act of 1968 (42 USC 4151-4157) and the applicable requirements of Title II and/or Title III of the Americans with Disabilities Act of 1990 (42 USC 12131 et seq.), and federal regulations issued pursuant thereto. (viii) Clean Air and Water Acts. The Clean Air Act, as amended, 42 USC 7401 et seq., the Federal Water Pollution Control Act, as amended, 33 USC 1251 et seq., and the regulations of the Environmental Protection Agency with respect thereto, at 40 CFR Part 1500, as amended from time to time.
(ix) Uniform Administrative Requirements. The requirements of 24 CFR
92.505 and 24 CFR Part 570.502 regarding cost and auditing requirements. (x) Training Opportunities. The requirements of Section 3 of the Housing and Urban Project Act of 1968, as amended, 12 USC 1701u (“Section 3”), requiring that to the greatest extent feasible opportunities for training and employment be given to lower income residents of the project area and agreements for work in connection with the project be awarded to business concerns which are located in, or owned in substantial part by persons residing in, the areas of the project. Recipient agrees to include the following language in all subcontracts executed under this Agreement:
(1) The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Project Act of 1968, as amended, 12 USC 1701u. The purpose of Section 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low- and very low-income persons, particularly persons who are recipients of HUD assistance for housing. (2) The parties to this contract agree to comply with HUD's regulations in 24 CFR Part 135, which implement Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the Part 135 regulations. (3) The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers' representative of the contractor's commitments under this Section 3 clause; and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the Section 3 preference; shall set forth minimum number and job titles subject to hire; availability of apprenticeship and #13..
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training positions; the qualifications for each; the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin. (4) The contractor agrees to include this Section 3 clause in every subcontract subject to compliance with regulations in 24 CFR Part 135, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR Part 135. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR Part 135.
(5) The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR Part 135 require employment opportunities to be directed, were not filled to circumvent the contractor's obligations under 24 CFR Part 135.
(6) Noncompliance with HUD's regulations in 24 CFR Part 135 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts.
(7) With respect to work performed in connection with Section 3 covered Indian housing assistance, section 7(b) of the Indian Self-Determination and Education Assistance Act (25 USC 450e) also applies to the work to be performed under this contract.
Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) preference in the award of contracts and subcontracts shall be given to Indian organizations and Indian-owned Economic Enterprises.
Parties to this contract that are subject to the provisions of Section 3 and section 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation of compliance with section 7(b).
(xi) Reserved.
(xii) Drug Free Workplace. The requirements of the Drug Free Workplace Act of 1988 (P.L. 100-690) and implementing regulations at 24 CFR Part 24. (xiii) Anti-Lobbying; Disclosure Requirements. The disclosure requirements and prohibitions of 31 USC 1352 and implementing regulations at 24 CFR Part 87. (xiv) Historic Preservation. The Recipient shall comply with the historic preservation requirements set forth in the National Historic Preservation Act of 1966, as amended (16 USC Section 470) and the procedures set forth in 36 CFR Part 800. If archeological, cultural, or historic period resources are discovered during construction, all construction work must come to a halt and Recipient shall immediately notify the City. Recipient shall not shall alter or move the discovered material(s) until all appropriate procedures for “post-review discoveries” set forth in Section 106 of the National Historic Preservation Act have taken place, which include, but are not #13..
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limited to, consultation with the California State Historic Preservation Officer and evaluation of the discovered material(s) by a qualified professional archeologist. (xv) Faith Based Activities. If applicable, the 24 CFR Section 570.200(j) regarding eligible use of funds by organizations that are religious or faith-based. (xvi) Flood Disaster Protection. This Agreement is subject to the requirements of the Flood Disaster Protection Act of 1973 (P.L. 93-234). No portion of the assistance provided under this Agreement is approved for acquisition or construction purposes as defined under Section 3(a) of said Act, for use in an area identified by HUD as having special flood hazards which is located in a community not then in compliance with the requirements for participation in the national flood insurance program pursuant to Section 201(d) of said Act. The use of any assistance provided under this Agreement for such acquisition or construction in such identified areas in communities then participating in the national flood insurance program shall be subject to the mandatory purchase of flood insurance requirements of Section 102(a) of said Act.
Any contract or Agreement for the sale, lease, or other transfer of land acquired, cleared or improved with assistance provided under this Agreement shall contain certain provisions. These provisions will apply if such land is located in an area identified by HUD as having special flood hazards and in which the sale of flood insurance has been made available under the National Flood Insurance Act of 1968, as amended, 42 USC 4001 et seq. These provisions shall obligate the transferee and its successors or assigns to obtain and maintain, during the ownership of such land, such flood insurance as required with respect to financial assistance for acquisition or construction purposes under -Section 102(s) of the Flood Disaster Protection Act of 1973. Such provisions shall be required notwithstanding the fact that the construction on such land is not itself funded with assistance provided under this Agreement.
(xvii) Program Income. The Recipient shall report on a monthly basis all program income as defined at 24 CFR 570.500(a) generated by activities carried out with Loan funds made available under this contract. The use of program income by the Borrower shall comply with the requirements set forth at 24 CFR 570.504. By way of further limitations, the Borrower may use such income during the contract period for activities permitted under this contract, which shall be CDBGEligible activities related to the operation of the Project, and shall reduce requests for additional funds by the amount of any such program income balance on hand. All unused program income shall be returned to the City at the end of the contract period. Any interest earned on cash advances from the U.S. Treasury is not program income and shall be remitted promptly to the Grantee. (xviii) Reversion of Assets. Upon expiration of this Agreement, Borrower shall transfer to City any unused Loan funds on hand and any accounts receivable attributable to the use of Loan Funds in accordance with 24 CFR § 570.503(b)(7). (xix) HUD Regulations. Any other HUD regulations present or as may be amended, added, or waived in the future pertaining to the Grant funds, including but not limited to HUD regulations as may be promulgated regarding subrecipients.
Section 4.7 Hazardous Materials.
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regulations relating to industrial hygiene or to the environmental conditions on, under or about the Property including, but not limited to, soil and ground water conditions. Recipient shall not use, generate, manufacture, store or dispose of on, under, or about the Property or transport to or from the Property any flammable explosives, radioactive materials, hazardous wastes, toxic substances or related materials, including without limitation, any substances defined as or included in the definition of “hazardous substances”, “ hazardous wastes”, “hazardous materials”, or “toxic substances” under any applicable federal or state laws or regulations (collectively referred to hereinafter as “Hazardous Materials”) except such of the foregoing as may be customarily used in the construction of projects like the Project or kept and used in and about residential property of this type.
Recipient shall immediately advise the City in writing if at any time it receives written notice of (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Recipient or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, (“Hazardous Materials Law”); (ii) all claims made or threatened by any third party against Recipient or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (i) and (ii) above are hereinafter referred to as “Hazardous Materials Claims”); and (iii) Recipient's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property that could cause the Property or any part thereof to be subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law.
The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings or actions initiated in connection with any Hazardous Materials Claims and to have its reasonable attorneys' fees in connection therewith paid by Recipient.
Recipient shall indemnify and hold harmless the City and its council members, supervisors, directors, officers, employees, agents, successors and assigns from and against any loss, damage, cost, expense or liability directly or indirectly arising out of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence of Hazardous Materials on, under, or about the Property including without limitation: (i) all foreseeable consequential damages; (ii) the costs of any required or necessary repair, cleanup or detoxification of the Property and the preparation and implementation of any closure, remedial or other required plans; and (iii) all reasonable costs and expenses incurred by the City in connection with clauses (i) and (ii), including but not limited to reasonable attorneys' fees and consultant's fees. This indemnification applies whether or not any government agency has issued a cleanup order. Losses, claims, costs, suits, liability, and expenses covered by this indemnification provision include, but are not limited to: (1) losses attributable to diminution in the value of the Property; (2) loss or restriction of use of rentable space on the Property; (3) adverse effect on the marketing of any rental space on the Property: and (4) penalties and fines levied by, and remedial or enforcement actions of any kind issued by any regulatory agency (including but not limited to the costs of any required testing, remediation, repair, removal, cleanup or detoxification of the Property and surrounding properties). This obligation to indemnify shall survive termination of this Agreement.
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Without the City's prior written consent, which shall not be unreasonably withheld, Recipient shall not take any remedial action in response to the presence of any Hazardous Materials on, under or about the Property, nor enter into any settlement agreement, consent decree, or other compromise in respect to any Hazardous Material Claims, which remedial action, settlement, consent decree or compromise might, in the City's reasonable judgment, impair the value of the City's security hereunder; provided, however, that the City's prior consent shall not be necessary in the event that the presence of Hazardous Materials on, under, or about the Property either poses an immediate threat to the health, safety or welfare of any individual or is of such a nature that an immediate remedial response is necessary and it is not reasonably possible to obtain the City's consent before taking such action, provided that in such event Recipient shall notify the City as soon as practicable of any action so taken. The City agrees not to withhold its consent, where such consent is required hereunder, if (i) a particular remedial action is ordered by a court of competent jurisdiction, (ii) Recipient will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (iii) Recipient establishes to the reasonable satisfaction of the City that there is no reasonable alternative to such remedial action which would result in less impairment of the City's security hereunder; or (iv) the action has been agreed to by the City.
Recipient hereby acknowledges and agrees that (i) this Section is intended as the City's written request for information (and Recipient's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5, and (ii) each representation and warranty in this Agreement (together with any indemnity obligation applicable to a breach of any such representation and warranty) with respect to the environmental condition of the Property is intended by the Parties to be an “environmental provision” for purposes of California Code of Civil Procedure Section 736.
In the event that any portion of the Property is determined to be “environmentally impaired” (as that term is defined in California Code of Civil Procedure Section 726.5(e)(3)) or to be an “affected parcel” (as that term is defined in California Code of Civil Procedure Section 726.5(e)(1)), then, without otherwise limiting or in any way affecting the City's or the trustee's rights and remedies under the Deed of Trust, the City may elect to exercise its rights under California Code of Civil Procedure Section 726.5(a) to (1) waive its lien on such environmentally impaired or affected portion of the Property and (2) exercise (i) the rights and remedies of an unsecured creditor, including reduction of its claim against the Recipient to judgment, and (ii) any other rights and remedies permitted by law. For purposes of determining the City's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Recipient shall be deemed to have willfully permitted or acquiesced in a release or threatened release of Hazardous Materials, within the meaning of California Code of Civil Procedure Section 726.5(d)(1), if the release or threatened release of Hazardous Materials was knowingly or negligently caused or contributed to by any lessee, occupant, or user of any portion of the Property and the Recipient knew or should have known of the activity by such lessee, occupant, or user which caused or contributed to the release or threatened release. All costs and expenses, including (but not limited to) attorneys' fees, incurred by the City in connection with any action commenced under this paragraph, including any action required by California Code of Civil Procedure Section 726.5(b) to determine the degree to which the Property is environmentally impaired, plus interest thereon at the lesser of ten percent (10%) and the maximum rate permitted by law, until paid, shall be added to the indebtedness secured #13..
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by the Deed of Trust and shall be due and payable to the City upon its demand made at any time following the conclusion of such action.
Section 4.8 Maintenance and Damage.
During the course of both construction and operation of the Project, Recipient shall maintain the Property and the Project in good repair and in a neat, clean and orderly condition. If there arises a condition in contravention of this requirement, and if Recipient has not cured such condition within thirty (30) days after receiving a City notice of such a condition, then in addition to any other rights available to the City, the City shall have the right to perform all acts necessary to cure such condition, and to establish or enforce a lien or other encumbrance against the Property.
Subject to the requirements of Senior Lenders, and if economically feasible in the City's reasonable judgment after consultation with the Recipient, if any improvement now or in the future on the Property is damaged or destroyed, then Recipient shall, to the extent of available insurance proceeds, diligently undertake to repair or restore such improvement consistent with the plans and specifications approved by the City with such changes as have been approved by the City. Such work or repair shall be commenced no later than the later of one hundred twenty (120) days, or such longer period approved by the City in writing, after the damage or loss occurs or thirty (30) days following receipt of the insurance proceeds, and shall be complete within one (1) year thereafter. Any insurance proceeds collected for such damage or destruction shall be applied to the cost of such repairs or restoration and, if such insurance proceeds shall be insufficient for such purpose, then Recipient shall make up the deficiency. If Recipient does not make repairs, then any insurance proceeds collected for such damage or destruction shall be retained for repayment to Lender, if repayment of the Grant is required under this Agreement, subject to the rights of the Senior Lenders.
Section 4.9 Fees and Taxes.
Recipient shall be solely responsible for payment of all fees, assessments, taxes, charges, and levies imposed by any public authority or utility company with respect to the Property or the Project to the extent owned by Recipient, and shall pay such charges prior to delinquency.
However, Recipient shall not be required to pay and discharge any such charge so long as (a) the legality thereof is being contested diligently and in good faith and by appropriate proceedings, and (b) if requested by the City, Recipient deposits with the City any funds or other forms of assurance that the City in good faith from time to time determines appropriate to protect the City from the consequences of the contest being unsuccessful.
Section 4.10 Notice of Litigation.
Recipient shall promptly notify the City in writing of any litigation which has the potential to materially affect Recipient or the Property and of any claims or disputes that involve a material risk of such litigation.
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Section 4.11 Operation of Project.
Promptly after completion of construction, the Recipient shall operate the Project as a permanent supportive housing units that will serve persons with serious mental illness who are at risk of homelessness at risk for involuntary inpatient hospitalization, or at risk for incarceration, and who have household incomes at or below sixty percent (60%) of the median income for Stanislaus County, as defined by HUDwho are experiencing crisis, housing instability, and or/homelessness, as more particularly Described in the project summary attached hereto as Exhibit B. Promptly after completion of construction, the Recipient shall operate the Project as an affordable housing development consistent with (i) HUD's requirements for use of the CDBG Funds, (ii) the Regulatory Agreement, and (iii) any other regulatory requirements imposed on Recipient.
Section 4.12 Nondiscrimination.
Recipient shall not restrict the rental, sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, or any portion thereof, on the basis of race, color, religion, creed, sex, sexual orientation, disability, marital status, ancestry, or national origin of any person. Recipient covenants for itself and all persons claiming under or through it, and this Agreement is made and accepted upon and subject to the condition that there shall be no discrimination against or segregation of any person or group of persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property or part thereof, nor shall Recipient or any person claiming under or through Recipient establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in, of, or for the Property or part thereof. Recipient shall include such provision in all deeds, leases, contracts and other instruments executed by Recipient, and shall enforce the same diligently and in good faith. The foregoing covenant shall run with the land. If and for so long as the Project is assisted with Section 8 Project-based vouchers, the Recipient may apply such tenant selection standards as are permitted under the Section 8 Project-based voucher program regulations.
Section 4.13 Transfer.
For purposes of this Agreement, “Transfer” shall mean any sale, assignment, or transfer, whether voluntary or involuntary, of (i) any rights and/or duties under this Agreement, and/or (ii) any interest in the Project, including (but not limited to) a fee simple interest, a joint tenancy interest, a life estate, a partnership interest, a leasehold interest, a security interest, or an interest evidenced by a land contract by which possession of the Project is transferred and Recipient retains title. “Transfer” shall exclude the occupancy of any Unit in the Project by a household in compliance with the Regulatory Agreement. The City Manager is authorized to execute assignment and assumption agreements on behalf of the City to implement any approved Transfer.
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No Transfer shall be permitted without the prior written consent of the City, which the City may withhold in its sole discretion. The Grant shall automatically accelerate and be due in full upon any Transfer made without the prior written consent of the City.
The City approves the grant of the security interests to providers of Approved Financing.
The term “Transfer” excludes the lease to a qualified tenant of the Property in compliance with the Regulatory Agreement.
Section 4.14 Insurance Requirements.
The Recipient shall maintain the following insurance coverage throughout the Term of the Grant:
(a) Worker's Compensation insurance to the extent required by law, including Employer's Liability coverage, with limits not less than One Million Dollars ($1,000,000) each accident.
(b) Comprehensive General Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for Contractual Liability, Personal Injury, Broadform Property Damage, Products and Completed Operations.
(c) Comprehensive Automobile Liability insurance with limits not less than One Million Dollars ($1,000,000) each occurrence combined single limit for Bodily Injury and Property Damage, including coverages for owned, non-owned and hired vehicles, as applicable. (d) Builders' risk insurance during the course of the construction, and, upon completion of construction, property insurance covering the Project, in form appropriate for the nature of such property, covering all risks of loss, excluding earthquake, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee, as its interests may appear. Flood insurance shall be obtained if required by applicable federal regulations.
(e) Property insurance covering the Property, in form appropriate for the nature of such property, covering all risks of loss, excluding earthquake, for one hundred percent (100%) of the replacement value, with deductible, if any, acceptable to the City, naming the City as a Loss Payee, as its interests may appear. Flood insurance shall be obtained if required by applicable federal regulations.
(f) Commercial crime insurance covering all officers and employees, for loss of Grant proceeds caused by dishonesty, in an amount not less than the amount of the Grant, naming the City as a Loss Payee, as its interests may appear.
The Recipient shall cause any general contractor, agent, or subcontractor working on the Project under direct contract with the Recipient or subcontract to maintain insurance of #13..
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the types and in at least the minimum amounts described in subsections (a), (b), and (c) above, except that the limit of liability for comprehensive general liability insurance for subcontractors shall be One Million Dollars ($1,000,000), and shall require that such insurance shall meet all of the general requirements of subsections (g), (h), and (i) below. (g) The required insurance shall be provided under an occurrence form, and Recipient shall maintain the coverage described in subsections (a) through (d) continuously throughout the Term. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be three times the occurrence limits specified above.
(h) Comprehensive and General Liability and Comprehensive Automobile Liability insurance policies shall be endorsed to name as an additional insured the City and its officers, agents, employees and members of the City Council. (i) All policies and bonds shall contain (i) the agreement of the insurer to give the County at least thirty (30) days' notice prior to cancellation (including, without limitation, for non-payment of premium) or any material change in said policies (ii) an agreement that such policies are primary and non-contributing with any insurance that may be carried by the City; (iii) a provision that no act or omission of the Recipient shall affect or limit the obligation of the insurance carrier to pay the amount of any loss sustained; and (iv) a waiver by the insurer of all rights of subrogation against the City and its authorized parties in connection with any loss or damage thereby insured against.
Section 4.15 Anti-Lobbying Certification.
The Recipient certifies, to the best of Recipient's knowledge or belief, that:
No Federal appropriated funds have been paid or will be paid, by or on behalf of it, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal grant or loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement; If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, grant, loan, or cooperative agreement, it will complete and submit Standard Form-LLL, Disclosure Form to Report Lobbying, in accordance with its instructions.
This certification is a material representation of fact upon which reliance was placed when this Agreement was made or entered into. Submission of this certification is a prerequisite for making or entering into this Agreement imposed by Section 1352, Title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less #13..
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than Ten Thousand Dollars ($10,000) and no more than One Hundred Thousand Dollars ($100,000) for such failure.
Section 4.16 Payment of Other Indebtedness; Notice of Defaults.
Recipient shall promptly pay the principal and interest when due on any other indebtedness related to the Project.
Recipient shall promptly notify the City in writing of any defaults declared under any other financing for the Project by the lender of such financing.
Section 4.17 Prevailing Wage Requirements. To the extent, and if, required by applicable federal and state laws, rules and regulations, Recipient and its contractors and agents shall comply with California Labor Code Section 1720 et seq. and applicable federal labor laws and standards, and the regulations adopted pursuant thereto (“Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions. Developer shall submit to City a plan for monitoring payment of prevailing wages and shall implement such plan at Recipient’s expense.
Recipient shall indemnify, defend (with counsel approved by City) and hold the City, and its respective elected and appointed officers, officials, employees, agents, consultants, and contractors (collectively, the “Indemnitees”) harmless from and against all liability, loss, cost, expense (including without limitation attorneys’ fees and costs of litigation), claim, demand, action, suit, judicial or administrative proceeding, penalty, deficiency, fine, order, and damage (all of the foregoing collectively “Claims”) which directly or indirectly, in whole or in part, are caused by, arise in connection with, result from, relate to, or are alleged to be caused by, arise in connection with, or relate to, the payment or requirement of payment of prevailing wages or the requirement of competitive bidding in the construction of the Project, the failure to comply with any state or federal labor laws, regulations or standards in connection with this Agreement, including but not limited to the Prevailing Wage Laws, or any act or omission of Recipient related to this Agreement with respect to the payment or requirement of payment of prevailing wages or the requirement of competitive bidding, whether or not any insurance policies shall have been determined to be applicable to any such Claims. It is further agreed that City does not and shall not waive any rights against Recipient which they may have by reason of this indemnity and hold harmless agreement because of the acceptance by City, or Recipient’s deposit with City of any of the insurance policies described in this Agreement. The provisions of this Section 4.18 shall survive the expiration or earlier termination of this Agreement and the issuance of a Certificate of Completion for the Project. Recipient’s indemnification obligations under this Section 4.17 shall not apply to any Claim which arises as a result of an Indemnitee’s gross negligence or willful misconduct.
Section 4.18 Duplication of Benefits. Recipient shall not use funds available under this Agreement to pay for costs that have already been paid for, or will be paid for, by another Federal program, insurance, or other sources. By signing this Agreement Recipient attests that it has not received funds from any other source to pay for the activities set forth herein that will be paid for by the funds provided under this Agreement. Recipient acknowledges and agrees that if it uses the funds under this Agreement to pay for costs that have already been paid for, or will be #13..
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paid for, by another source, Recipient shall repay the funds provided under this Agreement to the City.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF RECIPIENT
Section 5.1 Representations and Warranties.
Recipient hereby represents and warrants to the City as follows:
Organization. Recipient is a duly formed California non-profit benefit corporation, validly existing and in good standing under the laws of the State of California and has the power and authority to own its property and carry on its business as now being conducted.
Authority of Recipient. Recipient has full power and authority to execute and deliver this Agreement and to make and accept the borrowings contemplated hereunder, to execute and deliver the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, and to perform and observe the terms and provisions of all of the above.
Authority of Persons Executing Documents. This Agreement and the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement have been executed and delivered by persons who are duly authorized to execute and deliver the same for and on behalf of Recipient, and all actions required under Recipient's organizational documents and applicable governing law for the authorization, execution, delivery and performance of this Agreement and the Grant Documents and all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken.
Valid Binding Agreements. This Agreement and the Grant Documents and all other documents or instruments which have been executed and delivered pursuant to or in connection with this Agreement constitute or, if not yet executed or delivered, will when so executed and delivered constitute, legal, valid and binding obligations of Recipient enforceable against it in accordance with their respective terms.
No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement and the Grant Documents or of any other documents or instruments executed and delivered, or to be executed or delivered, pursuant to this Agreement, nor the performance of any provision, condition, covenant or other term hereof or thereof, will conflict with or result in a breach of any statute, rule or regulation, or any judgment, decree or order of any court, board, commission or agency whatsoever binding on Recipient, or conflict with any provision of the organizational documents of Recipient, or will conflict with or constitute a breach of or a default under any agreement to which Recipient is a party, or will result in the creation or imposition of any lien upon any assets or property of Recipient, other than liens established pursuant hereto.
Compliance With Laws; Consents and Approvals. The construction of the Project will comply with all applicable laws, ordinances, rules and regulations of federal, state and local #13..
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governments and agencies and with all applicable directions, rules and regulations of the fire marshal, health officer, building inspector and other officers of any such government or agency.
Pending Proceedings. Recipient is not in default under any law or regulation or under any order of any court, board, commission or agency whatsoever, and there are no claims, actions, suits or proceedings pending or, to the knowledge of Recipient, threatened against or affecting Recipient or the Property, at law or in equity, before or by any court, board, commission or agency whatsoever which might, if determined adversely to Recipient, materially affect Recipient's ability to repay the Grant or impair the security to be given to the City pursuant hereto.
Title to Land. At the time of recordation of the Deed of Trust, Recipient will have good and marketable fee title to the Project and there will exist thereon or with respect thereto no mortgage, lien, pledge or other encumbrance of any character whatsoever other than liens for current real property taxes and liens in favor of the City or approved in writing by the City, including documents associated with the Approved Financing further described in Section
1.1(c) above.
Financial Statements. The financial statements of Recipient and other financial data and information furnished by Recipient to the City fairly and accurately present the information contained therein. As of the date of this Agreement, there has not been any adverse, material change in the financial condition of Recipient from that shown by such financial statements and other data and information.
Sufficient Funds. Recipient holds sufficient funds, binding commitments for sufficient funds, and/or access to borrow sufficient funds to complete the acquisition of the Property and the construction of the Project in accordance with the terms of this Agreement.
Taxes. Recipient and its subsidiaries have filed all federal and other material tax returns and reports required to be filed, and have paid all federal and other material taxes, assessments, fees and other governmental charges levied or imposed upon them or their income or the Property otherwise due and payable, except those which are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with generally accepted accounting principles. There is no proposed tax assessment against Recipient or any of its subsidiaries that could, if made, be reasonably expected to have a material adverse effect on the Property, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Recipient and its subsidiaries, taken as a whole, which would be expected to result in a material impairment of the ability of Recipient to perform under any Loan Document to which it is a party, or a material adverse effect upon the legality, validity, binding effect or enforceability against Recipient of any Loan Document. #13..
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ARTICLE 6 DEFAULT AND REMEDIES
Section 6.1 Events of Default.
Each of the following shall constitute a “Default” by Recipient under this Agreement:
(a) Failure to Construct. Failure of Recipient to commence and complete construction of the Project in accordance with the terms of this agreement; (b) Reserved.
(c) Breach of Covenants. Failure by Recipient to duly perform, comply with, or observe any of the conditions, terms, or covenants of any of the Grant Documents, and such failure having continued uncured for thirty (30) days after receipt of written notice thereof from the City to the Recipient or, if the breach cannot be cured within thirty (30) days, the Recipient shall not be in breach so long as Recipient is diligently undertaking to cure such breach and such breach is cured within ninety (90) days; provided, however, that if a different period or notice requirement is specified under any other section of this Article 6, the specific provisions shall control.
(d) Default Under Other Loans. A default is declared under any other financing for the Project by the lender of such financing and such default remains uncured following any applicable notice and cure period.
(e) Insolvency. A court having jurisdiction shall have made or entered any decree or order (i) adjudging Recipient, to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of Recipient or seeking any arrangement for Recipient under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or any state or other jurisdiction, (iii) appointing a receiver, trustee, liquidator, or assignee of Recipient in bankruptcy or insolvency or for any of their properties, (iv) directing the winding up or liquidation of Recipient or Recipient's general partner, if Recipient is a partnership, or Recipient's managing member, if Recipient is a limited liability company, if any such decree or order described in clauses (i) to (iv), inclusive, shall have continued unstayed or undischarged for a period of ninety (90) calendar days; or (v) Recipient or Recipient's general partner, if Recipient is a partnership, or Recipient's managing member, if Recipient is a limited liability company, shall have admitted in writing its inability to pay its debts as they fall due or shall have voluntarily submitted to or filed a petition seeking any decree or order of the nature described in clauses (i) to (iv), inclusive. .
(f) Assignment; Attachment. Recipient shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment of or execution on any substantial part of its property, unless the property so assigned, sequestered, attached or executed upon shall have been returned or released within ninety (90) calendar days after such event or, if sooner, prior to sale pursuant to such sequestration, attachment, or execution. (g) Suspension; Termination. Recipient shall have voluntarily suspended its business or, if Recipient is a partnership, the partnership shall have been dissolved or terminated, other than a technical termination of the partnership for tax purposes. #13..
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(h) Liens on Property and the Project. There shall be filed any claim of lien (other than liens approved in writing by the City) against the Project or any part thereof, or any interest or right made appurtenant thereto, or the service of any notice to withhold proceeds of the Grant and the continued maintenance of said claim of lien or notice to withhold for a period of twenty (20) days, without discharge or satisfaction thereof or provision therefor (including, without limitation, the posting of bonds) satisfactory to the City. (i) Condemnation. The condemnation, seizure, or appropriation of all or the substantial part of the Property and the Project.
(j) Unauthorized Transfer. Any Transfer other than as permitted by Section 4.14.
(k) Representation or Warranty Incorrect. Any Recipient representation or warranty contained in this Agreement, or in any application, financial statement, certificate, or report submitted to the City in connection with any of the Grant Documents, proving to have been incorrect in any material respect when made. After issuance of the certificates of occupancy for the Project, Default may be declared under this subsection only if the failure of representation or warranty also has a material adverse effect on the operation of the Project.
Section 6.2 Remedies.
The occurrence of any Default hereunder following the expiration of all applicable notice and cure periods will, either at the option of the City or automatically where so specified, relieve the City of any obligation to make or continue the Grant and shall give the City the right to proceed with any and all remedies set forth in this Agreement and the Grant Documents, including but not limited to the following:
(a) Repayment. The City shall have the right to cause the Recipient to repay, upon written demand, the Grant within a reasonable period of time, as determined by the City in its sole discretion. The City may proceed to enforce repayment of the Grant and to exercise any or all rights afforded to the City, including foreclosure under the Deed of Trust. (b) Specific Performance. The City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require Recipient to perform its obligations and covenants under the Grant Documents or to enjoin acts on things which may be unlawful or in violation of the provisions of the Grant Documents.
(c) Right to Cure at Recipient's Expense. The City shall have the right (but not the obligation) to cure any monetary default by Recipient under a loan other than the Grant.
The Recipient agrees to reimburse the City for any funds advanced by the City to cure a monetary default by Recipient upon demand therefor, together with interest thereon at the lesser of the maximum rate permitted by law and ten percent (10%) per annum (the “Default Rate”) from the date of expenditure until the date of reimbursement.
Section 6.3 Right of Contest.
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Recipient shall have the right to contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute a Default hereunder. Any such contest shall be prosecuted diligently and, in a manner, unprejudicial to the City or the rights of the City hereunder.
Section 6.4 Remedies Cumulative.
No right, power, or remedy given to the City by the terms of this Agreement or the Grant Documents is intended to be exclusive of any other right, power, or remedy; and each and every such right, power, or remedy shall be cumulative and in addition to every other right, power, or remedy given to the City by the terms of any such instrument, or by any statute or otherwise against Recipient and any other person, including but not limited to the Deed of Trust. Neither the failure nor any delay on the part of the City to exercise any such rights and remedies shall operate as a waiver thereof, nor shall any single or partial exercise by the City of any such right or remedy preclude any other or further exercise of such right or remedy, or any other right or remedy.
ARTICLE 7 GENERAL PROVISIONS
Section 7.1 Relationship of Parties.
Nothing contained in this Agreement shall be interpreted or understood by any of the Parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the City and Recipient or its agents, employees or contractors, and Recipient shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement. Recipient has and retains the right to exercise full control of employment, direction, compensation, and discharge of all persons assisting in the performance of services under the Agreement. In regards to the construction and operation of the Project, Recipient shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding, and all other laws and regulations governing such matters, and shall include requirements in each contract that contractors shall be solely responsible for similar matters relating to their employees. Recipient shall be solely responsible for its own acts and those of its agents and employees.
Section 7.2 No Claims.
Nothing contained in this Agreement shall create or justify any claim against the City by any person that Recipient may have employed or with whom Recipient may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the purchase of the Property, the construction or operation of the Project, and Recipient shall include similar requirements in any contracts entered into for the construction or operation of the Project.
Section 7.3 Amendments.
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No alteration or variation of the terms of this Agreement shall be valid unless made in writing by the Parties. The City Manager is authorized to execute on behalf of the City amendments to the Grant Documents or amended and restated Grant Documents as long as any material change in the amount or terms of this Agreement is approved by the City Council, or in the event the amounts or terms of financing provided by other parties for the Project is revised, requiring conforming amendments to the Grant Documents.
Section 7.4 Indemnification.
The Recipient shall indemnify, defend and hold the City harmless against any and all claims, suits, actions, losses and liability of every kind, nature and description made against it and expenses (including reasonable attorneys' fees) which arise out of or in connection with this Agreement, including but not limited to the purchase of the Property, development, construction, marketing and operation of the Project, except to the extent such claim arises from the grossly negligent or willful misconduct of the City, its agents, and its employees. The provisions of this Section shall survive the expiration of the Term and the reconveyance of the Deed of Trust.
Section 7.5 Non-Liability of City Officials, Employees and Agents.
No member, official, employee or agent of the City shall be personally liable to Recipient in the event of any default or breach by the City or for any amount which may become due to Recipient or its successor or on any obligation under the terms of this Agreement.
Section 7.6 No Third Party Beneficiaries.
There shall be no third party beneficiaries to this Agreement.
Section 7.7 Discretion Retained By City.
The City's execution of this Agreement in no way limits the discretion of the City in the permit and approval process in connection with development of the Project.
Section 7.8 Conflict of Interest.
Except for approved eligible administrative or personnel costs, no person described in Section 7.8below who exercises or has exercised any functions or responsibilities with respect to the activities funded pursuant to this Agreement or who is in a position to participate in a decision-making process or gain inside information with regard to such activities, may obtain a personal or financial interest or benefit from the activity, or have an interest in any contract, subcontract or agreement with respect thereto, or the proceeds thereunder, either for themselves or those with whom they have family or business ties, during, or at any time after, such person's tenure. Recipient shall exercise due diligence to ensure that the prohibition in this Section 7.8is followed.
The conflict of interest provisions of Section 7.8above apply to any person who is an employee, agent, consultant, officer, or any immediate family member of such person, or any elected or appointed official of the City, or any person related within the third (3rd) degree of such person.
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In accordance with Government Code Section 1090 and the Political Reform Act, Government Code section 87100 et seq., no person who is a director, officer, partner, trustee or employee or consultant of the Recipient, or immediate family member of any of the preceding, shall make or participate in a decision, made by the City or a City board, commission or committee, if it is reasonably foreseeable that the decision will have a material effect on any source of income, investment or interest in real property of that person or Recipient.
Interpretation of this section shall be governed by the definitions and provisions used in the Political Reform Act, Government Code Section 87100 et seq., its implementing regulations manual and codes, and Government Code Section 1090.
The Recipient shall comply with the conflict of interest provisions set forth in 24 CFR Section 570.611.
Section 7.9 Notices, Demands and Communications.
Formal notices, demands, and communications between the Parties shall be sufficiently given if and shall not be deemed given unless dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered by express delivery service, return receipt requested, or delivered personally, to the principal office of the Parties as follows:
City: City of Modesto
1010 10th Street
P. O. Box 642
Modesto, CA 95353
Attention: Community Development Manager
Recipient: Stanislaus County Affordable Housing Corporation 909 15th Street, Suite 6
Modesto, CA 95354
Attn: Executive Director
Such written notices, demands and communications may be sent in the same manner to such other addresses as the affected Party may from time to time designate by mail as provided in this Section. Receipt shall be deemed to have occurred on the date shown on a written receipt as the date of delivery or refusal of delivery (or attempted delivery if undeliverable).
Section 7.10 Applicable Law.
This Agreement shall be governed by and construed in accordance with California law.
Section 7.11 Parties Bound.
Except as otherwise limited herein, the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and their heirs, executors, administrators, legal representatives, successors, and assigns. This Agreement is intended to run with the land and #13..
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shall bind Recipient and its successors and assigns in the Property and the Project for the entire Term, and the benefit hereof shall inure to the benefit of the City and its successors and assigns.
Section 7.12 Attorneys' Fees.
If any lawsuit is commenced to enforce any of the terms of this Agreement, the prevailing Party will have the right to recover its reasonable attorneys' fees and costs of suit from the other Party.
Section 7.13 Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions shall continue in full force and effect unless the rights and obligations of the Parties have been materially altered or abridged by such invalidation, voiding or unenforceability.
Section 7.14 Force Majeure.
In addition to specific provisions of this Agreement, performance by either Party shall not be deemed to be in Default where delays or defaults are due to war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, quarantine restrictions, freight embargoes, lack of transportation, or court order. An extension of time for any cause will be deemed granted if notice by the Party claiming such extension is sent to the other within ten (10) days from the commencement of the cause and such extension of time is not rejected in writing by the other Party within ten (10) days of receipt of the notice. In no event shall the City be required to agree to cumulative delays in excess of one hundred eighty (180) days.
Section 7.15 City Approval.
The City has authorized the City Manager to execute the Grant Documents and deliver such approvals or consents as are required by this Agreement, and to execute estoppel certificates concerning the status of the Grant and the existence of Recipient defaults under the Grant Documents. Any consents or approvals required under this Agreement shall not be unreasonably withheld or made, except where it is specifically provided that a sole discretion standard applies. The City shall not unreasonably delay in reviewing and approving or disapproving any proposal by Recipient made in connection with this Agreement.
Section 7.16 Waivers.
Any waiver by the City of any obligation or condition in this Agreement must be in writing. No waiver will be implied from any delay or failure by the City to take action on any breach or default of Recipient or to pursue any remedy allowed under this Agreement or applicable law. Any extension of time granted to Recipient to perform any obligation under this Agreement shall not operate as a waiver or release from any of its obligations under this Agreement. Consent by the City to any act or omission by Recipient shall not be construed to be a consent to any other or subsequent act or omission or to waive the requirement for the City's written consent to future waivers.
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Section 7.17 Title of Parts and Sections.
Any titles of the sections or subsections of this Agreement are inserted for convenience of reference only and shall be disregarded in interpreting any part of the Agreement's provisions.
Section 7.18 Entire Understanding of the Parties
This Agreement, together with the Grant Documents executed in connection with the Grant, constitutes the entire understanding and agreement of the Parties with respect to the Grant.
Section 7.19 Multiple Originals; Counterpart.
This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.
[Signature Page Follows]
WHEREAS, this Agreement has been entered into by the undersigned as of the date first above written.
STANISLAUS COUNTY AFFORDABLE HOUSING
CORPORATION:
By: ________________________________
Title: ________________________________
SEAL
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CITY:
CITY OF MODESTO, a California charter city
By: _____________________________________
JOSEPH P. LOPEZ, City Manager
Date: ______________________________________
ATTEST:
________________________________
DIANE, NAYARES-PEREZ, City Clerk
APPROVED AS TO FORM:
By: ___________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO RISK MANAGEMENT:
By: _________________________________
JOE F. RODRIGUEZ, Risk Manager
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
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2 EXHIBIT B
PROJECT SUMMARY
Location: 319 Laurel Street, Modesto
APN: 101-004-003-000
Census Tract: 27.00/1/1008 (Low Income)
Zoning: R-1
Home size: 756 square feet, 2 BR 1 Bath SFR
Lot size: Approximately 5,200 square feet
Proposed Project
STANCO proposes to, in conjunction with the City of Modesto to acquire 319 Laurel Street, Modesto and rehabilitate the existing structure for the purpose of Permanent Supportive Housing.
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EXHIBIT C
APPROVED PROJECT BUDGET
319 Laurel Street Acquisition and Rehabilitation Budget Pre-Acquisition Costs
Appraisal $800
Lead/Asbestos $750
Inspections $950
Subtotal $2,500
Acquisition Costs
Property $329,000
Closing $6,800
Subtotal $335,800
Rehabilitation and Site
Work Costs
Demo exterior sheds $1,800
Trim trees, remove
roots
$3,500
Replace fencing $13,800
Remove bark/install
turf
$14,158
Place gravel over soil $3,800
Subtotal $37,058
Contingency $37,535
Developer Fee $37,535
Total $450,428
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EXHIBIT D
FEDERAL AWARD IDENTIFICATION INFORMATION
i) Participant’s name: Stanislaus County Affordable Housing Corporation ii) Participant’s UEI: US2PW97AYKM5
iii) Federal Award Identification Number (FAIN):
iv) Federal Award Date: 04/06/2021
v) Subaward Period of Performance Start and End Date: 01/10/2023 -05/31/2023 vi) Amount of Federal Funds Obligated by this action by the CITY entity to the Participant:
$450,428
vii) Total Amount of Federal Funds Obligated to the Participant by the CITY including the current obligation:
$450,428
viii) Total Amount of the Federal Award committed to the Participant by the CITY:
$450,428
ix) Federal award project description, as required to be responsive to the Federal Funding Accountability and Transparency Act (FFATA): Acquisition of property 319 Laurel Street, Modesto, CA to be used for the permanent housing in response to COVID-19 to Later be developed for affordable housing.
x) Name of Federal awarding agency: Housing and Urban Development xi) Contact information for CITY official responsible for awarding funding:
Community Development Manager
1010 10th Street Suite 3100 Modesto, CA 95354
xii) CFDA Number and Name:
14-218 Community Development Block Grant/CARES Act Funds xiii) Identification of whether the award is R&D: Not Applicable xiv) Indirect cost rate for the Federal award (including if the de minimis rate is charged per 24 CFR 200.414 Indirect (F&A) costs): Not Applicable
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3337561.2
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Modesto
1010 10th Street
P. O. Box 642
Modesto, CA 95353
Attention: – Community Development Manager
No fee for recording pursuant to
Government Code Section 27383
__________________________________________________________________________ APN: 101-004-003-000
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(319 Laurel Street)
This Regulatory Agreement and Declaration of Restrictive Covenants (this “Agreement”) is entered into as of ________ __, 2023, by and between the City of Modesto, a California charter city (the “City”) and Stanislaus County Affordable Housing Corporation, a California non-profit corporation (the “Recipient”). City and Recipient are collectively referred to herein as the “Parties.”
RECITALS
1. City and Recipient have entered into a certain grant agreement pursuant to which the City granted to Recipient Four Hundred Fifty Thousand Four Hundred Twenty-Five Dollars ($450,428) (the “Grant”).
2. The Grant was both funded with Community Development Block Grant (“CDBG”) funds received by the City from HUD pursuant to Title I of the Housing and Community Development Act of 1974.
3. Recipient owns fee simple title to the land located at 319 Laurel Street, Modesto, California, known as Stanislaus County Assessor’s Parcel Numbers 101-004-003-000, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”).
4. The City has provided Grant in order to assist Recipient in acquiring the Property for the purpose of developing permanent supportive housing units that will serve persons with serious mental illness who are at risk of homelessness, at risk for involuntary inpatient #13..
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hospitalization, or at risk for incarceration, and who have household incomes at or below sixty percent (60%) of the median income for Stanislaus County, as defined by HUD, who are experiencing crisis, housing instability, and or/homelessness, as more particularly Described in the project summary attached hereto as Exhibit B and incorporated herein by this reference (the “Project”).
5. In consideration of receipt of the Grant, the Recipient agrees to observe all the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions.
When used in this Agreement, the following terms shall have the respective meanings assigned to them in this Article 1:
(a) “Agreement” means this Regulatory Agreement and Declaration of Restrictive Covenants.
(b) “Recipient” means Stanislaus County Affordable Housing Corporation, a California non-profit corporation.
(c) “CDBG” means the Community Development Block Grant program under Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et. seq.), as amended.
(d) “CDBG Regulations” means the statutory and regulatory provisions that govern the CDBG program under Title I of the Housing and Community Development Act of 1974 (42 U.S.C. 5301 et. seq.), as amended including 24 C.F.R. Part 570 et seq. (e) “Certificate of Occupancy Date” means the date of issuance of a Certificate of Occupancy for the Property.
(f) “Deed of Trust” means the deed of trust dated of even date herewith in favor of the City to be recorded on the Property and which secures the performance the terms and conditions of this Agreement.
(g) “City” means the City of Modesto.
(h) “Development” means the Property, as well as any improvements, and all landscaping, roads and parking spaces existing thereon, as the same may from time to time exist. #13..
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(i) “Grant” means all funds granted to the Recipient by the City pursuant to the Grant Agreement.
(j) “Grant Agreement” means the Grant Agreement between Recipient and City, dated of even date herewith, evidencing the Grant. (k) “HUD” means the United States Department of Housing and Urban Development.
(l) “Median Income” means the median gross yearly income, adjusted for Actual Household Size as specified herein, in Stanislaus County, California, as published from time to time by HUD. In the event that such income determinations are no longer published, or are not updated for a period of at least eighteen (18) months, the City shall provide the Recipient with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD.
(m) “Official Records” means the official land records of the County of Stanislaus, California
(n) “Property” means the property described in the attached Exhibit A. (o) “Term” means the term of this Agreement, which shall commence on the date of this Agreement and shall expire thirty (30) years from the date a certificate of occupancy is issued for the Development, but in no event later than December 31, 2053.
ARTICLE 2
OPERATION OF PROJECT
2.1 Permitted Use.
The Property shall be used to develop the Project, as more particularly described in the Grant Agreement, along with other compatible and related accessory uses. The Property shall not be used for any other purpose without the prior written consent of the City.
2.2 Compliance with Deed of Trust.
Recipient shall comply with all the terms and provisions of the Grant Agreement and Deed of Trust.
2.3 Fair Housing.
The Property shall be operated at all times in compliance with the provisions of: (i) the Unruh Act; (ii) the California Fair Employment and Housing Act, (iii) Section 504 of the Rehabilitation Act of 1973; (iv) the United States Fair Housing Act, as amended, and (v) any other applicable law or regulation (including the Americans With Disabilities Act, to the extent applicable to the Property). Recipient agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to City) City, and its council members, officers and #13..
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employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Recipient's failure to comply with applicable legal requirements related to housing for persons with disabilities. The provisions of this subsection shall survive expiration of the Term or other termination of this Agreement and shall remain in full force and effect.
ARTICLE 3
REPORTING
3.1 Annual Report to City.
Recipient shall submit to the City annual reports in a form approved by the City, no later than sixty (60) days after the end of Recipient's fiscal year. The reports shall contain such information as the City may require, including, but not limited to, the following:
(a) A statistical report regarding the individuals served at the Project. (b) A statement of the fiscal condition of the Property, including a financial statement indicating surpluses or deficits in operating accounts, a detailed itemized listing of income and expenses, and the amounts of any fiscal reserves. The report due after the end of each fiscal year shall contain an audited version of this statement. Such audit shall be prepared in accordance with the requirements of the City and certified at the Property's expense by an independent Certified Public Accountant licensed by the State of California. The Recipient shall also follow audit requirements of the Single Audit Act and OMB Circular A-122 and 110. (c) The substantial physical defects in the Property, if any, including a description of any major repair or maintenance work undertaken in the reporting period.
Within fifteen (15) days after receipt of a written request from the City, Recipient shall also submit, any other information or completed forms requested by the City in order to comply with reporting requirements of HUD (provided, however, that the Recipient shall in no event be obligated to provide any information that it cannot legally obtain as a housing provider), the State of California or any other government entity or lender to Recipient.
3.2 Additional Information.
The Recipient shall provide any additional information reasonably requested by the City.
The City shall have the right to examine and make copies of all books, records or other documents of the Recipient that pertain to the Property.
3.3 Records.
The Recipient shall maintain complete, accurate and current records pertaining to the Property and all those records set forth in the Grant Agreement and shall permit any duly authorized representative of the City to inspect records. #13..
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3.4 On-site Inspection.
The City shall have the right to perform an on-site inspection of the Project, when deemed necessary by the City, at least one time per year. The Recipient agrees to cooperate in such inspection and request tenants cooperate with such inspections.
ARTICLE 4
TAXES
4.1 Taxes and Assessments.
Recipient shall pay all real and personal property taxes, assessments and charges and all franchise, income, employment, old age benefit, withholding, sales, and other taxes assessed against it, or payable by it, at such times and in such manner as to prevent any penalty from accruing, or any lien or charge from attaching to the Property; provided, however, that Recipient shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event Recipient exercises its right to contest any tax, assessment, or charge against it, Recipient, on final determination of the proceeding or contest, shall immediately pay or discharge any decision or judgment rendered against it, together with all costs, charges and interest.
4.2 Property Tax Exemption.
Recipient shall not apply for a property tax exemption for the Property under any provision of law except California Revenue and Taxation Section 214(g), without the prior written consent of the City.
ARTICLE 5
PROPERTY MANAGEMENT AND MAINTENANCE
5.1 Management Responsibilities.
The Recipient is responsible for all management functions with respect to the Property, including without limitation maintenance, landscaping, routine and extraordinary repairs, replacement of capital items, and security. The City shall have no responsibility over management of the Property or the Project. Recipient may retain a professional property management company approved by the City in its reasonable discretion to perform its management duties hereunder (“Management Agent”).
5.2 Management Agent; Periodic Reports.
The Recipient shall submit for the City's approval the identity of any proposed Management Agent and if applicable, the management agreement between Recipient and the Management Agent (the “Management Agreement”). The Recipient shall also submit such #13..
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additional information about the background, experience and financial condition of any proposed management agent as is reasonably necessary for the City to determine whether the proposed management agent meets the standard for a qualified management agent set forth above. If the proposed management agent meets the standard for a qualified management agent set forth above, the City shall approve the proposed management agent by notifying the Recipient in writing. Unless the proposed management agent and proposed management agreement is disapproved by the City within thirty (30) days, which disapproval shall state with reasonable specificity the basis for disapproval, it shall be deemed approved.
5.3 Periodic Performance Review.
The City reserves the right to conduct an annual (or more frequently, if deemed necessary by the City) review of the management practices and financial status of the Property. The purpose of each periodic review will be to enable the City to determine if the Property is being operated and managed in accordance with the requirements and standards of this Agreement.
The Recipient shall cooperate with the City in such reviews.
5.4 Replacement of Management Agent.
If, as a result of a periodic review, the City determines in its reasonable judgment that the Property is not being operated and managed in accordance with any of the material requirements and standards of this Agreement, or, if applicable, the Management Agreement, the City shall deliver notice to Recipient of its determination that the Property does not satisfy the requirements of this Agreement, such notice may include a request to cause replacement of the Management Agent, including the reasons therefor. Within fifteen (15) days after receipt by Recipient of such written notice, City staff and the Recipient shall meet in good faith to consider methods for improving the financial and operating status of the Property, including, without limitation, replacement of the Management Agent.
5.5 Property Maintenance.
The Recipient agrees, for the entire Term of this Agreement, to maintain all interior and exterior improvements, including landscaping, on the Property in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials, and in accordance with the maintenance conditions in this Section.
The Recipient shall, for the entire Term of this Agreement, maintain all interior and exterior improvements, including landscaping, on the Property in good condition and repair (and, as to landscaping, in a healthy condition) and in accordance with all applicable laws, rules, ordinances, orders and regulations of all federal, state, county, municipal, and other governmental agencies and bodies having or claiming jurisdiction and all their respective departments, bureaus, and officials, and in accordance with the following maintenance conditions:
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(a) Landscaping. The Recipient shall have landscape maintenance performed on a regular basis, including replacement of dead or diseased plants with comparable plants.
Recipient agrees to adequately water the landscaping on the Property. No improperly maintained landscaping on the Property is to be visible from public streets and/or rights of way; (b) Yard Area. Recipient shall not leave any yard areas on the Property unmaintained, including:
(1) broken or discarded furniture, appliances and other, household equipment stored in yard areas for a period exceeding one (1) week; (2) packing boxes, lumber trash, dirt and other debris in areas visible from public property or neighboring properties; and
(3) vehicles parked or stored in other than approved parking areas. (c) Building. The Recipient shall not leave any buildings located on the Property in an unmaintained condition so that any of the following exist:
(1) violations of state law, uniform codes, or City ordinances; (2) conditions that constitute an unsightly appearance that detracts from the aesthetics or value of the Property or constitutes a private or public nuisance; (3) broken windows;
(4) graffiti (must be removed within 72 hours); and
(5) conditions constituting hazards and/or inviting trespassers, or malicious mischief.
(d) Sidewalks. The Recipient shall maintain, repair, and replace as necessary all public sidewalks immediately adjacent to the Development.
The City places prime importance on quality maintenance to protect its investment and to ensure that all City and City-assisted affordable housing projects within the City are not allowed to deteriorate due to below-average maintenance. Normal wear and tear of the Property will be acceptable to the City assuming the Recipient agrees to provide all necessary improvements to assure the Property is maintained in good condition. The Recipient shall make all repairs and replacements necessary to keep the improvements in good condition and repair.
In the event that the Recipient breaches any of the covenants contained in this Section and such default continues for a period of seven (7) days after written notice from the City with respect to graffiti, debris, waste material, and general maintenance or thirty (30) days after written notice from the City with respect to landscaping and building improvements, then the City, in addition to whatever other remedy it may have at law or in equity, shall have the right to #13..
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enter upon the Property and perform or cause to be performed all such acts and work necessary to cure the default. Pursuant to such right of entry, the City shall be permitted (but is not required) to enter upon the Property and perform all acts and work necessary to protect, maintain, and preserve the improvements and landscaped areas on the Property, and to attach a lien on the Property, or to assess the Property, in the amount of the expenditures arising from such acts and work of protection, maintenance, and preservation by the City and/or costs of such cure, including a ten percent (10%) administrative charge, which amount shall be promptly paid by the Recipient to the City upon demand.
(e) Safety Conditions. The Recipient acknowledges that the City places a prime importance on the security of City-assisted projects and the safety of the residents and surrounding community. The Recipient shall implement and maintain throughout the Term the following security measures in the Development:
(1) to the extent feasible employ defensible space design principles and crime prevention measures in the operation of the Development including, but not limited to, maintaining adequate lighting in parking areas and pathways; (2) use its best efforts to work with the City Police Department to implement and operate an effective neighborhood watch program; and (3) provide added security including dead-bolt locks for every entry door, and where entry doors are damaged, replace them with solid-core doors. (f) The City shall have the right to enter on the Property and/or contact the City Police Department if it becomes aware of, or is notified of, any conditions that pose a danger to the peace, health, welfare or safety of the Tenants and/or the surrounding community, and to perform, or cause to be performed, such acts as are necessary to correct the condition.
ARTICLE 6
MISCELLANEOUS
6.1 Nondiscrimination.
(a) The Property shall be operated at all times in compliance with the provisions of: (i) the Unruh Act; (ii) the California Fair Employment and Housing Act; (iii) Section 504 of the Rehabilitation Act of 1973; (iv) the Fair Housing Act, as amended; and (v) any other applicable law or regulation (including the Americans With Disabilities Act, to the extent applicable to the Property). Recipient shall agree to indemnify, protect, hold harmless and defend (with counsel reasonably satisfactory to City) City, and its board members, officers and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Recipient's failure to comply with applicable legal requirements related to housing for persons with disabilities. The provisions of this subsection will survive expiration of the Term or other termination of this Agreement, and remain in full force and effect.
6.2 Term.
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The terms of this Agreement shall expire thirty (30) years from the date a certificate of occupancy is issued for the Development, but in no event later than December 31, 2051. This Agreement shall bind any successor, heir or assign of the Recipient, whether a change in interest occurs voluntarily or involuntarily, by operation of law or otherwise, except as expressly released by the City. The City makes the Grant on the condition, and in consideration of, this provision, and would not do so otherwise.
6.3 Compliance with Program Requirements.
Recipient actions with respect to the Property shall at all times be in full conformity with:
(i) all requirements of the Grant Agreement all requirements imposed on projects assisted under the CDBG Program as contained in the CDBG Regulations and other implementing rules and regulations. Without limiting the forgoing, Recipient, and Recipient's employees, agents, officers, and board members shall comply with the conflict of interest requirements set forth in 24 CFR 611.
6.4 Covenants to Run With the Land.
The City and the Recipient hereby declare their express intent that the covenants and restrictions set forth in this Agreement shall run with the land, and shall bind all successors in title to the Property, provided, however, that on the expiration of the Term of this Agreement said covenants and restrictions shall expire. Each and every contract, deed or other instrument hereafter executed covering or conveying the Property or any portion thereof, shall be held conclusively to have been executed, delivered and accepted subject to such covenants and restrictions, regardless of whether such covenants or restrictions are set forth in such contract, deed or other instrument, unless the City expressly releases such conveyed portion of the Property from the requirements of this Agreement. Notwithstanding the automatic expiration of this Agreement set forth above, upon the expiration of the Term, the Parties hereby agree to execute and record in the Official Records such document(s) as may be necessary to evidence the termination and release of this Agreement as an encumbrance against the Property.
6.5 Enforcement by the City.
Subject to the notice and cure rights set forth in the Grant Agreement, if the Recipient fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the City has notified the Recipient in writing of the default or, if the default cannot be cured within thirty (30) days, failed to commence to cure within thirty (30) days and thereafter diligently pursue such cure and complete such cure within ninety (90) days, the City shall have the right to enforce this Agreement by any or all of the following actions, or any other remedy provided by law:
(a) Action to Compel Performance or for Damages. The City may bring an action at law or in equity to compel the Recipient's performance of its obligations under this Agreement, for damages, or for injunctive relief.
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(b) Remedies Provided Under Grant Agreement or Deed of Trust. The City may exercise any other remedy provided under the Grant Agreement or Deed of Trust. (c) Special Remedy for Breach of Use Requirement. Pursuant to 24 C.F.R. 570.503(b)(7)(ii), if Recipient substantially changes the use of the Property to a use that fails to meet a national objective as defined in 24 C.F.R 570.208, City may require Recipient to pay to City the fair market value of the Property based on an appraisal. Such appraisal shall be performed by an appraiser selected by the City and shall take into consideration the Recipient's new use of the Property (that is not permitted by this Agreement). Funds recovered from Recipient pursuant to this subsection shall be credited: (1) by the City against any remaining amount of the CDBG Grant.
6.6 Attorneys Fees and Costs.
In any action brought to enforce this Agreement, the prevailing party shall be entitled to all costs and expenses of suit, including attorneys' fees. This Section shall be interpreted in accordance with California Civil Code Section 1717 and judicial decisions interpreting that statute.
6.7 Recording and Filing.
The City and the Recipient shall cause this Agreement, and all amendments and supplements to it, to be recorded in the Official Records.
6.8 Governing Law.
This Agreement shall be governed by the laws of the State of California.
6.9 Waiver of Requirements.
Any of the requirements of this Agreement may be expressly waived by the City in writing, but no waiver by the City of any requirement of this Agreement shall, or shall be deemed to, extend to or affect any other provision of this Agreement.
6.10 Amendments.
This Agreement may be amended only by a written instrument executed by all the parties hereto or their successors in title, and duly recorded in the Official Records.
6.11 Notices.
Any notice requirement set forth herein shall be deemed to be satisfied three (3) days after mailing of the notice first-class United States certified mail, postage prepaid, addressed to the appropriate party as follows:
City: City of Modesto
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1010 10th Street
P. O. Box 642
Modesto, CA 95353
Attention: Community Development Manager
Recipient: Stanislaus County Affordable Housing Corporation 909 15th Street, Suite 6
Modesto, CA 95354
Attn: Executive Director
Such addresses may be changed by notice to the other party given in the same manner as provided above.
6.12 Severability.
If any provision of this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining portions of this Agreement shall not in any way be affected or impaired thereby.
6.13 Multiple Originals; Counterparts.
This Agreement may be executed in multiple originals, each of which is deemed to be an original, and may be signed in counterparts.
6.14 Revival of Agreement after Foreclosure.
This Agreement shall be revived according to its original terms if, during the original Term, the Recipient of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former Recipient or those with whom the former Recipient has or had family or business ties, obtains an ownership interest in the Property or Project.
6.15 Indemnification.
Recipient shall indemnify, defend and hold the City harmless against all claims made against it and expenses (including reasonable attorneys' fees) which arise out of or in connection with the development, construction, marketing and operation of the Property, except to the extent such claim arises from the grossly negligent or willful misconduct of the City, its agents, and its employees. The provisions of this Section shall survive the expiration of the Term and the reconveyance of the City Deed of Trust.
6.16 Encumbrances.
Recipient shall not encumber the Property, including the granting of commercial leases, or permit the conveyance, transfer or encumbrance of such Property (except by qualified tenants) or to allow the placement of any liens, notes or deeds or use the Property as security for a note or #13..
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loan except: (i) with the written consent of the City or (ii) upon a sale or transfer of the Property in accordance with the terms of this Regulatory Agreement.
6.17 Subordination Agreement.
If necessary to secure other financing, City may subordinate this Agreement, resulting in this Agreement becoming subject to and of lower priority than the lien of some other security instrument, subject to the conditions to subordination in the Grant Agreement.
6.18 Notice of Litigation.
Recipient shall promptly notify the City in writing of any litigation materially affecting Recipient or the Property and of any claims or disputes that involve a material risk of such litigation.
6.19 CDBG Funds.
Upon the expiration of the Agreement, the Recipient shall transfer to the City any remaining CDBG funds and any accounts receivable attributable to the use of CDBG funds. [Signature Pages Follow]
[SIGNATURES MUST BE NOTARIZED]
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3660669.1
IN WITNESS WHEREOF, the City and the Recipient have executed this Agreement by duly authorized representatives, all on the date first written above.
STANISLAUS COUNTY AFFORDABLE
HOUSING CORPORATION:
By:________________________________
Title: ________________________________
By:________________________________
Title: ________________________________
[SIGNATURES MUST BE NOTARIZED]
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3660669.1
CITY:
CITY OF MODESTO, a California charter city
By: _____________________________________
JOSEPH P. LOPEZ, City Manager
Date: ______________________________________
ATTEST:
________________________________
DIANE, NAYARES-PEREZ, CMC City Clerk
APPROVED AS TO FORM:
By: ___________________________
JOSE M. SANCHEZ, City Attorney
APPROVED AS TO RISK MANAGEMENT:
By: _________________________________
JOE F. RODRIGUEZ, Risk Manager
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3660669.1
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Stanislaus )
On_____________ before me, _____________________________, Notary Public, , personally appeared, ___________________________________, who proved to me the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_____________________________
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B-1
Exhibit A
Legal Description of the Property
3735919.1
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3336861.2 1
Recording requested by and when recorded mail
to:
City of Modesto
1010 10th Street
P. O. Box 642
Modesto, CA 95353
Attention: Community Development Manager
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
APN: 101-004-003 Space above this line for Recorder’s use.
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “Deed of Trust”) is entered into as of ______________, 2023, by Stanislaus County Affordable Housing Corporation, a California non-profit public benefit corporation (“Trustor”) to First American Title Company as trustee (“Trustee”), for the benefit of the City of Modesto, a California charter city (“Beneficiary”).
RECITALS
A. Trustor owns fee simple title to the land located at 319 Laurel Street, Modesto, California, known as Stanislaus County Assessor’s Parcel Numbers 101-004-003, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (collectively, the “Land”). Trustor intends to develop a develop permanent supportive housing units that will serve persons with serious mental illness who are at risk of homelessness, at risk for involuntary inpatient hospitalization, or at risk for incarceration, and who have household incomes at or below sixty percent (60%) of the median income for Stanislaus County, as defined by HUD, who are experiencing crisis, housing instability, and or/homelessness (the “Project”).
B. Beneficiary and Trustor have entered into a Grant Agreement dated as of ____________, 2023 (the “Grant Agreement”) pursuant to which Beneficiary will provide a grant to Trustor in the amount of up to Four Hundred and Fifty Thousand Four Hundred and Twenty-Eight Dollars ($450,428) (“Grant”) for the purpose of partially financing the acquisition and rehabilitation of the Property.
C. This Deed of Trust, the Grant Agreement, and the Regulatory Agreement (defined below) are collectively referred to herein as the “City Documents.” D. As a condition precedent to the making of the Grant, Beneficiary has required that Trustor enter into this Deed of Trust and grant to Trustee for the benefit of Beneficiary, a lien and security interest in the Project and in Trustor’s fee simple interest in the Land to secure performance of Trustor’s obligations under the Regulatory Agreement and the other City Documents.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of #13..
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which are hereby acknowledged, it is agreed as follows.
1. Grant in Trust. In consideration of the foregoing and for the purpose of securing payment and performance of the Secured Obligations defined and described in Section 2, Trustor hereby irrevocably and unconditionally grants, conveys, transfers and assigns to Trustee, in trust for the benefit of Beneficiary, with power of sale and right of entry and possession, all estate, right, title and interest which Trustor now has or may later acquire in and to the Land, and all of the following, whether presently owned or hereafter acquired:
a. All buildings, structures, and improvements, now or hereafter located or constructed on the Land (“Improvements”);
b. All appurtenances, easements, rights of way, pipes, transmission lines or wires and other rights used in connection with the Land or the Improvements or as a means of access thereto, whether now or hereafter owned or constructed or placed upon or in the Land or Improvements and all existing and future privileges, rights, franchises and tenements of the Land, including all minerals, oils, gas and other commercially valuable substances which may be in, under or produced from any part of the Land, and all water rights, rights of way, gores or strips of land, and any land lying in the streets, ways, and alleys, open or proposed, in front of or adjoining the Land and Improvements (collectively, “Appurtenances”); c. All machinery, equipment, fixtures, goods and other personal property of the Trustor, whether moveable or not, now owned or hereafter acquired by the Trustor and now or hereafter located at or used in connection with the Land, the Improvements or Appurtenances, and all improvements, restorations, replacements, repairs, additions or substitutions thereto (collectively, “Equipment”);
d. All existing and future leases, subleases, licenses, and other agreements relating to the use or occupancy of all or any portion of the Land or Improvements (collectively, “Leases”), all amendments, extensions, renewals or modifications thereof, and all rent, royalties, or other payments which may now or hereafter accrue or otherwise become payable thereunder to or for the benefit of Trustor, including but not limited to security deposits (collectively, “Rents”); e. All insurance proceeds and any other proceeds from the Land, Improvements, Appurtenances, Equipment, Leases, and Rents, including without limitation, all deposits made with or other security deposits given to utility companies, all claims or demands relating to insurance awards which the Trustor now has or may hereafter acquire, including all advance payments of insurance premiums made by Trustor, and all condemnation awards or payments now or later made in connection with any condemnation or eminent domain proceeding (“Proceeds”);
f. All revenues, income, rents, royalties, payments and profits produced by the Land, Improvements, Appurtenances and Equipment, whether now owned or hereafter acquired by Trustor (“Gross Revenues”);
g. All architectural, structural and mechanical plans, specifications, design documents and studies produced in connection with development of the Land and construction of the Improvements (collectively, “Plans”); and
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h. All interests and rights in any private or governmental grants, subsidies, loans or other financing provided in connection with development of the Land and construction of the Improvements (collectively, “Financing”).
All of the above-referenced interests of Trustor in the Land, Improvements, Appurtenances, Equipment, Leases, Rents, Proceeds, Gross Revenues, Plans and Financing as hereby conveyed to Trustee or made subject to the security interest herein described are collectively referred to herein as the “Property.”
2. Obligations Secured. This Deed of Trust is given for the purpose of securing payment and performance of the following (collectively, the “Secured Obligations”): (i) all present and future obligations of Trustor to Beneficiary under the Grant Agreement, the Regulatory Agreement and Declaration of Restrictive Covenants dated as of the date hereof, executed by and between City and Trustor and recorded substantially concurrently herewith (the “Regulatory Agreement”) or the other City Documents; (ii) all additional present and future obligations of Trustor to Beneficiary under any other agreement or instrument acknowledged by Trustor (whether existing now or in the future) which states that it is or such obligations are, secured by this Deed of Trust; (iii) all obligations of Trustor to Beneficiary under all modifications, supplements, amendments, renewals, or extensions of any of the foregoing, whether evidenced by new or additional documents; and (iv) reimbursement of all amounts advanced by or on behalf of Beneficiary to protect Beneficiary’s interests under this Deed of Trust or any other City Document as such may be modified, supplemented, amended, renewed or extended.
3. Assignment of Rents, Issues, and Profits. Trustor hereby irrevocably, absolutely, presently and unconditionally assigns to Beneficiary the Rents, royalties, issues, profits, revenue, income and proceeds of the Property. Upon the occurrence of any such Event of Default, Beneficiary may terminate such license without notice to or demand upon Trustor and without regard to the adequacy of any security for the indebtedness hereby secured, and may either in person, by agent, or by a receiver to be appointed by a court, enter upon and take possession of the Property or any part thereof, and sue for or otherwise collect such rents, issues, and profits, including those past due and unpaid, and apply the same, less costs and expenses of operation and collection, including reasonable attorneys’ fees, to any indebtedness secured hereby, and in such order as Beneficiary may determine. Beneficiary’s right to the rents, royalties, issues, profits, revenue, income and proceeds of the Property does not depend upon whether or not Beneficiary takes possession of the Property. The entering upon and taking possession of the Property, the collection of such rents, issues, and profits, and the application thereof as aforesaid, shall not cure or waive any default or notice of default hereunder or invalidate any act done pursuant to such notice. If an Event of Default occurs while Beneficiary is in possession of all or part of the Property and/or is collecting and applying Rents as permitted under this Deed of Trust, Beneficiary, Trustee and any receiver shall nevertheless be entitled to exercise and invoke every right and remedy afforded any of them under this Deed of Trust and at law or in equity, including the right to exercise the power of sale granted hereunder. Regardless of whether or not Beneficiary, in person or by agent, takes actual possession of the Land or the Improvements, Beneficiary shall not be deemed to be a “mortgagee in possession,” shall not be responsible for performing any obligation of Trustor under any Lease, shall not be liable in any manner for the Property, or the use, occupancy, enjoyment or operation of any part of it, and shall not be responsible for any waste committed by Trustor, lessees or any third parties, or for dangerous or #13..
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defective condition of the Property or any negligence in the management, repair or control of the Property. Absent Beneficiary’s written consent, Trustor shall not accept prepayment of Rents for any rental period exceeding one month.
4. Security Agreement. The parties intend for this Deed of Trust to create a lien on the Property, and an assignment of the Rents and Leases, all in favor of Beneficiary, subject to the rights of any beneficiaries under deeds of trust senior in priority to this Deed of Trust (“Senior Deeds of Trust”). The parties acknowledge that some of the Property may be determined under applicable law to be personal property or fixtures. To the extent that any Property may be or be determined to be personal property, Trustor as debtor hereby grants to Beneficiary as secured party a security interest in all such Property to secure payment and performance of the Secured Obligations. This Deed of Trust constitutes a security agreement under the California Uniform Commercial Code, as amended or recodified from time to time (the “UCC”), covering all such Property. To the extent such Property is not real property encumbered by the lien granted above, and is not absolutely assigned by the assignment set forth above, it is the intention of the parties that such Property shall constitute "proceeds, products, offspring, rents, or profits" (as defined in and for the purposes of Section 552(b) of the United States Bankruptcy Code, as such section may be modified or supplemented) of the Land and Improvements.
5. Financing Statements. Pursuant to the UCC, Trustor, as debtor, hereby authorizes Beneficiary, as secured party, to file such financing statements and amendments thereof and such continuation statements with respect thereto as Beneficiary may deem appropriate to perfect and preserve Beneficiary's security interest in the Property and Rents, without requiring any signature or further authorization by Trustor. If requested by Beneficiary, Trustor shall pay all fees and costs that Beneficiary may incur in filing such documents in public offices and in obtaining such record searches as Beneficiary may reasonably require. If any financing statement or other document is filed in the records normally pertaining to personal property, that filing shall not be construed as in any way derogating from or impairing this Deed of Trust or the rights or obligations of the parties under it.
Everything used in connection with the Property and/or adapted for use therein and/or which is described or reflected in this Deed of Trust is, and at all times and for all purposes and in all proceedings both legal or equitable shall be regarded as part of the estate encumbered by this Deed of Trust irrespective of whether (i) any such item is physically attached to the Improvements, (ii) serial numbers are used for the better identification of certain equipment items capable of being thus identified in a recital contained herein or in any list filed with Beneficiary, or (iii) any such item is referred to or reflected in any such financing statement so filed at any time. Similarly, the mention in any such financing statement of (1) rights in or to the proceeds of any fire and/or hazard insurance policy, or (2) any award in eminent domain proceedings for a taking or for lessening of value, or (3) Trustor's interest as lessor in any present or future lease or rights to income growing out of the use and/or occupancy of the property conveyed hereby, whether pursuant to lease or otherwise, shall not be construed as in any way altering any of the rights of Beneficiary as determined by this instrument or impugning the priority of Beneficiary’s lien granted hereby or by any other recorded document. Such mention in any financing statement is declared to be solely for the protection of Beneficiary in the event any court or judge shall at any time hold, with respect to the matters set forth in the foregoing clauses (1), (2), and (3), that notice of Beneficiary's priority of interest is required in order to be #13..
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effective against a particular class of persons, including but not limited to the federal government and any subdivisions or entity of the federal government.
6. Fixture Filing. Subject to the rights of beneficiaries under Senior Deeds of Trust, this Deed of Trust is intended to be and constitutes a fixture filing pursuant to the provisions of the UCC with respect to all of the Property constituting fixtures, is being recorded as a fixture financing statement and filing under the UCC, and covers property, goods and equipment which are or are to become fixtures related to the Land and the Improvements. Trustor covenants and agrees that this Deed of Trust is to be filed in the real estate records of Stanislaus County and shall also operate from the date of such filing as a fixture filing in accordance with Section 9502 and other applicable provisions of the UCC. This Deed of Trust shall also be effective as a financing statement covering minerals or the like (including oil and gas) and accounts subject to the UCC, as amended. Trustor shall be deemed to be the "debtor" and Beneficiary shall be deemed to be the "secured party" for all purposes under the UCC.
7. Trustor’s Representations, Warranties and Covenants; Rights and Duties of the Parties.
7.1 Representations and Warranties. Trustor represents and warrants that: (i) Trustor lawfully possesses and holds a fee simple interest in the Land and the Improvements, (ii) Trustor has good and marketable title to all of the Property; (iii) Trustor has the full and unlimited power, right and authority to encumber the Property and assign the Rents; (iv) subject only to encumbrances of record and senior liens permitted pursuant to the City Documents or otherwise approved in writing by Beneficiary (“Permitted Encumbrances”), this Deed of Trust creates a valid first lien on Trustor’s entire interest in the Property; (v) except with respect to Permitted Encumbrances, Trustor owns the Property free and clear of any deeds of trust, mortgages, security agreements, reservations of title or conditional sales contracts, (vi) there is no financing statement affecting the Property on file in any public office other than as disclosed in writing to Beneficiary; and (vii) the correct address of Trustor’s chief executive office is specified in Section 10.2.
Trustor further represents and warrants that this Deed of Trust and all other documents delivered or to be delivered by Trustor in connection herewith: (a) have been duly authorized, executed, and delivered by Trustor; (b) are binding obligations of Trustor; and (c) do not violate the provisions of any agreement to which Trustor is a party or which affects the Property.
Trustor further represents and warrants that there are no pending, or to Trustor’s knowledge, threatened actions or proceedings before any court or administrative agency which may adversely affect Trustor’s ownership of the Property.
7.2 Payment and Performance of Secured Obligations. Trustor shall promptly pay and perform all other obligations of Trustor arising in connection with the Secured Obligations or the City Documents in accordance with the respective terms thereof.
7.3 Use of Grant Proceeds; Preservation and Maintenance of Property; Compliance with Laws. Trustor covenants that it shall use the proceeds of the Grant (the “Grant Proceeds”) solely for purposes authorized by the City Documents. Trustor shall keep the Land and Improvements in good repair and condition, and from time to time shall make necessary repairs, renewals and replacements thereto so that the Property shall be preserved and maintained. #13..
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Trustor covenants to comply with all federal, state and local laws, regulations, ordinances and rules applicable to the Property and the Project, including without limitation all applicable requirements of state and local building codes and regulations, and all applicable statutes and regulations relating to accessibility for the disabled. Trustor shall not remove, demolish or materially alter any Improvement without Beneficiary’s consent, shall complete or restore promptly and in good and workmanlike manner any building, fixture or other improvement which may be constructed, damaged, or destroyed thereon, and shall pay when due all claims for labor performed and materials furnished therefor. Trustor shall use the Land and Improvements solely for purposes authorized by the City Documents, shall not commit or allow waste of the Property, and shall not commit or allow any act upon or use of the Property which would violate any applicable law or order of any governmental authority, nor shall Trustor bring on or keep any article on the Property or cause or allow any condition to exist thereon which could invalidate or which would be prohibited by any insurance coverage required to be maintained on the Property pursuant to the City Documents.
7.4 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be an Event of Default hereunder if any Transfer (as defined in the Grant Agreement) of the Property, any part thereof or any interest therein occurs in violation of the requirements of the City Documents.
If any such Transfer occurs in violation of such requirements, without limiting the provisions of Section 8 hereof, all obligations secured by this Deed of Trust, irrespective of the maturity dates of such obligations, shall at the option of Beneficiary, and without demand, immediately become due and payable, subject to any applicable cure period.
7.5 Inspections; Books and Records. Beneficiary and its agents and representatives shall have the right at any reasonable time upon reasonable notice to enter upon the Land and inspect the Property to ensure compliance with the City Documents. Trustor shall maintain complete and accurate books of account and other records (including copies of supporting bills and invoices) adequate to document the use of the Grant Proceeds and the operation of the Property, together with copies of all written contracts, Leases and other instruments which affect the Property. The books, records, contracts, Leases and other instruments shall be subject to examination and inspection at any reasonable time by Beneficiary following two business days prior notice.
7.6 Charges, Liens, Taxes and Assessments. Trustor shall pay before delinquency all taxes, levies, assessments and other charges affecting the Property that are (or if not paid may become) a lien on all or part of the Property. Trustor may, at Trustor’s expense, contest the validity or application of any tax, levy, assessment or charge affecting the Property by appropriate legal proceedings promptly initiated and conducted in good faith and with due diligence, provided that (i) Beneficiary is reasonably satisfied that neither the Property nor any part thereof or interest therein will be in danger of being sold, forfeited, or lost as a result of such contest, and (ii) Trustor shall have posted a bond or furnished other security as may reasonably be required from time to time by Beneficiary; and provided further that Trustor shall timely make any payment necessary to prevent a lien foreclosure, sale, forfeiture or loss of the Property.
7.7 Subrogation. Beneficiary shall be subrogated to the liens of all encumbrances, whether released of record or not, which are discharged in whole or in part by Beneficiary in accordance with this Deed of Trust.
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7.8 Hazard, Liability and Workers’ Compensation Insurance. At all times during the term hereof, Trustor shall at Trustor’s expense, maintain insurance policies in accordance with the requirements set forth in the City Documents. Trustor shall file with Beneficiary prior to the commencement of the term hereof, certificates (or such other proof as Beneficiary may reasonably require, including without limitation copies of the required insurance policies) evidencing each of the insurance policies and endorsements thereto as required pursuant to the City Documents, and such certificates (or policies) shall provide that at least thirty (30) days’ prior written notice shall be provided to Beneficiary prior to the expiration, cancellation or change in coverage under each such policy. If any insurance policy required pursuant to the City Documents is canceled or the coverage provided thereunder is reduced, Trustor shall, within ten (10) days after receipt of written notice of such cancellation or reduction in coverage, but in no event later than the effective date of cancellation or reduction, file with Beneficiary a certificate showing that the required insurance has been reinstated or provided through another insurance company or companies. Upon failure to so file such certificate, Beneficiary may, without further notice and at its option, procure such insurance coverage at Trustor’s expense, and Trustor shall promptly reimburse Beneficiary for such expense upon receipt of billing from Beneficiary.
7.9 Condition of Property. Trustor represents and warrants that except as disclosed to Beneficiary in writing, as of the date hereof: (i) Trustor has not received any notice from any governmental authority of any threatened or pending zoning, building, fire, or health code violation or violation of other governmental regulations concerning the Land that has not previously been corrected, and no condition on the Land violates any health, safety, fire, environmental, sewage, building, or other federal, state or local law, ordinance or regulation; (ii) no contracts, licenses, leases or commitments regarding the maintenance or use of the Property or allowing any third party rights to use the Property are in force; (iii) there are no threatened or pending actions, suits, or administrative proceedings against or affecting the Property or any portion thereof or the interest of Trustor in the Property; (iv) there are no threatened or pending condemnation, eminent domain, or similar proceedings affecting the Land or any portion thereof; (v) Trustor has not received any notice from any insurer of defects of the Property which have not been corrected; (vi) there are no natural or artificial conditions upon the Land or any part thereof that could result in a material and adverse change in the condition of the Land; (vii) all information that Trustor has delivered to Beneficiary, either directly or through Trustor's agents, is accurate and complete; and (viii) Trustor or Trustor’s agents have disclosed to Beneficiary all material facts concerning the Property.
7.10 Hazardous Materials. Trustor represents and warrants that except as disclosed to Beneficiary in writing, as of the date hereof to the best knowledge of Trustor: (i) the Land is free and has always been free of Hazardous Materials (as defined below) and is not and has never been in violation of any Environmental Law (as defined below); (ii) there are no buried or partially buried storage tanks located on the Land; (iii) Trustor has received no notice, warning, notice of violation, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Land are or have ever been in violation of any Environmental Law or informing Trustor that the Land is subject to investigation or inquiry regarding Hazardous Materials on the Land or the potential violation of any Environmental Law; (iv) there is no monitoring program required by the Environmental Protection Agency or any other governmental agency concerning the Land; (v) no toxic or hazardous chemicals, waste, or substances of any kind have ever been spilled, disposed of, or stored on, under or at the Land, #13..
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whether by accident, burying, drainage, or storage in containers, tanks, holding areas, or any other means; (vi) the Land has never been used as a dump or landfill; and (vii) Trustor has disclosed to Beneficiary all information, records, and studies in Trustor’s possession or reasonably available to Trustor relating to the Land concerning Hazardous Materials.
Trustor shall not cause or permit any Hazardous Material (as defined in Section 9.3 of the Grant Agreement) to be brought upon, kept, stored or used in, on, under, or about the Land by Trustor, its agents, employees, contractors or invitees except for incidental supplies ordinarily used in the construction and operation of residential developments in compliance with all applicable laws, and shall not cause any release of Hazardous Materials into, onto, under or through the Land. If any Hazardous Material is discharged, released, dumped, or spilled in, on, under, or about the Land and results in any contamination of the Land or adjacent property, or otherwise results in the release or discharge of Hazardous Materials in, on, under or from the Land, Trustor shall promptly take all actions at its sole expense as are necessary to comply with all Environmental Laws (as defined below).
Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and hold Beneficiary and its elected and appointed officials, officers, agents and employees (collectively, “Indemnitees”) harmless from and against any and all loss, claim, liability, damage, demand, judgment, order, penalty, fine, injunctive or other relief, cost, expense (including reasonable fees and expenses of attorneys, expert witnesses, and other professionals advising or assisting Beneficiary), action, or cause of action (all of the foregoing, hereafter individually “Claim” and collectively “Claims”) arising in connection with the breach of Trustor’s covenants and obligations set forth in this Section 7.10 or otherwise arising in connection with the presence or release of Hazardous Materials in, on, under, or from the Property. The foregoing indemnity includes, without limitation, all costs of investigation, assessment, containment, removal, remediation of any kind, and disposal of Hazardous Materials, all costs of determining whether the Land is in compliance with Environmental Laws, all costs associated with bringing the Land into compliance with all applicable Environmental Laws, and all costs associated with claims for damages or injury to persons, property, or natural resources.
Without limiting the generality of the foregoing, Trustor shall, at Trustor’s own cost and expense, do all of the following:
a. pay or satisfy any judgment or decree that may be entered against any Indemnitee or Indemnitees in any legal or administrative proceeding incident to any matters against which Indemnitees are entitled to be indemnified under this Deed of Trust; b. reimburse Indemnitees for any expenses paid or incurred in connection with any matters against which Indemnitees are entitled to be indemnified under this Deed of Trust; and c. reimburse Indemnitees for any and all expenses, including without limitation outof-pocket expenses and fees of attorneys and expert witnesses, paid or incurred in connection with the enforcement by Indemnitees of their rights under this Deed of Trust, or in monitoring and participating in any legal or administrative proceeding.
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of the following, or by any failure of Trustor to receive notice of or consideration for any of the following: (i) any amendment or modification of any City Document; (ii) any extensions of time for performance required by any City Document; (iii) any provision in any of the City Documents limiting Beneficiary's recourse to property securing the Secured Obligations, or limiting the personal liability of Trustor, or any other party for payment of all or any part of the Secured Obligations; (iv) the accuracy or inaccuracy of any representation and warranty made by Trustor under this Deed of Trust or by Trustor or any other party under any City Document, (v) the release of Trustor or any other person, by Beneficiary or by operation of law, from performance of any obligation under any City Document; (vi) the release or substitution in whole or in part of any security for the Secured Obligations; and (vii) Beneficiary’s failure to properly perfect any lien or security interest given as security for the Secured Obligations.
The provisions of this Section 7.10 shall be in addition to any and all other obligations and liabilities that Trustor may have under applicable law, and each Indemnitee shall be entitled to indemnification under this Section without regard to whether Beneficiary or that Indemnitee has exercised any rights against the Property or any other security, pursued any rights against any guarantor or other party, or pursued any other rights available under the City Documents or applicable law. The obligations of Trustor to indemnify the Indemnitees under this Section shall survive any repayment or discharge of the Secured Obligations, any foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu of foreclosure, and any release of record of the lien of this Deed of Trust.
Without limiting any of the remedies provided in this Deed of Trust, Trustor acknowledges and agrees that each of the provisions in this Section 7.10 is an environmental provision (as defined in Section 736(f)(2) of the California Code of Civil Procedure) made by Trustor relating to real property security (the “Environmental Provisions”), and that Trustor's failure to comply with any of the Environmental Provisions will be a breach of contract that will entitle Beneficiary to pursue the remedies provided by Section 736 of the California Code of Civil Procedure (“Section 736”) for the recovery of damages and for the enforcement of the Environmental Provisions. Pursuant to Section 736, Beneficiary's action for recovery of damages or enforcement of the Environmental Provisions shall not constitute an action within the meaning of Section 726(a) of the California Code of Civil Procedure or constitute a money judgment for a deficiency or a deficiency judgment within the meaning of Sections 580a, 580b, 580d, or 726(b) of the California Code of Civil Procedure. “Environmental Law” means all federal, state or local statutes, ordinances, rules, regulations, orders, decrees, judgments or common law doctrines, and provisions and conditions of permits, licenses and other operating authorizations regulating, or relating to, or imposing liability or standards of conduct concerning (i) pollution or protection of the environment, including natural resources; (ii) exposure of persons, including employees and agents, to any Hazardous Material (as defined above) or other products, raw materials, chemicals or other substances; (iii) protection of the public health or welfare from the effects of by-products, wastes, emissions, discharges or releases of chemical substances from industrial or commercial activities; (iv) the manufacture, use or introduction into commerce of chemical substances, including without limitation, their manufacture, formulation, labeling, distribution, transportation, handling, storage and disposal; or (iv) the use, release or disposal of toxic or hazardous substances or Hazardous Materials or the remediation of air, surface waters, #13..
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groundwaters or soil, as now or may at any later time be in effect, including but not limited to the Toxic Substances Control Act [15 U.S.C. 2601, et seq.]; the Comprehensive Environmental Response, Compensation and Liability Act [42 U.S.C. Section 9601, et seq.], the Hazardous Materials Transportation Authorization Act [49 U.S.C. Section 5101, et seq.], the Resource Conservation and Recovery Act [42 U.S.C. 6901, et seq.], the Federal Water Pollution Control Act [33 U.S.C. Section 1251], the Clean Air Act [42 U.S.C. Section 7401, et seq.], the California Underground Storage of Hazardous Substances Act [California Health and Safety Code Section 25280, et seq.], the California Hazardous Substances Account Act [California Health and Safety Code Section 25300, et seq.], the California Hazardous Waste Act [California Health and Safety Code Section 25100, et seq.], the California Safe Drinking Water and Toxic Enforcement Act [California Health and Safety Code Section 25249.5, et seq.], and the Porter-Cologne Water Quality Control Act [California Water Code Section 13000, et seq.], as they now exist or are hereafter amended, together with any regulations promulgated thereunder.
7.11 Notice of Claims; Defense of Security; Reimbursement of Costs. a. Notice of Claims. Trustor shall provide written notice to Beneficiary of any uninsured or partially uninsured loss affecting the Property through fire, theft, liability, or property damage in excess of an aggregate of Fifty Thousand Dollars ($50,000) within five (5) business days of the occurrence of such loss. Trustor shall ensure that Beneficiary shall receive timely notice of, and shall have a right to cure, any default under any other financing document or other lien affecting the Property and shall use best efforts to ensure that provisions mandating such notice and allowing such right to cure shall be included in all such documents. Within three business days of Trustor’s receipt thereof, Trustor shall provide Beneficiary with a copy of any notice of default Trustor receives in connection with any financing document secured by the Property or any part thereof.
b. Defense of Security. At Trustor's sole expense, Trustor shall protect, preserve and defend the Property and title to and right of possession of the Property, the security of this Deed of Trust and the rights and powers of Beneficiary and Trustee created under it, against all adverse claims.
c. Compensation; Reimbursement of Costs. Trustor agrees to pay all reasonable fees, costs and expenses charged by Beneficiary or Trustee for any service that Beneficiary or Trustee may render in connection with this Deed of Trust, including without limitation, fees and expenses related to provision of a statement of obligations or related to a reconveyance. Trustor further agrees to pay or reimburse Beneficiary for all costs, expenses and other advances which may be incurred or made by Beneficiary or Trustee in any efforts to enforce any terms of this Deed of Trust, including without limitation any rights or remedies afforded to Beneficiary or Trustee or both of them under Sections 7.17 and 8.2, whether or not any lawsuit is filed, or in defending any action or proceeding arising under or relating to this Deed of Trust, including reasonable attorneys’ fees and other legal costs, costs of any disposition of the Property under the power of sale granted hereunder or any judicial foreclosure, and any cost of evidence of title. d. Notice of Changes. Trustor shall give Beneficiary prior written notice of any change in the address of Trustor and the location of any Property, including books and records pertaining to the Property.
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7.12 Indemnification. Trustor shall indemnify, defend (with counsel reasonably acceptable to Beneficiary), and hold harmless the Indemnitees (as defined in Section 7.10) from and against all Claims arising directly or indirectly in any manner in connection with or as a result of (a) any breach of Trustor’s covenants under any City Document, (b) any representation by Trustor in any City Document which proves to be false or misleading in any material respect when made, (c) injury or death to persons or damage to property or other loss occurring on the Land or in any improvement located thereon, whether caused by the negligence or any other act or omission of Trustor or any other person or by negligent, faulty, inadequate or defective design, building, construction or maintenance or any other condition or otherwise, (d) any claim, demand or cause of action, or any action or other proceeding, whether meritorious or not, brought or asserted against any Indemnitee which relates to or arises out of the Property, or any City Document or any transaction contemplated thereby, or any failure of Trustor to comply with all applicable state, federal and local laws and regulations applicable to the Property, provided that no Indemnitee shall be entitled to indemnification under this Section for matters caused by such Indemnitee's gross negligence or willful misconduct. The obligations of Trustor under this Section shall be secured by this Deed of Trust. Notwithstanding any contrary provision contained herein, the obligations of Trustor under this Section shall survive any foreclosure proceeding, any foreclosure sale, any delivery of a deed in lieu of foreclosure, and any release or reconveyance of this Deed of Trust.
7.13. Limitation of Liability. Beneficiary shall not be directly or indirectly liable to Trustor or any other person as a consequence of any of the following: (i) Beneficiary's exercise of or failure to exercise any rights, remedies or powers granted to Beneficiary in this Deed of Trust; (ii) Beneficiary's failure or refusal to perform or discharge any obligation or liability of Trustor under any agreement related to the Property or under this Deed of Trust; (iii) any waste committed by Trustor, the lessees of the Property or any third parties, or any dangerous or defective condition of the Property; or (iv) any loss sustained by Trustor or any third party resulting from any act or omission of Beneficiary in managing the Property after an Event of Default, unless the loss is caused by the willful misconduct, gross negligence, or bad faith of Beneficiary. Trustor hereby expressly waives and releases all liability of the types described in this Section 7.13, and agrees that Trustor shall assert no claim related to any of the foregoing against Beneficiary.
7.14 Insurance and Condemnation Proceeds. Subject to the rights of any senior lienholders, and notwithstanding anything contained in any of the City Documents, unless Beneficiary and Trustor otherwise agree in writing, any award of damages in connection with any condemnation for public use of, or injury to the Property or any part thereof shall be applied to restoration or repair of the Property, provided Trustor determines that such restoration or repair is economically feasible and there is no default under any City Document that is continuing beyond the expiration of all applicable cure periods. If Trustor determines that such restoration or repair is not economically feasible or if a default exists after expiration of all applicable cure periods, the insurance proceeds shall be applied to the sums secured by this Deed of Trust, with the excess, if any, paid to Trustor. If the Property is abandoned by Trustor, or if Trustor fails to respond to Beneficiary within 30 days from the date notice is mailed by Beneficiary to Trustor that the insurance carrier offers to settle a claim for insurance benefits, Beneficiary is authorized to collect and apply the insurance proceeds at Beneficiary's option either to restoration or repair of the Property or to the sums secured by this Deed of Trust #13..
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7.15 Release, Extension, Modification. At any time and from time to time, without liability therefor and without notice, upon written request of Beneficiary and presentation of this Deed of Trust for endorsement, Trustee may release or reconvey all or any part of the Property, consent to the making of any map or plat of the Land or part thereof, join in granting any easement or creating any restriction affecting the Property, or join in any extension agreement or other agreement affecting the lien or charge hereof. At any time and from time to time, without liability therefor and without notice, Beneficiary may (i) release any person liable for payment of any Secured Obligation, (ii) extend the time for payment or otherwise alter the terms of payment of any Secured Obligation; (iii) accept additional real or personal property of any kind as security for any Secured Obligation, or (iv) substitute or release any property securing the Secured Obligations.
7.16 Reconveyance. Upon written request of Beneficiary stating that all of the Secured Obligations have been satisfied in full, and upon surrender of this Deed of Trust, Trustee shall reconvey, without warranty, the Property or so much of it as is then held under this Deed of Trust. The recitals in any reconveyance executed under this Deed of Trust of any matters or facts shall be conclusive proof of the truthfulness thereof. Trustor shall pay all fees of Trustee and all recordation fees related to such reconveyance.
7.17 Cure; Protection of Security. Beneficiary may cure any breach or default of Trustor, and if it chooses to do so in connection with any such cure, Beneficiary may also enter the Property and/or do any and all other things which it may in its reasonable discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include: appearing in and/or defending any action or proceeding which purports to affect the security of, or the rights or powers of Beneficiary or Trustee under, this Deed of Trust; paying, purchasing, contesting or compromising any encumbrance, charge, lien or claim of lien which in Beneficiary’s sole judgment is or may be senior in priority to this Deed of Trust, such judgment of Beneficiary to be conclusive as among Beneficiary, Trustee and Trustor; obtaining insurance and/or paying any premiums or charges for insurance required to be carried hereunder; otherwise caring for and protecting any and all of the Property; and/or employing counsel, accountants, contractors and other appropriate persons to assist Beneficiary. Beneficiary may take any of the actions permitted under this Section 7.17 either with or without giving notice, except for notices required under applicable law. Any amounts disbursed by Beneficiary pursuant to this paragraph shall become additional indebtedness secured by this Deed of Trust.
8. Default and Remedies.
8.1 Events of Default. Trustor acknowledges and agrees that an Event of Default shall occur under this Deed of Trust upon the occurrence of any one or more of the following events:
a. Beneficiary’s declaration of an Event of Default under any City Document, subject to the expiration of any applicable cure period set forth in such document; b. Trustor fails to perform any monetary obligation which arises under this Deed of Trust, and does not cure that failure within ten (10) days following written notice from Beneficiary or Trustee;
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c. If Trustor’s interest in the Property or any part thereof is voluntarily or involuntarily sold, transferred, leased, encumbered, or otherwise conveyed in violation of Section 7.4 hereof or if any other Transfer occurs in violation of the Grant Agreement; d. Trustor fails to maintain the insurance coverage required under the City Documents or otherwise fails to comply with the requirements of Section 7.8 hereof and Trustor fails to cure such default within the time specified in Section 7.8; e. Subject to Trustor’s right to contest such charges as provided herein, Trustor fails to pay taxes or assessments due on the Land or the Improvements or fails to pay any other charge that may result in a lien on the Land or the Improvements, and Trustor fails to cure such default within ten (10) days.
f. Any representation or warranty of Trustor contained in or made in connection with the execution and delivery of this Deed of Trust or in any certificate or statement furnished pursuant hereto or in any other City Document proves to have been false or misleading in any material adverse respect when made;
g. If, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (“Bankruptcy Law”), Trustor or any general partner thereof (i) commences a voluntary case or proceeding; (ii) consents to the entry of an order for relief against Trustor or any general partner thereof in an involuntary case; (iii) consents to the appointment of a trustee, receiver, assignee, liquidator or similar official for Trustor or any general partner thereof; (iv) makes an assignment for the benefit of its creditors; or (v) admits in writing its inability to pay its debts as they become due. h. If a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (i) is for relief against Trustor or any general partner thereof in an involuntary case, (ii) appoints a trustee, receiver, assignee, liquidator or similar official for Trustor or any general partner thereof or substantially all of such entity’s assets, (iii) orders the liquidation of Trustor or any general partner thereof, or (iv) issues or levies a judgment, writ, warrant of attachment or similar process against the Property or the Project, and in each case the order or decree is not released, vacated, dismissed or fully bonded within 60 days after its issuance.
i. The holder of any other debt instrument secured by a mortgage or deed of trust on the Property or part thereof declares an event of default thereunder and exercises a right to declare all amounts due under that debt instrument immediately due and payable, subject to the expiration of any applicable cure period set forth in such holder’s documents; or j. Trustor fails to perform any obligation arising under this Deed of Trust other than one enumerated in this Section 8.1, and does not cure that failure either within ten (10) days after written notice from Beneficiary or Trustee in the event of a monetary default, or within thirty (30) days after such written notice in the event of a nonmonetary default, provided that in the case of a nonmonetary default that in Beneficiary’s reasonable judgment cannot reasonably be cured within thirty (30) days, an Event of Default shall not arise hereunder if Trustor commences to cure such default within thirty (30) days and thereafter prosecutes such #13..
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cure to completion with due diligence and in good faith and in no event later than ninety (90) days, or such longer period as the City may approve, following receipt of notice of default.
8.2 Remedies. Subject to the applicable notice and cure provisions set forth herein, at any time after an Event of Default, Beneficiary and Trustee shall be entitled to invoke any and all of the rights and remedies described below, and may exercise any one or more or all, of the remedies set forth in any City Document, and any other remedy existing at law or in equity or by statute. All of Beneficiary’s rights and remedies shall be cumulative, and the exercise of any one or more of them shall not constitute an election of remedies. Beneficiary shall be entitled to collect all expenses incurred in pursuing the remedies provided hereunder, including without limitation reasonable attorneys’ fees and costs.
a. Acceleration. Beneficiary may declare any or all of the Secured Obligations, including without limitation all sums payable under this Deed of Trust, to be due and payable immediately.
b. Receiver. Beneficiary may apply to any court of competent jurisdiction for, and obtain appointment of, a receiver for the Property. c. Entry. Beneficiary, in person, by agent or by court-appointed receiver, may enter, take possession of, manage and operate all or any part of the Property, and may also do any and all other things in connection with those actions that Beneficiary may in its sole discretion consider necessary and appropriate to protect the security of this Deed of Trust. Such other things may include: taking and possessing copies of all of Trustor’s or the then owner's books and records concerning the Property; entering into, enforcing, modifying, or canceling Leases on such terms and conditions as Beneficiary may consider proper; obtaining and evicting tenants; fixing or modifying Rents; collecting and receiving any payment of money owing to Trustor; completing any unfinished construction; and/or contracting for and making repairs and alterations. If Beneficiary so requests, Trustor shall assemble all of the Property that has been removed from the Land and make all of it available to Beneficiary at the site of the Land. Trustor hereby irrevocably constitutes and appoints Beneficiary as Trustor's attorney-in-fact to perform such acts and execute such documents as Beneficiary in its sole discretion may consider to be appropriate in connection with taking these measures, including endorsement of Trustor's name on any instruments.
d. UCC Remedies. Beneficiary may exercise any or all of the remedies granted to a secured party under the UCC.
e. Judicial Action. Beneficiary may bring an action in any court of competent jurisdiction to foreclose this Deed of Trust in the manner provided by law for foreclosure of mortgages on real property and/or to obtain specific enforcement of any of the covenants or agreements of this Deed of Trust.
f. Power of Sale. Under the power of sale hereby granted, Beneficiary shall have the discretionary right to cause some or all of the Property, including any Property which constitutes personal property, to be sold or otherwise disposed of in any combination and in any manner permitted by applicable law.
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Trustor’s limited partners (the “Limited Partners”) shall have the right to cure any default of Trustor hereunder upon the same terms and conditions afforded to Trustor. Provided that Beneficiary has been given written notice of the address for delivery of notices to the Limited Partners, Beneficiary shall provide any notice of default hereunder to the Limited Partners concurrently with the provision of such notice to Trustor, and as to the Limited Partners, the cure periods specified herein shall commence upon the date of delivery of such notice in accordance with Section 10.2.
8.3 Power of Sale. If Beneficiary elects to invoke the power of sale hereby granted, Beneficiary shall execute or cause the Trustee to execute a written notice of such default and of its election to cause the Property to be sold to satisfy the obligations hereof, and shall cause such notice to be recorded in the office of the Recorder of each County wherein the Property or some part thereof is situated as required by law and this Deed of Trust.
Prior to publication of the notice of sale, Beneficiary shall deliver to Trustee this Deed of Trust and the other evidence of indebtedness which is secured hereby, together with a written request for the Trustee to proceed with a sale of the Property, pursuant to the provisions of law and this Deed of Trust.
Notice of sale having been given as then required by law, and not less than the time then required by law having elapsed after recordation of such notice of default, Trustee, without demand on Trustor, shall sell the Property at the time and place fixed by it in the notice of sale, either as a whole or in separate parcels and in such order as it may determine, at public auction to the highest bidder for cash in lawful money of the United States, payable at time of sale. Trustee may, and at Beneficiary’s request shall, postpone sale of all or any portion of the Property by public announcement at such time and place of sale, and from time to time thereafter may postpone such sale by public announcement at the time and place fixed by the preceding postponement. Trustee shall deliver to the purchaser its deed conveying the property so sold, but without any covenant or warranty, express or implied. The recitals in such deed of any matters or facts shall be conclusive proof of the truthfulness thereof. Any person, including Trustor, Trustee, or Beneficiary, may purchase at such sale.
After deducting all costs, fees, and expenses of Trustee and of the trust hereby created, including reasonable attorneys’ fees in connection with sale, Trustee shall apply the proceeds of sale to payment of all sums advanced or expended by Beneficiary or Trustee under the terms hereof and all outstanding sums then secured hereby, and the remainder, if any, to the person or persons legally entitled thereto.
Without limiting the generality of the foregoing, Trustor acknowledges and agrees that regardless of whether or not a default has occurred hereunder, if an Event of Default has occurred under the City Documents, and if in connection with such Event of Default Beneficiary exercises its right to foreclose on the Property, then: (i) Beneficiary shall be entitled to declare all amounts due under the City Documents immediately due and payable, and (ii) the proceeds of any sale of the Property in connection with such foreclosure shall be used to pay all Secured Obligations, including without limitation, the outstanding principal balance and all other amounts due.
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At any foreclosure sale, any person, including Trustor, Trustee or Beneficiary, may bid for and acquire the Property or any part of it to the extent permitted by then applicable law.
Instead of paying cash for such property, Beneficiary may settle for the purchase price by crediting the sales price of the property against the following obligations:
a. First, the portion of the Secured Obligations attributable to the expenses of sale, costs of any action and any other sums for which Trustor is obligated to pay or reimburse Beneficiary or Trustee under Section 7.11(c); and
b. Second, the remaining balance of all other Secured Obligations in any order and proportions as Beneficiary in its sole discretion may choose.
8.4 Trustor’s Right to Reinstate. Notwithstanding Beneficiary’s acceleration of the sums secured by this Deed of Trust, Trustor shall have the right to have any proceedings begun by Beneficiary to enforce this Deed of Trust discontinued at any time prior to five days before sale of the Property pursuant to the power of sale contained in this Deed of Trust or at any time prior to entry of a judgment enforcing this Deed of Trust if: (a) Trustor pays Beneficiary all sums which would be then due under the City Documents if the Secured Obligations had no acceleration provision; (b) Trustor cures all breaches of any other covenants or agreements of Trustor contained in this Deed of Trust; (c) Trustor pays all reasonable expenses incurred by Beneficiary and Trustee in enforcing the covenants and agreements of Trustor contained in this Deed of Trust, and in enforcing Beneficiary’s and Trustee’s remedies as provided herein, including, but not limited to, reasonable attorney’s fees; and (d) Trustor takes such action as Beneficiary may reasonably require to assure that the lien of this Deed of Trust, Beneficiary’s interest in the Property and Trustor’s obligation to pay the sums secured by this Deed of Trust shall continue unimpaired. Upon such payment and cure by Trustor, this Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred.
Nothing contained in Sections 8.3 and 8.4 is intended to expand upon or limit the rights of Trustor and Beneficiary under California law regarding Beneficiary’s exercise of the power of sale or Trustor’s reinstatement rights.
9. Trustor's Waivers. To the fullest extent permitted by law, Trustor waives: (a) all statutes of limitations as a defense to any action or proceeding brought against Trustor by Beneficiary; (b) the benefit of all laws now existing or which may hereafter be enacted providing for any appraisement, valuation, stay, extension, redemption or moratorium; (c) all rights of marshalling in the event of foreclosure; and (d) all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, notices of acceptance of this Deed of Trust and of the existence, creation, or incurring of new or additional indebtedness, and demands and notices of every kind.
10. Miscellaneous Provisions.
10.1 Additional Provisions. The City Documents grant further rights to Beneficiary and contain further agreements and affirmative and negative covenants by Trustor which apply to this Deed of Trust and the Property.
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10.2 Notices. Trustor requests that a copy of notice of default and notice of sale be mailed to Trustor at the address set forth below. That address is also the mailing address of Trustor as debtor under the UCC. Beneficiary’s address set forth below is the address for Beneficiary as secured party under the UCC. Except for any notice required under applicable law to be given in another manner, all notices to be sent pursuant to this Deed of Trust shall be made in writing, and sent to the parties at their respective addresses specified below or to such other address as a party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by:
a. personal delivery, in which case notice shall be deemed delivered upon receipt;
b. certified or registered mail, return receipt requested, in which case notice shall be deemed delivered two (2) business days after deposit, postage prepaid in the United States mail;
c. nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) day after deposit with such courier; or d. facsimile transmission, in which case notice shall be deemed delivered on transmittal, provided that a transmission report is generated reflecting the accurate transmission thereof.
Beneficiary: City of Modesto
Community & Economic Development Department
1010 Tenth Street, Suite 3100
P O Box 642
Modesto, CA 95353
Attn: Community Development Manager
Trustor: Stanislaus County Affordable Housing Corporation 909 15th Street, Suite 6
Modesto, CA 95354
Attn: Executive Director
Trustee: First American Title Company
711 East Canal Drive, Suite A
Turlock, CA 95380
10.3 Binding on Successors. The terms, covenants and conditions of this Deed of Trust shall be binding upon and inure to the benefit of the heirs, administrators, executors, successors in interest, transferees, and assigns of the Trustor, Beneficiary and Trustee; provided however this Section 10.3 does not waive the provisions of Section 7.4.
10.4 Substitution of Trustee. Beneficiary may from time to time or at any time substitute a trustee or trustees to execute the trust hereby created, and when any such substitution has been filed for record in the office of the Recorder of Stanislaus County, it shall be conclusive #13..
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evidence of the appointment of such trustee or trustees, and such new trustee or trustees shall succeed to all of the powers and duties of the Trustee named herein.
10.5 Attorneys’ Fees and Costs. In any action or proceeding to foreclose this Deed of Trust or to enforce any right of Beneficiary or of Trustee, Trustor shall pay to Beneficiary and Trustee all costs of such action or proceeding, including reasonable attorneys’ fees.
10.6 Governing Law; Severability; Interpretation. This Deed of Trust shall be governed by the laws of the State of California without regard to principles of conflicts of laws.
Trustor agrees that any controversy arising under or in relation to this Deed of Trust shall be litigated exclusively in the jurisdiction where the Land is located (the “Property Jurisdiction”).
The state and federal courts and authorities with jurisdiction in the Property Jurisdiction shall have exclusive jurisdiction over all controversies which shall arise under or in relation to the City Documents. Trustor irrevocably consents to service, jurisdiction, and venue of such courts for any such litigation, and waives any other venue to which it might be entitled by virtue of domicile, habitual residence or otherwise. If any provision of this Deed of Trust is held unenforceable or void, that provision shall be deemed severable from the remaining provisions, and shall in no way affect the validity of this Deed of Trust. The captions used in this Deed of Trust are for convenience only and are not intended to affect the interpretation or construction of the provisions herein contained. In this Deed of Trust, whenever the context so requires, the singular number includes the plural.
10.7 Waiver, Modification and Amendment. Any waiver by Beneficiary of any obligation of Trustor hereunder must be in writing, and no waiver shall be construed as a continuing waiver. No waiver shall be implied from any delay or failure by Beneficiary or Trustee to take action on account of any default of Trustor. Consent by Beneficiary or Trustee to any act or omission by Trustor shall not be construed as a consent to any other or subsequent act or omission or to waive the requirement for Beneficiary’s or Trustee’s consent to be obtained in any future or other instance. No amendment to or modification of this Deed of Trust shall be effective unless and until such amendment or modification is in writing, executed by Trustor and Beneficiary. Without limiting the generality of the foregoing, Beneficiary’s acceptance of payment of any sum secured hereby after its due date shall not constitute a waiver by Beneficiary of its right either to require prompt payment when due of all other sums so secured or to declare default for failure so to pay.
10.8 Action By Beneficiary. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, or consent by the Beneficiary is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by Beneficiary’s Executive Director or by any person who shall have been designated by Beneficiary’s Executive Director, without further approval by the governing board of Beneficiary. Beneficiary shall use reasonable best efforts to respond to requests for any such approval, notice, direction, or consent in a timely manner. In any approval, consent, or other determination by Beneficiary required hereunder, Beneficiary shall act reasonably and in good faith.
10.9 Joint and Several Liability. If Trustor consists of more than one person or entity, each shall be jointly and severally liable for the faithful performance of all of Trustor’s #13..
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obligations under this Deed of Trust.
10.10 Time is of the Essence. Time is of the essence for each provision of this Deed of Trust.
IN WITNESS WHEREOF, Trustor has executed this
Deed of Trust as of the date first written above.
STANISLAUS COUNTY AFFORDABLE HOUSING CORPORATION,
a California non-profit benefit corporation
By: ________________________________
Title: ________________________________
By: ________________________________
Title: ________________________________
SIGNATURES MUST BE NOTARIZED.
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Exhibit A
Legal description of the Property
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
State of California )
County of Stanislaus )
On_____________ before me, _____________________________, Notary Public, , personally appeared, ___________________________________, who proved to me the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under penalty of perjury under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature_____________________________
3660653.1
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
January 10, 2023
Date: December 13, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jaylen French, Director of Community and Economic Development SUBJECT: Adoption of 2022 Edition of the California Building Code CONTACT: Oscar Diaz, Chief Building Official, [email protected], 209-571-5885 DESCRIPTION:
Consider adopting Building, Plumbing, Electrical, and Mechanical Ordinances by reference of the 2022 California Building Codes and consider amending various sections of Chapters 1, 2, 3, 7, and 11 of Title 9 of the Modesto Municipal Code. (Funding Source: General Fund/Building Permit Fees)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan Goal A: Improve Community Safety, with prevention efforts that address safety and its underlying issues.
BACKGROUND:
The California Building Standards Commission (CBSC) is the responsible state body for all building code development. Every three (3) years, the CBSC conducts code development hearings to gain input from developers, building officials, local and state government leaders and other interested parties to review the Building Code Standards for the State of California.
These standards outline the minimum building requirements for the State of California and are automatically required by all local jurisdictions.
DISCUSSION:
It is mandatory that each jurisdiction within the State of California implement these codes. To effectively accomplish this, each jurisdiction must adopt rules and requirements for administering these codes. Title 9 of the Modesto Municipal Code contains these administrative requirements. However, these requirements will need to be modified to accommodate the new editions of the California Building, Residential, Electrical, Plumbing, Mechanical codes and the Existing Buildings Code. Any technical amendments of these codes by the City must be as stringent as the California Building Standards Commission (CBSC); however, local jurisdictions can adopt more restrictive amendments, if necessary, to account for local climatic, geographical, or topographical conditions. If this occurs, findings are to be made prior to local adoptions and submitted to the CBSC. However, no technical amendments to these codes are #14..
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City Council, January 10, 2023
Adoption of 2022 Edition of the California Building Code
proposed; therefore, no findings are required. The attached proposed changes are administrative only and will address the needed requirements. All building permits submitted after January 1, 2023 must comply with the new building codes.
FISCAL IMPACT:
The implementation of this Code requires additional training for existing staff. Funding is budgeted in the FY 22/23 Building Safety Division budget. We do not anticipate any other funding requirements to implement this Code.
COMMITTEE RECOMMENDATION:
This project was presented to Safety and Communities Committee on October 10, 2022, and was recommended to forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Motion introducing and waiving the first reading of an Ordinance amending Articles 1, 2, and 16 of Chapter 1 of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24 Part 2, Volumes 1 & 2.
Motion introducing and waiving the first reading of an Ordinance amending Chapter 3, Electrical Code of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24 Part 3 “Electrical Code”.
Motion introducing and waiving the first reading of an Ordinance adopting by reference, the Existing Building Code contained within the 2022 California Building Standards Code and amending Articles 1 and 2 of Chapter 11 of Title 9 of the Modesto Municipal Code.
Motion introducing and waiving the first reading of an Ordinance amending Chapter 7, “Mechanical Code” of Title 9 of the Modesto Municipal Code relating to building regulations to adopt by reference, California Code of Regulations, Title 24, Part 4 “Mechanical Code”.
Motion introducing and waiving the first reading of an Ordinance adopting by reference the Plumbing Code contained within the 2022 California Building Standards Code and amending Articles 1 and 2 of Chapter 2 of Title 9 of the Modesto Municipal Code.
Approved by:
Jaylen French
Director of Community & Economic Development
Joseph P Lopez, City Manager
Attachments:
1. Building Code Ordinance
2. Proposed Code Amendments – Building (Redlines)
3. Electrical Code Ordinance
4. Proposed Code Amendments – Electrical (Redlines)
5. Mechanical Code Ordinance
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City Council, January 10, 2023
Adoption of 2022 Edition of the California Building Code
6. Proposed Code Amendments – Mechanical (Redlines)
7. Plumbing Code Ordinance
8. Proposed Code Amendments – Plumbing (Redlines)
9. Existing Building Code Ordinance
10. Proposed Code Amendments – Existing Building (Redlines) #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
ORDINANCE NO. -C.S.
AN ORDINANCE AMENDING ARTICLES 1, 2, AND 16 OF CHAPTER 1 OF TITLE 9 OF THE MODESTO MUNICIPAL CODE RELATING TO BUILDING
REGULATIONS TO ADOPT BY REFERENCE CALIFORNIA CODE OF
REGULATIONS, TITLE 24 PART 2, VOLUMES 1 & 2
WHEREAS, Health and Safety Code Section 18938 makes provisions published in the California Building Standards Code pursuant to Health and Safety Code Section 17922 applicable to all occupancies throughout the State and effective one hundred and eighty days after publication by the California Building Standards Commission (the Commission), or at a later date established by the Commission; and
WHEREAS, Health and Safety Code Section 17958.5 permits cities in adopting provisions of the California Building Standards Code to make such changes in such provisions as the city determines, pursuant to Health and Safety Code Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions; and WHEREAS, Health and Safety Code Section 17958.7 requires that a city, before making changes pursuant to Health and Safety Code Section 17958.5, must make an express finding that such changes are reasonably necessary because of local climatic, geological or topographical conditions; and
WHEREAS, under Health and Safety Code Section 17958.7, changes pursuant to Health and Safety Code Section 17958.5 may not become effective until the required findings, and the changes, have been filed with the California Building Standards Commission; and WHEREAS, Government Code Section 50022.2 permits enactment of City Ordinances that adopt codes or statutes, including codes of the State of California, by reference; and #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
WHEREAS, notice of the Ordinance was published in accordance with Government Code Sections 50022.3 and 6066; and that such notice was sufficient to give notice to interested persons of the purpose of the ordinance and the subject matter thereof; and NOW, THEREFORE, the City Council of the City of Modesto does hereby ordain as follows:
SECTION 1. Articles 1, 2 and 16 of Chapter 1 “Building Code,” of Title 9 “Building Regulations” of the Modesto Municipal Code is hereby amended to read as follows:
Article 1. - Adoption by Reference of the 2022 California Building Code 9-1.101 - Adoption by Reference of the 2022 California Building Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 2022 California Building Code, California Code of Regulations, Title 24, Part 2, Volumes 1 and 2, as published by the International Code Council, as now existing, or hereafter amended, regulating and governing the conditions of all properties, buildings, and structures; by providing the standards for facilities and other physical things and conditions essential to ensure that structures are safe, sanitary and fit for occupancy and use; and the condemnation of buildings and structures unfit for human occupancy and use and the demotion of such structures; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 2022 California Building Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Building Code of the City of Modesto.
9-1.101.2 - Adoption by Reference of the 2022 California Residential Code.
That certain document, one (1) copy of which is on file in the office of the City Clerk at the City of Modesto, being marked and designated as the California Residential Code, 2022 edition, California Code of Regulations Title 24, Part 2.5 as published by the International Code Council, regulating and governing the conditions of residential detached one- and two-family dwellings by providing the standards for facilities and other physical things and conditions essential to ensure that these structures are safe, sanitary and fit for occupation and use; and the demolition of such structures as herein provided, providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof, and each and all of the regulations; #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
provisions, penalties, conditions and terms of said building code on file in the office of the City Clerk of the City of Modesto are hereby referred to, adopted and made part hereof, as if fully set out in this ordinance with the additions, deletions and changes, if any prescribed in this chapter, be and hereby are adopted by reference as the Building Code of the City of Modesto.
9-1.101.3 - Adoption by Reference of the 2022 California Green Building Standards Code.
That certain document, one (1) copy of which is on file in the office of the City Clerk at the City of Modesto, being marked and designated as the California Green Building Standards Code, 2022 edition, California Code of Regulations Title 24, Part 11 as published by the International Code Council, regulating and governing the conditions for energy efficiency, water efficiency and conservation, material conservation and resource efficiency for residential and nonresidential buildings hereby referred to, adopted and made part hereof, as if fully set out in this ordinance with the additions, deletions and changes, if any prescribed in this chapter, be and hereby is adopted by reference as the Green Building Code of the City of Modesto.
Article 2. - General Code Provisions
9-1.201 - Title.
These regulations shall be known as the "Building Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as the "Building Code," the "2022 California Building and 2022 California Residential Code," the "California Building and Residential Code," the “Green Building Code”, or "this Code."
9-1.202 - Purpose.
The purpose of this code is to establish the minimum requirements to provide a reasonable level of safety, public health and general welfare through structural strength, means of egress facilities, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire, explosion and other hazards, and to provide a reasonable level of safety to fire fighters and emergency responders during emergency operations.
9-1.203 - Scope.
The provisions of this Code shall apply to the construction, alteration, movement, enlargement, replacement, repair, equipment, use and occupancy, location, maintenance, removal and demolition of every building or structure or any appurtenances connected or attached to such buildings or structures throughout the City of Modesto. 9-1.204 - Appendices.
Provisions contained in the appendices of the California Building Code and the California Residential Code shall not apply unless specifically adopted by the State of California Building Standards Commission or the City of Modesto.
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
Article 16. - Technical Amendments to the 2022 California Building Code 9-1.1601 - Deleted Sections.
SECTION 2. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 3. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., “CEQA,” and 14 Cal. Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment, and in this case it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3).
SECTION 5. SEVERABILITY CLAUSE. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of January, 2023, by Councilmember ? who moved its introduction and passage to print, which motion being duly seconded by Councilmember ?, was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE SZAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
(Seal)
APPROVED AS TO FORM:
By: _______________________________
JOSE M SANCHEZ, City Attorney
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ___day of _______,2023, Councilmember ___________moved its final adoption, which motion being duly seconded by Councilmember__________________, was upon roll carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
#14..
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2022 Building Code Redlines
Article 1. - Adoption by Reference of the 201922 California Building Code 9-1.101 - Adoption by Reference of the 201922 California Building Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 201922 California Building Code, California Code of Regulations, Title 24, Part 2, Volumes 1 and 2, as published by the International Code Council, as now existing, or hereafter amended, regulating and governing the conditions of all properties, buildings, and structures; by providing the standards for facilities and other physical things and conditions essential to ensure that structures are safe, sanitary and fit for occupancy and use; and the condemnation of buildings and structures unfit for human occupancy and use and the demotion of such structures; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 201922 California Building Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Building Code of the City of Modesto.
9-1.101.2 - Adoption by Reference of the 201922 California Residential Code.
That certain document, one (1) copy of which is on file in the office of the City Clerk at the City of Modesto, being marked and designated as the California Residential Code, 201922 edition, California Code of Regulations Title 24, Part 2.5 as published by the International Code Council, regulating and governing the conditions of residential detached one- and two-family dwellings by providing the standards for facilities and other physical things and conditions essential to ensure that these structures are safe, sanitary and fit for occupation and use; and the demolition of such structures as herein provided, providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof, and each and all of the regulations; provisions, penalties, conditions and terms of said building code on file in the office of the City Clerk of the City of Modesto are hereby referred to, adopted and made part hereof, as if fully set out in this ordinance with the additions, deletions and changes, if any prescribed in this chapter, be and hereby are adopted by reference as the Building Code of the City of Modesto.
9-1.101.3 - Adoption by Reference of the 2022 California Green Building Standards Code.
That certain document, one (1) copy of which is on file in the office of the City Clerk at the City of Modesto, being marked and designated as the California Green Building Standards Code, 2022 edition, California Code of Regulations Title 24, Part 11 as published by the International Code Council, regulating and governing the conditions for energy efficiency, water efficiency and conservation, material conservation and resource efficiency for residential and nonresidential buildings hereby referred to, adopted and made part hereof, as if fully set out in this ordinance with the additions, deletions and changes, if any prescribed in this chapter, be and hereby is adopted by reference as the Green Building Code of the City of Modesto.
#14..
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2022 Building Code Redlines
Article 2. - General Code Provisions
9-1.201 - Title.
These regulations shall be known as the "Building Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as the "Building Code," the "201922 California Building and 201922 California Residential Code," the "California Building and Residential Code," the “Green Building Code”, or "this Code."
9-1.202 - Purpose.
The purpose of this code is to establish the minimum requirements to provide a reasonable level of safety, public health and general welfare through structural strength, means of egress facilities, stability, sanitation, adequate light and ventilation, energy conservation, and safety to life and property from fire, explosion and other hazards, and to provide a reasonable level of safety to fire fighters and emergency responders during emergency operations.
9-1.203 - Scope.
The provisions of this Code shall apply to the construction, alteration, movement, enlargement, replacement, repair, equipment, use and occupancy, location, maintenance, removal and demolition of every building or structure or any appurtenances connected or attached to such buildings or structures throughout the City of Modesto. 9-1.204 - Appendices.
Provisions contained in the appendices of the 2019 California Building Code and the 2019 California Residential Code shall not apply unless specifically adopted by the State of California Building Standards Commission or the City of Modesto.
Article 16. - Technical Amendments to the 2019 2022 California Building Code 9-1.1601 - Deleted Sections.
9-1.1602 - Amended Sections.
9-1.1602.1 - Definitions.
Section 202 of the 2013 California Building Code is hereby amended to read as follows:
BUILDING OFFICIAL. The officer or other designated authority charged with the administration and enforcement of this Code, or duly authorized representative. The #14..
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2022 Building Code Redlines
office and title of Chief Building Official of the City of Modesto shall serve as the officer responsible for administration and enforcement of this Code. 9-1.1602.2 - Structural Design.
Section 1612.3 of the 2019 California Building Code is hereby amended to read as follows:
1612.3. ESTABLISHMENT OF FLOOD HAZARD AREAS.
To establish flood hazard areas, the governing body shall adopt a flood hazard map and supporting data. The flood hazard map shall include, at minimum, areas of special flood hazard as identified by the Federal Emergency Management Agency in an engineering report entitled "The Flood Insurance Study for the City of Modesto", dated September 26, 2008, as amended or revised with the accompanying Flood Insurance Rate Map (FIRM) and Flood Boundary and Floodway Map (FBFM) and related supporting data along with any revisions thereto. The adopted flood hazard map and supporting data are hereby adopted by reference and declared to be part of this section. 9-1.1602.3 – Structural Tests and Special Inspections
Section 1704.2 of The 2019 California Building Code Is Hereby Amended to Read As Follows:
1704.2. Special inspections and Tests.
Where application is made to the building official for the construction as specified in Title 9 Chapter 1 Article 5 Permits or 1.8.4, applicable, the owner or the owner’s agent, other than the contractor, shall employ one or more approved agencies to provide special inspections and tests during construction on the types of work specified in Section 1705 and identify the approved agencies to the building official. These special inspections and tests are in addition to the inspection by the building official that are identified in Title 9 Chapter 1 Article 8
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
ORDINANCE NO. -C.S.
AN ORDINANCE AMENDING CHAPTER 3, “ELECTRICAL CODE” OF
TITLE 9 OF THE MODESTO MUNICIPAL CODE RELATING TO BUILDING
REGULATIONS TO ADOPT BY REFERENCE CALIFORNIA CODE OF
REGULATIONS, TITLE 24, PART 3 “ELECTRICAL CODE”
WHEREAS, Health and Safety Code Section 18938 makes provisions published in the California Building Standards Code pursuant to Health and Safety Code Section 17922 applicable to all occupancies throughout the State and effective one hundred and eighty days after publication by the California Building Standards Commission (the Commission), or at a later date established by the Commission; and
WHEREAS, Health and Safety Code Section 17958.5 permits cities in adopting provisions of the California Building Standards Code to make such changes in such provisions as the city determines, pursuant to Health and Safety Code Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions; and WHEREAS, Health and Safety Code Section 17958.7 requires that a city, before making changes pursuant to Health and Safety Code Section 17958.5, must make an express finding that such changes are reasonably necessary because of local climatic, geological or topographical conditions; and
WHEREAS, under Health and Safety Code Section 17958.7, changes pursuant to Health and Safety Code Section 17958.5 may not become effective until the required findings, and the changes, have been filed with the California Building Standards Commission; and WHEREAS, Government Code Section 50022.2 permits enactment of City Ordinances that adopt codes or statutes, including codes of the State of California, by reference; and #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
WHEREAS, notice of the Ordinance was published in accordance with Government Code Sections 50022.3 and 6066; and that such notice was sufficient to give notice to interested persons of the purpose of the ordinance and the subject matter thereof.
NOW, THEREFORE, the City Council of the City of Modesto does hereby ordain as follows:
SECTION 1. AMENDMENT OF CODE. Chapter 3 entitled “Electrical Code” of Title 9 “Building Regulations” shall be amended as follows:
9-3.101 - Adoption by Reference of the 2022 California Electrical Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 2022 California Electrical Code, California Code of Regulations Title 24, Part 3, as published by the Building News, inc. (BNi), as now existing, or hereafter amended, regulating, governing and providing standards for the erection, installation, repair, relocation, replacement, addition to, use, or maintenance of electrical systems and parts thereof for the protection of public health and safety, providing for the issuance of permits and collection of fees, providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 2022 California Electrical Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions, and changes if any, prescribed in this Chapter, be and hereby is adopted as the Electrical Code of the City of Modesto.
Article 2. - General Code Provisions
9-3.201 - Title.
These regulations shall be known as the "Electrical Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as the "Electrical Code," the "2022 California Electrical Code," the "California Electrical Code," or "this Code."
9-3.204 - Appendices.
Provisions contained in the appendices of the California Electrical Code shall not apply unless specifically adopted by the State of California Building Standards Commission or the City of Modesto.
SECTION 2. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption. #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
SECTION 3. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., “CEQA,” and 14 Cal. Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment, and in this case it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3).
SECTION 5. SEVERABILITY CLAUSE. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of January, 2023, by Councilmember ? who moved its introduction and passage to print, which motion being duly seconded by Councilmember ?, was upon roll call carried and ordered printed and published by the following vote:
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
(Seal)
APPROVED AS TO FORM:
By: _______________________________
JOSE M SANCHEZ, City Attorney
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ___day of _______, 2023, Councilmember ___________moved its final adoption, which motion being duly seconded by Councilmember__________________, was upon roll carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
#14..
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2022 Electrical Code Redlines
9-3.101 - Adoption by Reference of the 201922 California Electrical Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 201922 California Electrical Code, California Code of Regulations Title 24, Part 3, as published by the Building News, inc. (BNi), as now existing, or hereafter amended, regulating, governing and providing standards for the erection, installation, repair, relocation, replacement, addition to, use, or maintenance of electrical systems and parts thereof for the protection of public health and safety, providing for the issuance of permits and collection of fees, providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 201922 California Electrical Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions, and changes if any, prescribed in this Chapter, be and hereby is adopted as the Electrical Code of the City of Modesto.
Article 2. - General Code Provisions
9-3.201 - Title.
These regulations shall be known as the "Electrical Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as the "Electrical Code," the "201922 California Electrical Code," the "California Electrical Code," or "this Code."
9-3.204 - Appendices.
Provisions contained in the appendices of the California Electrical Code shall not apply unless specifically adopted by the State of California Building Standards Commission or the City of Modesto.
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
ORDINANCE NO.XXX-CS
AN ORDINANCE AMENDING CHAPTER 7, “MECHANICAL CODE” OF TITLE 9 OF
THE MODESTO MUNICIPAL CODE RELATING TO BUILDING REGULATIONS TO ADOPT BY REFERENCE CALIFORNIA CODE OF REGULATIONS, TITLE 24, PART 4 “MECHANICAL CODE”
WHEREAS, Health and Safety Code Section 18938 makes provisions published in the California Building Standards Code pursuant to Health and Safety Code Section 17922 applicable to all occupancies throughout the State and effective one hundred and eighty days after publication by the California Building Standards Commission (the Commission), or at a later date established by the Commission; and
WHEREAS, Health and Safety Code Section 17958.5 permits cities in adopting provisions of the California Building Standards Code to make such changes in such provisions as the city determines, pursuant to Health and Safety Code Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions; and WHEREAS, Health and Safety Code Section 17958.7 requires that a city, before making changes pursuant to Health and Safety Code Section 17958.5, must make an express finding that such changes are reasonably necessary because of local climatic, geological or topographical conditions; and
WHEREAS, under Health and Safety Code Section 17958.7, changes pursuant to Health and Safety Code Section 17958.5 may not become effective until the required findings, and the changes, have been filed with the California Building Standards Commission; and WHEREAS, Government Code Section 50022.2 permits enactment of City Ordinances that adopt codes or statutes, including codes of the State of California, by reference; and #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
WHEREAS, notice of the ordinance was published in accordance with Government Code Sections 50022.3 and 6066; and that such notice was sufficient to give notice to interested persons of the purpose of the ordinance and the subject matter thereof.
NOW, THEREFORE, the City Council of the City of Modesto does hereby ordain as follows:
SECTION 1. AMENDMENT OF CODE. Chapter 7 entitled “Mechanical Code” of Title 9 “Building Regulations” shall be amended as follows:
Article 1. - Adoption by Reference of the 2022 California Mechanical Code 9-7.101 - Adoption by Reference of the 2022 California Mechanical Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 2022 California Mechanical Code, California Code of Regulations, Title 24, Part 4, as published by the International Association of Plumbing and Mechanical Officials (IAPMO), as now existing, or hereafter amended, which said Code governs and provides proper regulations of mechanical systems and parts thereof, including, but not limited to, addition to or erection, installation, alteration, repair, relocation, replacement, use, or maintenance of any heating, ventilation, cooling, refrigeration systems or equipment thereof; incinerators or parts or equipment thereof; or other miscellaneous heat producing appliances, parts or equipment thereof; providing for the issuance of permits and collection of fees therefor; providing for the inspection thereof; providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 2022California Mechanical Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions, and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Mechanical Code of the City of Modesto.
Article 2. - General Code Provisions
9-7.201 - Title.
These regulations shall be known as the "Mechanical Code of the City of Modesto", and may be cited and referred to herein as such or may be cited and referred to herein as the "Mechanical Code", the "2022 California Mechanical Code", the "California Mechanical Code", or "this Code."
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
9-7.204 - Appendices.
Provisions contained in the appendices of the California Mechanical Code shall not apply unless specifically adopted by the State of California Building Standards Commission or the City of Modesto.
SECTION 2. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 3. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., “CEQA,” and 14 Cal. Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment, and in this case it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3).
SECTION 5. SEVERABILITY CLAUSE. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of January, 2023, by Councilmember ? who moved its introduction and passage to print, which motion being duly seconded by Councilmember ?, was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES PEREZ, City Clerk
(Seal)
APPROVED AS TO FORM:
By: _____________________________________
JOSE M SANCHEZ, City Attorney
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ___day of _______, 2023, Councilmember ___________moved its final adoption, which motion being duly seconded by Councilmember__________________, was upon roll carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ , City Clerk
#14..
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2022 Mechanical Code Redlines
Article 1. - Adoption by Reference of the 201922 California Mechanical Code 9-7.101 - Adoption by Reference of the 202219 California Mechanical Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 201922 California Mechanical Code, California Code of Regulations, Title 24, Part 4, as published by the International Association of Plumbing and Mechanical Officials (IAPMO), as now existing, or hereafter amended, which said Code governs and provides proper regulations of mechanical systems and parts thereof, including, but not limited to, addition to or erection, installation, alteration, repair, relocation, replacement, use, or maintenance of any heating, ventilation, cooling, refrigeration systems or equipment thereof; incinerators or parts or equipment thereof; or other miscellaneous heat producing appliances, parts or equipment thereof; providing for the issuance of permits and collection of fees therefor; providing for the inspection thereof; providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 202216 California Mechanical Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions, and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Mechanical Code of the City of Modesto.
Article 2. - General Code Provisions
9-7.201 - Title.
These regulations shall be known as the "Mechanical Code of the City of Modesto", and may be cited and referred to herein as such or may be cited and referred to herein as the "Mechanical Code", the "201922 California Mechanical Code", the "California Mechanical Code", or "this Code."
9-7.204 - Appendices.
Provisions contained in the appendices of the California Mechanical Code shall not apply unless specifically adopted by the State of California Building Standards Commission or the City of Modesto.
#14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
ORDINANCE NO. -C.S.
AN ORDINANCE ADOPTING BY REFERENCE THE PLUMBING CODE
CONTAINED WITHIN THE 2022 CALIFORNIA BUILDING STANDARDS CODE AND AMENDING ARTICLES 1 AND 2 OF CHAPTER 2 OF TITLE 9 OF THE MODESTO
MUNICIPAL CODE
WHEREAS, Health and Safety Code Section 18938 makes provisions published in the California Building Standards Code pursuant to Health and Safety Code Section 17922 applicable to all occupancies throughout the State and effective one hundred and eighty days after publication by the California Building Standards Commission (the Commission), or at a later date established by the Commission; and
WHEREAS, Health and Safety Code Section 17958.5 permits cities in adopting provisions of the California Building Standards Code to make such changes in such provisions as the city determines, pursuant to Health and Safety Code Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions; and WHEREAS, Health and Safety Code Section 17958.7 requires that a city, before making changes pursuant to Health and Safety Code Section 17958.5, must make an express finding that such changes are reasonably necessary because of local climatic, geological or topographical conditions; and
WHEREAS, under Health and Safety Code Section 17958.7, changes pursuant to Health and Safety Code Section 17958.5 may not become effective until the required findings, and the changes, have been filed with the California Building Standards Commission; and #14..
- 363 -
Ordinance No. XXXX-C.S.
Effective:___________, 2023
WHEREAS, Government Code Section 50022.2 permits enactment of City Ordinances that adopt codes or statutes, including codes of the State of California, by reference; and WHEREAS, notice of the Ordinance was published in accordance with Government Code Sections 50022.3 and 6066; and that such notice was sufficient to give notice to interested persons of the purpose of the ordinance and the subject matter thereof; and NOW, THEREFORE, the City Council of the City of Modesto does hereby ordain as follows:
SECTION 1. REPEALING AND REPLACING. Section 9-2.101 of Article 1 of Chapter 2, “Plumbing Code,” of Title 9, “Building Regulations” and Sections 9-2.201 and 9-2.204 of Article 2 of Chapter 2, “Plumbing Code,” of Title 9, “Building Regulations” shall be repealed in their entirety and replaced as follows:
Article 1. - Adoption by Reference of the 2022 California Plumbing Code 9-2.101 - Adoption by Reference of the 2022 California Plumbing Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 2022 California Plumbing Code, California Code of Regulations, Title 24, Part 5, as published by the International Association of Plumbing and Mechanical Officials (IAPMO), as now existing, or hereafter amended, regulating and governing the erection, alteration, installation, repair, relocation, replacement, addition to, use or maintenance of plumbing and drainage systems and parts thereof for the protection of public health and safety, providing for the issuance of permits and collection of fees, providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 2022 California Plumbing Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Plumbing Code of the City of Modesto. #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
Article 2. - General Code Provisions
9-2.201 - Title.
These regulations shall be known as the "Plumbing Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as the "Plumbing Code," the "2022 California Plumbing Code," the "California Plumbing Code," or "this Code."
9-2.204 - Appendices.
Provisions contained in the appendices of the California Plumbing Code shall not apply unless specifically adopted by the State of California or the City of Modesto.
SECTION 2. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.
SECTION 3. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., “CEQA,” and 14 Cal. Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment, and in this case it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3). #14..
- 365 -
Ordinance No. XXXX-C.S.
Effective:___________, 2023
SECTION 5. SEVERABILITY CLAUSE. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of January, 2023, by Councilmember ? who moved its introduction and passage to print, which motion being duly seconded by Councilmember ?, was upon roll call carried and ordered printed and published by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
(Seal)
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
By: _____________________________________
JOSE M SANCHEZ, City Attorney
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ___day of _______,2023, Councilmember ___________moved its final adoption, which motion being duly seconded by Councilmember__________________, was upon roll carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
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2022 Plumbing Code Redlines
Article 1. - Adoption by Reference of the 201922 California Plumbing Code 9-2.101 - Adoption by Reference of the 201922 California Plumbing Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 201229 California Plumbing Code, California Code of Regulations, Title 24, Part 5, as published by the International Association of Plumbing and Mechanical Officials (IAPMO), as now existing, or hereafter amended, regulating and governing the erection, alteration, installation, repair, relocation, replacement, addition to, use or maintenance of plumbing and drainage systems and parts thereof for the protection of public health and safety, providing for the issuance of permits and collection of fees, providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 201922 California Plumbing Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Plumbing Code of the City of Modesto.
Article 2. - General Code Provisions
9-2.201 - Title.
These regulations shall be known as the "Plumbing Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as the "Plumbing Code," the "201922 California Plumbing Code," the "California Plumbing Code," or "this Code."
9-2.204 - Appendices.
Provisions contained in the appendices of the California Plumbing Code shall not apply unless specifically adopted by the State of California or the City of Modesto. #14..
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2022 Plumbing Code Redlines
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
ORDINANCE NO. -C.S.
AN ORDINANCE ADOPTING BY REFERENCE THE EXISTING BUILDING CODE CONTAINED WITHIN THE 2022 CALIFORNIA BUILDING STANDARDS CODE AND AMENDING ARTICLES 1 AND 2 OF CHAPTER 11 OF TITLE 9 OF THE MODESTO
MUNICIPAL CODE
WHEREAS, Health and Safety Code Section 18938 makes provisions published in the California Building Standards Code pursuant to Health and Safety Code Section 17922 applicable to all occupancies throughout the State and effective one hundred and eighty days after publication by the California Building Standards Commission (the Commission), or at a later date established by the Commission; and
WHEREAS, Health and Safety Code Section 17958.5 permits cities in adopting provisions of the California Building Standards Code to make such changes in such provisions as the city determines, pursuant to Health and Safety Code Section 17958.7, are reasonably necessary because of local climatic, geological, or topographical conditions; and WHEREAS, Health and Safety Code Section 17958.7 requires that a city, before making changes pursuant to Health and Safety Code Section 17958.5, must make an express finding that such changes are reasonably necessary because of local climatic, geological or topographical conditions; and
WHEREAS, under Health and Safety Code Section 17958.7, changes pursuant to Health and Safety Code Section 17958.5 may not become effective until the required findings, and the changes, have been filed with the California Building Standards Commission; and WHEREAS, Government Code Section 50022.2 permits enactment of City Ordinances that adopt codes or statutes, including codes of the State of California, by reference; and #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
WHEREAS, notice of the Ordinance was published in accordance with Government Code Sections 50022.3 and 6066; and that such notice was sufficient to give notice to interested persons of the purpose of the ordinance and the subject matter thereof; and NOW, THEREFORE, the City Council of the City of Modesto does hereby ordain as follows:
SECTION 1. AMENDMENT OF CODE. Chapter 11 entitled “Existing Building Code” shall be amended as follows:
Chapter 11 – EXISTING BUILDING CODE
Article 1. - Adoption by Reference of the 2022 California Existing Building Code 11-1.101 - Adoption by Reference of the 2022 California Existing Building Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 2022 California Existing Building Code, California Code of Regulations, Title 24, Part 10, as published by the International Code Council, as now existing, or hereafter amended, regulating and governing the conditions of existing building and structures; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 2022 California Existing Building Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Building Code of the City of Modesto.
Article 2. - General Code Provisions
11-1.201 - Title.
These regulations shall be known as the "Existing Building Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as "this Code."
SECTION 2. EFFECTIVE DATE. This ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption. #14..
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
SECTION 3. PUBLICATION. At least two (2) days prior to its final adoption, copies of this ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this ordinance is posted.
SECTION 4. CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council finds that adoption of this ordinance is exempt from the California Environmental Quality Act (Public Resources Code §§ 21000 et seq., “CEQA,” and 14 Cal. Code Reg. §§ 15000 et seq., “CEQA Guidelines”) under the general rule that CEQA applies only to projects that have the potential for causing a significant effect on the environment, and in this case it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines § 15061(b)(3).
SECTION 5. SEVERABILITY CLAUSE. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of the ordinance. The Council hereby declares that it would have adopted the ordinance, and each section, subsection, sentence, clause, or phrase thereof, irrespective of the fact that one or more sections, subsections, sentences, clauses or phrases be declared invalid.
The foregoing ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 10th day of January, 2023, by Councilmember ? who moved its introduction and passage to print, which motion being duly seconded by Councilmember ?, was upon roll call carried and ordered printed and published by the following vote:
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYARES-PEREZ, City Clerk
(Seal)
APPROVED AS TO FORM:
By: ________________________________
JOSE M SANCHEZ, City Attorney
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Ordinance No. XXXX-C.S.
Effective:___________, 2023
FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the ___day of _______,2023, Councilmember ___________moved its final adoption, which motion being duly seconded by Councilmember__________________, was upon roll carried and the ordinance adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
APPROVED: ________________________
SUE ZWAHLEN, Mayor
ATTEST:
By: _____________________________________
DIANE NAYAREZ-PEREZ, City Clerk
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2022 Existing Building Code Redlines
Chapter 11 – EXISTING BUILDING CODE
Article 1. - Adoption by Reference of the 201922 California Existing Building Code 11-1.101 - Adoption by Reference of the 201922 California Existing Building Code.
That certain document, one (1) copy of which is on file in the Office of the City Clerk of the City of Modesto, being marked and designated as the 201922 California Existing Building Code, California Code of Regulations, Title 24, Part 10, as published by the International Code Council, as now existing, or hereafter amended, regulating and governing the conditions of existing building and structures; providing for the issuance of permits and collection of fees therefor; and providing penalties for the violation thereof; and each and all of the regulations, provisions, penalties, conditions and terms of said 201922 California Existing Building Code on file in the Office of the City Clerk of the City of Modesto is hereby referred to, adopted and made a part hereof, as if fully set out in this ordinance, with the additions, deletions, insertions and changes, if any, prescribed in this Chapter, be and hereby is adopted as the Building Code of the City of Modesto.
Article 2. - General Code Provisions
11-1.201 - Title.
These regulations shall be known as the "Existing Building Code of the City of Modesto," and may be cited and referred to herein as such or may be cited and referred to herein as "this Code."
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
January 10, 2023
Date: December 15, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Allison Van Guilder, Deputy City Manager
DeAnna Christensen, Director of Finance
SUBJECT: The Table Group Agreement with Neil Sullivan LLC CONTACT: Cynthia Kline, Purchasing Manager, [email protected], 209-577-5412 DESCRIPTION:
Consider approving an Agreement with Neil Sullivan LLC, Concord, California, for Executive Team and Management Engagement Services for a three-year period for an amount not to exceed $150,000. (Funding Source: Various Funds)
STRATEGIC PLAN ELEMENT:
This item advances the City of Modesto 2020-2025 Strategic Plan Area: Governance and Service Delivery: “build community trust in City government through responsive, transparent and efficient service delivery”; Goal J: “build a high-performance organization”.
BACKGROUND:
Table Group is a consultant firm that provides highly qualified and experienced professionals to deliver the Lencioni organizational management content and methods. The Lencioni content consists of principles derived from the works of Patrick Lencioni focusing on overall organization health, communication, and leadership development.
Table Group creates tailored content for each organization it works with to address the specific operational roots of politics and confusion in the context of real issues and behaviors impacting the workgroup. It provides specialized tools for making better, faster decisions, while achieving greater buy-in from the entire team. Through the workshops provided by Table Group, consultants will work with a leadership team to:
Gain a thorough understanding of the expectations and challenges in building and maintaining a cohesive team.
Address the effectiveness of the team’s meetings and their contributions to the overall success of the group.
Review and validate the organization’s direction and ensure alignment exists among the team by addressing the six critical questions required for organizational clarity. #15..
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City Council, January 10, 2023
The Table Group Agreement with Neil Sullivan LLC
Discuss the critical importance of effective internal communications and identify any necessary changes to create alignment throughout the organization. Identify a roadmap for the team to ensure a successful transformation to a healthy organization.
Create a team playbook for leading the organization going forward.
The workshops, that are designed by Table Group, are intended to introduce, and provide practical experience of the concepts and methodologies outlined above. The workshops are high energy, practical and created to drive team cohesion and organizational clarity.
In August 2018, the City retained the use of Table Group consultant services to engage in multiple organizational health and team effectiveness sessions for the City Executive Leadership team and the Modesto Police Department Command staff. The focus of these sessions for the Executive Team and Command staff was to ensure the Leadership Team operates more cohesively, integrates the new members of the Team, and creates the focus and alignment required for the Modesto City Executive Team and Command staff to achieve its targets and objectives for the organization.
DISCUSSION:
With new Executive Leadership team members over the couple of years, there is value to ensure we continue to engage in these consulting services to continue to develop a cohesive team and continue to align our objectives for the organization. Additionally, the goal is to expand these sessions to our management teams across all City departments.
This three-year agreement would provide multiple day engagements with both the executive and City department management teams to continue to develop a high-performance organization which focuses on aligned goals and objectives.
In accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the agreement is for professional services and, therefore, exempt from the bidding requirement. The approval for the executive team and management engagement services to Neil Sullivan LLC conforms to Modesto Municipal Code 8-3.204, subsection (a) as they have been providing professional services for over 25 years globally for government agencies focused on specialized expertise on how to strengthen the leadership, teamwork, and organizational health for executive teams and all levels of management.
FISCAL IMPACT:
For the services already rendered over the last few years since 2018, the City has expended $49,852 from the General Fund. The overall funding for the newly proposed Executive Team and Management Engagement services will be absorbed as part of their Fiscal Year 22-23 adopted budget. The cost will be allocated based on the departments who will be utilizing these services which range from the General Fund, Utility Funds, Surface Transportation Funds and Parks Funds. Each engagement will cost $13,000 which includes a 56% discount and various material fees and travel costs to facilitate this engagement.
COMMITTEE RECOMMENDATION:
This item was presented at the December 14, 2022 Finance Committee and approved to move forward to Council.
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City Council, January 10, 2023
The Table Group Agreement with Neil Sullivan LLC
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving an Agreement with Neil Sullivan LLC, Concord, California, for Executive Team and Management Engagement Services for a three-year period for an amount not to exceed $150,000; and authorizing the City Manager or his designee to execute the Agreement.
Approved by: ______________________________
Allison Van Guilder, Deputy City Manager
_
DeAnna Christensen, Director of Finance
_
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Exhibit A – City of Modesto Proposal
4. Exhibit B – Cost Proposal
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1 MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING AN AGREEMENT WITH NEIL SULLIVAN LLC,
CONCORD, CALIFORNIA, FOR EXECUTIVE TEAM AND MANAGEMENT
ENGAGEMENT SERVICES FOR A THREE-YEAR PERIOD FOR AN AMOUNT NOT TO EXCEED $150,000; AND AUTHORIZING THE CITY MANAGER OR
HIS DESIGNEE TO EXECUTE THE AGREEMENT
WHEREAS, Table Group is a consultant firm that provides highly qualified and experienced professionals to deliver the Lencioni organizational management content and methods; and
WHEREAS, Lencioni content consists of principles derived from the works of Patrick Lencioni focusing on overall organization health, communication, and leadership development; and
WHEREAS, Table Group creates tailored content for each organization it works with to address the specific operational roots of politics and confusion in the context of real issues and behaviors impacting the workgroup; and
WHEREAS, the workshops, that are designed by Table Group, are intended to introduce, and provide practical experience of the concepts and methodologies outlined above; and
WHEREAS, with new Executive Leadership team members over the couple of years, there is value to ensure we continue to engage in these consulting services to continue to develop a cohesive team and continue to align our objectives for the organization; and
WHEREAS, the goal is to expand these sessions to our management teams across all City departments; and
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2 WHEREAS, this three-year agreement would provide multiple day engagements with both the executive and City department management teams to continue to develop a high-performance organization which focuses on aligned goals and objectives; and WHEREAS, in accordance with Modesto Municipal Code Sec. 8-3.204(a), Exceptions to Formal Bidding Requirements, the agreement is for professional services and, therefore, exempt from the bidding requirement; and WHEREAS, the approval for the executive team and management engagement services to Neil Sullivan LLC conforms to Modesto Municipal Code 8-3.204, subsection (a) as they are providing professional services for over 25 years globally focused on specialized expertise on how to strengthen the leadership, teamwork, and organizational health for executive teams and all levels of management.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an Agreement with Neil Sullivan LLC, Concord, California, for Executive Team and Management Engagement Services for a three-year period for an amount not to exceed $150,000.
BE IT FURTHER RESOLVED, that the City Manager, or his designee, is hereby authorized to execute the agreement, in a form approved by the City Attorney. #15..
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3 The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 10th day of January 2023, by Councilmember ________, who moved its adoption, which motion being duly seconded by Councilmember ______, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: _____________________________
JOSE M. SANCHEZ, City Attorney
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STANDARD AGREEMENT
FOR CONSULTANT SERVICES
THIS AGREEMENT, made and entered into in the City of Modesto, State of California, this day of , 2023 (“Effective Date”), by and between the CITY OF MODESTO, a municipal corporation of the State of California, hereinafter referred to as "City", and Neil Sullivan LLC, Concord, California, a California corporation, hereinafter referred to as "Consultant."
This Agreement is made with regard to the following recitals:
A. The City has determined that executive team and management engagement services should be provided for the City to continue to develop a cohesive team and continue to align our objectives for the organization.
B. Consultant represents that it is qualified, willing and able to provide the services to prepare said document(s).
NOW, THEREFORE, in consideration of this agreement, and the mutual promises, covenants, and stipulations hereinafter contained, the parties agree as follows:
1. SCOPE OF SERVICES.
Consultant shall undertake and complete the preparation of the scope of work as set forth and described in the documents attached hereto and referred to as Exhibit "A". The Consultant shall perform the services as described in Exhibit "A" in a manner compatible with the standards of its profession, and shall produce a fully complete project that is acceptable to City.
2. TERM OF AGREEMENT.
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This Agreement is effective as of the date first written above and will continue in effect until City's acceptance of and payment for all services authorized by City and performed by Consultant, unless terminated earlier in accordance with the provisions of the termination clause in this Agreement.
City hereby gives Consultant notice to proceed with the preparation of the services in the manner described in Exhibit "A", as of the Effective Date of this agreement. Consultant shall diligently proceed with the preparation of the services and agrees to complete said preparation within the time period set forth in Exhibit "A".
3. COMPENSATION.
Consultant agrees to accept a sum not to exceed $150,000 over a three-year period as full remuneration for performing all services and furnishing all staffing and materials called for and defined in Exhibit "A" and for performance by Consultant of all of its duties and obligations under this Agreement.
The Compensation shall be paid pursuant in the manner and at the times set forth below:
All work to be performed under this Agreement shall be billed at the rates set forth in Exhibit “B” attached hereto, Consultant shall submit monthly invoices to City which include detailed tasks, and billable rates for all work completed, and detailed receipts for any out-of-pocket, reimbursable costs paid by Consultant in connection with work performed on this project. Only expenses listed in Exhibit B are recoverable. 4. OBLIGATIONS OF CONSULTANT.
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Throughout the term of this Agreement, Consultant shall possess, or secure all licenses, permits, qualifications and approvals legally required to conduct business. Consultant warrants that it has all of the necessary professional capabilities and experience, as well as all tools, instrumentalities, facilities and other resources necessary to provide the City with the services contemplated by this Agreement. Consultant further warrants that it will follow the best current, generally accepted and professional practices to make findings, render opinions, prepare factual presentations, and provide professional advice and recommendations regarding this project.
5. PERFORMANCE BY KEY EMPLOYEE.
Consultant has represented to City that Neil Sullivan, Principal Consultant, will be the person primarily responsible for the performance of the services referred to in this Agreement. City has entered into this Agreement in reliance on that representation by Consultant. Consultant therefore agrees that one-hundred percent (100%) or more of the time to be devoted to the project that is the subject of this Agreement will be that of the above-named person, unless otherwise agreed upon by the City.
6. OWNERSHIP OF DOCUMENTS/TITLE TO DATA.
Ownership of Documents
All reports, drawings, designs, graphics, working papers and other incidental work or materials furnished hereunder shall become and remain the property of the City, and may be used by City as it may require without any additional cost to City.
No reproduction in any form of any copyrighted, confidential, or proprietary information provided by Consultant is permitted without prior written permission. No reports shall be #15..
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used by the Consultant for purposes other than this contract without the express prior written consent of City.
Title to Data
If, as a part of the agreement, Consultant is required to produce data such as, but not limited to, drawings, plans, specifications, calculations, models, flow diagrams, visual aids and other related materials, the originals of all such data generated under this agreement will be delivered to City upon the completion or termination of services under the contract.
All materials, documents, data or information obtained from the City data files or any City medium furnished to Consultant in the performance of this Agreement will at all times remain the property of the City. Such data or information may not be used or copied for direct or indirect use by Consultant after termination of this Agreement without written consent of the City.
7. NEWS AND INFORMATION RELEASE.
Consultant agrees that it will not issue any news releases in connection with either the award of this Agreement, or any subsequent amendment of or efforts under this Agreement, without first obtaining review and approval of said news releases from City through the City Manager.
8. INTEREST OF CONTRACTOR.
Consultant warrants that it presently has no interest and shall not acquire any interest, direct or indirect, which would conflict in any manner or degree with the performance of services required to be performed under this Agreement. Consultant warrants that, in performance of this Agreement, Consultant shall not employ any person #15..
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having any such interest. Consultant agrees to file a Statement of Economic Interests with the City Clerk at the start and end of this contract if so required at the option of City.
9. AMENDMENTS.
Both parties to this Agreement understand that it may become desirable or necessary during the execution of this Agreement, for City or Consultant to modify the scope of services provided for under this Agreement. Any material extension or change in the scope of work shall be discussed with City and the change and cost shall be memorialized in a written amendment to the original contract prior to the performance of the additional work.
Until a change order is so executed, City will not be responsible to pay any charges Consultant may incur in performing such additional services, and Consultant shall not be required to perform any such additional services.
10. INDEPENDENT CONTRACTOR.
All acts of Consultant, its agents, officers, and employees and all others acting on behalf of Consultant relating to the performance of this Agreement, shall be performed as independent contractors and not as agents, officers, or employees of City. Consultant, by virtue of this Agreement, has no authority to bind or incur any obligation on behalf of City. Consultant has no authority or responsibility to exercise any rights or power vested in the City. No agent, officer, or employee of the City is to be considered an employee of Consultant. It is understood by both Consultant and City that this Agreement shall not under any circumstances be construed or considered to create an employer-employee relationship or a joint venture.
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Consultant, its agents, officers and employees are and, at all times during the terms of this Agreement, shall represent and conduct themselves as independent contractors and not as employees of City.
Consultant shall determine the method, details and means of performing the work and services to be provided by Consultant under this Agreement.
Consultant shall be responsible to City only for the requirements and results specified in this Agreement, and, except as expressly provided in this Agreement, shall not be subjected to City's control with respect to the physical action or activities of the Consultant in fulfillment of this Agreement. Consultant has control over the manner and means of performing the services under this Agreement. Consultant is permitted to provide services to others during the same period service is provided to City under this Agreement. If necessary, Consultant has the responsibility for employing other persons or firms to assist Consultant in fulfilling the terms and obligations under this Agreement.
If in the performance of this Agreement any third persons are employed by Consultant, such persons shall be entirely and exclusively under the direction, supervision, and control of Consultant. All terms of employment including hours, wages, working conditions, discipline, hiring, and discharging or any other term of employment or requirement of law shall be determined by the Consultant.
It is understood and agreed that as an independent contractor and not an employee of City neither the Consultant or Consultant's assigned personnel shall have any entitlement as a City employee, right to act on behalf of the City in any capacity whatsoever as an agent, or to bind the City to any obligation whatsoever. #15..
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It is further understood and agreed that Consultant must issue W-2 forms or other forms as required by law for income and employment tax purposes for all of Consultant's personnel.
As an independent contractor, Consultant hereby indemnifies and holds City harmless from any and all claims that may be made against City based upon any contention by any third party that an employer-employee relationship exists by reason of this Agreement.
11. ASSIGNMENT.
Neither this Agreement nor any portion thereof shall be subcontracted or assigned without the express prior written consent of the City in each and every instance.
12. PATENT/COPYRIGHT MATERIALS.
Unless otherwise expressly provided in the contract, Consultant shall be solely responsible for obtaining the right to use any patented or copyrighted materials in the performance of this Agreement. Consultant shall furnish a warranty of such right to use to City at the request of City.
13. NOTICES.
Any and all notices permitted or required to be given hereunder shall be deemed duly given and effective (a) upon actual delivery, if delivery is by hand; or (b) five (5) days after delivery into the United States mail if delivery is by postage paid registered or certified (return receipt requested) mail. Each such notice shall be sent to the parties at the address respectively indicated below or to any other address as the respective parties may designate from time to time.
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FOR Consultant:
Name: Table Group
Address: 2125 Ygnacio Valley Road Suite 200,
Walnut Creek, CA 94598
Attention: Neil Sullivan
Phone: ( 925 ) 876-5856
FOR CITY:
Name: Joseph P. Lopez
Address: 1010 10th Street Place Suite 5200
Phone: (209 ) 577-5224
14. INSURANCE REQUIREMENTS.
The Consultant shall provide at its own expense and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the City as may be required by the Risk Manager of the City. The policies or certificates thereof shall provide that, thirty (30) days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the City by certified mail, return receipt requested, for all of the following stated insurance policies.
(a) Worker's Compensation - in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000.
(b) General Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and $1,000,000 for property #15..
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damage or $1,000,000 combined single limit. If commercial general liability insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required per-occurrence limit. This insurance shall indicate on the certificate of insurance the following coverages and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent consultants and subcontractors; products and completed operations.
(c)Automobile Liability insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and $1,000,000 property damage or $1,000,000 combined single limit. This insurance shall cover any automobile for bodily injury and property damage.
(d) Professional Liability (Errors and Omissions) Insurance with limits not less than $2,000,000 per claim, $4,000,000 aggregate. If coverage is on a claims made basis it shall be maintained for at least three (3) years following completion of the work.
If at any time any of said policies shall be unsatisfactory to the City, as to form or substance, or if a company issuing such policy shall be unsatisfactory to the City, the Consultant shall promptly obtain a new policy, submit the same to the Risk Manager for approval and submit a certificate thereof as hereinabove provided.
Upon failure of the Consultant to furnish, deliver or maintain such insurance and certificates as above provided, this Agreement, at the election of the City, may be forthwith declared suspended or terminated. Failure of the Consultant to obtain and/or maintain any required insurance shall not relieve the Consultant from any liability under #15..
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this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the Consultant concerning indemnification. The City, its agents, officers, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation and Professional Liability. CONSULTANT shall provide CITY with separate endorsements evidencing proof of the CITY’s additional insured status as to both the general liability and automobile liability insurance policies. The Workers' Compensation insurer shall agree to waive all rights of subrogation against the City, its agents, officers, employees, and volunteers for losses arising from work performed by Consultant for the City. In addition, CONSULTANT shall provide CITY with a Workers Compensation subrogation waiver by way of a separate endorsement. The Consultant's insurance policy(ies) shall include a provision that the coverage is primary as respects the City; shall include no special limitations to coverage provided to additional insured; and shall be placed with insurer(s) with acceptable Best's rating of A: VII or with approval of the Risk Manager.
The Consultant must deliver certificates evidencing existence of the insurance listed above to the City prior to the time the contract is signed.
All endorsements referenced above must include the applicable policy number.
15. TERMINATION OF AGREEMENT.
Termination by City for Default of Consultant
Should Consultant default in the performance of this Agreement or materially breach any of its provisions, at its option, City may terminate this Agreement #15..
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by giving written notification to Consultant. The termination date shall be the effective date of the notice. For the purposes of this section, material breach of this Agreement shall include, but not be limited to, any of the following: failure to perform required services or duties, willful destruction of City's property by Consultant, dishonesty or theft.
Termination by City for Convenience
The City may also terminate the Consultant's performance under the Agreement, either in whole or in part, at its own discretion, or when conditions encountered during the Work make it impossible or impracticable to proceed, or when the City is prevented from proceeding with the Agreement by act of God, by law, or by official action of a public authority, or upon a determination by the City that such termination is in the best interest and convenience of the City, or whenever the City is prohibited from completing the Work for any reason. The City shall provide no less than ten (10) calendar days written notice of its intent to terminate the Agreement for convenience, and shall endeavor to provide the Consultant with consultation with the City prior to termination. In the event that the City terminates this Agreement without cause and for any reason other than an Act of God, the City shall pay a termination fee to the Contractor equal to a specified percentage of: $130,000 minus the total compensation previously paid to Consultant under this Agreement. If termination occurs during the first year of this Agreement, the applicable percentage shall be 80%, if termination occurs during the second year of this Agreement, the applicable percentage shall be 50%, and if termination occurs during the third year of this Agreement, the applicable percentage shall be 20%.
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of 30,000 minus the
Termination by City for Change of Consultant's Tax Status If City determines that Consultant does not meet the requirements of federal and state tax laws for independent contractor status, City may terminate this Agreement by giving written notice to Consultant. The termination date shall be the effective date of the notice.
Post-Termination Procedures
If this Agreement is terminated pursuant to this Section, Consultant shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees,
subconsultants and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and Subcontractors except as
necessary to complete any portion of the Work that is not terminated;
c. If directed in writing by the City to do so, assign all right, title and interest in subcontracts and materials in progress to City, in which case the City will have the right at its discretion to settle, or pay any or all claims arising out of the termination of such subconsultants, but in no event shall recovery by any Consultant or subconsultant include lost profits for portions of the Work not completed or undertaken, including materials not delivered;
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d. Deliver or otherwise make available to the City all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been
accumulated by the Consultant in performing the Work
whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of City;
f. Complete performance of such part of the Work as has not been terminated;
g. Take such other actions as may be necessary, or as may be directed by the City for the protection and preservation of the Work and/or property related to the Work;
h. If City so requests, and at City's cost, Consultant shall provide sufficient oral or written status reports to make City reasonably aware of the status of Consultant's work on the project.
City will pay Consultant an amount based on the percentage of satisfactory work completed in accordance with the notice of termination (To be modified, based upon the Cancellation Option selected by the City) If the Agreement is terminated pursuant to the subparagraph entitled Termination by City for Default of Consultant, Consultant understands and agrees that City may, in City's sole discretion, refuse to pay Consultant for that portion of Consultant's services which were performed by Consultant on the project prior to the termination date and which remain unacceptable and/or not useful to #15..
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City as of the termination date. The final payment to the Consultant after termination for convenience shall be limited to amounts due and owing under the Agreement at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the Work such as subconsultant
agreements or contracts for materials;
b. The Agreement price allocable to the portion of the
Work properly performed or goods supplied to the work
site by the Consultant as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the Consultant.
16. CERTIFIED PAYROLL REQUIREMENT.
For consultants performing field work on public works contracts on which prevailing wages are required: The Consultant shall comply with the provisions of Section 1776 of the California Labor Code, regarding payroll records, and shall require its subconsultants and subcontractors to comply with that section as may be required by law.
17. INDEMNITY.
The Consultant shall hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any act or omission of Consultant whether or not the act or omission arises from the sole negligence #15..
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or other liability of City, or its agents, officers, and employees or volunteers relating to or during the performance of its obligations under this agreement.
Consultant's obligation to defend, indemnify, and hold the City, its agents, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this Agreement for Consultant to procure and maintain a policy of insurance. The total aggregate amount Consultant may be liable for under this Agreement shall not exceed $1,000,000.
18. DISPUTE RESOLUTION.
All claims, controversies, or disputes arising out of, or relating to the formation of this Agreement, or the breach, termination execution, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this contract provision shall be determined by binding arbitration in Modesto, California, by one arbitrator, except as otherwise specified in this Agreement.
The American Arbitration Association shall administer the arbitration under its Arbitration Rules then in effect, subject to the modifications of those rules contained in this paragraph. This agreement to arbitrate shall be specifically enforceable under the prevailing law of any court having jurisdiction, and the award rendered by the arbitrator may be entered in any court having jurisdiction. The appropriate venue for any arbitration or court proceeding relating to or arising out of this provision shall be in Stanislaus County, California.
This paragraph is not intended to and does not waive the claim filing requirements found in California Government Code section 900 et seq. In the event that a timely and legally sufficient, arbitrable claim is filed by Consultant with City, and #15..
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the claim is rejected in whole or in part by City, this paragraph shall result in the conclusive, final, and binding resolution of all the issues presented in the claim by Consultant so long as any issues presented by the claim are arbitrable. Claims rejected by City or by operation of law, shall be submitted by Consultant to arbitration pursuant to the Arbitration Rules of the American Arbitration Association within ninety (90) days after mailing of the written rejection by City to Consultant. Otherwise, the claim or claims shall be deemed waived in their entirety.
The “fast track’ rules of the American Arbitration Association shall apply to any claim or counterclaim less than ONE HUNDRED FIFTY THOUSAND AND 00/100 ($150,000.00) DOLLARS. In arbitration not proceeding under the “fast track” rules, the arbitrator shall have the power to order that depositions be taken and other discovery be made. Both City and Consultant shall have the right, upon written notice, to take no more than three (3) depositions of the other as a matter of right in an arbitration proceeding under the “fast track” rules.
Whether or not City and Consultant may be engaged in interstate commerce, any controversy or dispute mentioned above shall be determined by, and the parties shall be bound by, the substantive law of the State of California, and not the Federal Arbitration Act at 9 USC Section 1 et seq.
The arbitrator may grant any remedy or relief deemed by the arbitrator just and equitable under the circumstances, whether or not such relief could be awarded in a court of law. The arbitrator shall be empowered to award monetary sanctions against a party for failure of cooperation in the arbitration. The arbitrator shall, in written award, allocate all the costs of the arbitration, including the fees of the arbitrator and the #15..
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reasonable attorney fees of the prevailing party, against the party who did not prevail. The prevailing party shall be the party in whose favor the majority of the central issues in the case are resolved.
Notwithstanding anything in this provision to the contrary, the arbitrator shall have no power to award punitive damages or other damages not measured by the party’s actual damages (excluding litigation costs and fees) against any party.
This limitation of the arbitrator’s powers under this Agreement shall not operate as an exclusion of the issue of punitive damages from this Agreement to Arbitrate sufficient to vest jurisdiction in a court with respect to that issue.
Consultant shall include in all subcontracts a specification whereby the subcontractor consents to being joined in an arbitration between City and Consultant involving the work of the subcontractor to be joined. Consultant’s failure to do so shall be a breach of this Agreement.
The parties hereby waive any rights provided by Title 9.2 of the California Code of Civil Procedure, Section 1296. The arbitrator’s award shall be deemed final, conclusive and binding to the fullest extent allowed by California law.
19. ENTIRE AGREEMENT.
This Agreement and its exhibits contain the entire understanding between Consultant and City. Additional or new terms contained in this Agreement which vary from Consultant's proposal are controlling and are deemed accepted by Consultant by shipment of any article or other commencement of performance hereunder.
All previous proposals, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been #15..
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incorporated into this Agreement. No future waiver of or exception to any of the terms, conditions, and provisions of this Agreement shall be considered valid unless specifically agreed to in writing by all the parties.
20. PARTIAL INVALIDITY.
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
21. WAIVER.
The waiver by any party to this Agreement of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
22. AUDIT.
The City's duly authorized representative shall have access at all reasonable times to all reports, contract records, contract documents, contract files, and personnel necessary to audit and verify Consultant's charges to City under this Agreement.
Consultant agrees to retain reports, records, documents, and files related to charges under this Agreement for a period of four (4) years following the date of final payment for Consultant services. City's representative shall have the right to reproduce any of the aforesaid documents.
23. GOVERNING LAW.
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This Agreement shall be governed according to the laws of the State of California.
24. HEADINGS NOT CONTROLLING.
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this Agreement.
25. COMPLIANCE WITH LAWS.
Consultant shall insure compliance with all safety and hourly requirements for employees, in accordance with federal, state, and county safety and health regulations and laws. Consultant shall fully comply with all applicable federal, state, and local laws, ordinances, regulations and permits.
26. CITY BUSINESS LICENSE.
Consultant shall have a City of Modesto business license. #15..
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IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023- ___, adopted by the Council of the City of Modesto on the day of , 2023, and CONSULTANT has caused this agreement to be duly executed in duplicate as of the Effective Date.
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Neil Sullivan
Senior Principal Consultant
p 925.876.5856
e [email protected]
www.tablegroup.com
Proposal For
Consulting Services
FOR
CITY OF MODESTO
Organizational Health Program
Modesto CA
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Page | 2 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information Contents Page
Executive Summary
Engagement Implementation
Content Menu
Schedule of Fees | Offsite Dates
Signature Page
3 3
4 7
8 #15..
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Page | 3 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information Executive Summary
Table Group’s concepts and methodologies will be used to help the City of Modesto’s City Management and Departmental Leadership Teams work more collaboratively and lead the City into its important future. The City of Modesto has certainly achieved significant milestones throughout its storied history, as well as overcoming numerous challenges during the past years due to the pandemic. Table Group works alongside the Leadership of significant entities, such as the City of Modesto, to help them become more effective, thus tremendously impacting their Regions. The City of Modesto is at an important moment in its history, and it is imperative that extreme clarity and excellent communication exist within the City Management Team, as well as with the Leadership Teams of all Departments for the City to achieve its goals and objectives.
The objectives for the City of Modesto Organizational Health Program include:
1. Introduce Table Group’s concepts and methodologies to various City of Modesto Directors and Department Leadership Teams.
2. Work with various Directors to select from Content Menu to build a specific Program for their Department Leadership Team.
3. Facilitate Table Group Sessions with various Department Leadership Teams to help increase their Cohesion and Clarity as a Team and Department.
4. Interact with various Directors to help them leverage Table Group’s concepts and methodologies within their Departments on a continual basis.
The ultimate objective of the program is for various City of Modesto Department Leadership Teams to operate even more cohesively and effectively in developing and driving their goals and objectives within their Departments. This work is conducted with both Directors individually, and the Department Leadership Team collectively, to help equip the Department in leveraging the asset of Organizational Health as a competitive advantage.
Engagement Implementation
Below is an expanded overview of the possible activities to be conducted as part of this Proposal with various City of Modesto Departments. Using methods and tools developed by The Table Group under the leadership of New York Times best-selling author Patrick Lencioni, we will be offering the following services:
1. City of Modesto Department Leadership Team Session – we will leverage our experience and expertise in working with 1000’s of Organizations to facilitate various City of Modesto Department Leadership Team Sessions. Actions may include:
a. Advance Preparation Meeting – conducting an Advance Preparation session with key leadership to identify the high-level objectives, schedule, components, and agenda for the Session.
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Page | 4 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information b. Session Materials Preparation – based upon the planned Agenda, Objectives, and Activities for the Session, we will prepare all required advance materials. c. Session Facilitation – conduct the City Department Session(s) during the course of the selected date(s). Assuring we are tracking to the Agenda and accomplishing the agreed to Objectives for the session. Incorporating both the Concepts of healthy, highperformance Leadership Teams and the Tools to drive Focus, Clarity, and Action as outcomes.
d. Session Deliverables – we will provide summary notes from the Session, including all Topics discussed, Concepts and Tools introduced, Decisions made, and Action Items.
Additionally, we will provide PDF pictures of any flipcharts utilized during the session.
City of Modesto | Content Menu
The following is a high-level overview of the topics, exercises, team assignments and outcomes that can be selected for the primary body-of-work during a City of Modesto Departmental Leadership Team Session. This is for informational purposes only and a subset of these topics will be selected by the Department Director the specific Agenda, based upon the Team’s requirements and available time.
Section Topics Outcomes
Introduction • Organizational Health Model
• Competitive Advantage of Teams
Outcomes
• Team Assessment Results & Discussion
Discipline 1
Build a Cohesive
Team
Five Behaviors
Of a Cohesive Team
Trust
• Role of the Leader
• Vulnerability Based Trust
• Fundamental Attribution Error
Outcomes
• Experience vulnerability-based (v. predictivebased) trust by revealing own/listening to other’s personalities and behavioural patterns.
• Team members begin establishing a foundation
for establishing/rebuilding trust on the team.
Conflict
• Role of the Leader
• Conflict Continuum
• Conflict Norms Discussion
Outcomes
• Team establishes their own conflict style
• Team agrees on conflict norms
Commitment
• Role of the Leader
• Commitment Norms Discussion
Outcomes
• Team agrees on commitment norms
• Team agrees on Thematic Goal
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Page | 5 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information Accountability
• Role of the Leader
• Peer-to-Peer Accountability
• Benchmarking Accountability
Results
• Team # 1 Discussion
Outcomes
• Members experience how to give/receive
behavioral-based business feedback
• Members publicly commit and affirm permission
on a specific behavioural-based area of
feedback.
Discipline 2
Create Clarity
Six Critical Questions Introduction*
1. Why do we exist?
2. How do we behave?
3. What do we do?
4. How will we succeed?
5. What is most important, right
now?
6. Who does what?
Outcomes
• Playbook containing agreed upon work
• Introduce Purpose
• Establishment of a Thematic Goal – the # 1
priority for the next 6 – 18 months.
• Explore upon desired behaviors (core values)
Agreement on roles to achieve the Thematic
Goal.
Discipline 3
Over-Communicate
Clarity
Cascading Messages
Outcomes
1. What did we discuss?
2. What did we decide?
3. What can’t we say (outside of the team)?
4. By when will we communicate?
Discipline 4
Reinforce Clarity
Meeting Structure
Outcomes
• The team will be introduced to a new meeting
structure. Better outcomes, increased closure,
clarity and attention to results.
Transition Model
Internal Processing
William Bridges Model
• Endings
• Neutral Zone
• New Beginnings
Outcomes
1. Purpose – “Why are we doing this?”
2. Picture – “What will it look like?”
3. Plan – “How will we get there?
4. Part – “What is my role?”
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Page | 6 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information Ideal Team Player
Selecting Team Players
• Humble
• Hungry
• Smart
Outcomes
• The understanding and application of Ideal Team
Player concepts and tools within the Executive
Team and Organization.
Three Signs of a
Miserable Job
Employee Engagement Equipping
1. Anonymity
2. Irrelevance
3. Immeasurement
Outcomes
• Leaders and Managers understand what their
employees require to be highly engaged in the
Company.
The Six Types of
Working Genius
Types of Geniuses
1. Wonder
2. Invention
3. Discernment
4. Galvanizing
5. Enablement
6. Tenacity
Outcomes
1. What Are My Two Working Geniuses?
2. What Are My Two Working Frustrations?
3. What Are My Two Working Competencies?
4. What Are Our Team’s Strengths /
Weaknesses?
5. How Do We Leverage / Mitigate Them?
Next Level
Leadership Teams
Preparing the Next Level
• Five Behaviors of a Cohesive
Team
• Leveraging Clarity Statements
• Leading Their Teams
Outcomes
• Discussing and preparing for introduction of
Table Group’s concepts and tools to Next Level
Leadership Teams.
Company Roll Out
Cascading Over-Communication
• The Cohesion Journey
• The Clarity Statements
• Organizational Application
Outcomes
• Executive Leadership has the opportunity to
introduce the Cohesion / Clarity journey via a
Company-wide Roll Out, augmented by Table
Group Consultants.
Executive Equipping
Transference
• The Motive
• Ongoing Executive Access
• Quarterly Team Check-Ins
Outcomes
• Equipping the Executive Leader to drive
Organizational Health throughout the entity and
remaining available to the Executive for any
desired assistance.
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Page | 7 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information City of Modesto Schedule of Fees | Dates
City of Modesto Organizational Health Program
EST. DATES
2022-2025
Consulting Fees:
Table Group Standard 1-Day Session Engagement Fee
City of Modesto Discount (56%)
Revised City of Modesto 1-Day Session Engagement Fee:
$23,250.00
($10,250.00)
$13,000.00
Materials Fees
1. Participant Offsite Handout Binder
2. Team Assessments & Reports
a. Table Group Team Assessment
b. Myers Briggs Type Indicator or Similar Assessement
3. Tailored In-Depth Offsite Notes (Post-Session)
4. Tailored 2-page Playbook (Post Session)
Administrative Fee
Date Change Fee
$200.00
/Person
$500/Offsite
$5,000.00, if
incurred.
Contract Minimum | A minimum of ten (10) 1Day Sessions are required within the Contract to secure City of Modesto Discounted Pricing.
Expenses | Travel for Consultants is billed separately including: meals, ground transportation, hotel, airfare, etc. Expenses related to additional contractual requirements will be added to client cost and invoiced.
Billing | Balance of Engagement Fee and remaining expenses for Offsites will be invoiced as delivered unless otherwise specified. . All rates quoted in $US.
Date Change Policy
Cancellation or date change for any reason within 45 calendar days scheduled Date will incur a $5,000.00 Date Change Fee, plus any incurred expenses associated with that session. This cancellation policy represents the reasonable estimate of lost fees due to the client reserving a specific date(s). #15..
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Page | 8 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information Both parties below agree to the terms set forth above:
_______________________________________________________________________ City of Modesto Representative Date
_______________________________________________________________________ Neil Sullivan Date
Please Note:
Table Group engagements are contracted by independent, licensed Table Group Consultants under their individual corporate entities. This engagement will be contracted by:
Neil Sullivan, LLC
5075 St. Celestine Ct.
Concord, CA 94521
925-876-5856
EIN: 82-2233433
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Page | 7 The Source for Organizational Health The Table Group, Inc. Confidential and Proprietary Information City of Modesto Schedule of Fees | Dates
City of Modesto Organizational Health Program
EST. DATES
2022-2025
Consulting Fees:
Table Group Standard 1-Day Session Engagement Fee
City of Modesto Discount (56%)
Revised City of Modesto 1-Day Session Engagement Fee:
$23,250.00
($10,250.00)
$13,000.00
Materials Fees
1. Participant Offsite Handout Binder
2. Team Assessments & Reports
a. Table Group Team Assessment
b. Myers Briggs Type Indicator or Similar Assessement
3. Tailored In-Depth Offsite Notes (Post-Session)
4. Tailored 2-page Playbook (Post Session)
Administrative Fee
Date Change Fee
$200.00
/Person
$500/Offsite
$5,000.00, if
incurred.
Contract Minimum | A minimum of ten (10) 1Day Sessions are required within the Contract to secure City of Modesto Discounted Pricing.
Expenses | Travel for Consultants is billed separately including: meals, ground transportation, hotel, airfare, etc. Expenses related to additional contractual requirements will be added to client cost and invoiced.
Billing | Balance of Engagement Fee and remaining expenses for Offsites will be invoiced as delivered unless otherwise specified. . All rates quoted in $US.
Date Change Policy
Cancellation or date change for any reason within 45 calendar days scheduled Date will incur a $5,000.00 Date Change Fee, plus any incurred expenses associated with that session. This cancellation policy represents the reasonable estimate of lost fees due to the client reserving a specific date(s). #15..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
January 10, 2023
Date: December 12, 2022
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: DeAnna Christensen, Director of Finance
SUBJECT: Fleet Addition and Replacement Vehicles - one (1) Compact Sweeper, three (3) One-Ton Truck Turner Valve, and two (2) Vacuum 3 Axle Truck CONTACT: Cynthia Kline, Purchasing Manager, [email protected], 209-577-5412 DESCRIPTION:
Consider approving the Purchase for Various Fleet Addition and Replacement Vehicles which includes one (1) Compact Sweeper, three (3) One-Ton Truck Turner Valve, and two (2) Vacuum 3 Axle Trucks in the amount not to exceed $2,352,973. (Funding Source: Surface Transportation Fund and Fleet Replacement Fund)
STRATEGIC PLAN ELEMENT:
This item advances the City of Modesto 2020-2025 Strategic Plan Area: Governance and Service Delivery: “build community trust in City government through responsive, transparent and efficient service delivery”; Goal J: “build a high-performance organization”.
BACKGROUND:
Every year, City vehicles and equipment are individually evaluated based on their age, condition, mileage and maintenance costs. Following this process, a Fleet Replacement List is submitted to Council and is approved as part of a new fiscal year’s Fleet Replacement Budget.
Throughout the fiscal year, new vehicles need to be added to the City’s Fleet inventory due to the operational needs of City departments. When these vehicles are added to the fleet, they are also added to the Fleet Replacement list to prepare for future replacement.
Once a unit is replaced and placed into City service, funds for its replacement are charged out as monthly recurring charges until the end of the unit’s service life. These funds are specifically designated for the replacement of City vehicles and equipment. #16..
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City Council, January 10, 2023
Fleet Addition and Replacement Vehicles - one (1) Compact Sweeper, three (3) One-Ton Truck Turner Valve, and two (2) Vacuum 3 Axle Truck