and ten companies chose to download the IFB document. However, due to ambiguity in the requested scope of work, the bid was canceled. The rebid has been posted and additional time is required to complete the bidding event.
On June 13, 2023, Council approved a Second Amendment to the agreement with All Season extending the term to December 31, 2023, and increasing the spending authority from $357,671 by $45,000, for a new total amount not to exceed $402,671.
DISCUSSION:
On April 10, 2023, the Purchasing Division issued IFB No. 2223-23RB, Landscape Maintenance Services for Water Wells and Tank Sites, on the City’s website under three commodity codes¹1.
Prospective bidders were notified online and via email of the bid opportunity. Thirteen (13) companies chose to download the RFB document.
On May 23, 2023, bids were formally opened by the City Clerk and broadcast via Microsoft Teams Livestream². Five (5) companies chose to respond. Based on providing the lowest responsive and responsible bid, staff recommends the award of bid for landscape maintenance services at water wells and tank sites to All Season Lawn Landscaping, Escalon, CA, for an estimated annual amount of $90,000, and a total amount not to exceed $450,000 over five years.
Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services, to be formally bid. An award of bid and agreement for landscape maintenance services at water wells and tank sites to All Season conforms to the Modesto Municipal Code, because the City complied with the formal bid procedures and All Season was the lowest responsive and responsible bidder.
FISCAL IMPACT:
Expenditures over the past five years are below:
Fiscal Year Total
FY 2018-19 $39,556
FY 2019-20 $57,913
FY 2020-21 $78,414
FY 2021-22 $71,880
FY 2022-23 $65,345
Grand Total $313,108
Funds are budgeted in the Water Fund account 4100-45050-53100, Repair and Maintenance Services.
1 Commodity Codes:
90656 Landscape Architecture
98836 Grounds Maintenance: Mowing, Edging, Plant (Not Tree) Trimming, Etc. 98888 Tree Trimming And Pruning Services
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City Council, September 12, 2023
Landscaping Agreement for Water Sites
COMMITTEE RECOMMENDATION:
This item was presented to the Economic Development Committee on August 7, 2023 and was recommended to forward to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendation:
Resolution approving the Award of Bid and Agreement with All Season Lawn Landscaping, Escalon, CA for Landscape Maintenance Services at Water Wells and Tank Sites, for an estimated annual amount of $90,000 and a total not to exceed $450,000 over five years, and authorizing the City Manager, or his designee to execute the Agreement.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Exhibit B - Bid Submittal
4. Exhibit C - IFB 2223-23RB
5. Financial Interest Disclosure
6. Cost Abstract
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1 2023-06-13
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION APPROVING THE AWARD OF BID AND AGREEMENT WITH
ALL SEASON LAWN LANDSCAPING, ESCALON, CA FOR LANDSCAPE
MAINTENANCE SERVICES AT WATER WELLS AND TANK SITES, FOR AN ESTIMATED ANNUAL AMOUNT OF $90,000 AND A TOTAL NOT TO EXCEED $450,000 OVER FIVE YEARS, AND AUTHORIZING THE CITY MANAGER, OR
HIS DESIGNEE TO EXECUTE THE AGREEMENT
WHEREAS, the City of Modesto Utilities Department, Water Division, requires landscape maintenance services for twenty-one (21) City water well sites, nine (9) water tank sites, and one (1) Corporation Yard, and
WHEREAS, on April 10, 2023, the Purchasing Division issued IFB No. 2223- 23RB, Landscape Maintenance Services for Water Wells and Tank Sites, on Planet Bids, and prospective bidders were notified online and via email of the bid opportunity, and WHEREAS, thirteen (13) companies chose to download the RFB document, and five (5) companies chose to respond, and
WHEREAS, Modesto Municipal Code Section 8-3.203 generally requires all purchases, which meet or exceed $50,000 for material, equipment or contractual services, to be formally bid. An award of bid and agreement for landscape maintenance services at water wells and tank sites to All Season conforms to the Modesto Municipal Code, because the City complied with the formal bid procedures and All Season was the lowest responsive and responsible bidder, and
WHEREAS, based on providing the lowest responsive and responsible bid, staff recommends the award of bid to All Season Lawn Landscaping, Escalon, CA, for a two (2) year agreement with three (3) one-year extension options.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the award of bid and Agreement with All Season Lawn #25..
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2 2023-06-13
Landscaping, Escalon, CA for landscape maintenance services at water wells and tank sites, for an estimated annual amount of $90,000 and a total not to exceed $450,000 over five years.
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. #25..
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3 2023-06-13
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September, 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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1 ANNUAL AGREEMENT # 249399
LANDSCAPE MAINTENANCE SERVICES FOR WATER WELLS AND TANK SITES This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this 12th day of September, 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and ALL SEASON LAWN LANDSCAPING, a Corporation, hereinafter called CONTRACTOR.
W I T N E S S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2023-xx authorizing the Award of Bid and agreement for the LANDSCAPE MAINTENANCE SERVICES FOR WATER WELLS AND TANK SITES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B”, and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the LANDSCAPE MAINTENANCE SERVICES FOR WATER WELLS AND TANK SITES as described in IFB 2223-23RB attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).
NOW, THEREFORE, the parties hereto mutually agree as follows:
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2 1. THE WORK:
a. CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b. CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative.
c. CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d. CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e. CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount of $90,000.00. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $450,000.00.
Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.
AGREEMENT PRICING
WEEKLY SERVICE MARCH - OCTOBER
Item No. Site Unit Unit Cost
A1 Well 6 Month $254.58
A2 Well 10 Month $254.58
A3 Well 25 Month $21.22
A4 Well 40 Month $84.86
A5 Well 41 Month $84.86
A6 Well 48 Month $21.22
A7 Well 66 Month $60.00
A8 Well 67 Month $254.58
A9 Well 70 Month $84.86
A10 Well 71 Month $84.86
A11 Well 204 Month $339.44
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3 A12 Well 211 Month $339.44
A13 Well 259 Month $169.72
A14 Well 260 Month $84.86
A15 Well 264 Month $169.72
A16 Well 269 Month $84.86
A17 Well 271 Month $84.86
A18 Well 282 Month $84.86
A19 Well 289 Month $21.22
A20 Well 300 Month $169.72
A21 Well 307 Month $254.58
A22 Tank 3 Month $169.72
A23 Tank 4 Month $339.44
A24 Tank 5 Month $169.72
A25 Tank 6 Month $169.72
A26 Tank 10 Month $254.58
A27 Tank 11 Month $339.44
A28 Tank 12 Month $339.44
A29 Tank 13 Month $169.72
A30 Tank 14 Month $254.58
A31 Water Corp Yard Month $1,357.76
BI-WEEKLY SERVICE NOVEMBER - FEBRUARY
Item No. Site Unit Unit Cost
A1 Well 6 Month $254.58
A2 Well 10 Month $254.58
A3 Well 25 Month $21.22
A4 Well 40 Month $84.86
A5 Well 41 Month $84.86
A6 Well 48 Month $21.22
A7 Well 66 Month $60.00
A8 Well 67 Month $254.58
A9 Well 70 Month $84.86
A10 Well 71 Month $84.86
A11 Well 204 Month $339.44
A12 Well 211 Month $339.44
A13 Well 259 Month $169.72
A14 Well 260 Month $84.86
A15 Well 264 Month $169.72
A16 Well 269 Month $84.86
A17 Well 271 Month $84.86
A18 Well 282 Month $84.86
A19 Well 289 Month $21.22
A20 Well 300 Month $169.72
A21 Well 307 Month $254.58
A22 Tank 3 Month $169.72
A23 Tank 4 Month $339.44
A24 Tank 5 Month $169.72
A25 Tank 6 Month $169.72
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4 A26 Tank 10 Month $254.58
A27 Tank 11 Month $339.44
A28 Tank 12 Month $339.44
A29 Tank 13 Month $169.72
A30 Tank 14 Month $254.58
A31 Water Corp Yard Month $1,357.76
Additional Services: Pre-Emergent Spraying Assignments $445/Per Acre Rate Additional Services: Miscellaneous Work Assignments $83/Hourly Rate
2. PREVAILING WAGES:
In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.
DIR Project ID#: 469959
3. CITY REPRESENTATIVE:
CITY Representative: Tony Benns, Utility Plant Operations Supervisor, (209) 342-4574, [email protected].
Purchasing Contact: Michelle Tapley, Senior Buyer, (209) 577-6319, [email protected].
The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of #25..
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5 shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.
4. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of two years, with three one-year extension options at the sole discretion of CITY, for a total of up to five years.
Year 1: January 1, 2024 through December 31, 2024
Year 2: January 1, 2025 through December 31, 2025
Year 3: January 1, 2026 through December 31, 2026
Year 4: January 1, 2027 through December 31, 2027
Year 5: January 1, 2028 through December 31, 2028
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.
Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
5. LIABILITY INSURANCE:
The CONTRACTOR 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 City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 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 registered mail, return receipt requested, for all of the following stated insurance policies.
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6 a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to:
premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability. b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage. c. Workers' 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 per accident for bodily injury or disease.
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 CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR 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 CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification.
The CITY, its agents, officers, officials, employees, and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its agents, officers, officials, employees, and volunteers for losses arising from work performed by CONTRACTOR for the CITY.
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7 The CONTRACTOR’s insurance policy(ices) 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 CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its agents, officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by CITY, its agents, officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
6. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR “Net 45 Days via manual check”. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
a. This AGREEMENT number: 249399
b. CITY department/division name and address:
City of Modesto Water Division
North Corporation Yard
4240 Litt Road
Modesto CA 95355
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8 c. Billing period
d. Service hours worked, day, and week
e. Unit price, extended price, sales tax, and total
7. INDEMNITY:
The CONTRACTOR shall hold the CITY, its agents, officials, 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 negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, employees, and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.
8. VENUE & GOVERNING LAW:
Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws, provisions or principles.
9. ATTORNEYS’ FEES:
If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose. #25..
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9 10. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced after the agreement administrator receives and has on file:
Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2023-_______;
b. CONTRACTOR Bid submittal;
c. IFB No. 2223-23RB
d. Contractor’s City of Modesto business license
11. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice.
Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.
Post-Termination Procedure: Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors, and agents are notified of such termination and act as specified in the notice of termination;
b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
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10 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, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered;
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 CONTRACTOR in performing the SERVICES 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 SERVICES 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 SERVICES and/or property related to the SERVICES; h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.
CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
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11 a. The cost of settling and paying valid claims arising out of the termination of the SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.
12. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
13. FAILURE TO PERFORM SATISFACTORY WORK:
It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence.
Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed. #25..
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12 14. ASSIGNMENT OF RIGHTS:
The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to the CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
15. CITY PROCESS/PROCEDURE APPROVALS:
CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.
16. DIR REGISTRATION:
Pursuant to Labor Code section 1771.1, CONTRACTOR may not engage in the performance of the Services set forth in Exhibit “C”, unless currently registered and qualified to perform public work pursuant to Section 1725.5 thereof. As required in Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, that during term of this AGREEMENT, CONTRACTOR shall be registered to perform public work pursuant to Section 1725.5 thereof.
17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:
If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days. #25..
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13 18. NOTICES:
Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:
CONTRACTOR: All Season Lawn Landscaping
31062 State Highway 120
Escalon, CA 95320
(209) 838-1934
[email protected]
CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
19. SIGNATORY(IES) FOR CONTRACTOR:
Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.
20. QUANTITIES:
No minimum or maximum is guaranteed or implied.
21. FUNDING:
All annual extensions are based upon continuous funding for that purpose by the City Council.
Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.
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14 22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:
If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
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15 c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
24. CONTRACTOR LICENSES & PERMITS:
CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.
25. RECORDS:
All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, SPECIFICATIONS, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse, or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT #25..
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16 are prepared specifically for the City and are not necessarily suitable for any future or other use.
26. FACILITIES AND EQUIPMENT:
Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” and “C”, and only under the terms and conditions set forth herein.
27. INDEPENDENT CONTRACTOR; NOT AGENT:
At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.
28. DRUG FREE WORKPLACE:
CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.
29. ASSIGNMENT:
Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance. #25..
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17 30. 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.
31. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
32. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
33. ENTIRE AGREEMENT:
This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.
34. 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.
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18 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2023-_________ adopted by the Council of the City of Modesto on the 12th day of September, 2023 and All Season Lawn Landscaping has caused this Agreement to be duly executed. #25..
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1 INVITATION FOR BIDS (“IFB”) NO. 2223-23RB
FOR
LANDSCAPE MAINTENANCE SERVICES
FOR WATER WELLS AND TANK SITES
THE PAYMENT OF PREVAILING WAGES IS REQUIRED
MANDATORY ON-SITE VISIT:
To be held on:
APRIL 25, 2023 at 8:00 A.M.
Meeting Location:
City of Modesto
4240 Litt Road
Modesto, CA 95357
See Site Inspection List on Page 36
BID OPENING: MAY 23, 2023 at 11:00 A.M.
CITY OF MODESTO CONTACT: MICHELLE TAPLEY, SENIOR BUYER
E-MAIL ADDRESS: [email protected]
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2 Table of Contents PAGE
NOTICE TO BIDDERS ............................................................................................................................. 3 CALENDAR OF EVENTS ........................................................................................................................ 5 CONTACT.................................................................................................................................................. 5 PRECEDENCE........................................................................................................................................... 6 VIRTUAL BID OPENING......................................................................................................................... 7 GENERAL BID REQUIREMENTS .......................................................................................................... 8 A. BID SUBMITTAL....................................................................................................................... 8 E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS:.................................................. 8 F. COMPLETE BID DOCUMENT: ................................................................................................ 8 G. COMPLIANCE/NON-COMPLIANCE:...................................................................................... 9 K. PREVAILING WAGE:.............................................................................................................. 10 M. BID PROTEST AND APPEAL PROCEDURES:..................................................................... 11 BID SUBMITTAL CHECKLIST......................................................................................................... 16 BID FORM A - IFB ACKNOWLEDGEMENT .................................................................................. 17 BID FORM B – BIDDER COMPANY INFORMATION................................................................... 20 BID FORM C - PRICING SCHEDULE .............................................................................................. 22 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS.......................... 25 BID FORM E – BIDDER CUSTOMER REFERENCES .................................................................... 26 BID FORM F - FINANCIAL INTEREST DISCLOSURE.................................................................. 28 BID FORM G – SUPPORT OF LOCAL VENDORS.......................................................................... 30 BID FORM H - BIDDER COMPANY HISTORY STATEMENT..................................................... 31 BID FORM I - ADDENDA ACKNOWLEDGEMENT ...................................................................... 32 BID FORM J – BIDDER WARRANTY STATEMENTS................................................................... 33 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS................................................ 34 BID FORM L - SUBCONTRACTOR LIST ........................................................................................ 35 TECHNICAL SPECIFICATIONS AND REQUIREMENTS ................................................................ 36
1.1 SCOPE OF WORK:........................................................................................................................ 36
1.33 REQUIRED LICENSES:.............................................................................................................. 44 SAMPLE ANNUAL AGREEMENT - SERVICES............................................................................. 45 #25..
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3 NOTICE TO BIDDERS
NOTICE IS HEREBY GIVEN that the City of Modesto, County of Stanislaus, State of California (“City”), will receive at the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 sealed Bids (each, a “Bid”) from qualified Bidders (each, a “Bidder”) for the furnishing of Landscape Maintenance Services for Water Wells and Tank Sites equipment, materials, supplies and/or related services (the “Services”) for the City of Modesto, Utilities Department, Water Division.
All equipment, materials, and supplies shall be furnished F.O.B. City of Modesto (delivery charges borne by Bidder, included in the Services pricing herein, and not separately charged to the City).
Bidders are highly recommended to download all IFB documents from the City’s Purchasing Division website at http://www.modestogov.com/257/Contracting-Bid-Opportunities; such IFB documents shall include all specifications necessary for Bidders to submit a responsive Bid..
Each Bid shall be sealed and filed with the City Clerk’s office, 1010 Tenth Street, Suite 6600, Modesto, CA 95354 prior to Tuesday, May 23, 2023 at 11:00 A.M., at which time Bids will be opened, read, and recorded. The opening of bids will not be physically open to the public but may be viewed simultaneously via video conferencing in the manner provided for herein. All Bids shall be available for review following City Council award approval at the Purchasing Division, 1010 Tenth Street, 5th Floor, Suite 5300, Modesto, CA 95354.
Bids will be received only at the address shown above, and prior to the time indicated. Any Bid received at or after said time and/or date, or at a place other than the stated address cannot be considered and will be returned to the Bidder unopened.
All Bids, whether delivered by an employee of the Bidder, U.S. Postal Service, courier, or package delivery service must be received and time stamped at the stated address prior to the time designated.
The City Clerk’s time stamp shall be considered the official timepiece for the purpose of establishing the actual receipt of Bids. Bids will not be accepted by email or facsimile. The City of Modesto assumes no responsibility for delay in the delivery of the Bid. #25..
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4 On the outside of the Bid envelope and courier envelope, if any, the Bidder shall indicate the following:
“NAME AND ADDRESS OF BIDDER
BID IN RESPONSE TO INVITATION FOR BIDS # 2223-23RB
BID OPENING DATE: MAY 23, 2023 AT 11:00 A.M.”
Bidder must deliver your Bid by a preferred method to the appropriate location below:
MAIL TO: CITY CLERK DELIVER/ COURIER TO: CITY CLERK
CITY OF MODESTO CITY OF MODESTO
P.O. BOX 642 1010 10TH STREET,
SUITE 6600, MODESTO, CA 95353 MODESTO, CA 95354
The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.
No Bidder may withdraw its Bid for a period of 90 days after the date set for the opening thereof. #25..
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5 CALENDAR OF EVENTS
Event Date
IFB Issued April 10, 2023
Mandatory Site Visit April 25, 2023
Written Questions Due via Email May 2, 2023
Addendum Issued (if required) May 9, 2023 (approximate date) Bid Due Date & Time PRIOR 11:00 A.M. on Tuesday, May 23, 2023 Agreement Award Approximately August, 2023
CONTACT
All questions regarding these specifications, terms, and conditions shall be submitted in writing via email to the City’s Purchasing Division contact named on the cover page of this IFB (“City Contact”) by the date listed in the CALENDAR OF EVENTS above. The City will respond to pertinent questions through issuance of an Addendum to be available to all Bidders. All contact between Bidder and the City regarding the Bid process shall be through the City Contact. Attempts by the Bidder to contact other City personnel regarding this IFB and associated process may result in disqualification of the Bidder. Notwithstanding the foregoing, information intentionally or un-intentionally provided by any person other than the City Contact may not be correct and will not be binding upon the City.
BIDDER FAMILIARITY WITH SERVICE CONDITIONS
It is the responsibility of each Bidder to become familiar with all of the specifications, terms and conditions and the site condition (if applicable). The Bidder agrees to and acknowledges all IFB specifications, terms, and conditions and indicates the ability to perform by submission of a Bid. By the submission of a Bid, the Bidder certifies that if awarded a contract it will make no claim against the City based upon ignorance of conditions or misunderstanding of the specifications.
CALIFORNIA LABOR CODE SECTION 1771.1 (a)
The California Labor Code states that, “A contractor or subcontractor shall not be qualified to Bid on, be listed in a Bid proposal, subject to the requirements of Section 4104 of the Public Contract Code or engage in the performance of any contract for public work, as defined in this chapter, unless currently registered and qualified to perform public work pursuant to Section 1725.5. It is not a violation of this section for an unregistered contractor to submit a Bid that is authorized by Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, provided the contractor is registered to perform public work pursuant to Section 1725.5 at the time the contract is awarded.” This IFB is subject to the registration requirement set forth above. #25..
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6 PRECEDENCE
Bidder agrees that any agreement resulting from City’s acceptance of its Bid, together with the terms in any City purchase order and associated specifications provided by the City to Bidder therewith, shall comprise the entire agreement between City and Bidder. Moreover, Bidder agrees that any additional or contrary terms contained in Bidder’s acknowledgement of, shall be null and void. #25..
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7 VIRTUAL BID OPENING
The City of Modesto will be broadcasting Bid openings live electronically via Microsoft Teams at 11:00 a.m. (Pacific Time) on Tuesday, May 23, 2023 the City Clerk Record of Bid document should be available on Planet Bids by the end of the same day.
The public Bid opening for this Invitation for Bids will be available using the URL link containing the Number and Title of the Bid on the cover page, provided below. By submitting your Bid for the abovestated IFB you acknowledge, understand, and agree to this modified Bid opening procedure.
URL: https://teams.microsoft.com/l/meetup
join/19%3ameeting_NTI0YzBiMDMtNDQ0Yi00YjNlLWIwZjYtYzg4ZDVjMDdkM2Mz%40thread.v2 /0?context=%7b%22Tid%22%3a%22125ccacf-fc61-463c-9976-
189f876ff90b%22%2c%22Oid%22%3a%229715c333-c997-4dd7-8984-12cd4deaa705%22%7d Join Microsoft Teams Meeting (Click here to join the meeting) • +1 (469)-998-7409
• Conference ID: 961 656 049#
Should you have any questions regarding this, please do not hesitate to contact the Purchasing Department Contact listed on the Cover Page.
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8 GENERAL BID REQUIREMENTS
A. BID SUBMITTAL: Bidders should submit two “inked” (preferably blue ink) signed original Bid document, plus one copy of the signed original Bid document, and one electronic copy submitted via USB. The original Bid document shall be clearly marked. Photocopies do not constitute an original Bid. FAILURE TO FURNISH AT LEAST TWO “INKED” SIGNED ORIGINAL BID DOCUMENT MAY RESULT IN DISQUALIFICATION.
B. CONFIDENTIAL BIDDER INFORMATION: It is the responsibility of the Bidders to identify information in their Bid submission that they may consider to be confidential under the California Public Records Act. To the extent that the City agrees with that designation, such information will be held in confidence whenever possible. All other information will be considered public.
C. BIDDER COSTS INCURRED IN RESPONDING TO IFB: All costs associated with the preparation and submission of a Bid shall be borne by the Bidder.
D. BIDDER EXCEPTIONS: All exceptions taken to this IFB, and associated specifications shall be specifically and clearly identified on Exceptions, Clarifications and Amendments form.
Failure to comply with this provision may deem the Bid as non-responsive. Please review the Sample Agreement and make note on the Exceptions, Clarifications, and Amendments form for any changes. Exceptions taken shall not affect the overall performance and quality of equipment, materials and/or provision of Services required by the City. The Purchasing Manager or designated agent shall make the final decision regarding the acceptability of equipment, materials and/or provision of Services with exceptions.
E. CITY ACCEPTANCE/REJECTION OF IRREGULAR BIDS: An agreement shall be awarded to the Bidder whose Bid most closely satisfies the needs of the City and is deemed the most advantageous to the City. The City reserves the right to reject any or all Bids or to waive any informalities or minor irregularities in a Bid.
F. COMPLETE BID DOCUMENT: The following forms constitute the makeup of a complete Bid document and shall be signed wherever indicated and submitted to the City in the order listed ):
• Bid Form A - IFB Acknowledgement
• Bid Form B – Bidder Company Information
• Bid Form C - Pricing Schedule
• Bid Form D – Bidder Exceptions, Clarifications, Amendments • Bid Form E – Bidder Customer References
• Bid Form F - Financial Interest Disclosure
• Bid Form G – Support of Local Vendors
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9 • Bid Form H – Bidder Company History Statement
• Bid Form I - Addenda Acknowledgement Page (if applicable) • Bid Form J – Bidder Warranty Statements
• Bid Form K– Bidder Experience and Certifications
• Bid Form L - Subcontractor List
Failure to furnish any of these documents may result in disqualification.
G. COMPLIANCE/NON-COMPLIANCE: If Bidder cannot comply with a specification requirement in this IFB, note on the Exception, Clarifications, Amendments form of the specification paragraph, your exception, and your recommendation. The Purchasing Manager will evaluate your recommendation. If after evaluation it is determined that the Bidder is not in compliance with the specification, the Bid may be rejected.
H. PROPOSED PRICING FORMAT:
• The cost of labor, equipment, fuel, licenses, bonds, permits, and insurance necessary to perform the required provision of Services shall be included in Bid pricing, along with Bidder’s profit margin and any other cost factors.
• Unless otherwise stated, the Bidder agrees that, in the event of a price decline, the benefit of such lower pricing shall be extended to the City.
• The City of Modesto shall not pay mileage charges or travel time from the Contractor’s place of business to the job site, or from site to site, or for the Contractor’s travel time to pick up materials.
• Bidder shall use the pricing schedule provided in this IFB to present Bid pricing. No other form or format shall be accepted. Bid must be submitted on the Pricing Schedule provided. No alterations may be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on the Exception, Clarification, Amendments Form.
I. AWARD OF BID:
• The City may award one or more agreements to one or more Bidder in order to provide for backup, or in case the “primary” contractor is unable to meet the City’s needs. • The City reserves the right to decline to award any agreement if it is determined that the proposed pricing is not competitively priced based on similar agreements with public #25..
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10 agencies within the State of California or if the bids received fail to meet the City’s requirements.
• The City reserves the right to select that Bid, which best suits the City’s needs. In addition to price, consideration will be given to the quality and performance of the service to be purchased, and the criteria listed in Modesto Municipal Code Section 8-
3.203(f). Regardless of City staff’s recommendation, the City Council reserves the right to award an agreement to the Bidder that best suits the City’s needs as determined by the City Council whether or not said award is consistent with City staff’s recommendation for award.
I. SUPPORT OF LOCAL VENDORS: Should the Bidder that submits the lowest responsive Bid or and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-
3.204 of the Modesto Municipal Code (MMC) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within 5%of the lowest Bid, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid or quote of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager. To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
J. INDEMNITY: The successful Bidder (the “Contractor”) will be required to hold the City, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgements 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 negligent or intentional act or omission of the Contractor, its agents, officers, employees, and volunteers relating to or during the performance of its obligations under this Bid. Contractor’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 for Contractor to procure and maintain a policy of insurance. With reference to the foregoing, the parties agree that all risk of loss, including but not limited to damages, property losses and defense of third-party suits, arising out of or relation to the operation of City-owned vehicles by Contractor’s employees will be apportioned to Contractor in accordance with the provisions contained in indemnity.
K. PREVAILING WAGE: Bidder’s workers must be paid no less than the prevailing wage rate as published by the State of California Department of Industrial Relations (DIR), and the successful Bidder shall maintain certified payroll. For additional information regarding Prevailing Wages, please contact the DIR at www.DIR.CA.gov or call its Labor Research and Statistics Unit, Prevailing Wage Unit at 415/703-4774. The City standards available at the following web #25..
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11 address shall also apply to the performance of the Bid: City Standards Website:
https://www.modestogov.com/ArchiveCenter/ViewFile/Item/1120 L. BIDDER REPRESENTATION: Bidder represents that:
• Bidder has had an opportunity to examine and has examined any and all of the documents, including specifications, any resultant contract and supporting data, and that it has, from the information contained in such documents, specifications, and data, fully acquainted itself with all conditions relevant to the work. • Bidder has made all reasonable investigations essential to a full understanding of the difficulties, which may be encountered in performing the work. • Bidder will complete the proposed provision of Services for the compensation stated in any resultant agreement.
• Bidder assumes full and complete responsibility for all conditions relevant to the proposed provision of Services and all risks in connection therewith. • Bidder represents that it is fully qualified to perform the proposed provision of Services in accordance with the terms of any resultant agreement within the time specified therein.
M. BID PROTEST AND APPEAL PROCEDURES: Bidders wishing to protest or appeal a contract award decision by the City of Modesto must follow the procedures provided in this section. Protests or appeals which are not submitted in accordance with these procedures will not be reviewed.
Definitions
For the purposes of these procedures: "Days" means working days in which City Hall is open for business, excluding holidays and weekends.
"Bid" includes the term "offer" or "proposal" as used in the context of formal, informal, or negotiated procurements.
"Announced Decision" includes the term “Notice of Intent to Award Letter”. Once the City has issued an Announced Decision, the date noted will begin the time that a Bidder may lodge a protest.
Protest Procedures
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12 • Only a Bidder who has actually submitted a Bid is eligible to submit a protest against the City’s Announced Decision.
• Subcontractors are not eligible to submit bid protests. • A Bidder may not rely on the bid protest submitted by another bidder but must timely pursue its own protest.
• A written protest to an Announced Decision must be made to the City of Modesto's Director of Finance no later than ten days after the date of the Announced Decision. • The protest shall be delivered or sent by registered mail and received by the City by the deadline, or protest will be automatically rejected. Protestors who choose to be represented by legal counsel are responsible for the associated expenses. • The protest shall be accompanied by a certified or cashier's check in the amount of $300.00, (except for protests of Federally Funded agreements), made payable to the Clerk of the City of Modesto. Protests filed without the requisite fee will be rejected without any additional review.
• The protest filed with the Director of Finance shall:
a. Include the name, address, email address and business telephone number of the protestor;
b. Identify the protest by name, Invitation for Bid (IFB) or Request for Proposal (RFP) number, and IFB/RFP date;
c. The bid protest must contain a complete statement of the basis for the protest and all supporting documentation. The protest must refer to the specific portion or portions of the Contract Documents upon which the protest is based; d. Include all supporting documentation, if any. Documentation submitted after filing deadline will not be reviewed.
• Bid Protests: A Bidder shall follow, in order, the following steps:
a. Protest to Director of Finance: Upon receipt of a complete and timely protest, the Director of Finance shall review all the submitted materials and shall create and retain a written record of the review. The Director of Finance shall respond at least generally to each material issue raised in the protest not later than ten days after receipt of the protest. Notice of the Director of Finance's decision may be given by letter mailed through U.S. Postal Service.
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13 All protests to the Director of Finance shall either be delivered to:
City Clerk’s Office
Attn: Director of Finance
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Director of Finance
PO Box 642
Modesto CA 95353
b. Appeal to Deputy City Manager: At the protestor’s discretion, the decision of the Director of Finance may be appealed in writing to the City of Modesto's Deputy City Manager(s) no later than ten days after the date of the Director of Finance’s Decision. The scope of the appeal shall be limited by the issues raised in the initial protest to the Director of Finance. The Deputy City Manager shall not be permitted to review any newly raised issues. The Deputy City Manager shall review the appeal, accompanying supporting documents, if any and the written records of the protest review by the Director of Finance. A written record of the Deputy City Manager's review shall be created and maintained. The Deputy City Manager shall give notice of their decision to the protestor within ten days after receipt of appeal.
Further protest appeals shall either be delivered to:
City Clerk’s Office
Attn: Deputy City Manager
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: Deputy City Manager
PO Box 642
Modesto CA 95353
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14 d. Appeal to City Council: Any protestor seeking to appeal to the decision of the Deputy City Manager may appeal in writing to the City Council by filing with the City Clerk a written notice of such appeal not later than ten days after the date of the Deputy City Manager's decision. The City Clerk will calendar the protest for Council hearing and give notice of the time and place of the hearing as provided in Modesto Municipal Code Sections 1-4.01 through 1-4.05. The City Council’s decision on the appeal shall be final.
All protest appeals to the City Council shall either be delivered to:
City Clerk’s Office
Attn: City Council
1010 Tenth St. Suite 6600
Modesto CA 95354
Or mailed to:
City Clerk’s Office
Attn: City Council
PO Box 642
Modesto CA 95353
e. Optional Alternative Process for Protests of Procurement Actions Exceeding $250,000: A Bidder protesting procurements exceeding $250,000 shall comply with the procedures contained herein, except that in lieu of appeal to the Deputy City Manager a protestor may request that the protest be heard and decided at an administrative hearing.
A written request for administrative hearing shall be accompanied by a certified or cashier's check in the amount of $1,500, (except for protests of Federally Funded projects); The request for hearing shall include the specific grounds of the appeal.
The City of Modesto shall select and engage an impartial and qualified person to act as hearing officer in the pending protest. The protestor shall have the right to twice reject the selected hearing officer, provided that the City is notified of such rejection within three days of notice to protestor of the name of the hearing officer.
The protest shall be heard not later than twenty days after receipt of protestor's request for hearing and the selection of a hearing officer. Protests not made in a timely manner shall be deemed withdrawn unless the City and the protestor #25..
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15 mutually agree otherwise in writing. The protestor’s failure to accept a hearing officer after the third attempt by City staff to identify an impartial hearing officer shall be deemed a withdrawal of the protest.
The costs of the hearing officer and expenses of the protest shall be borne by the protestor. The sums deposited with the request for hearing shall be credited to the costs of the hearing officer and other hearing expenses. f. Mandatory Alternative Process for Protests of Procurements Obtained with Federal Funds: If the protested procurement involves federal funds, the Deputy City Manager, City Council, or hearing officer shall give notice, accompanying their respective decisions, to the protestor that he or she has the right to appeal to the appropriate federal agency, for which an agency name, contact (where available) and address shall be provided by City staff. Such an appeal shall be filed with the appropriate agency within seven business days of the dispatch or rejection notices to the protestor. Federal agencies may entertain protests alleging that the City has failed to adopt written protest procedures or has failed to follow such procedures. The City Council is the highest authority of the City of Modesto, and its decisions are final. A disappointed Bidder for a contract involving expenditures of Federal funds shall have the right to appeal the City Council decision directly to the federal agency as described herein. #25..
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16 BID SUBMITTAL CHECKLIST
BID SUBMITTAL CHECKLIST
The Bidder shall provide a complete Bid in a sealed envelope by the required deadline on the Bid Opening Date. Failure to provide all the required documents may cause the Bid to be considered nonresponsive.
Bidder’s Bid must contain the following applicable elements completed and signed as described morefully herein. The following checklist is provided solely for Bidder’s use in reviewing the completeness of your submission:
COMPLETE BID ELEMENTS
Bid Form A – IFB Acknowledgement
Bid Form B – Bidder Company Information
Bid Form C - Pricing Schedule
Bid Form D – Bidder Exceptions, Clarifications, Amendments Bid Form E – Bidder Customer References
Bid Form F - Financial Interest Disclosure
Bid Form G – Support of Local Vendors
Bid Form H – Bidder Company History Statement
Bid Form I - Addenda Acknowledgement
Bid Form J – Bidder Warranty Statements
Bid Form K – Bidder Experience and Certifications
Bid Form L - Subcontractor List
Bidder’s submission should include all City of Modesto forms. If any form is not applicable, Bidder should write or type “Not Applicable” on it but still include the form in your submission. #25..
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17 BID FORM A - IFB ACKNOWLEDGEMENT
The City is soliciting Bids from qualified firms (each a “Bidder” to fulfill the City’s requirements per the specifications, terms and conditions contained in this Invitation for Bids (“Invitation for Bids” or “IFB”).
This Bid Acknowledgement must be completed, signed by an authorized responsible officer or employee, dated, and submitted with the Bid response. Obligations assumed by such signature will include the following:
1. Preparation of Bids: (a) All prices and notations must be printed in ink or typewritten. No erasures permitted. Errors may be crossed out and corrections printed in ink or typewritten adjacent and must be initialed in ink by person signing the Bid. (b) Quote price as specified in Bid. No alterations or changes of any kind shall be permitted to the Bid Form. Responses that do not comply shall be subject to rejection in total.
2. Failure to Submit Bid: If you are not submitting a Bid but want to remain on the mailing list and receive future Bids, complete, sign and return this Bid Acknowledgement and state the reason you are not pricing.
3. Taxes and Freight Charges: (a) Unless otherwise required and specified in the IFB, the prices quoted herein do not include Sales, Use or other taxes. (b) No charge for delivery, drayage, express, parcel post packing, cartage, insurance, license fees, permits, costs of bonds, or for any other purpose, except taxes legally payable by City, will be paid by the City unless expressly included and itemized in the Bid. (c) Amount paid for transportation of property to the City is exempt from Federal Transportation Tax. An exemption certificate is not required where the shipping paper shows the consignee as one (1) of the City; as such papers may be accepted by the carrier as proof of the exempt character of the shipment. (d) Articles sold to the City are exempt from certain Federal excise taxes. The City will furnish an exemption certificate.
4. Award: (a) Unless otherwise specified by the Bidder or the IFB gives notice of an all-or-none award, the City may accept any item or group of items of any Bid. (b) Bids are subject to acceptance by the City at any time within 45 days of opening, unless otherwise specified in the IFB. A Bidder shall not change its bid if accepted within such time. (c) A valid, contract based on the sample agreement attached to the IFB and the submitted bid shall be mailed, or otherwise furnished, to the successful Bidder within the time for acceptance specified, and such contract shall be a binding agreement without further action by either party. The contract shall be interpreted, construed, and given effect in all respects according to the laws of the State of California.
5. Patent Indemnity: Bidders who do business with the City shall hold the City, its officers, agents, and employees, harmless from liability of any nature or kind, including cost and expenses, for infringement or use of any patent, copyright or other proprietary right, secret process, patented or un- #25..
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18 patented invention, article or appliance furnished or used in connection with the contract or purchase order.
6. Samples: Samples of items, when required, shall be furnished free of expense to the City and if not destroyed by test may upon request (made when the sample is furnished), be returned at the Bidder’s expense.
7. Rights and Remedies of City for Default: (a) In the event any item furnished by the Bidder in the performance of the contract or purchase order should fail to conform to the specifications therefore or to the sample submitted by the Bidder with its Bid, the City may reject the same, and it shall thereupon become the duty of the Bidder to reclaim and remove the same forthwith, without expense to the City, and immediately to replace all such rejected items with others conforming to such specifications or samples; provided that should the Bidder fail, neglect or refuse to do so, the City shall thereupon have the right to purchase in the open market, in lieu thereof, a corresponding quantity of any such items. City may deduct from any moneys due or that may there after come due to Bidder or send an invoice to the Bidder which shall be paid within thirty (30) days, the difference between the prices named in the contract or purchase order and the actual cost thereof to the City. In the event that the Bidder fails to make prompt delivery as specified for any item, the same conditions as to the rights of the City to purchase in the open market and to reimbursement set forth above shall apply, except when delivery is delayed by fire, strike, freight embargo, or Act of God or the government. (b) Cost of inspection or deliveries or offers for delivery, which do not meet specifications, will be borne by the Bidder. (c) The rights and remedies of the City provided above shall not be exclusive and are in addition to any other rights and remedies provided by law or under the contract.
8. Payment Terms and Methods: Bidder will be able to choose from either of the following payment methods and associated timings:
(a) Option A (Preferred): City of Modesto ePay Payment: This secure payment methodology is preferred by an increasing number of the City’s suppliers. On Net 30-day timing, you will receive a single-use Master Card number with a detailed remittance for each payment. You will process the payment though your POS/Card terminal. The payment remittance will be sent from [email protected] via email and will contain the following information:
• 16-digit credit card number
• Expiration date
• Security code
• Total dollar amount of invoices to be paid
• Invoices reference numbers and corresponding amounts
ePay results in small percentage rebate of 1.0% to the City through the card issuer. That rebate amount will be considered by the City in its evaluation of Bidder’s pricing proposal hereunder. #25..
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19 Information about enrolling in MasterCard ePay program can be obtained from the City’s contact listed on the Cover Page of this IFB.
(b) Option B – Manual Check: On Net 45 Day timing, the City will mail a hardcopy check to Bidder. The payment will be deemed to have been made when the check envelope is mailed via US Postal Service First Class Mail. The timing of the mailing will be at the end of the Net 45 Day period. Additional time should be estimated by the Bidder for the check to be in transit, and to await deposit and clearance by Bidder staff.
9. California Government Code Section 4552: In submitting a Bid to the City, the Bidder offers and agrees that if the Bid is accepted, it will assign to the City all rights, title, and interest in and to all causes of action it may have under Section 4 of the Clayton Act (15 U.S.C. Sec. 15) or under the Cartwright Act (Chapter 2, commencing with Section 16700, of Part 2 of Division 7 of the Business and Professions Code), arising from purchases of Services, materials, or services by the Bidder for sale to the purchasing body pursuant to the Bid. Such assignment shall be made and become effective at the time the purchasing body tender’s final payment to the Bidder.
10. No Guarantee or Warranty: The City makes no guarantee or warranty as to the condition, completeness or safety of any material or equipment that may be traded under a contract or purchase order resulting from this Bid.
11. Two “Inked” Signed Original Bids Document Requested: Failure to furnish two “inked” signed original Bid document may result in disqualification. These must be accompanied by one copy and one electronic document recorded onto a USB storage device.
12. Minor Irregularities. The City reserves the right, in its sole discretion, to waive any informalities or minor irregularities in a Bid.
The undersigned acknowledges receipt of the referenced IFB and/or Addenda and offers and agrees to furnish the articles and/or services specified on behalf of the Bidder indicated in Bidder’s Bid Forms A through L, attached hereto, and made a part hereof, for the pricing proposed on the Pricing Schedule.
Bidder Company Name:
Bidder Headquarters Address:
City/State/Zip:
Signature/Title/Date:
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20 BID FORM B – BIDDER COMPANY INFORMATION
A. Bidder Company Full
Legal Name
B. Bidder Company
Marketplace (or DBA)
Name
C. Type of Legal Entity: ___ Corporation, registered in ____________________ (State) ___ Limited Liability Company, registered in _________________(State) ___ Partnership, registered in ________________(State)
___ Sole Proprietorship, registered in ____________(State) ___ Other ___________________________________________(Describe) D. Headquarters Address
(Street Address, City,
State, Country, Postal
Code):
E. Website Address: www.___________
F. Contact Person Details: Name:
Title:
Phone (Office):
Phone (Mobile):
Mailing Address (Street Address, City, State, Postal Code):
Fax Number:
Email:
G. Federal Taxpayer
Identification Number
(TIN):
H. Dun & Bradstreet
(DUNS) Number:
I. Names and Titles of
Top Three Bidder
Officers:
J. Years in Business:
K. Bidder Office Address
Closest to City of
Modesto (Street
Address, City, State,
Country, Postal Code):
L. City of Modesto
Business License
Number (note –
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21 provide only if
available now - - but
not required until any
contract begins):
M. State of California
Contractor License
Number and Expiration
Date (if available):
N. State of California
Department of
Industrial Relations
(DIR) Registration
Number and Expiration
Date (if available):
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22 BID FORM C - PRICING SCHEDULE
All labor, materials, equipment, tools, fuel, licenses, bonds, insurance, and other expenses necessary for Bidder to perform the required services shall be included in Bid pricing. Bid must be submitted on the below Pricing Schedule provided. No alterations should be made to the pricing schedule. Any exceptions, amendments or adjustments should be noted on Bid Form D – Bidder Exceptions, Clarifications, Amendments.
The payment of Prevailing Wages is required for this project.
WEEKLY SERVICE MARCH - OCTOBER
Item No. Site Quantity Unit Unit Cost Extended Cost
A1 Well 6 8 Month $ $
A2 Well 10 8 Month $ $
A3 Well 25 8 Month $ $
A4 Well 40 8 Month $ $
A5 Well 41 8 Month $ $
A6 Well 48 8 Month $ $
A7 Well 66 8 Month $ $
A8 Well 67 8 Month $ $
A9 Well 70 8 Month $ $
A10 Well 71 8 Month $ $
A11 Well 204 8 Month $ $
A12 Well 211 8 Month $ $
A13 Well 259 8 Month $ $
A14 Well 260 8 Month $ $
A15 Well 264 8 Month $ $
A16 Well 269 8 Month $ $
A17 Well 271 8 Month $ $
A18 Well 282 8 Month $ $
A19 Well 289 8 Month $ $
A20 Well 300 8 Month $ $
A21 Well 307 8 Month $ $
A22 Tank 3 8 Month $ $
A23 Tank 4 8 Month $ $
A24 Tank 5 8 Month $ $
A25 Tank 6 8 Month $ $
A26 Tank 10 8 Month $ $
A27 Tank 11 8 Month $ $
A28 Tank 12 8 Month $ $
A29 Tank 13 8 Month $ $
A30 Tank 14 8 Month $ $
A31 Water Corp Yard 8 Month $ $
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23 BI-WEEKLY SERVICE NOVEMBER - FEBRUARY
Item No. Site Quantity Unit Unit Cost Extended Cost
A32 Well 6 4 Month $ $
A33 Well 10 4 Month $ $
A34 Well 25 4 Month $ $
A35 Well 40 4 Month $ $
A36 Well 41 4 Month $ $
A37 Well 48 4 Month $ $
A38 Well 66 4 Month $ $
A39 Well 67 4 Month $ $
A40 Well 70 4 Month $ $
A41 Well 71 4 Month $ $
A42 Well 204 4 Month $ $
A43 Well 211 4 Month $ $
A44 Well 259 4 Month $ $
A45 Well 260 4 Month $ $
A46 Well 264 4 Month $ $
A47 Well 269 4 Month $ $
A48 Well 271 4 Month $ $
A49 Well 282 4 Month $ $
A50 Well 289 4 Month $ $
A51 Well 300 4 Month $ $
A52 Well 307 4 Month $ $
A53 Tank 3 4 Month $ $
A54 Tank 4 4 Month $ $
A55 Tank 5 4 Month $ $
A56 Tank 6 4 Month $ $
A57 Tank 10 4 Month $ $
A58 Tank 11 4 Month $ $
A59 Tank 12 4 Month $ $
A60 Tank 13 4 Month $ $
A61 Tank 14 4 Month $ $
A62 Water Corp Yard 4 Month $ $
ePay 1% Rebate (See Bid Form A for this option) $-( )
Total Cost for Items A1- A62 $
Additional Services: Pre-Emergent Spraying Assignments $ /Per Acre Rate Additional Services: Miscellaneous Work Assignments $ /Hourly Rate #25..
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24 The payment of Prevailing Wages is required for this project.
Labor Craft Direct Labor Rate*
Fringe Benefit
Rate**
Labor
Markup
(percent)
Price Per
Service
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
$ /HR $ /HR % $ /HR
*Direct Labor Rate cannot be less than the minimum state prevailing wage. **Provide a copy of the current Fringe Benefit Statement. During the term of the agreement, ensure the City has a copy of the current, applicable statement on file.
PAYMENT TERMS:
Check which of the following payment terms/methodology Bidder accepts (a description of each can be found in Bid Form A – IFB Acknowledgement):
CHOOSE ONE:
• Option A (Preferred): City of Modesto ePay Payment on Net 30 Day Timing: ___ Choose by checking () here. If selected, for bid comparison purposes, Bidder’s pricing will be reduced by the City of Modesto’s average ePay card program rebate percentage; or ePay Email Address: _____________________________
• Manual Check Payment Mailed by US Postal Service First Class Mail Only on Net 45 Day Timing:
___ Choose by checking () here.
THE undersigned acknowledges receipt of the referenced IFB and any associated Addenda and offers to furnish the articles and/or services specified, in accordance with the specifications, terms and conditions of this IFB and these Bid documents, for the pricing indicated on the Pricing Schedule.
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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25 BID FORM D – BIDDER EXCEPTIONS, CLARIFICATIONS, AMENDMENTS Exceptions to the City of Modesto’s IFB package, sample agreement, and associate specifications are not encouraged and may cause Bidder to be considered not responsible and/or its Bid to be considered not responsive. Therefore, if no exceptions, clarifications, or amendments are proposed by Bidder, it is preferred that Bidder so indicate by typing or writing “Not Applicable” in the Description field in the first item row below. Less preferred, Bidder may indicate no exceptions, clarifications or amendments are proposed by leaving this form out of its’ Bid submission.
Nonetheless, Bidder may request Bid clarifications and exceptions below, if any, sign and submit with your Bid response.
Any requested exception, clarification or amendment may not be accepted and may deem the Bidder as non-responsive.
Item # Reference To: Description
Page # Section or
Paragraph #
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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26 BID FORM E – BIDDER CUSTOMER REFERENCES
Bidder must provide a list of five current or former customers able to discuss prior experience with similar type of services requested by the City in the above-referenced IFB. Bidder’s references shall have similar volume and requirements to the City of Modesto’s as described in the above-referenced IFB. Bidders failing to provide references may be deemed as non-responsive.
The City may contact some or all of the references provided in order to determine the Bidder’s performance record on services similar to that described in the above-referenced IFB. The City reserves the right to contact references other than those provided in Bidder’s submission and to use the information gained from them in the award process.
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Service:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code:
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
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27 Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
Company Name:
Address:
City, State, Zip Code
Contact Person:
Email Address:
Telephone Number:
Type of Business or
Governmental
Agency:
Date Range of
Services:
Annual Contract Value $
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28 BID FORM F - FINANCIAL INTEREST DISCLOSURE
Any contract award to result from this IFB process and Bidder’s submission of a Bid therewith will require approval by a majority vote of the City of Modesto’s City Council. In order to have full transparency in any City of Modesto commercial actions, the City Council may not approve an agreement between the City and the Bidder until all person with a direct or indirect financial interest of greater than $2,000 in the Bidder are identified by name.
Bidder must therefore complete this Bid Form F – Financial Interest Disclosure, listing by name all parties that have a material financial interest in the agreement, contract, or development right.
PLEASE NOTE, any Council action that requires a Financial Interest Disclosure cannot be considered by the City Council until the required reporting is made. That means that City Council agenda items without the disclosure will be removed from the Council agenda.
Financial Interest Disclosure to City of Modesto
The Bidder shall identify any person with a financial interest in the Bidder by name, below.
For the purposes of this disclosure, a “Financial Interest” shall have the meaning contained in Modesto Municipal Code section 2-10.02.
Persons having an aggregate economic interest in the Bidder less than two thousand dollars ($2,000.00) at all times prior to final Council action of the proposed contract are not required to be listed on the Financial Interest Disclosure.
Notwithstanding the foregoing, a Financial Interest Disclosure is not required for a Bidder meeting the financial criteria for listing on the New York or the Pacific Stock exchanges unless it is reasonably foreseeable that a City Council decision will increase or decrease that entity's gross revenues or expenses by one million dollars ($1,000,000) or more and the requirements of Modesto Municipal Code Section 2-
10.03(h) are satisfied.
It is the legal obligation of all applicants for approval of an agreement or of an application for development rights to verify in writing, under penalty of perjury, that the identity of each person having a material financial interest in the Bidder is true, correct, and complete. By signing below, the applicant understands that this information is provided under penalty of perjury, and that intentionally supplying misinformation or deception may result in either invalidation of the agreement or application, or criminal prosecution for misdemeanor violation of the Modesto Municipal Code, or both. Negligent provision of misinformation shall be grounds for invalidation. In accordance with the Modesto Municipal Code, each applicant has a continuing obligation to maintain the truth, accuracy and completeness of the financial interest disclosure information provided below until after final consideration by the City Council of any matter arising out of or relating to the agreement or application.
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29 Print Names of Persons Having a Financial Interest in Bidder Receiving this Agreement:
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
First Name, Last Name
By signing this document, I agree to the information contained within.
Bidder Company Name:
Name of Bidder Signatory:
Signature of Bidder Representative:
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30 BID FORM G – SUPPORT OF LOCAL VENDORS
Notice Pursuant to Modesto Municipal Code section 8.3-206 - Should the Bidder which submits the lowest responsive Bid (and would otherwise normally qualify to receive the Bid pursuant to Sections 8-3.203 and 8-
3.204 of the Modesto Municipal Code) not be a local business as defined herein, the lowest Bid or quote submitted by a local business that is within five percent (5%) of the lowest Bid or quote, whether or not that Bidder is the second lowest Bidder, may be deemed to be the lowest Bidder if the local Bidder agrees to reduce its Bid to match the Bid of the lowest Bidder in writing within five business days after notification by City Purchasing staff, provided that said local Bidder is deemed to be a responsible Bidder as determined by the Purchasing Manager.
Notwithstanding the foregoing, award to the local Bidder must still be approved by the City Council as would have the typical award.
To qualify as a local Bidder, the Bidder must have a physical business location within the City of Modesto and a current City of Modesto business license.
This document is only required should the Bidder request to be considered for the Support of Local Vendor preference, and meets the criteria noted above.
Check here:
I declare I am a local business per the above criteria
Bidder Company Name:
City of Modesto Address (Street,
City, State, Postal Code:
City of Modesto Business License
Number:
Under penalty of perjury, the undersigned declares that the foregoing information is true and correct:
Print/Type Name:
Title:
Signature:
Date:
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31 BID FORM H - BIDDER COMPANY HISTORY STATEMENT
Bidder shall have been in business for a minimum of three continuous years (immediately prior to the time of the City’s solicitation) providing the services described in this Invitation for Bids (IFB).
The Bidder’s company history overview statement shall be approximately one to three pages in length and inserted below:
Bidder Company Legal Name: Insert Bidder Logo Here (if existent):
Insert Bidder Company History Overview Statement Beginning Here:
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32 BID FORM I - ADDENDA ACKNOWLEDGEMENT
In order to obtain any addenda information, throughout the IFB period, Bidder is responsible for regularly checking the City of Modesto’s Planet Bid website at https://pbsystem.planetbids.com/portal/14999/bo/bosearch for the IFB number listed on the Cover Page and in the header of each subsequent page of this IFB, and in any event, no later than the day prior to Bid opening.. The changes identified in any addenda issued will modify this IFB and specifications. The addenda now become a part of this IFB and Bidder’s resultant Bid.
Signing the Bid on the signature portion thereof, the Bidder is acknowledging that the Bidder has confirmed that it has received all addenda issued for IFB and has included costs for such in the Bid submitted. Failure to list and acknowledge all addenda numbers may cause Bidder’s Bid to be considered nonresponsive.
Do not attach any of the addenda to this sheet nor include them with the Bid.
If no addenda have been issued against this IFB solicitation, Bidder may write “Not Applicable” and return this Bid Form as part of its submission. Alternatively, Bidder may leave this Bid Form out of its submission.
But if any addenda have been issued by the City of Modesto this document is required to be completed and returned.
The Bid is submitted with respect to the changes to the IFB included in addenda numbers:
List All Addenda Numbers, Separated by Commas
(“,”):
Bidder Company Name:
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33 BID FORM J – BIDDER WARRANTY STATEMENTS
As a material part of its Bid, Bidder shall insert below a written statement detailing any materials and workmanship warranties, term, and conditions in conformance with the specifications and requirements set forth in this IFB.
Notwithstanding any other provisions of this IFB, Bidder warrants that the materials, supplies, or other services furnished under any contract or purchase order resulting from its Bid shall be on the most suitable grade and meet or exceed the standards set forth in this IFB. Such warranty shall include the following; performance, workmanship, labor, materials, and Bidder design or engineering contributions. If a defect is discovered in any item of the materials, assemblies, components, supplies, or services covered in this Bid, Bidder shall correct at its sole expense, all such defects as are reported within 30 days of City’s final acceptance. Upon expiration of the applicable warranty period, all such liability shall terminate except for fraud or such gross mistakes as amount to fraud, latent defects, or specific failure to comply with the terms or any resultant purchase order.
All materials, parts, labor, assemblies, and components shall by subject to the warranty conditions and terms unless specifically exempted in writing by the City of Modesto.
Bidder Company Legal Name: Insert Bidder Logo Here (if existent):
Insert Bidder Warranty Statement Beginning Here:
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34 BID FORM K – BIDDER EXPERIENCE AND CERTIFICATIONS
Bidder shall provide below a summary covering the following:
A. Experience: The Contractor and its employees directly involved in providing inspections, services and repairs shall have a minimum of three years’ experience providing the types of services requested in this IFB:
i. Identify key personnel and their position within your organization. ii. Provide a biographical summary or resume detailing the experience, level of expertise and qualifications of the key individuals providing the types of services requested herein. iii. If you plan to subcontract work, you must also indicate in Bid Form L – Subcontractor List the name and address of each firm and the type of work or tasks the subcontractor will perform. Identify key personnel assigned to the project, their position, qualifications, and representative experience.
B. Certifications: Bidder shall provide copies of all relevant certifications held for both company and any individuals required to perform the services requested herein. #25..
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35 BID FORM L - SUBCONTRACTOR LIST
Bidder shall list the name and the address of the place of business for each subcontractor who will perform work or labor or render services to the Bidder. In addition, list the type of work the subcontractor will perform, and; (if applicable) its Department of Industrial Relations (DIR) registration number and its California Contractor’s license number:
Name of
Subcontractor
Address Type of Work Contractor
License # (if any)
DIR
Registration #
(if any)
Bidder Company Name:
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36 TECHNICAL SPECIFICATIONS AND REQUIREMENTS
1.1 SCOPE OF WORK:
The City of Modesto Utilities Department, Water Division, is requesting sealed bids for landscape maintenance services for twenty-one (21) City water well sites, nine (9) water tank sites, and one (1) Corporation Yard.
Landscape Maintenance shall include, but is not limited to, lawn mowing and edging, weed control, shrub trimming, tree trimmings, planter maintenance, removal of debris, blowing, raking, irrigation inspections, repair, and lawn fertilization at thirty-one (31) sites. Pricing shall be provided on a monthly basis for each well site. In addition, Bidder should provide hourly labor rates for irrigation maintenance, tree pruning, and miscellaneous work assignments as needed.
The CONTRACTOR shall accomplish all of the work at the minimum standards as defined in this Invitation for Bid (IFB). Generally, turf and plant material shall be maintained in a healthy, well-groomed condition, and all areas shall be kept weed and debris free to the degree that the service levels permit.
The CONTRACTOR shall furnish to the City within fifteen (15) days after approval of the agreement, a work schedule showing the proposed dates and time of work for the locations shown in this IFB document.
1.2 SITE VISIT:
A mandatory site visit is scheduled for April 25, 2023, beginning promptly at 8:00 A.M, located at City of Modesto Water Administration Office, 4240 Litt Road, Modesto, CA 95357. Please arrive 15 minutes early to allow for check-in. Immediately following, the additional locations will be visited in the order below:
1.) Water Administration Office, 4240 Litt Road
2.) Well 67, 4016 Litt Road
3.) Tank 4, 3720 Aria Way
4.) Well 260, Corner of McGerry St. / Colin Way
5.) Well 211, 904 Edgebrook Dr
6.) Tank 13, 525 Codoni Rd.
A site inspection for listed locations are the most representative of site locations, however, it is the bidders responsibility to become familiar with all sites in order to provide a proper bid response. Any questions regarding these sites should be directed in writing, to the buyer listed in this bid document. To coordinate a more efficient site inspection, it is requested that each Bidder limit the number of representatives attending to two (2) individuals, and expect to spend approximately 4 hours for the entire bidders conference. A sign in sheet will be provided, and attendance will be taken at each site location. Bidders must attend all (6) site visits in order to participate in this bidding event. Prospective bidders assume all risks of damage or loss to person and property and specifically release City from liability therefore.
1.3 GENERAL INFORMATION:
It is the intent of the City to establish a long-term relationship with the CONTRACTOR. To achieve the best level of service possible, the City believes that the relationship must be based on mutual trust and respect. The performance of the successful CONTRACTOR shall have a direct impact on the City’s provision of quality service to the residents of the City of Modesto. As such, teamwork, flexibility, and cooperation shall be essential characteristics of the successful CONTRACTOR. #25..
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INVITATION FOR BIDS # 2223-23RB
LANDSCAPE MAINTENANCE
SERVICES FOR WATER WELLS AND
TANK SITES
37 Locations, Lot Sizes and Landscape Requirements
SITE LOCATION CITY
SQ.
FT.
LANDSCAPE
REQUIREMENTS
Well 6 520 E. Morris Ave. Modesto 8,020
Lawn mowing, shrub pruning, and
weed control
Well 10 405 5th St. Modesto 5,000
Lawn mowing, shrub pruning, and
weed control
Well 25 607 Woodrow Ave. Modesto 595 Shrub pruning , and weed control Well 40 420 N Riverside Dr Modesto 8,000
Tree and Shrub pruning and weed
control
Well 41 3427 Saginaw Ct. Modesto 15,000 Shrub pruning and weed control Well 48 4417 McHenry Ave. Modesto 15,000 Shrub Pruning and weed control Well 66 1824 Estrellita Ct. Modesto 2,000
Lawn mowing, shrub pruning, and
weed control
Well 67 4016 Litt Rd. Modesto 5,000 Shrub Pruning and weed control Well 70 7121 McHenry Ave Modesto 17,000
Tree and shrub pruning and weed
control
Well 71 2505 Brenner Modesto 15,352 Weed Control
Well 204 431 Trask Ln Modesto 15,000
Lawn mowing, shrub pruning, and
weed control
Well 211 904 Edgebrook Dr. Modesto 21,000
Lawn mowing, shrub pruning, and
weed control
Well 259 3300 Coffee Rd. Modesto 3,213
Lawn mowing, shrub pruning, and
weed control
Well 260 Corner of McGerry St./Colin Way Modesto 10,375 Weed control Well 264 199 Robinhood Dr. Modesto 900
Lawn mowing, shrub pruning, and
weed control
Well 269 1211 Rose Ave Modesto 1,566
Lawn mowing, shrub pruning, and
weed control
Well 271 1260 Country Club Dr. Modesto 5,000 Shrub Pruning and weed control Well 282 7312 Hillcrest Dr. Del Rio 2,320
Blow debris inside and out of lot,
and weed control
Well 289 7129 Beltis Dr. Del Rio 2,320
Blow debris inside and out of lot
and weed control
Well 300 1619 Sunrise Ave. Modesto 5,401
Lawn mowing, shrub pruning, and
weed control
Well 307 2237 Glendale Ave. Modesto 10,000
Lawn mowing, shrub pruning, and
weed control
Tank 3 701 Zeff Rd Modesto 28,036 Shrub pruning, and weed control Tank 4 3720 Aria Way Modesto 223,380 Shrub pruning, and weed control Tank 5 2400 Merle Ave. Modesto 50,400 Shrub pruning, and weed control Tank 6 1201 S Carpenter Rd Modesto 84,700
Tree and shrub pruning, and weed
control
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SERVICES FOR WATER WELLS AND
TANK SITES
38 Tank 10 Corner of Ironside Dr./Girasol Way Modesto 2,500 Lawn mowing, shrub prune, and
weed control
Tank 11 1105 Bangs Ave. Modesto 237,445 Shrub pruning, and weed control Tank 12 2616 Elm Way Modesto 392,505 Shrub pruning, and weed control Tank 13 525 Codoni Rd. Modesto 228,150 Shrub pruning, and weed control Tank 14 718 Ladd Rd. Modesto 84,400 Shrub pruning, and weed control Water Corp Yard 4240 Litt Rd. Modesto
47 acres
Tree and shrub pruning, and weed
control
1.4 TASK FREQUENCY:
Mowing, edging, shrub trimming, planter maintenance, debris removal, blowing, and raking shall be done weekly at each site during the months from March through October. From November to February, these services will be done every other week (bi-weekly). Lawn fertilization is to be done every other month throughout the year (bi-monthly). Weed control is to be done monthly during November to February and bimonthly from March through October at all sites.
1.5 MOWING:
A. Cutting edges of all mowing equipment shall be kept sharp. Excessive tattering, shredding, bruising, or tearing of grass blades shall not be permitted. Mowers shall be adjusted and operated so that the grass is cut to a uniform height.
B. Mowing equipment shall be subject to inspection by the City’s Representative. Any corrective measures requested by the City Representative shall be completed within two (2) working days from the time of the request. Such repairs shall be made at the expense of the CONTRACTOR.
C. Lawns shall be cut to a height of 1 ½ inches, from March through November and may be cut to a height of two (2) inches from December through February.
D. When lawns cannot be cut on the scheduled day due to rain or other wet turf conditions, the lawns may be cut at the next scheduled mowing day after the ground conditions improve. All quality mowing heights and other specifications shall remain in effect even on these delays.
1.6 CLIPPING REMOVAL:
A. Lawn clippings shall be removed offsite and disposed of after each mowing.
1.7 TRIMMING:
A. Trimming shall include cutting all grass along walls, fences, foundations, curbs, sidewalks, shrubs, planters, poles, guy-wires, and any other object withinor immediately adjacent to the lawn areas.
B. Trimming along hard surfaces shall be done by a power edger or by hand, but in no case shall soil sterilant or other types of weed killers be permitted, without prior written approval from the City Representative or designated representative. Fencing shall remain free from clumps of cut grass. #25..
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INVITATION FOR BIDS # 2223-23RB
LANDSCAPE MAINTENANCE
SERVICES FOR WATER WELLS AND
TANK SITES
39 Clippings shall be removed and disposed of from all hard surfaces following each mowing and trimming.
C. Trimming around sprinkler heads shall be done when necessary to provide adequate coverage.
D. Special care shall be taken to avoid damage to the tree trunks, shrubs, sprinklers, buildings, and other structures. If the CONTRACTOR’s equipment or employees cause damage to the trees, the CONTRACTOR shall replace the trees with trees of equal or greater size and species, at no cost to the City.
1.8 FERTILIZING:
A. The City Representative shall approve all fertilizers prior to their application.
B. The CONTRACTOR shall provide the City Representative with the schedule of fertilization at a minimum of seven (7) calendar days in advance of said application.
C. After the application of the fertilizer the CONTRACTOR shall promptly clean all walks and hardscape of excess fertilizer. Fertilizer shall not be permitted to enter the storm drain system.
D. Turf areas shall receive fertilizer applications that will maintain the turf in good conditions with horticultural acceptable growth and color. The positive effects of the fertilization shall be obvious for three (3) months following application. Growth shall be consistent without streaking or chemical burns.
1.9 WEED CONTROL
Weeds may be controlled by chemical, mechanical or manual means. This includes shrubs and flower planters, pathways, hard surfaces, tree basins, posts, signs, building foundations, fence and wall lines, cracks, and seams in hard surfaces and all other areas. The CONTRACTOR shall assume landscape areas in “as is” condition and improve to a weed-free condition and maintain a weed-free condition.
1.10 WEED METHOD OF CONTROL:
The Contractor may use whatever control methods deem necessary to meet the performance criteria while adhering to restrictions and prohibitions listed in thisIFB.
A. Chemical Control: Any herbicide chemical that is registered by the proper authority for use on the target pest, and according only to label directions. This may include the use of growth control regulators on turf edges and tree basins. Weeds shall be reduced to less than 6 inches in height prior to chemical treatment. **Pre-emergent may be used where needed, but not within 100’ of water well**
The Contractor shall be solely responsible for all staffing certifications, permits, licenses, documentation, record keeping, and all other legal requirements associated with the use of pesticides.
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INVITATION FOR BIDS # 2223-23RB
LANDSCAPE MAINTENANCE
SERVICES FOR WATER WELLS AND
TANK SITES
40 B. Mechanical Control: The CONTRACTOR may use any mechanical or manual method necessary to conform to the performance specifications, as long as the choice of method used meets with commonly accepted landscape maintenance practices. The CONTRACTOR shall be responsible for damage to trees and other plants caused by the CONTRACTOR’s actions. Discing or deep tilling shall not be permitted without written permission from the Technical Liaison. The CONTRACTOR shall be responsible for the disposal of debris that results from mechanical or manual control measures.
1.11 DRIFT, OVER-SPRAY AND LEACHING:
The CONTRACTOR shall be responsible at all times for the control of spray drift, over-spraying, down-slope leaching or any other encroachment of herbicide, insecticide, or other pesticide onto non-target areas. The CONTRACTOR shall be responsible for any and all damages caused by drift, over-spray, or leaching.
1.12 DISCHARGE TO STORM DRAIN SYSTEM:
The CONTRACTOR shall at no time permit herbicide materials to be applied in such a manner as to allow the herbicide to runoff or drift into any storm drainage system. Herbicide tanks and equipment shall not be rinsed out as to allow the herbicide to runoff or drift into any storm drainage system.
1.13 DAMAGE RESPONSIBILITY:
All damage to turf, trees, shrubs, ground cover or other landscaping items, such as, irrigation systems, landscape structures, due to the CONTRACTOR’s negligence as determined by the City Representative shall be the financial responsibility of the CONTRACTOR and shall be repaired by City forces at the CONTRACTOR’s expense. Such expenses shall be deducted from the CONTRACTOR’s next scheduled payment. Damages not attributable to the Contractor’s negligence shall be the responsibility of the City. All damages caused by the CONTRACTOR to private property shall be the sole responsibility of the CONTRACTOR to make restitution.
1.14 EQUIPMENT:
Beginning on the effective date of the contract, the CONTRACTOR shall provide, at their expense, all necessary equipment to perform all tasks required in the agreement.
The CONTRACTOR shall, at all times, furnish and maintain equipment necessary to perform all of the work under any resulting contract. If the equipment breaks down, the CONTRACTOR shall be responsible to complete the work within twenty-four (24) hours. If the CONTRACTOR is unable to complete the work within that time period, the City shall deduct the applicable portions, pro-rata, from the payment to the CONTRACTOR.
1.15 MATERIALS AND EQUIPMENT:
Materials shall include, but are not limited to the following:
A. All necessary gas, oil, and parts for all equipment.
B. All necessary fertilizers and pesticides.
C. All necessary horticultural supplies and plant materials. #25..
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INVITATION FOR BIDS # 2223-23RB
LANDSCAPE MAINTENANCE
SERVICES FOR WATER WELLS AND
TANK SITES
41 D. All required licenses and certificates.
1.16 WORK SCHEDULE:
The CONTRACTOR shall schedule landscape maintenance Monday through Friday, from the hours of 7:00 A.M. to 4:00 P.M., excluding all major holidays. Deviation from this schedule shall not be permitted without the written permission of the City Representative. The CONTRACTOR’s activities shall in no case interfere with recreational programs, organized leagues, or other City sanctioned activities.
From time to time, the City may conduct improvement projects, maintenance and repairs, or other construction, at sites described in this bid. The CONTRACTOR shall cooperate with the City, or its agents, while said work is underway.
1.17 WORKMANSHIP AND QUALITY:
All work shall be performed by experienced landscape and gardening professionals, directly employed, and supervised by the CONTRACTOR. The CONTRACTOR shall provide management and technical supervision through a qualified and competent foreman, as required to implement modern methods and newly developed horticultural procedures.
The CONTRACTOR shall be responsible for the skills, methods, and actions of all of their employees and for all of the work done by the CONTRACTOR’s personnel. The CONTRACTOR shall work directly with the City’s Representative in determining the quality of the work being performed. The CONTRACTOR shall give personal supervision to the work performed and shall be available for consultation with the City Representative.
1.18 REPORTING PROBLEMS:
The Contractor shall be a representative of the City as a primary contact with park users and neighbors, and as such, the Contractor shall make every effort to represent the City in a professional and attentive manner. When a neighbor brings an issue to the Contractor that is not part of the Contractor’s formal responsibility, the Contractor shall inform the Technical Liaison of the issue in a timely manner.
1.19 REPORTING WORK:
The Contractor’s Manager shall meet with the Technical Liaison on a monthly basis, and at other times that may be required by the City Representative, to review the Contractor’s performance of the contract, and to discuss any problems or matters as determined by the City Representative. Additionally, the Contractor, or their designated representative, shall meet on a weekly basis with the City Representative, to review landscape conditions.
1.20 CORRECTIVE WORK:
The Contractor shall perform the work described herein, under the direction and satisfaction of the City Representative, or his designated representative. The City Representative or his designated representative, may make inspections of the work at any time, and request the Contractor make corrections to any work that does not meet the standards outlined in this IFB. If corrective work is required, the City shall provide the Contractor with a written list of items that need correcting, and the Contractor shall make the necessary corrections within #25..
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INVITATION FOR BIDS # 2223-23RB
LANDSCAPE MAINTENANCE
SERVICES FOR WATER WELLS AND
TANK SITES
42 forty-eight (48) hours. If the corrections are not made, the City shall deduct those applicable portions, pro-rata, from the Contractor’s payment. Repeated failures to provide services at the standards stated in these specifications, or failure to respond to requests for corrective work, may result in the termination of the agreement.
1.21 CONTRACTOR MARKUP:
The Contractor may apply a markup of ten percent (10%) on all parts, components or materials used in the furnishing of services and repairs. The markup shall be applied to the Contractor’s landed cost, plus sales tax on the landed cost less any earned discounts. The Contractor shall provide the City with a copy of all supplier invoices upon request.
1.22 EMERGENCY SERVICES:
The Contractor shall provide the City Representative with the names, telephone numbers and of the Superintendent and two (2) qualified employees who have twenty-four (24) hour communication availability.
City representatives may contact these employees when emergency maintenance conditions occur during hours when the Contractor’s normal work force is not present.
1.23 STAFFING REQUIREMENTS:
A. Contractor shall provide, at all times, adequate and expert managerial and administrative supervision for its employees in the service area. Contractor agrees that all persons working for or on behalf of Contractor whose duties bring them upon the premises shall obey the rules and regulations that are established by the City and shall comply with the reasonable directions of its officers.
B. Contractor shall provide sufficient back-up in times of staff shortages due to vacations.
C. The Contractor’s employees assigned to this contract shall be well groomed and dressed in a uniform that clearly identifies the employee’s name and company. The Contractor shall provide sufficient supervisory personnel that can represent the Contractor at all times.
D. The Contractor’s equipment shall also be easily identified as such.
1.24 CONTRACTOR’S UNSATISFACTORY EMPLOYEES:
If at any time the City determines that any person employed by the Contractor providing maintenance services under the agreement requires corrective action, the City shall notify the Contractor who shall take immediate corrective action. The Contractor shall be solely responsible for the hiring, supervising, training, disciplinary actions, and termination of their employees.
If any person employed by the Contractor fails or refuses to carry out the direction of the City Representative, or appears to be incompetent, or acts in a disorderly or improper manner, that person shall be discharged immediately from the project on the request of the City Representative or Purchasing Manager, and such person shall not again work on any City project.
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INVITATION FOR BIDS # 2223-23RB
LANDSCAPE MAINTENANCE
SERVICES FOR WATER WELLS AND
TANK SITES
43 1.25 REPORTING/REPAIRING VANDALISM:
When the Contractor finds landscape vandalism, the Contractor shall immediately notify the City Representative and the City Representative shall either instruct the Contractor to do repairs or reserve repairs for City staff.
1.26 CITY REPRESENTATIVE:
Work under any resulting agreement shall be performed under the general technical guidance and direction of the City Representative - Tony Benns (209) 342-4568 The City Representative is not authorized to commit the City to changes in specifications, requirements, scope of work, or changes in pricing. Changes of a contractual or business nature shall be affected only by written change to the agreement, issued by the City of Modesto, Purchasing Division.
1.27 PEDESTRIAN SAFETY:
The Contractor shall place barricades and/or safety ribbon as necessary to restrict access to the work areas.
Contractor shall be responsible for maintaining access control for work areas from the time the service or repair starts until the time the work site is returned to its proper condition.
1.28 CLEANUP:
Prior to requesting a final inspection, the Contractor shall carefully clean up and remove all surplus materials and/or debris of any type resulting from the Contractors’ work from the work site and shall dispose of all of the materials and debris in a proper manner. The work site shall be left clean and neat.
1.29 CONTRACTOR’S RESPONSIBILITY FOR WORK:
Until the formal acceptance of the work by the City Representative, the Contractor shall be responsible for and have care, custody, and control of the work and of the parts, materials, and equipment to be used therein, delivered to the work site. The Contractor shall bear full risk of loss, injury, or damage to any part of the work and parts, material, or equipment by action of the elements, or from any other cause, whether arising from the execution or non-execution of the work. The Contractor shall rebuild, repair, restore and make whole, all loss or damage to any portion of the work or parts and materials, before final acceptance, and shall bear the expense thereof, except for such loss or damage caused by the acts of the City, State, or Federal Government, or by an act of God as defined in Section 4150 of the California Government Code.
Suspension of work for any cause whatsoever shall not relieve the Contractor of their responsibility for the work or parts and/and or materials as required for the work performed.
The Contractor shall be responsible for any damage their activities cause to adjacent public or private property.
The Contractor shall take all measures necessary to protect the surrounding area from debris or other damage resultant from the project activities.
1.30 LABOR FORCE AND SUPERVISION:
The Contractor shall provide sufficient labor at all times to carry out the work properly and shall ensure that competent workers who are skilled in the type of work required are employed. The Contractor shall ensure that supervision is provided at all times while any work under this contract is being performed. If, in the judgment #25..
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INVITATION FOR BIDS # 2223-23RB
LANDSCAPE MAINTENANCE
SERVICES FOR WATER WELLS AND
TANK SITES
44 of the City, any person is incompetent or disorderly, Contractor shall promptly remove such person from the work for the duration of the contract.
1.31 DELAY BY THE CITY:
Any act or omission of any kind by the City of Modesto, its officers, agents, or employees, which causes the Contractor delay in the completion of the work shall be grounds for extension of time on the part of the Contractor to complete the work but shall give the Contractor no damages for such delay.
1.32 ADDITIONAL AND EMERGENCY PROTECTION:
Whenever, in the opinion of the City Representative, the Contractor has not taken sufficient precautions for the safety of the public, or property and structures adjacent to the work site, the City Representative may provide suitable protection with or without first notifying the Contractor.
The cost and expense of such protection provided by the City shall be borne by the Contractor. The City shall deduct the cost of such protection from any monies due or to become due to the Contractor.
1.33 REQUIRED LICENSES:
Prior to beginning any service that shall be furnished under this specification, the Bidder shall secure the appropriate Business/Delivery license from the City of Modesto. Business/Delivery license information may be obtained by calling (209) 577-5389 or emailing [email protected]. The successful Bidder shall maintain a City of Modesto business license for the duration of the agreement.
1.34 CALIFORNIA CONTRACTORS LICENSE: If the Bidder is furnishing any labor or service including installation or maintenance, the Bidder shall be registered as a contractor with the Department of Industrial Relations and possess the appropriate California Contractor's license(s) at the time the Bid is submitted. A contract shall not be awarded to a Bidder that is not registered with the Department and Industrial Relations or does not possess the appropriate Contractor's license(s). The appropriate Contractor's license(s) is that specified in this request, or if not specified, that which is otherwise required by law, and qualifies the Contractor to do business in the State of California. Bidder shall indicate its license(s) number and expiration date on the Pricing Schedule.
C-27 – LANDSCAPING CONTRACTOR: A landscape CONTRACTOR constructs, maintains, repairs, installs, or subcontracts the development of landscape systems and facilities for public and private gardens and other areas which are designed to improve the grounds aesthetically, architecturally, horticulturally, or functionally within or surrounding a structure or a tract or plot of land. In connection therewith, a landscape contractor prepares and grades plots and areas of land for the installation of any architectural, horticultural, and decorative treatment or arrangement.
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45 SAMPLE AGREEMENT
SAMPLE ANNUAL AGREEMENT - SERVICES
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this ____ day of ____________________ , 2023, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and _________________, a ______ _______, hereinafter called CONTRACTOR.
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2023-xx authorizing the Award of Bid and agreement for the LANDSCAPE MAINTENANCE SERVICES FOR WATER WELLS AND TANK SITES to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and WHEREAS, the CONTRACTOR provided a responsive and responsible submittal that best meets the CITY needs, attached hereto as Exhibit “B”, and made a part hereof, and WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for the LANDSCAPE MAINTENANCE SERVICES FOR WATER WELLS AND TANK SITES as described in IFB 2223-23RB attached hereto as Exhibit “C” and made a part hereof (hereinafter called IFB).
NOW, THEREFORE, the parties hereto mutually agree as follows:
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46 1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses, and insurance necessary to perform and complete the required work as specified in Exhibit “C”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $_________________. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $____________. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on Bid attached hereto as Exhibit B.
AGREEMENT PRICING
WEEKLY SERVICE MARCH - OCTOBER
Item No. Site Unit Extended Cost
A1 Well 6 Month $
A2 Well 10 Month $
A3 Well 25 Month $
A4 Well 40 Month $
A5 Well 41 Month $
A6 Well 48 Month $
A7 Well 66 Month $
A8 Well 67 Month $
A9 Well 70 Month $
A10 Well 71 Month $
A11 Well 204 Month $
A12 Well 211 Month $
A13 Well 259 Month $
A14 Well 260 Month $
A15 Well 264 Month $
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47 A16 Well 269 Month $
A17 Well 271 Month $
A18 Well 282 Month $
A19 Well 289 Month $
A20 Well 300 Month $
A21 Well 307 Month $
A22 Tank 3 Month $
A23 Tank 4 Month $
A24 Tank 5 Month $
A25 Tank 6 Month $
A26 Tank 10 Month $
A27 Tank 11 Month $
A28 Tank 12 Month $
A29 Tank 13 Month $
A30 Tank 14 Month $
A31 Water Corp Yard Month $
BI-WEEKLY SERVICE NOVEMBER - FEBRUARY
Item No. Site Unit Extended Cost
A1 Well 6 Month $
A2 Well 10 Month $
A3 Well 25 Month $
A4 Well 40 Month $
A5 Well 41 Month $
A6 Well 48 Month $
A7 Well 66 Month $
A8 Well 67 Month $
A9 Well 70 Month $
A10 Well 71 Month $
A11 Well 204 Month $
A12 Well 211 Month $
A13 Well 259 Month $
A14 Well 260 Month $
A15 Well 264 Month $
A16 Well 269 Month $
A17 Well 271 Month $
A18 Well 282 Month $
A19 Well 289 Month $
A20 Well 300 Month $
A21 Well 307 Month $
A22 Tank 3 Month $
A23 Tank 4 Month $
A24 Tank 5 Month $
A25 Tank 6 Month $
A26 Tank 10 Month $
A27 Tank 11 Month $
A28 Tank 12 Month $
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48 A29 Tank 13 Month $
A30 Tank 14 Month $
A31 Water Corp Yard Month $
Additional Services: Pre-Emergent Spraying Assignments $ /Per Acer Rate Additional Services: Miscellaneous Work Assignments $ /Hourly Rate
2. PREVAILING WAGES:
In accordance with California Labor Code Section 1771, CONTRACTOR shall pay all workers, and shall ensure its subcontractors pay all of their workers, engaged in performing the services described in Exhibit “C” not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the services described in Exhibit “C” are to be performed, and not less than the general prevailing rate of per diem wages for holiday and overtime work as provided in the California Labor Code. In accordance with California Labor Code Section 1773.2, the City has obtained the general prevailing wages in the locality in which the services described in Exhibit A are to be performed for each craft or type of work needed to be as published by the State of California Department of Industrial Relations, Division of Labor Statistics and Research, a copy of which is on file in the CITY’s Purchasing Department and shall be made available on request. Contractor must comply with all applicable laws and regulations that apply to wages earned in performance of the services described in Exhibit “C”, including those set forth in Labor Code section 1770 et. seq. and in the IFB.
DIR Project ID#: _________________
3. CITY REPRESENTATIVE:
CITY Representative is:
Purchasing Contact: Carol Wattle, Buyer, (209) 577-5406 , [email protected] The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division. #25..
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49 4. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of two years, with three one-year extension options at the sole discretion of CITY, for a total of up to five years.
Year 1: 2023 through 2024
Year 2: 2024 through 2025
Year 3: 2025 through 2026
Year 4: 2026 through 2027
Year 5: 2027 through 2028
Pricing as set forth in Section 1.e. above shall remain firm for the first two years of the AGREEMENT.
Price increases for any subsequent AGREEMENT years following the second year, shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one AGREEMENT year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing, 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
5. LIABILITY INSURANCE:
The CONTRACTOR 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 City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 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 registered mail, return receipt requested, for all of the following stated insurance policies.
a. General Liability - insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability. #25..
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50 b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
c. Workers' 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 per accident for bodily injury or disease.
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 CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR 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 CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR 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.
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 CONTRACTOR for the CITY.
The CONTRACTOR’s insurance policy(ices) 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 CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, and volunteers. Any insurance or self-insurance #25..
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51 maintained by CITY, its officers, officials, employees, or volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
6. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR [TO BE DETERMINED BY IFB RESPONSE IN FINAL AGREEMENT, EITHER “Net 30 terms via CITY’s ePay Program” or “Net 45 Days via manual check”.]. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
• This AGREEMENT number
• CITY department/division name and address
• Billing period
• Service hours worked day and week
• Unit price, extended price, sales tax, and total
7. INDEMNITY: The CONTRACTOR shall hold the CITY, its agents, officials, 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 negligent or intentional act or omission of CONTRACTOR, or its agents, officials, officers, employees, or volunteers relating to or during the #25..
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52 performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its agents, officials, officers, and employees harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.
8. VENUE & GOVERNING LAW:
Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.
9. ATTORNEYS’ FEES: If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
10. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced after the agreement administrator receives and has on file:
Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
a. Resolution No.2023-_______;
b. CONTRACTOR Bid submittal;
c. IFB No. 2223-23RB
d. Contractor’s City of Modesto business license
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53 11. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any nonperformance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice. Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience: The City may also terminate this AGREEMENT the Contractor's performance underthe Agreement, eitherin whole orin part, at its own discretion and without cause.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors, and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are 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, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and #25..
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54 material as may have been accumulated by the CONTRACTOR in performing the SERVICES 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 SERVICES 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 SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.
CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR 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 SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such #25..
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55 SERVICES.
12. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
13. FAILURE TO PERFORM SATISFACTORY WORK: It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Have such required work done by CITY forces or otherwise, and charge the cost thereof to the CONTRACTOR, or
c. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence.
Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.
14. ASSIGNMENT OF RIGHTS: The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to the #25..
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56 CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550- 4554).
15. CITY PROCESS/PROCEDURE APPROVALS: CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.
16. DIR REGISTRATION: Pursuant to Labor Code section 1771.1, CONTRACTOR may not engage in the performance of the Services set forth in Exhibit “C”, unless currently registered and qualified to perform public work pursuant to Section 1725.5 thereof. As required in Section 7029.1 of the Business and Professions Code or by Section 10164 or 20103.5 of the Public Contract Code, that during term of this AGREEMENT, CONTRACTOR shall be registered to perform public work pursuant to Section 1725.5 thereof.
17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES: If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.
18. NOTICES:
Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:
CONTRACTOR: __________________
__________________
__________________
__________________
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57 CITY: City of Modesto
Purchasing Division
P.O. Box 642
Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
19. SIGNATORY(IES) FOR CONTRACTOR:
Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.
20. QUANTITIES: No minimum or maximum is guaranteed
or implied.
21. FUNDING: All annual extensions are based upon continuous funding for that purpose by the City Council. Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.
22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES: If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination.
The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment #25..
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58 and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours’ notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
24. CONTRACTOR LICENSES & PERMITS: CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.
25. RECORDS: All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this #25..
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59 Agreement and that relate to the matters covered hereunder shall be the property of the CITY.
CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse, or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.
26. FACILITIES AND EQUIPMENT: Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” and “C”, and only under the terms and conditions set forth herein.
27. INDEPENDENT CONTRACTOR; NOT AGENT: At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.
28. DRUG FREE WORKPLACE: CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.
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60 29. ASSIGNMENT:
Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.
30. 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.
31. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
32. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
33. ENTIRE AGREEMENT:
This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the IFB, attached hereto as Exhibit C, are incorporated herein. In the event of a conflict between the IFB and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties. #25..
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61 34. 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.
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62 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement in duplicate by its City Manager and attested 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 _____________________has caused this Agreement to be duly executed.
CITY OF MODESTO, CONTRACTOR
A municipal corporation
By: __________________________ By: _________________________________ JOSEPH P. LOPEZ, (Signature)
City Manager
By: _________________________________
(Name & Title)
ATTEST: Date: _______________________________
By: __________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
By: ____________________________
JOSE M. SANCHEZ,
City Attorney
By: ____________________________
JOE F. RODRIQUEZ,
Risk Manager
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ITEM # ITEM/DESCRIPTION QTY UNIT OF
SERVICE
MARCH -
OCTOBER ISSUE UN PRC EXTENSION UN PRC EXTENSION UN PRC EXTENSION UN PRC EXTENSION UN PRC EXTENSION A1 Well 6 8 MONTH $504.00 $4,032.00 $59.77 $478.16 $278.00 $2,224.00 $254.58 $2,036.64 $320.00 $2,560.00 A2 Well 10 8 MONTH $504.00 $4,032.00 $37.29 $298.32 $111.00 $888.00 $254.58 $2,036.64 $250.00 $2,000.00 A3 Well 25 8 MONTH $336.00 $2,688.00 $4.50 $36.00 $138.00 $1,104.00 $21.22 $169.76 $90.00 $720.00 A4 Well 40 8 MONTH $504.00 $4,032.00 $59.77 $478.16 $263.00 $2,104.00 $84.86 $678.88 $180.00 $1,440.00 A5 Well 41 8 MONTH $504.00 $4,032.00 $111.87 $894.96 $228.00 $1,824.00 $84.86 $678.88 $100.00 $800.00 A6 Well 48 8 MONTH $336.00 $2,688.00 $111.87 $894.96 $279.00 $2,232.00 $21.22 $169.76 $145.00 $1,160.00 A7 Well 66 8 MONTH $252.00 $2,016.00 $14.87 $118.96 $0.00 $0.00 $60.00 $480.00 $155.00 $1,240.00 A8 Well 67 8 MONTH $756.00 $6,048.00 $37.29 $298.32 $527.00 $4,216.00 $254.58 $2,036.64 $1,075.00 $8,600.00 A9 Well 70 8 MONTH $420.00 $3,360.00 $126.68 $1,013.44 $242.00 $1,936.00 $84.86 $678.88 $125.00 $1,000.00 A10 Well 71 8 MONTH $336.00 $2,688.00 $114.52 $916.16 $181.00 $1,448.00 $84.86 $678.88 $150.00 $1,200.00 A11 Well 204 8 MONTH $616.00 $4,928.00 $111.87 $894.96 $287.00 $2,296.00 $339.44 $2,715.52 $240.00 $1,920.00 A12 Well 211 8 MONTH $672.00 $5,376.00 $156.57 $1,252.56 $254.00 $2,032.00 $339.44 $2,715.52 $375.00 $3,000.00 A13 Well 259 8 MONTH $392.00 $3,136.00 $24.07 $192.56 $207.00 $1,656.00 $169.72 $1,357.76 $100.00 $800.00 A14 Well 260 8 MONTH $504.00 $4,032.00 $77.49 $619.92 $286.00 $2,288.00 $84.86 $678.88 $110.00 $880.00 A15 Well 264 8 MONTH $504.00 $4,032.00 $6.61 $52.88 $269.00 $2,152.00 $169.72 $1,357.76 $90.00 $720.00 A16 Well 269 8 MONTH $224.00 $1,792.00 $11.64 $93.12 $162.00 $1,296.00 $84.86 $678.88 $105.00 $840.00 A17 Well 271 8 MONTH $336.00 $2,688.00 $37.29 $298.32 $183.00 $1,464.00 $84.86 $678.88 $125.00 $1,000.00 A18 Well 282 8 MONTH $336.00 $2,688.00 $17.19 $137.52 $154.00 $1,232.00 $84.86 $678.88 $80.00 $640.00 A19 Well 289 8 MONTH $336.00 $2,688.00 $17.19 $137.52 $76.00 $608.00 $21.22 $169.76 $100.00 $800.00 A20 Well 300 8 MONTH $504.00 $4,032.00 $40.20 $321.60 $371.00 $2,968.00 $169.72 $1,357.76 $300.00 $2,400.00 A21 Well 307 8 MONTH $756.00 $6,048.00 $74.58 $596.64 $243.00 $1,944.00 $254.58 $2,036.64 $365.00 $2,920.00 A22 Tank 3 8 MONTH $420.00 $3,360.00 $208.94 $1,671.52 $472.00 $3,776.00 $169.72 $1,357.76 $465.00 $3,720.00 A23 Tank 4 8 MONTH $476.00 $3,808.00 $1,665.67 $13,325.36 $1,032.00 $8,256.00 $339.44 $2,715.52 $260.00 $2,080.00 A24 Tank 5 8 MONTH $364.00 $2,912.00 $375.82 $3,006.56 $372.00 $2,976.00 $169.72 $1,357.76 $205.00 $1,640.00 A25 Tank 6 8 MONTH $504.00 $4,032.00 $631.57 $5,052.56 $425.00 $3,400.00 $169.72 $1,357.76 $150.00 $1,200.00 A26 Tank 10 8 MONTH $504.00 $4,032.00 $18.51 $148.08 $317.00 $2,536.00 $254.58 $2,036.64 $325.00 $2,600.00 A27 Tank 11 8 MONTH $756.00 $6,048.00 $1,770.40 $14,163.20 $596.00 $4,768.00 $339.44 $2,715.52 $620.00 $4,960.00 A28 Tank 12 8 MONTH $448.00 $3,584.00 $2,926.68 $23,413.44 $942.00 $7,536.00 $339.44 $2,715.52 $410.00 $3,280.00 A29 Tank 13 8 MONTH $989.00 $7,912.00 $1,701.11 $13,608.88 $635.00 $5,080.00 $169.72 $1,357.76 $360.00 $2,880.00 A30 Tank 14 8 MONTH $504.00 $4,032.00 $629.45 $5,035.60 $551.00 $4,408.00 $254.58 $2,036.64 $725.00 $5,800.00 A31 Water Corp Yard 8 MONTH $1,680.00 $13,440.00 $15,265.78 $122,126.24 $1,777.00 $14,216.00 $1,357.76 $10,862.08 $2,310.00 $18,480.00
BI-WEEKLY
SERVICE
NOVEMBER -
FEBRUARY QTY UNIT OF
A32 Well 6 4 MONTH $280.00 $1,120.00 $37.64 $150.56 $278.00 $1,112.00 $254.58 $1,018.32 $225.00 $900.00 A33 Well 10 4 MONTH $280.00 $1,120.00 $23.49 $93.96 $111.00 $444.00 $254.58 $1,018.32 $130.00 $520.00 A34 Well 25 4 MONTH $224.00 $896.00 $2.83 $11.32 $138.00 $552.00 $21.22 $84.88 $45.00 $180.00 A35 Well 40 4 MONTH $280.00 $1,120.00 $37.64 $150.56 $263.00 $1,052.00 $84.86 $339.44 $50.00 $200.00 A36 Well 41 4 MONTH $280.00 $1,120.00 $70.46 $281.84 $228.00 $912.00 $84.86 $339.44 $150.00 $600.00 A37 Well 48 4 MONTH $196.00 $784.00 $70.46 $281.84 $279.00 $1,116.00 $21.22 $84.88 $45.00 $180.00
CITY OF MODESTO
PO BOX 642 MODESTO CA 95353
IFB NO. 2223-23RB - Landscape Maintenance for Water Wells and Tank Sites
MODESTO, CA CLOVIS, CA FREMONT, CA ESCALON, CA MODESTO, CA ADROIT FARM SERVICES ELITE MAINT. & TREE SVC NEW IMAGE LANDSCAPE ALL SEASON LANDSCAPE GROVER LANDSCAPE ADROIT FARM SERVICES ELITE MAINT. & TREE SVC NEW IMAGE LANDSCAPE ALL SEASON LANDSCAPE GROVER LANDSCAPE #25..
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A38 Well 66 4 MONTH $140.00 $560.00 $9.33 $37.32 $0.00 $0.00 $60.00 $240.00 $80.00 $320.00 A39 Well 67 4 MONTH $420.00 $1,680.00 $23.49 $93.96 $527.00 $2,108.00 $254.58 $1,018.32 $335.00 $1,340.00 A40 Well 70 4 MONTH $224.00 $896.00 $79.79 $319.16 $242.00 $968.00 $84.86 $339.44 $125.00 $500.00 A41 Well 71 4 MONTH $224.00 $896.00 $72.12 $288.48 $181.00 $724.00 $84.86 $339.44 $105.00 $420.00 A42 Well 204 4 MONTH $336.00 $1,344.00 $70.46 $281.84 $287.00 $1,148.00 $339.44 $1,357.76 $125.00 $500.00 A43 Well 211 4 MONTH $392.00 $1,568.00 $98.61 $394.44 $254.00 $1,016.00 $339.44 $1,357.76 $195.00 $780.00 A44 Well 259 4 MONTH $224.00 $896.00 $15.16 $60.64 $207.00 $828.00 $169.72 $678.88 $70.00 $280.00 A45 Well 260 4 MONTH $280.00 $1,120.00 $48.80 $195.20 $286.00 $1,144.00 $84.86 $339.44 $100.00 $400.00 A46 Well 264 4 MONTH $280.00 $1,120.00 $4.16 $16.64 $269.00 $1,076.00 $169.72 $678.88 $50.00 $200.00 A47 Well 269 4 MONTH $126.00 $504.00 $7.33 $29.32 $162.00 $648.00 $84.86 $339.44 $90.00 $360.00 A48 Well 271 4 MONTH $252.00 $1,008.00 $23.49 $93.96 $183.00 $732.00 $84.86 $339.44 $70.00 $280.00 A49 Well 282 4 MONTH $224.00 $896.00 $10.83 $43.32 $154.00 $616.00 $84.86 $339.44 $45.00 $180.00 A50 Well 289 4 MONTH $252.00 $1,008.00 $10.83 $43.32 $76.00 $304.00 $21.22 $84.88 $160.00 $640.00 A51 Well 300 4 MONTH $280.00 $1,120.00 $25.32 $101.28 $371.00 $1,484.00 $169.72 $678.88 $190.00 $760.00 A52 Well 307 4 MONTH $392.00 $1,568.00 $46.97 $187.88 $243.00 $972.00 $254.58 $1,018.32 $215.00 $860.00 A53 Tank 3 4 MONTH $252.00 $1,008.00 $131.59 $526.36 $472.00 $1,888.00 $169.72 $678.88 $175.00 $700.00 A54 Tank 4 4 MONTH $280.00 $1,120.00 $1,049.05 $4,196.20 $1,032.00 $4,128.00 $339.44 $1,357.76 $450.00 $1,800.00 A55 Tank 5 4 MONTH $196.00 $784.00 $236.69 $946.76 $372.00 $1,488.00 $169.72 $678.88 $285.00 $1,140.00 A56 Tank 6 4 MONTH $280.00 $1,120.00 $397.77 $1,591.08 $425.00 $1,700.00 $169.72 $678.88 $50.00 $200.00 A57 Tank 10 4 MONTH $280.00 $1,120.00 $11.66 $46.64 $317.00 $1,268.00 $254.58 $1,018.32 $170.00 $680.00 A58 Tank 11 4 MONTH $420.00 $1,680.00 $1,115.01 $4,460.04 $596.00 $2,384.00 $339.44 $1,357.76 $610.00 $2,440.00 A59 Tank 12 4 MONTH $252.00 $1,008.00 $1,843.26 $7,373.04 $942.00 $3,768.00 $339.44 $1,357.76 $530.00 $2,120.00 A60 Tank 13 4 MONTH $560.00 $2,240.00 $1,071.37 $4,285.48 $635.00 $2,540.00 $169.72 $678.88 $315.00 $1,260.00 A61 Tank 14 4 MONTH $280.00 $1,120.00 $396.43 $1,585.72 $551.00 $2,204.00 $254.58 $1,018.32 $355.00 $1,420.00 A62 Water Corp Yard 4 MONTH $1,260.00 $5,040.00 $9,614.54 $38,458.16 $1,777.00 $7,108.00 $1,357.76 $5,431.04 $1,600.00 $6,400.00 TOTAL: $168,800.00 $278,202.80 $142,296.00 $78,876.24 $111,840.00 #25..
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 12, 2023
Date: September 1, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Seventh Street Village Project with Visionary Home Builders CONTACT: Edgar Garcia, Housing and Urban Development Supervisor [email protected], (209) 577-5211
DESCRIPTION:
Consider accepting a joint award for the City of Modesto and Visionary Home Builders of California, Inc. for a State of California’s Affordable Housing and Sustainability Grant in the collective amount $33,010,880 and award the City funding commitment in a total amount not to exceed $7,000,000 and 200,000 in activity delivery for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street. (Funding Source:
Community Development Block Grant, Permanent Local Housing Allocation, and HOME Investment Partnership)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan Initiatives: Develop a Homelessness and Housing Plan.
BACKGROUND:
As an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development1 (HUD) which requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant2 (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP). Despite multiple affordable housing agencies, the availability of housing vouchers, and rental subsidy programs, there is a shortage of housing units in the City.
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”. #27..
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City Council, September 12, 2023
Seventh Street Village Project with Visionary Home Builders
To help address the shortage, the City of Modesto (City) released a Request for Proposals (RFP) for Affordable Housing projects on December 14, 2022, to solicit proposals that could qualify for the various funding sources that the City receives as an Entitlement community that can be used for the development of affordable housing. This approach helped create a pipeline of projects allowing the City to be strategic with funding allocations for housing projects and availing more opportunities to leverage additional funding to promote development in the City.
This RFP process prioritized review of applications submitted that are Tier 1 – Design Development defined as New Construction or Rehabilitation with 50% of the project funding identified, with the site identified and can be under contract by the time of award, can obtain permits within 6 months, and can demonstrate construction can begin within 12 months of award.
Visionary Home Builders of California, Inc. (VHB) submitted their Tier 1 proposal by the RFP deadline of January 25, 2023 and submitted for the State of California Affordable Housing and Sustainable Communities (AHCS) grant, for a project located on 7th Street between I and J Street in coordination with the City.
DISCUSSION:
On December 15, 2022, the State of California’s Round 7 issued a Notice of Funding Availability (NOFA) for $750 million in funding under the AHSC program. The City and VHB submitted a joint application for this project that will also include transportation related infrastructure improvements along 9th Street connecting to the proposed bike network at L street to I Street in front of the Transit Center and down I Street. These improvements include but are not limited to:
various transit related improvements with the local bus system to create more pedestrian friendly routes in and around the Transit Center as well as at retail centers in the area; and the purchase of an Altamont Corridor Express (ACE) engine. To solicit community feedback, VHB held community meetings with businesses and residents.
Project Description
The Seventh Street Village development will sit on four parcels totaling .88 acres. The project is comprised of 79 housing units with a mix of 1-bedroom one-bath, 2-bedroom one-bath, and three-bedroom 2-bath units.
The modern garden-style community will consist of one four-story building on a podium. The ground floor and podium level will house the rental office, business center, Head Start Day Care area, community center and computer lab. The computer lab will offer residents 1-4 computers with internet access. All ground floor units will be ADA accessible. Parking is at the rear of the structure as a 2-story parking garage on the ground level. Parking is provided to the residential units on a 1:1 basis, per the AHSC grant requirements, leaving 32 spaces for open use by the commercial and head start programs.
The project is within walking distance of public transportation, recreation, an elementary and high school, and in proximity to shopping and services. These nearby services will enhance the amenities of the subject property.
Project Details
Project Location: 7th and J Street
Zoning: Transition Downtown Zone
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City Council, September 12, 2023
Seventh Street Village Project with Visionary Home Builders
Site area: .88 acres
Total stories: 6 stories
Height: 72 ft.
Street and areas of interest:
Transit Station: .2 miles
625 I Street: .01 miles (across 7th Street)
Old St Stanislaus: .01 miles (across J Street)
10th Street Place: .4 miles
Parking:
48,000 square ft of parking on the ground and second floors. ADA Stalls: 8 spaces
Standard Stalls: 102 spaces
Total: 110 spaces
Floor area:
Commercial: 5,000 square ft.
Leasing office: 1,700 square ft.
Head start school: 2,300 square ft.
Residential:
One bedroom: 12 units (700 sf)
Two bedrooms: 35 units (900 sf)
Three bedrooms: 32 (1260 sf)
All base-level housing will be ADA accessible
On-site Amenities:
Head start/Day Care Facility
Community Center
Cooling Center
Computer Lab 1-4 computers with internet access
Office Space for Services
Technology
2 Playgrounds
Transportation Improvements
This project is proposing to include transportation improvements in alignment with the Downtown Master Plan.
Bike Lane improvements for one mile of improvements along 9th Street connecting to the proposed bike network connecting at L Street to I Street in front of the Transit Center and down I Street. These improvements include improved and new bike lanes as well as sidewalks with greening improvements including shade trees. Sidewalk improvements on 7th, 8th, and F street for a total of 1000ft of new sidewalks and 1000ft of improved sidewalk infrastructure.
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City Council, September 12, 2023
Seventh Street Village Project with Visionary Home Builders
In collaboration with Stanislaus Regional Transit Authority there will be a reconfiguration of Route 21 and improved bus transportation through bus shelters and/or bulb-outs along this route.
In collaboration with San Joaquin Rail Commission this project will include the acquisition of an Altamont Corridor Express (ACE) engine.
The AHSC Award
On August 30,2023, the Strategic Growth Council (SGC) voted to award this project a total of $33,010,880 that will include construction, programs promoting sustainability for tenants, and the transportation related improvements. On March 14, 2023, by Resolution No. 2023-122, the City committed $7,000,000 in its affordable housing funding sources to the Seventh Street Village project, contingent on the AHSC Award and $200,000 in staff activity delivery. The breakdown of the housing development commitments and the award for the other AHSC program components are as follows:
Project Costs: Housing Development of Seventh Street Village Source Amount
Modesto CDBG $ 2,000,000
Modesto PLHA $ 1,490,784
Modesto HOME $ 3,509,216
Modesto Commitment $ 7,000,000
Modesto CFF Deferral $ 967,750
AHSC Award – HCD for Housing Development $17,300,000
AHSC - HCD Off-site Improvements $ 1,300,000
AHSC - HCD Housing Development $16,000,000
Tax Credits and Other Sources $31,645,520
Total $56,913,270
Sustainable Transportation Improvements (STI)
Source Amount
AHSC Award – HCD for STI $ 11,675,000
Urban Street Greening $ 150,029
ACE Train Conversion $ 6,000,000
Road work and sidewalks $ 3,366,327
Bike Lanes $ 2,158,644
Total $ 11,675,000
Transportation Related Amenities (TRA)
Source Amount
AHSC Award – HCD for TRA $ 3,325,000
Urban Street Canopy $ 100,000
Route 21 Improvements $ 3,225,000
Total $ 3,325,000
Housing Related Programs (PGM)
Source Amount
AHSC Award – HCD for TRA $ 710,880
Stanislaus Equity Partners (Anti-Displacement Strategies) $150,000 #27..
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City Council, September 12, 2023
Seventh Street Village Project with Visionary Home Builders
El Concilio (Workforce Programs) $150,000
Transit Authority (Bus Passes) $110,880
Comcast (Broadband for 5 years) $142,200
Visionary Home Builders (Financial Education $157,800
Total $ 710,880
Next Steps
To secure the remaining project funding needed to complete this project. Visionary Home Builders will secure the properties by the end of September, utilizing $1,000,000 of its Modesto CDBG commitments. In addition, Visionary Home Builders submitted the Tax Credit Allocation Committee (TCAC) application for the four percent (4%) tax credit on September 6, 2023. The notification for this award will be announced winter 2023 and if awarded, the Seventh Street Village will break ground by Spring 2024.
FISCAL IMPACT:
The funding for this program will come from the following sources:
State of California’s Department of Housing and Community Development, and project budget will transfer $1,490,784 from fund (1120) – Grants – PLHA Program U.S. Department of Housing and Urban Development CDBG, and project budget will transfer $2,200,000 from fund (1130) – CDBG Direct Programs U.S. Department of Housing and Urban Development, and project budget will transfer $3,509,216 from fund (1170) – HOME Investment Partnership Program There will be no impact to the General Fund.
COMMITTEE RECOMMENDATION:
On March 9, 2023 Citizens Housing and Community Development Committee met and approved a joint submission between the City of Modesto and Visionary Home Builders of California, Inc. for a State of California’s Affordable Housing and Sustainability Grant in an amount not to exceed $50,000,000, a City funding commitment in a total amount not to exceed $7,000,000 plus $200,000 in activity delivery costs for a grand total of $7,200,000, and the deferral of Capital Facilities Fees in an amount $967,750 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street, contingent on the successful award of the Affordable Housing and Sustainable Communities Grant and forwarded to Council for approval.
CEQA/NEPA REQUIREMENTS:
Seventh Street Village’s development plan review (DPR) was approved on March 30, 2023, as DPR-23-007 and has a CEQA Exemption under California Code Section 15332 - In-Fill Development projects.
The NEPA Environmental Assessment will be completed once all funding sources for the development project have been awarded and site control is obtained. The NEPA will be sent to the Modesto Bee for a 19-day comment period. A Request for Release of Funds will be sent to HUD at the close of that comment period for an additional 16-day comment period. At the close of the final comment period HUD will provide an Authority to Use Grant Funds prior to the release of any HUD funding to ensure compliance with NEPA.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
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City Council, September 12, 2023
Seventh Street Village Project with Visionary Home Builders
Resolution accepting the award from the joint submission between the City of Modesto and Visionary Home Builders of California, Inc. for a State of California’s Affordable Housing and Sustainability Program in an amount of $33,010,880 for the development of Seventh Street Village on the properties located on 7th Street between J Street and I Street as well as any grant required transportation improvements as outlined in the grant application and authorizing the City Manager or his designee to negotiate and execute an agreement with Visionary Home Builders, Inc. and any other documents related to the execution of award agreements.
Resolution amending the fiscal year 2023-2024 multi-year budget to for the 7th Street Project Fund (101493) with permanent local housing allocation funds (PLHA), community development block grant (CDBG) funds and HOME investment partnership funds (HOME) for the development of the 7th Street affordable housing project totaling $7,000,000 and $200,000 for activity delivery costs and budgeting the necessary transfers and authorizing the City Manager or his designee to take the necessary steps to implement the provisions in this resolution.
Resolution approving a Community Development Block Grant (CDBG) funded loan in a total amount not to exceed $2,000,000 at 3% simple interest for 55 years to begin accrual after issuance of Certificate of Occupancy, for the acquisition and off-site improvements of Seventh Street Village.
Resolution authorizing the City Manager or his designee to negotiate final agreements with Visionary Home Builders, Inc. for a HOME Investment Partnership funded loan in the amount not to exceed $3,509,216, and a Permanent Local Housing Allocation (PLHA) funded loan in the amount not to exceed $1,490,784, with final agreements returning for Council consideration and approval for the development of Seventh Street Village.
Approved by:
Jessica Hill, Director of Community
and Economic Development
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Resolution - Budget
3. Resolution – Funding CDBG Commitment
4. Resolution – Funding HOME and PLHA Commitment
5. Seventh Street Village CDBG Loan Agreement
6. Seventh Street Village CDBG Deed of Trust
7. Seventh Street Village CDBG Promissory Note
8. Seventh Street Village CDBG Regulatory Agreement
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09.12.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION ACCEPTING THE AWARD FROM THE JOINT SUBMISSION
BETWEEN THE CITY OF MODESTO AND VISIONARY HOME BUILDERS OF CALIFORNIA, INC. FOR A STATE OF CALIFORNIA’S AFFORDABLE
HOUSING AND SUSTAINABILITY PROGRAM IN AN AMOUNT OF
$33,010,880 FOR THE DEVELOPMENT OF SEVENTH STREET VILLAGE ON THE PROPERTIES LOCATED ON 7TH STREET BETWEEN J STREET AND I
STREET AS WELL AS ANY GRANT REQUIRED TRANSPORTATION
IMPROVEMENTS AS OUTLINED IN THE GRANT APPLICATION AND
AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO NEGOTIATE
AND EXECUTE AN AGREEMENT WITH VISIONARY HOME BUILDERS,
INC. AND ANY OTHER DOCUMENTS RELATED TO THE EXECUTION OF
AWARD AGREEMENTS
WHEREAS, as an Entitlement community, the City receives funding regularly from the U.S. Department of Housing and Urban Development (HUD) that requires the City, to develop an Annual Action Plan that describes proposed funding priorities for activities funded with Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and American Rescue Plan HOME Investment Partnerships (HOME-ARP) and the City also qualifies for an annual allocation from the State of California from the Permanent Local Housing Allocation (PLHA), each designated to fund components of the development of affordable housing.; and WHEREAS, despite multiple affordable housing agencies and the availability of housing vouchers and rental subsidy programs there is a shortage of housing units in the City; and
WHEREAS, Visionary Home Builders of California, Inc. (VHB) submitted their Tier 1 proposal by the RFP deadline of January 25, 2023, for a project located on 7th Street between I and J Street for development and funding consideration to pursue an Affordable Housing and Sustainability Communities (AHSC) grant in coordination with #27..
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09.12.2023/CED/JHill/Item # 2 2023-XX
the with the City; and
WHEREAS, the Seventh Street Village development will sit on four parcels totaling .88 acres and project is comprised of 79-housing units with a mix of one, two, and three-bedroom units. In addition, one, two-bedroom and one, three-bedroom units as a modern garden-style community will consist of one four-story building on a podium.
The ground floor and podium level will house the rental office, business center, Head Start Day Care area, Community Center, and computer lab; and WHEREAS, this project is proposing to include the transportation improvements in alignment with the Downtown Master Plan that includes Bike Lane improvements for one mile of improvements along 9th Street connecting to the proposed bike network connecting at L street to I Street in front of the Transit Center and down I Street and sidewalk improvements on 7th, 8th, and F Street for a total of 1000ft of new sidewalks and 1000ft of improved sidewalk infrastructure; and
WHEREAS, in collaboration with Stanislaus Regional Transit Authority there will be a reconfiguration of Route 21 and improved bus transportation through bus shelters and/or bulb outs along this route and in collaboration with San Joaquin Rail Commission this project will include the acquisition of an Altamont Corridor Express (ACE) engine; and
WHEREAS, the State issued its Round 7 Notice of Funding Availability on December 15, 2022, for $750 million in in funding under the AHSC program that focuses on the development of affordable housing with the goal of decreasing greenhouse gas emissions and the City and VHB submitted a joint application for this project for a total award, $33,010,880 will be a loan given to VHB and used for construction of Phase I of this development, and $15,000,000 will be a grant given to the City and used for #27..
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09.12.2023/CED/JHill/Item # 3 2023-XX
transportation related infrastructure improvements; and WHEREAS, on August 30,2023, the Strategic Growth Council (SGC) voted to award this project a total of $33,010,880 that including construction, program that promote sustainability for tenants, and the transportation related improvements.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby accepts the award from the joint submission between the City of Modesto and Visionary Home Builders of California, Inc. for a State of California’s Affordable Housing and Sustainability Program in an amount of $33,010,880 for the development of Seventh Street Village on the properties located on 7th street between J Street and I Street as well as any grant required transportation improvements as outlined in the grant application.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to negotiate and execute agreements with Visionary Home Builders, Inc. and any other documents related to the execution of award agreements, in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: None
NOES: Councilmembers: None
ABSENT: Councilmembers: None
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09.12.2023/CED/JHill/Item # 4 2023-XX
ATTEST: _____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ________________________________
JOSE M. SANCHEZ, City Attorney
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9-12-2023/C&ED/JHill 1 2023-
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-
RESOLUTION AMENDING THE FISCAL YEAR 2023-2024 MULTI-YEAR BUDGET TO FOR THE 7TH STREET PROJECT FUND (101493) WITH
PERMANENT LOCAL HOUSING ALLOCATION FUNDS (PLHA),
COMMUNITY DEVELOPMENT BLOCK GRANT (CDBG) FUNDS AND HOME
INVESTMENT PARTNERSHIP FUNDS (HOME) FOR THE DEVELOPMENT OF THE 7TH STREET AFFORDABLE HOUSING PROJECT TOTALING
$7,000,000 AND $200,000 FOR ACTIVITY DELIVERY COSTS AND
BUDGETING THE NECESSARY TRANSFERS AND AUTHORIZING THE
CITY MANAGER OR HIS DESIGNEE TO TAKE THE NECESSARY STEPS TO
IMPLEMENT THE PROVISIONS IN THIS RESOLUTION
WHEREAS, the City of Modesto and Visionary Home Builders of California, Inc. (VHB) coordinated a successful application to receive funding from the State of California’s Affordable Housing and Sustainable Communities Grant; and WHEREAS, the City qualifies for an annual allocation from the State of California from the Permanent Local Housing Allocation (PLHA); and WHEREAS, each year the City of Modesto receives Community Development Block Grant (CDBG), and HOME Investment Partnership Grant (HOME) funds from the U.S. Department of Housing and Urban Development (HUD) as an entitlement community; and
WHEREAS, the fiscal year 2023-2024 Multi-Year budget must be amended to increase the budget of 7th Street Project (101493) to total $7,000,000 in project expenses and $200,000 in activity delivery costs, to budget the revenues and expenses in the PLHA, CDBG and HOME programs and budget any necessary transfers; and WHEREAS, the project is to be allocated a PLHA funded loan in an amount not to exceed $1,490,784; and
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9-12-2023/C&ED/JHill 2 2023-
WHEREAS, the project is to be allocated a CDBG funded grant in an amount not to exceed $2,000,000; and
WHEREAS, the project is to be allocated a HOME funded loan in an amount not to exceed $3,509,216.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it amends the fiscal year 2023-2024 multi-year fund budget to increase the budget to $7,200,000 for the 7th Street project (101493).
BE IT FURTHER RESOLVED that the City Manager or his designee is hereby authorized to take the necessary steps to implement the provisions of this resolution.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12h day of September, 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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09.12.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION APPROVING A COMMUNITY DEVELOPMENT BLOCK
GRANT (CDBG) FUNDED LOAN IN A TOTAL AMOUNT NOT TO EXCEED $2,000,000 AT 3% SIMPLE INTEREST FOR 55 YEARS TO BEGIN ACCRUAL
AFTER ISSUANCE OF CERTIFICATE OF OCCUPANCY, FOR ACQUISITION
AND OFF-SITE IMPROVEMENTS OF SEVENTH STREET VILLAGE
WHEREAS, despite multiple affordable housing agencies and the availability of housing vouchers and rental subsidy programs there is a shortage of housing units in the City; and
WHEREAS, Visionary Home Builders of California, Inc. (VHB) submitted their Tier 1 proposal by the RFP deadline of January 25, 2023, for a project located on 7th Street between I and J Street for development and funding consideration to pursue an Affordable Housing and Sustainability Communities (AHSC) grant in coordination with the with the City; and
WHEREAS, the Seventh Street Village development will sit on four parcels totaling .88 acres and project is comprised of 79-housing units with a mix of one, two, and three-bedroom units. In addition, one, two-bedroom and one, three-bedroom units as a modern garden-style community will consist of one four-story building on a podium.
The ground floor and podium level will house the rental office, business center, Head Start Day Care area, Community Center, and computer lab; and WHEREAS, this project is proposing to include the transportation improvements in alignment with the Downtown Master Plan that includes Bike Lane improvements for one mile of improvements along 9th Street connecting to the proposed bike network connecting at L street to I Street in front of the Transit Center and down I Street and sidewalk improvements on 7th, 8th, and F Street for a total of 1000ft of new sidewalks #27..
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09.12.2023/CEDD/JHill/Item # 2 2023-xxx
and 1000ft of improved sidewalk infrastructure; and
WHEREAS, in collaboration with Stanislaus Regional Transit Authority there will be a reconfiguration of Route 21 and improved bus transportation through bus shelters and/or bulb outs along this route and in collaboration with San Joaquin Rail Commission this project will include the acquisition of an Altamont Corridor Express (ACE) engine; and
WHEREAS, the State issued its Round 7 Notice of Funding Availability on December 15, 2022, for $750 million in in funding under the AHSC program that focuses on the development of affordable housing with the goal of decreasing greenhouse gas emissions and the City and VHB submitted a joint application for this project for a total award, $33,010,880 will be a loan given to VHB and used for construction of Phase I of this development, and $15,000,000 will be a grant given to the City and used for transportation related infrastructure improvements; and WHEREAS, on August 30,2023, the Strategic Growth Council (SGC) voted to award this project a total of $33,010,880 that including construction, program that promote sustainability for tenants, and the transportation related improvements; and WHEREAS, on March 14, 2023, by Resolution No. 2023-122, the City committed $7,000,000 in its affordable housing funding sources to the Seventh Street Village project contingent on the AHCS Award and $200,000 in staff activity delivery; and WHEREAS, of the City’s total commitment to this project, the City is committing a Community Development Block Grant (CDBG) funded loan in an amount not to exceed $2,000,000 at 3% simple interest for 55 years to begin accrual after issuance of Certificate of Occupancy.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto #27..
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09.12.2023/CEDD/JHill/Item # 3 2023-xxx
that it hereby approves a Community Development Block Grant (CDBG) funded loan in a total amount not to exceed $2,000,000 at 3% simple interest for 55 years to begin accrual after issuance of Certificate of Occupancy, for acquisition and off-site improvements of Seventh Street Village.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: None
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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09.12.2023/CEDD/JHill/Item # 1 2023-xxx
MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX
RESOLUTION AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO
NEGOTIATE FINAL AGREEMENTS WITH VISIONARY HOME BUILDERS, INC. FOR A HOME INVESTMENT PARTNERSHIP FUNDED LOAN IN THE AMOUNT NOT TO EXCEED $3,509,216, AND A PERMANENT LOCAL
HOUSING ALLOCATION (PLHA) FUNDED LOAN IN THE AMOUNT NOT TO EXCEED $1,490,784, WITH FINAL AGREEMENTS RETURNING FOR
COUNCIL CONSIDERATION AND APPROVAL FOR THE DEVELOPMENT
OF SEVENTH STREET VILLAGE.
WHEREAS, Visionary Home Builders of California, Inc. (VHB) submitted their Tier 1 proposal by the RFP deadline of January 25, 2023, for a project located on 7th Street between I and J Street for development and funding consideration to pursue an Affordable Housing and Sustainability Communities (AHSC) grant in coordination with the with the City; and
WHEREAS, the Seventh Street Village development will sit on four parcels totaling .88 acres and project is comprised of 79-housing units with a mix of one, two, and three-bedroom units. In addition, one, two-bedroom and one, three-bedroom units as a modern garden-style community will consist of one four-story building on a podium.
The ground floor and podium level will house the rental office, business center, Head Start Day Care area, Community Center, and computer lab; and WHEREAS, this project is proposing to include the transportation improvements in alignment with the Downtown Master Plan that includes Bike Lane improvements for one mile of improvements along 9th Street connecting to the proposed bike network connecting at L street to I Street in front of the Transit Center and down I Street and sidewalk improvements on 7th, 8th, and F Street for a total of 1000ft of new sidewalks and 1000ft of improved sidewalk infrastructure; and
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WHEREAS, in collaboration with Stanislaus Regional Transit Authority there will be a reconfiguration of Route 21 and improved bus transportation through bus shelters and/or bulb outs along this route and in collaboration with San Joaquin Rail Commission this project will include the acquisition of an Altamont Corridor Express (ACE) engine; and
WHEREAS, the State issued its Round 7 Notice of Funding Availability on December 15, 2022, for $750 million in in funding under the AHSC program that focuses on the development of affordable housing with the goal of decreasing greenhouse gas emissions and the City and VHB submitted a joint application for this project for a total award, $33,010,880 will be a loan given to VHB and used for construction of Phase I of this development, and $15,000,000 will be a grant given to the City and used for transportation related infrastructure improvements; and WHEREAS, on August 30,2023, the Strategic Growth Council (SGC) voted to award this project a total of $33,010,880 that including construction, program that promote sustainability for tenants, and the transportation related improvements; and WHEREAS, on March 14, 2023, by Resolution No. 2023-122, the City committed $7,000,000 in its affordable housing funding sources to the Seventh Street Village project contingent on the AHCS Award and $200,000 in staff activity delivery; and WHEREAS, the City commits to fund the this project in an amount not to exceed $7,000,000 plus $200,000 in activity delivery; and
WHEREAS, staff proposes the project be allocated as a HOME Entitlement funded loan in an amount not to exceed $3,509,216.
WHEREAS, staff proposes the project be allocated as a PLHA funded loan in an amount not to exceed $1,490,784.
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09.12.2023/CEDD/JHill/Item # 3 2023-xxx
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves the authorization for the City Manager or his designee to negotiate final agreements with Visionary Home Builders, Inc. for a HOME Investment Partnership funded loan in the amount not to exceed $3,509,216, and a Permanent Local Housing Allocation (PLHA) funded loan in the amount not to exceed $1,490,784, with final agreements returning for Council consideration and approval for the development of Seventh Street Village,
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of September, 2023, by Councilmember , who moved its adoption, which motion being duly seconded by , was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: None
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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5481136.1 1
CITY LOAN AGREEMENT
(City of Modesto CDBG Loan – 7th Street Village)
This Loan Agreement (this “Agreement”) is entered into as of ____________________, 2023, by and between the City of Modesto, a California charter city (the “City”) and Visionary Home Builders of California, Inc., a California nonprofit 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 (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. Recipient owns, or has the contractual right to purchase, four parcels total .88 acres generally located at 914-930 7th Street, Modesto, California, also known as Stanislaus County Assessor’s Parcel Numbers _________________, as more particularly described and depicted in Exhibit A, attached hereto, and incorporated herein (the “Property”).
D. The Recipient intends to develop a multi-family residential project on the Property consisting of seventy-nine (79) housing units, of which seventy-seven (77) will be reserved for and affordable to households with an income of no greater than sixty percent (60%) of the Area Median Income for Stanislaus County (the “Project”).
E. As a condition of approval for the Development, the Recipient is required to construct certain offsite improvements to City of Modesto standards (the “Off-Site Improvements”). The Off-Site Improvements are further described in the project summary, attached hereto as Exhibit B, and incorporated herein. As used herein, the term Project shall include the Off-Site Improvements.
F. City wishes to give to Recipient a loan of Two Million Dollars ($2,000,000) (the “Loan”) of CDBG funds to help finance the acquisition of the Property and off-site improvements required for the Development. A maximum of One Million Fifty Thousand Dollars ($1.050,000) of the Loan may be used for acquisition of the Property.
G. As a condition to providing the Loan to the Recipient, the City is imposing occupancy and affordability restrictions on the Development, ensuring that specified units therein remain affordable to specified income eligible households for a specified period as set forth in the Regulatory Agreement and Declaration of Restrictive Covenants dated as of ________ (the “Regulatory Agreement”)
H. Concurrently herewith, Recipient shall execute: i) a Secured Promissory Note evidencing Recipient ’s obligation to repay the Loan (the “Note”), and ii) a Deed of Trust, Assignment of Rents, Security Agreement and Fixture Filing which shall secured performance of #27..
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the Note (the “Deed of Trust”). This Agreement, the Note, Regulatory Agreement and Deed of Trust are collectively referred to herein as the “Loan Documents.” I. 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 are exempt from CEQA requirements under the categorical exemption set forth in 14 California Code of Regulations Section 15303(b).
J. 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:
(a) “Agreement” means this Loan Agreement.
(b) “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.
(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 Loan from the City and other Loans which are secured by the Project as of the date of this Agreement. (d) “Bid Package” means the package of documents Recipient's general contractor is required to distribute to potential bidders as part of the process of selecting subcontractors for the construction of the Project. The Bid Package is to include the following:
(i) an invitation to bid, (ii) copy of the proposed construction contract; (iii) a form of bid guarantee that is reasonably acceptable to the City that guarantees, at a minimum, an amount equal to five percent (5%) of the bid price, and (iv) all Construction Plans (as defined in Section
3.2 below).
(e) “Recipient” has the meaning set forth in the first paragraph of this Agreement.
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(f) “CDBG” means the Community Project Block Loan program under Title I of the Housing and Community Project Act of 1974 (42 U.S.C. 5301 et. seq.), as amended. (g) “CDBG Funds” has the meaning set forth in Recital B. (h) “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. (i) “City” means the City of Modesto, a California Charter City. (j) “Default” has the meaning set forth in Section 6.1 below. (k) “Default Rate” has the meaning set forth in Section 6.2(c). (l) “Hazardous Materials” has the meaning set forth in Section 4.9 below. (m) “Hazardous Materials Claim” has the meaning set forth in Section 4.9 below.
(n) “Hazardous Materials Law” has the meaning set forth in Section 4.9 below.
(o) “HUD” means the U.S. Department of Housing and Urban Development. (p) “Loan” means the City's Loan to Recipient pursuant to this Agreement in the total principal amount of Two Million Dollars ($2,000,000) consisting of CDBG Funds. “Loan Documents” has the meaning set forth in Recital H (q) “Parties” mean the City and Recipient.
(r) “Project” has the meaning set forth in Recital E.
(s) “Property” has the meaning set forth in Recital C.
(t) “Term” means the term of this Agreement, which commences as of the date of this Agreement and shall expire fifty-five (55) years from the date a certificate of occupancy is issued for the Project, but in no event later than December 31, 2080. (u) “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
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Exhibit B: Project Summary
Exhibit C: Approved Project Budget
Exhibit D: Federal Award Identification Information
ARTICLE 2
LOAN PROVISIONS
Section 1.1 Loan
Upon satisfaction of the conditions set forth in Section 2.5 and Section 2.6 of this Agreement, the City shall lend to the Recipient CDBG Funds in the amount not to exceed Two Million Dollars ($2,000,000) (the “Loan”) for the purposes set forth in Section 2.3. The obligation to repay the Loan shall be evidenced by the Note, in the form to be provided by the City
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 2.1 Interest.
2.2.1 Subject to the provisions of subsection 2.2.2 below, the outstanding principal balance of the Loan shall bear simple interest at a rate of three percent (3%) per year.
2.2.2. In the event of a Default, interest on the Loan shall begin to accrue, as of the date of Default, and continuing until such time as Loan funds are repaid in full or the Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.
Section 2.2 Use of Loan Funds.
The Recipient shall use the proceeds of the Loan solely to finance the acquisition of the Property and fund the Off-Site Improvement’s, as described in Exhibit B. Recipient shall use no more than One Million Fifty Thousand Dollars ($1,050,000) to finance acquisition of the Property unless a greater amount is authorized by the City’s Community Development Director.
Recipient shall not use the Loan proceeds for any other purposes without the prior written consent of the City.
Section 2.3 Security.
The Recipient shall secure its obligations to repay the Loan, as evidenced by the Note, by executing the Deed of Trust and recording the Deed of Trust against the Property at the Close of Escrow.
Section 2.4 Subordination.
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securing and/or evidencing Approved Financing (each such approved Final Financing Plan, a "Senior Lien"), will be subject to the satisfaction of each of the following conditions, as reasonably determined by the City:
(a) All of the proceeds of the proposed Senior Lien, less any transaction costs, must be used to provide construction and/or permanent financing for the Development. (b) The proposed lender (each, a "Senior Lender") must be a state or federally chartered financial institution, a nonprofit corporation or a public entity that is not affiliated with the Recipient or any of the Recipient 's affiliates, other than as a depositor or a lender. (c) The Recipient must demonstrate to the City's reasonable satisfaction that subordination of the Deed of Trust is necessary to secure adequate construction and/or permanent financing to ensure the viability of the Development, including the operation of the Development as affordable housing, as required by the Loan Documents. To satisfy this requirement, the 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 Lien is necessary to provide adequate construction and/or permanent financing to ensure the viability of the Development, and adequate financing for the Development would not be available without the proposed subordination.
(d) The subordination agreements must provide the City with adequate rights to cure any defaults by the Recipient , including: (1) providing the City or its successor with copies of any notices of default at substantially the same time and in the same manner as provided to the Recipient ; and (2) providing the City with a cure period of at least sixty (60) days to cure any default.
(e) The subordination(s) described in this Section may be effective only during the original term of the Senior Lien and any extension of its term that is approved in writing by the City, which approval shall not unreasonably be withheld. (f) No subordination may limit the effect of the Deed of Trust before a foreclosure, nor require consent of the holder of the Senior Lien to exercise any remedies by the City under the Loan Documents.
(g) Upon a determination by the City Manager that the conditions in this Section have been satisfied, the City Manager will be authorized to execute the approved subordination agreement without the necessity of any further action or approval. (h) In the event there is a foreclosure of the Property, the Regulatory Agreement shall be revived according to its original terms if, during the original Regulatory Agreement term, the owner of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former owner or those with whom the former owner has or had family or business ties, obtains an ownership interest in the Development or the Property.
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The maximum amount of funds to be disbursed pursuant to this Section 2.6 shall not exceed the amount of the Loan. The City shall not be obligated to make any disbursements of Loan funds for acquisition of the Property or take any other action under the Loan Documents unless the following conditions precedent have been and continue to be satisfied prior to each such disbursement of Loan funds:
Senior Lien"), will be subject to the satisfaction of each of the following conditions, as reasonably determined by the City:
(a) All of the proceeds of the proposed Senior Lien, less any transaction costs, must be used to provide construction and/or permanent financing for the Development. (b) There exists no Default nor any act, failure, omission or condition that would constitute an event of Default under this Agreement; (c) Recipient has delivered to the City a copy of a corporate resolution authorizing Recipient's execution of the Agreement;
(d) 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; (e) The Recipient has furnished the City with evidence of the insurance coverage meeting the requirements of Section 4.16 below; (f) Recipient has caused to be executed and delivered to the City the Agreement and any other instruments, and policies required under the Loan Documents; (g) 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;
(h) The City has reasonably determined that the undisbursed proceeds of the Loan, 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. (i) 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.
Section 2.6 Repayment of Loan
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(a) Annual Payments. Commencing on the later of: (i) April 1 following the Completion Date, or (ii) April 1, 2026, and on April 1 of each year thereafter, through the end of the Term, the Recipient shall make repayments of the Loan in the amount of the City's Share of Residual Receipts. Payment of the City's Share of Residual Receipts shall be credited first against accrued interest and then against outstanding principal, and shall be accompanied by the Recipient 's report of Residual Receipts (including an independent auditor's report regarding the auditor's review of Annual Operating Expenses). The Recipient shall provide the City with any documentation reasonably requested by the City to substantiate the Recipient 's determination of Residual Receipts.
(b) Due in Full. All principal and accrued interest on the Loan shall be due in full on the earliest to occur of the following: (1) the date of any Transfer not authorized by the City; (2) the date of any Default (subject to applicable notice and cure periods set forth in Section 7.1); or (3) the expiration of the Term.
(c) Right to Prepay. The Recipient shall have the right to prepay the Loan at any time without premium or penalty. However, the Regulatory Agreement shall remain in effect for the entire Term regardless of any prepayment.
Section 2.7 Reports and Accounting of Residual Receipts. (a) Audited Financial Statement. In connection with the annual payments required pursuant to Section 2.8, within one hundred eighty (180) days of the end of the Recipient 's fiscal year, the Recipient shall furnish to the City an audited statement duly certified by an independent firm of certified public accountants approved by the City, setting forth in reasonable detail the computation and amount of Residual Receipts during the preceding calendar year.
(b) Books and Records. The Recipient shall keep and maintain on the Property, or at its principal place of business, or elsewhere with the City's written consent, full, complete and appropriate books, records and accounts relating to the Development, including all such books, records and accounts necessary or prudent to evidence and substantiate in full detail the Recipient 's calculation of Residual Receipts. Books, records and accounts relating to the 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 which provide for the calculation of Residual Receipts on a cash basis. All such books, records, and accounts shall be open to and available for inspection by the City, its auditors or other City authorized representatives or HUD at reasonable intervals during normal business hours. Copies of all tax returns and other reports that the Recipient may be required to furnish any governmental agency shall at all reasonable times, and upon twenty-four (24) hours' notice, 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 records on which any statement of Residual Receipts is based for a period of not less than five (5) years after such statement is rendered, and for any period during which there is an audit undertaken pursuant to subsection (c) below then pending. #27..
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(c) Audits. The receipt by the City of any statement pursuant to this section or any payment by the Recipient or acceptance by the City of any loan repayment for any period shall not bind the City as to the correctness of such statement or such payment. Within three (3) years after the receipt of any such statement, the City or any designated agent or employee of the City at any time shall be entitled to audit the Residual Receipts and all books, records, and accounts pertaining thereto. Such audit shall be conducted during normal business hours at the principal place of business of the 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 the Recipient . If it shall be determined as a result of such audit that there has been a deficiency in a loan repayment to the City, then such deficiency shall become immediately due and payable with interest at the default rate set forth in this Agreement, as applicable, determined as of and accruing from the date that said payment should have been made. In addition, if the Recipient 's auditor's statement for any Development fiscal year shall be found to have understated Residual Receipts by more than five percent (5%) and at least Five Thousand Dollars ($5,000), and the City is entitled to any additional Loan repayment as a result of said understatement, then the Recipient shall pay, in addition to the interest charges referenced hereinabove, all of the City's reasonable costs and expenses connected with any audit or review of the Recipient 's accounts and records.
Section 2.8 Nonrecourse.
(a) Except as provided below, upon recordation of the Deed of Trust against the Property, the Recipient shall have no direct or indirect personal liability for payment of the principal of, or interest on, the Loan. Following recordation of the Deed of Trust against the Property, the sole recourse of the City with respect to the principal of, and interest on, the Note shall be to the Property described in the Deed of Trust; provided, however, that nothing contained in the foregoing limitation of liability shall: (i) limit or impair the enforcement against all such security for the Note of all the rights and remedies of the City thereunder; (ii) be deemed in any way to impair the right of the City to assert the unpaid principal amount of the Note as demand for money within the meaning and intendment of Section 431.70 of the California Code of Civil Procedure or any successor provision thereto; or (iii) be deemed in any way to limit the rights of the City to obtain specific performance by the Recipient of its covenants under the Loan Documents, other than the covenants to pay the City principal and interest due under the Note.
(b) The foregoing limitation of liability is intended to apply only to the obligation for the repayment of the principal of, and payment of interest on the Note; nothing contained herein is intended to relieve the Recipient of its obligation to indemnify the City under this Agreement, or liability for: (i) fraud or willful misrepresentation by the Recipient ; (ii) the failure to pay taxes, assessments or other charges which may create liens on the Property that are payable or applicable prior to any foreclosure under the Deed of Trust (to the full extent of such taxes, assessments or other charges); (iii) the fair market value of any personal property or fixtures removed or disposed of by the Recipient other than in accordance with the Deed of Trust; and/or (iv) the misappropriation of any proceeds by the Recipient under any insurance policies or awards resulting from condemnation or the exercise of the power of eminent domain or by reason of damage, loss or destruction to any portion of the Development. #27..
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Section 2.9 Final Financing Plan.
(a) As set forth in the attached Exhibit B, Developer has provided City with a preliminary financing plan for the Project (“Final Financing Plan”) which describes (i) the estimated costs of Project Development, including acquisition costs, and hard and soft construction costs, (ii) an operating pro forma which describes projected revenue and expenses for the Project, and (iii) identification of sources of construction and permanent financing. As a condition precedent to the first draw, the Developer shall have submitted and received approval from the City for any updates to the Final Financing Plan as well as:
(1) Copies of all required funding commitments for performing the Construction Work consistent with the Final Financing Plan, including approval of the Bond Loan lender, and a preliminary tax credit reservation and an executed commitment letter from a tax credit equity investor acceptable to the City; and
Any other information that is reasonably necessary to the City in determining that the Developer has the financial capability to pay all costs of completing the Construction Work in accordance with the requirements of this Agreement.
Section 2.10 Other Financing. All other financing necessary to construct the Development, as required and approved by the City in the Final Financing Plan, shall be closed by the Developer prior to, or simultaneously with the funding of the HOME Loan.
The Developer shall also submit to the City evidence reasonably satisfactory to the City that any conditions to the release or expenditure of funds described in the Final Financing Plan as the sources of funds to pay the costs of constructing the Development have been met or will be met subject to the Developer's satisfaction of standard disbursement preconditions required to be satisfied on a periodic basis, for construction of the Development. Submission by the Developer, and approval by the City, of such evidence of funds availability shall be a condition precedent to the City's obligation to disburse the HOME Loan.
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 and the Off-Site Improvements.
Section 3.2 Construction Plans.
(a) Recipient shall submit to the City a copy of the Construction Plans for the Project and Bid Package. As used in this Agreement, “Construction Plans” shall mean all construction documentation upon which Recipient and Recipient's contractor shall rely in rehabilitating the Property.
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(b) The Construction Plans shall be deemed approved by the City unless rejected by the City in writing for their failure to comply with the foregoing requirements within thirty (30) days after receipt by the City. Such approval of the Construction Plans by the City shall not relieve Recipient's Obligation to obtain any and all approvals required by the City or the City Building Department.
(c) If rejected by the City in whole or in part, Recipient shall submit new or corrected Construction Plans within thirty (30) days after notification of the City's rejection and the reasons therefor. The City shall then have thirty (30) days to review and approve Recipient's new or corrected Construction Plans. The provisions of this Section relating to time periods for approval, rejection, or resubmission of new or corrected Construction Plans shall continue to apply until the Construction Plans have been approved by the City.
Section 3.3 Construction Contract.
(a) All construction work and professional services shall be performed by persons or entities licensed or otherwise authorized to perform the applicable construction work or service in the State of California. Each contract that the Recipient enters for construction of the Project shall provide that at least five percent (5%) of the costs incurred shall be payable only upon completion of construction, subject to early release of retention for specified subcontractors upon approval by the City. The construction contract shall include all applicable CDBG requirements set forth in Section 4.8 below.
Section 3.4 Plans and Specifications.
(a) No later than six (6) months from the Effective Date of this Agreement, the Recipient shall submit to the City the plans and specifications for the construction of the Development, including all construction documentation upon which the Recipient and the Recipient 's contractor shall rely in performing the Construction Work, including, but not necessarily limited to, final architectural drawings, landscaping plans and specifications, final elevations, building plans and specifications (also known as "working drawings") (collectively after approval by the City, the "Approved Plans and Specifications").
The Recipient acknowledges that the execution of this Agreement by the City does not constitute approval by the City of the Plans and Specifications and in no way limits the discretion of the City in reviewing and making decisions regarding any discretionary or other permits required for the Development. Once approved by the City,
Section 3.5 Commencement of Construction.
Recipient shall cause the commencement of construction of the Project, including the Off-Site Improvements, no later than June 30, 2024, or such later date that the City may approve.
Section 3.6 Completion of Construction.
Recipient shall diligently prosecute construction of the Project to completion and shall cause the completion of the construction of the Project, including the Off-Site Improvements, no later than twenty-four (24) months from construction commencement or such later date that the City may approve.
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Section 3.7 Construction Pursuant Applicable Laws
Recipient shall cause all work performed in connection with the Project to be performed in compliance with (i) all applicable laws, ordinances, rules and regulations of federal, state, City or municipal governments or agencies now in force or that may be enacted hereafter, including without limitation and to the extent applicable, the prevailing wage provisions of the federal Davis-Bacon Act and implementing rules and regulations and state prevailing wages pursuant to Labor Code Section 1770 et seq., and the regulations pursuant thereto, as further set forth in subsection (c) below; (ii) the property standards set out in 24 CFR 5.701 et seq., and 24 CFR
92.251; and (iii) all directions, rules and regulations of any fire marshal, health officer, building inspector, or other officer of every governmental agency now having or hereafter acquiring jurisdiction. The work shall proceed only after procurement of each permit, license, or other authorization that may be required by any governmental agency having jurisdiction, and Recipient shall be responsible to the City for the procurement and maintenance thereof, as may be required of Recipient and all entities engaged in work on the Project.
Section 3.8 Accessibility.
To the extent applicable, Recipient shall construct the Project in compliance with all applicable federal and state disabled persons accessibility requirements including but not limited to the Federal Fair Housing Act; Section 504 of the Rehabilitation Act of 1973 (“Section 504”); Title II and/or Title III of the Americans with Disabilities Act; and Title 24 of the California Code of Regulations (collectively, the “Accessibility Requirements”). In compliance with Section 504 Recipient shall provide the City with a certification from the Project architect that to the best of the architect's knowledge, the Project comply with all federal and state accessibility requirements applicable to the Project. Recipient shall indemnify, hold harmless and defend (with counsel reasonably acceptable to the City) the City against any claim for damages, compensation, fines, penalties or other amounts arising out of the failure or alleged failure of any person or entity (including Recipient, its architect, contractor and subcontractors) to construct the Project in Section 3.9 Equal Opportunity.
During the construction of the Project there shall be no discrimination on the basis of race, color, creed, religion, age, sex, sexual orientation, marital status, national origin, ancestry, or disability in the hiring, firing, promoting, or demoting of any person engaged in the construction work.
Section 3.10 Minority and Women-Owned Contractors.
Recipient will use its best efforts to afford minority-owned and women-owned business enterprises the maximum practicable opportunity to participate in the construction of the Project.
Recipient shall, at a minimum, notify applicable minority-owned and women-owned business firms located in Stanislaus County of bid opportunities for the construction of the Project.
Documentation of such notifications shall be maintained by Recipient and available to the City as requested.
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Section 3.11 Progress Reports.
Until such time as Recipient has received a certificate of occupancy from the City for the Project, Recipient shall provide the City with quarterly progress reports regarding the status of the construction of the Project.
Section 3.12 Construction Responsibilities.
(a) It shall be the responsibility of Recipient to coordinate and schedule the work to be performed so that commencement and completion of the construction of the Project will take place in accordance with this Agreement.
(b) Recipient shall be solely responsible for all aspects of Recipient's conduct in connection with the Project, including (but not limited to) the quality and suitability of the plans and specifications, the supervision of construction work, and the qualifications, financial condition, and performance of all architects, engineers, contractors, subcontractors, suppliers, consultants, and property managers. Any review or inspection undertaken by the City with reference to the Project is solely for the purpose of determining whether Recipient is properly discharging its obligations to the City, and should not be relied upon by Recipient or by any third parties as a warranty or representation by the City as to the quality of the design or construction of the Project.
Section 3.13 Mechanics Liens, Stop Notices, and Notices of Completion. (a) If any claim of lien is filed against the Property or a stop notice affecting the Loan is served on the City or any other lender or other third party in connection with the Project, then Recipient shall, within twenty (20) days after such filing or service, either pay and fully discharge the lien or stop notice, effect the release of such lien or stop notice by delivering to the City a surety bond in sufficient form and amount, or provide the City with other assurance satisfactory to the City that the claim of lien or stop notice will be paid or discharged. (b) If Recipient fails to discharge any lien, encumbrance, charge, or claim in the manner required in this Section, then in addition to any other right or remedy, the City may (but shall be under no obligation to) discharge such lien, encumbrance, charge, or claim at Recipient's expense. Alternately, the City may require Recipient to immediately deposit with the City the amount necessary to satisfy such lien or claim and any costs, pending resolution thereof.
The City may use such deposit to satisfy any claim or lien that is adversely determined against Recipient.
(c) Recipient shall file a valid notice of cessation or notice of completion upon cessation of construction on the Project for a continuous period of thirty (30) days or more, and take all other reasonable steps to forestall the assertion of claims of lien against the Property.
Recipient authorizes the City, but without any obligation, to record any notices of completion or cessation of labor, or any other notice that the City deems necessary or desirable to protect its interest in the Project and Property.
Section 3.14 Inspections.
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Recipient shall permit and facilitate, and shall require its contractors to permit and facilitate, observation and inspection at the Project by the City and by public authorities during reasonable business hours for the purposes of determining compliance with this Agreement.
ARTICLE 4
LOAN REQUIREMENTS
Section 1.1 Financial Accountings and Post-Completion Audits.
No later than sixty (60) 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 4.1 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 4.2 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 Loan funds.
Section 4.3 Records.
(a) The Recipient shall keep and maintain at 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 #27..
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HUD records and accounting requirements. If any litigation, claim, negotiation, audit exception, monitoring, inspection or other action relating to the use of the Loan 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 Loan funds. Records must be kept accurate and current and in such a form as to allow the City to comply 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 Loan 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
(b) 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 4.4 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 #27..
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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.
Section 4.5 CDBG Requirements.
(a) Recipient shall comply with all applicable laws and regulations governing the use of the CDBG funds, as set forth in 24 CFR Part 570. In the event of any conflict between this Agreement and applicable laws and regulations governing the use of the Loan funds, the applicable laws and regulations shall govern.
(b) The laws and regulations governing the use of the Loan funds include (but are not limited to) the following:
(1) 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. (2) 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.
(3) Debarred, Suspended or Ineligible Contractors. The prohibition on the use of debarred, suspended, or ineligible contractors set forth in 24 CFR Part 24. (4) 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. (5) 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. (6) 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 #27..
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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 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. (7) 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. (8) 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.
(9) Uniform Administrative Requirements. The requirements of 24 CFR 92.505 and 24 CFR Part 570.502 regarding cost and auditing requirements. (10) 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 #27..
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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 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).
(11) Labor Standards. The applicable labor requirements set forth in 24 CFR Section 570.603, as such require compliance with the prevailing wage requirements of the Davis-Bacon Act and implementing rules and regulations (40 USC 3141-3148); the Copeland “Anti-Kickback” Act (40 USC 276(c)) which requires that workers be paid at least once a week without any deductions or rebates except permissible deductions; the Contract Work Hours and Safety Standards Act – CWHSSA (40 USC 3701-3708) which requires that workers receive “overtime” compensation at a rate of 1-1/2 times their regular hourly wage after they have worked forty (40) hours in one (1) week; and Title 29, Code of Federal Regulations, Subtitle A, Parts 1, 3 and 5 are the regulations and procedures issued by the Secretary of Labor for the administration and enforcement of the Davis-Bacon Act, as amended. #27..
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(12) 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. (13) Anti-Lobbying; Disclosure Requirements. The disclosure requirements and prohibitions of 31 USC 1352 and implementing regulations at 24 CFR Part 87. (14) 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 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 limited to, consultation with the California State Historic Preservation Officer and evaluation of the discovered material(s) by a qualified professional archeologist.
(15) 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. (16) 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. (ix) 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 Recipient shall comply with the requirements set forth at 24 CFR 570.504. By way of further limitations, the Recipient 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 as mutually agreed upon in writing by the City and Recipient, 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 Loanee at the end of the #27..
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contract period. Any interest earned on cash advances from the U.S. Treasury is not program income and shall be remitted promptly to the Loanee.
(17) Reversion of Assets. Upon expiration of this Agreement, Recipient 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). (18) HUD Regulations. Any other HUD regulations present or as may be amended, added, or waived in the future pertaining to the Loan funds, including but not limited to HUD regulations as may be promulgated regarding subrecipients.
Section 4.6 Hazardous Materials.
(a) Recipient shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or 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.
(b) 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 classified as “border-zone property” (as defined in California Health and Safety Code Section 25117.4) under the provision of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. (c) 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.
(d) 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 #27..
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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.
(e) 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. (f) 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. (g) 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 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 #27..
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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 and shall be due and payable to the City upon its demand made at any time following the conclusion of such action.
Section 4.7 Maintenance.
(a) 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.
(b)
Section 4.8 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 4.9 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 1.2 Operation of Project.
(a) Promptly after completion of construction, the Recipient shall operate the Project as transitional housing program for individuals at or below eighty percent (80%) 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. Promptly after completion of construction, the Recipient shall operate the Project in accordance with the requirements set forth in this Agreement.
Section 4.10 Nondiscrimination.
(a) 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 4.11 Transfer.
(a) 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 an eligible household. The City Manager is authorized to execute assignment and assumption agreements on behalf of the City to implement any approved Transfer. (b) No Transfer shall be permitted without the prior written consent of the City, which the City may withhold in its sole discretion.
Section 4.12 Insurance Requirements.
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The Recipient shall maintain the following insurance coverage throughout the Term of the Loan:
(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 Loan proceeds caused by dishonesty, in an amount not less than the amount of the Loan, naming the City as a Loss Payee, as its interests may appear. (g) 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 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. (h) 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.
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(i) 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. (j) 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 4.13 Performance and Payment Bonds.
(a) As a condition precedent to the first Construction Component draw request under the HOME Loan, the Developer shall deliver to the City copies the Construction Bonds, which shall: (i) be in a form reasonably acceptable to the City; (ii) be issued by a surety licensed to do business in California and reasonably acceptable to the City; and (iii) name the City as a co-obligee.
(b) The City shall either reasonably approve or disapprove the submitted proposed Construction Bonds within fifteen (15) days from the date the City receives the Construction Bonds. If the proposed Construction Bonds are not approved by the City, then the City shall notify the Developer in writing of the reasons for disapproval and the required revisions to the previously submitted Construction Bonds. The Developer shall thereafter submit revised proposed Construction Bonds within fifteen (15) days of the notification of disapproval.
The City shall either approve or disapprove the submitted revised Construction Bonds within fifteen (15) days of the date such revised Construction Bonds are received by the City. The City shall approve the initial or revised Construction Bonds if they meet the standards set forth in Subsection (a) above.
Notwithstanding the foregoing, the City shall consider other reasonable forms of security for the completion of the construction of the Project, from either the Developer or the Developer's general contractor, in lieu of such construction bonds described in this Section provided that: (1) all lenders set forth on the Financing Plan have agreed to such other security, and (ii) the City has the same enforcement rights under such security as the lenders set forth on the Financing Plan.
Section 4.14 Anti-Lobbying Certification.
The Recipient certifies, to the best of Recipient's knowledge or belief, that:
(a) 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 Loan, the making of any Federal Loan or loan, the entering into of any cooperative #27..
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agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, Loan, loan, or cooperative agreement;
(b) 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, Loan, 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 than Ten Thousand Dollars ($10,000) and no more than One Hundred Thousand Dollars ($100,000) for such failure.
Section 4.15 Payment of Other Indebtedness; Notice of Defaults. (a) Recipient shall promptly pay the principal and interest when due on any other indebtedness related to the Project.
(b) 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 4.16 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. Recipient shall submit to City a plan for monitoring payment of prevailing wages and shall implement such plan at Recipient ’s expense.
Section 4.17 Indemnification. 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 #27..
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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 4.18 shall not apply to any Claim which arises as a result of an Indemnitee’s gross negligence or willful misconduct.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF RECIPIENT
Section 5.1 Representations and Warranties.
Recipient hereby represents and warrants to the City as follows:
(a) 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.
(b) Authority of Recipient. Recipient has full power and authority to execute and deliver this Agreement 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.
(c) Authority of Persons Executing Documents. This Agreement 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 all other documents or instruments executed and delivered, or to be executed and delivered, pursuant to this Agreement, have been duly taken. (d) Valid Binding Agreements. This Agreement 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.
(e) No Breach of Law or Agreement. Neither the execution nor delivery of this Agreement 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. #27..
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(f) 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 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.
(g) 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 Loan or impair the security to be given to the City pursuant hereto.
(h) 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.
(i) 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. (j) 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.
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 within the times set forth in Article 3 above; #27..
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(b) Reserved.
(c) (Breach of Covenants. Failure by Recipient to duly perform, comply with, or observe any of the conditions, terms, or covenants of this Agreement, 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 or Recipient's general partner, if Recipient is a partnership, or Recipient's managing member, if Recipient is a limited liability company, to be bankrupt or insolvent, (ii) approving as properly filed a petition seeking reorganization of Recipient or Recipient's general partner, if Recipient is a partnership, or Recipient's managing member, if Recipient is a limited liability company, or seeking any arrangement for Recipient or Recipient's general partner, if Recipient is a partnership, or Recipient's managing member, if Recipient is a limited liability company, 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 or Recipient's general partner, if Recipient is a partnership, or Recipient's managing member, if Recipient is a limited liability company, 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. (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 #27..
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the Loan 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 this Agreement, 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 Loan and shall give the City the right to proceed with any and all remedies set forth in this Agreement, 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 Loan within a reasonable period of time, as determined by the City in its sole discretion. The City may proceed to enforce repayment of the Loan and to exercise any or all rights afforded to the City.
(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 this Agreement or to enjoin acts on things which may be unlawful or in violation of the provisions of this Agreement.
(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 Loan.
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.
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 #27..
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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 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. 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 regard 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 this Agreement 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 this Agreement.
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.
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.
(a) Except for approved eligible administrative or personnel costs, no person described in Section 7.8(b) below 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 7.8(a) is followed.
(b) The conflict of interest provisions of Section 7.8(a) above 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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(c) 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. (d) 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 Director
Recipient: Visionary Home Builders of California, Inc., 315 N. San Joaquin St.
Stockton, CA 95202
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 #27..
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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 Loaned 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 this Agreement and deliver such approvals or consents as are required by this Agreement, and to execute estoppel certificates concerning the status of the Loan and the existence of Recipient defaults under this Agreement.
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 Loaned 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 constitutes the entire understanding and agreement of the Parties with respect to the Loan.
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.
Visionary Home Builders of California, Inc.,
By: ________________________________
Title: ________________________________
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CITY OF MODESTO
By: _______________________________
Joseph P. Lopez, City Manager
ATTEST:
By:
Diane Nayares-Perez, CMC, City Clerk
(SEAL)
APPROVED AS TO LEGAL 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 PROPERTY
The land is situated in the State of California, Stanislaus County, City of Modesto, and is described as follows:
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2 EXHIBIT B
PROJECT SUMMARY
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EXHIBIT C
APPROVED PROJECT BUDGET
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EXHIBIT D
FEDERAL AWARD IDENTIFICATION INFORMATION
i) Participant’s name:
ii) Participant’s UEI:
iii) Federal Award Identification Number (FAIN):
iv) Federal Award Date:
v) Subaward Period of Performance Start and End Date:
vi) Amount of Federal Funds Obligated by this action by the CITY entity to the Participant:
vii) Total Amount of Federal Funds Obligated to the Participant by the CITY including the current obligation:
viii) Total Amount of the Federal Award committed to the Participant by the CITY:
ix) Federal award project description, as required to be responsive to the Federal Funding Accountability and Transparency Act (FFATA):
x) Name of Federal awarding agency:
xi) Contact information for CITY official responsible for awarding funding:
xii) CFDA Number and Name:
xiii) Identification of whether the award is R&D:
xiv) Indirect cost rate for the Federal award (including if the de minimis rate is charged per 2 CFR 200.414 Indirect (F&A) costs):
5481136.1
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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
Director
EXEMPT FROM RECORDING FEES
PER
GOVERNMENT CODE §§6103, 27383
APN: Space above this line for Recorder’s use.
DEED OF TRUST, ASSIGNMENT OF RENTS,
SECURITY AGREEMENT AND FIXTURE FILING
(CDBG Loan – 7th Street Village)
THIS DEED OF TRUST, ASSIGNMENT OF RENTS, SECURITY AGREEMENT AND FIXTURE FILING (this “Deed of Trust”) is entered into as of ______________, 2023, Visionary Builders of California, Inc., a California nonprofit corporation (“Trustor”) to _________________ (“Trustee”), for the benefit of the City of Modesto, a California charter city (“Beneficiary”).
RECITALS
A. Trustor owns fee simple title to certain real property generally located at 914-930 7th Street, Modesto, California, Modesto, California, also known as Stanislaus county Assessor’s Parcel Numbers ____________________029-009-036-000, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Land”).
Trustor intends to develop a seventy-four (77) unit affordable multifamily housing development on the Land (the “Project”).
B. Beneficiary and Trustor have entered into that certain Loan Agreement dated as of ____________, 2023 (the “Loan Agreement”) pursuant to which Beneficiary will provide a loan to Trustor in the amount of up to Two Million Dollars ($2,000,000) (“Loan”) for the purpose of partially financing the construction of the Project. Trustor has issued to Beneficiary a secured promissory note dated as of the date hereof (the “Note”) to evidence Trustor’s obligation to repay the Loan.
C. This Deed of Trust, the Loan Agreement, the Note, and the Regulatory Agreement (defined below) are collectively referred to herein as the “Loan Documents.” #27..
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2 D. As a condition precedent to the making of the Loan, 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 repayment of the Note and performance of Trustor’s obligations under the Loan Agreement and the other Loan Documents.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of 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”);
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3 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
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 indebtedness evidenced by the Note and any amendment thereof, including principal, interest and all other amounts payable under the terms of the Note; (ii) all present and future obligations of Trustor to Beneficiary under the Loan Agreement, the Regulatory 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 Loan Documents; (iii) 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; (iv) 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 (v) 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 #27..
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4 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 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 #27..
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5 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 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 Loan 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.
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6 7.2 Payment and Performance of Secured Obligations. Trustor shall promptly pay when due the principal and any interest due on the indebtedness evidenced by the Note, and shall promptly pay and perform all other obligations of Trustor arising in connection with the Secured Obligations or the Loan Documents in accordance with the respective terms thereof.
7.3 Use of Loan Proceeds; Preservation and Maintenance of Property; Compliance with Laws. Trustor covenants that it shall use the proceeds of the Loan (the “Loan Proceeds”) solely for purposes authorized by the Loan 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.
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 Loan 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 Loan Documents.
7.4 Restrictions on Conveyance and Encumbrance; Acceleration. It shall be an Event of Default hereunder if any Transfer (as defined in the Loan Agreement) of the Property, any part thereof or any interest therein occurs in violation of the requirements of the Loan 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 Loan 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 Loan 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 #27..
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7 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.
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 Loan 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 Loan 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 Loan 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, to Trustor’s best knowledge, 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. #27..
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8 7.10 Hazardous Materials.
(a) Trustor shall keep and maintain the Property in compliance with, and shall not cause or permit the Property to be in violation of any federal, state or local laws, ordinances or 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. Trustor 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 are used in construction of projects of the improvements on the Property or as may be customarily kept and used in and about residential property.
(b) Trustor shall immediately advise Beneficiary in writing if at any time it receives written notice of: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against Trustor or the Property pursuant to any applicable federal, state or local laws, ordinances, or regulations relating to any Hazardous Materials, ("Hazardous Materials Law"); (2) all claims made or threatened by any third party against Trustor or the Property relating to damage, contribution, cost recovery compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in clauses (1) and (2) above are hereinafter referred to as "Hazardous Materials Claims"); and (3) Trustor'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 classified as "border-zone property" (as defined in California Health and Safety Code Section 25117.4) under the provision of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Property under any Hazardous Materials Law. (c) Beneficiary has 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 Trustor. Trustor shall indemnify and hold harmless Beneficiary and its board 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: (1) all foreseeable consequential damages; (2) 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 (3) all reasonable costs and expenses incurred by Beneficiary in connection with clauses (1) and (2), 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: (i) losses attributable to diminution in the value of the Property; (ii) loss or restrictions or use of rentable space on the Property; (iii) adverse effect on the #27..
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9 marketing of any rental space on the Property; and (iv) 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). (d) Without Beneficiary's prior written consent, which may not be unreasonably withheld, Trustor may 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 Beneficiary's reasonable judgment, impairs the value of the Beneficiary's security hereunder; provided, however, that Beneficiary's prior consent is not 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 Beneficiary's consent before taking such action, provided that in such event Trustor notifies Beneficiary as soon as practicable of any action so taken. Beneficiary agrees not to withhold its consent, where such consent is required hereunder, if either: (1) a particular remedial action is ordered by a court of competent jurisdiction; (2) Trustor will or may be subjected to civil or criminal sanctions or penalties if it fails to take a required action; (3) Trustor establishes to the reasonable satisfaction of Beneficiary that there is no reasonable alternative to such remedial action which would result in less impairment of Beneficiary's security hereunder; or (4) the action has been agreed to by Beneficiary. (e) The Trustor hereby acknowledges and agrees that: (1) this Article is intended as the Beneficiary's written request for information (and the Trustor's response) concerning the environmental condition of the Property as required by California Code of Civil Procedure Section 726.5; and (2) each representation and warranty in this Deed of Trust or any of the other Loan Documents (together with any indemnity applicable to a breach of any such representation and warranty) with respect to the environmental condition of the property is intended by the Beneficiary and the Trustor to be an "environmental provision" for purposes of California Code of Civil Procedure Section 736.
(f) 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 Beneficiary's or the Trustee's rights and remedies under this Deed of Trust, the Beneficiary 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 Trustor to judgment, and (ii) any other rights and remedies permitted by law. For purposes of determining the Beneficiary's right to proceed as an unsecured creditor under California Code of Civil Procedure Section 726.5(a), the Trustor will 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 #27..
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10 portion of the Property and the Trustor knew or in the exercise of reasonable diligence 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 Beneficiary 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%) or the maximum rate permitted by law, until paid, will be added to the indebtedness secured by this Deed of Trust and will be due and payable to the Beneficiary upon its demand made at any time following the conclusion of such action.
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.
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 #27..
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11 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 survive the repayment of the Loan and 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 Loan 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. In the event funds for such work are insufficient, Beneficiary may, in its sole discretion and subject to the approval of Beneficiary’s governing board, advance such additional funds as may be necessary to allow the Property to be repaired or restored, and may add the amount thereof to the principal balance of the Note. 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 #27..
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12 proceeds at Beneficiary's option either to restoration or repair of the Property or to the sums secured by this Deed of Trust
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 and the Note 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, and the Note, 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; #27..
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13 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;
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 Loan Agreement; d. Trustor fails to maintain the insurance coverage required under the Loan 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 #27..
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14 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 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, subject to the nonrecourse provisions set forth in the Note. 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 the Note and 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.
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15 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.
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 Note or 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 Loan 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 #27..
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16 to declare all amounts due under the Note 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 under the Note.
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 Loan 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.
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17 10. Miscellaneous Provisions.
10.1 Additional Provisions. The Loan 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.
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 4400
P O Box 642
Modesto, CA 95353
Attn: Community Development Manager
Trustor: Visionary Home Builders of California, Inc.
315 N. San Joaquin St,
Stockton, CA 95202
Attn: Executive Director
Trustee: ____________
____________
____________
10.3 Binding on Successors. The terms, covenants and conditions of this Deed of #27..
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18 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 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 Loan 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 #27..
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19 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 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.
TRUSTOR:
Visionary Home Builders of California, Inc.,
By: ________________________________
Title: ________________________________
SIGNATURES MUST BE NOTARIZED.
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20 Exhibit A
LAND
(Attach legal description.)
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21 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_____________________________
5481910_1.DOCX
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5481116.1 1
SECURED PROMISSORY NOTE
(CDBG Loan – 7th Street Village)
$2,000,000 Modesto, California
_________,2023
FOR VALUE RECEIVED, the undersigned Visionary Home Builders of California, Inc., a California nonprofit corporation ("Borrower"), hereby promises to pay to the order of the City of Modesto, a municipal corporation (“City” or "Holder"), the principal amount of up to Two Million Dollars ($2,000,000), in lawful money of the United States of America, as may be advanced by City pursuant to the Loan Agreement referred to below, together with interest on the outstanding principal balance in accordance with the terms and conditions described herein.
1. Borrower's Obligation. This Secured Promissory Note (the "Note") evidences Borrower's obligation to repay City the principal amount of Two Million Dollars ($2,000,000) or such other amount as may be advanced by the City pursuant to the Loan Agreement between Borrower and City dated as of ___________,2023, as such may be amended from time to time (the "Loan Agreement"), together with all interest on the outstanding principal balance in accordance with the terms and conditions described herein. Borrower’s obligation under this Note are secured by that certain Deed of Trust dated as of the date hereof executed by Borrower for the benefit of City and encumbering the property described therein. All capitalized terms used but not defined in this Note have the meanings set forth in the Loan Agreement.
2. Interest.
(a) Subject to the provisions of subsection (b) below, outstanding principal balance of the Loan shall bear interest at a simple rate of three percent (3%) per year. (b) In the event of a Default, interest on the Loan shall begin to accrue, as of the date of Default, and continuing until such time as Loan funds are repaid in full or the Default is cured, at the default rate of the lesser of ten percent (10%), compounded annually, or the highest rate permitted by law.
3. Term and Repayment Requirements. Borrower shall repay the amount due hereunder as follows:
(a) Annual Payments. Commencing on the later of: (i) April 1 following the Completion Date, or (ii) April 1, 2026, and on April 1 of each year thereafter, through the end of the Term, the Developer shall make repayments of the Loan in the amount of the City's Share of Residual Receipts. Payment of the City's Share of Residual Receipts shall be credited first against accrued interest and then against outstanding principal and shall be accompanied by the Borrower's report of Residual Receipts (including an independent auditor's report regarding the auditor's review of Annual Operating Expenses). The Borrower shall provide the City with any documentation reasonably requested by the City to substantiate the Borrower's determination of Residual Receipts.
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5481116.1 2
(b) Due in Full. Except as otherwise provided for in the Loan Agreement, the unpaid principal balance hereunder, together with accrued interest thereon, is due and payable no later than the date that is the fifty-fifth (55th) anniversary of the Completion Date (as defined in the Loan Agreement), but in no event later than December 31, 2080. (c) Right to Prepay. The Borrower shall have the right to prepay the Loan at any time without premium or penalty.
(d) Compliance with Loan Agreement. Except as otherwise provided herein, this Note is due and payable as set forth in Section 2.7 of the Loan Agreement.
4. No Assumption. This Note is not assumable by the successors and assigns of Borrower without the prior written consent of City, except as provided in the Loan Agreement.
5. Security. This Note, with interest, is secured by the Deed of Trust. Upon execution, the Deed of Trust will be recorded in the official records of Stanislaus County, California. Upon recordation of the Deed of Trust, this Note will become nonrecourse to Borrower, pursuant to and except as provided in Section 2.9 of the Loan Agreement which section is hereby incorporated into this Note. The terms of the Deed of Trust are hereby incorporated into this Note and made a part hereof.
6. Terms of Payment.
(a) Borrower shall make all payments due under this Note in currency of the United States of America to Holder at City of Modesto, 1010 Tenth Street, Suite 4400, Attn:
Community Development Manager, or to such other place as Holder may from time to time designate.
(b) All payments on this Note shall be without expense to City, and Borrower agrees to pay all costs and expenses, including re-conveyance fees and reasonable attorney's fees of City, incurred in connection with the payment of this Note and the release of any security hereof.
(c) Notwithstanding any other provision of this Note, or any instrument securing the obligations of Borrower under this Note, if, for any reason whatsoever, the payment of any sums by Borrower pursuant to the terms of this Note would result in the payment of interest that exceeds the amount that City may legally charge under the laws of the State of California, then the amount by which payments exceed the lawful interest rate will automatically be deducted from the principal balance owing on this Note, so that in no event is Borrower obligated under the terms of this Note to pay any interest that would exceed the lawful rate. (d) The obligations of Borrower under this Note are absolute, and Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.
(e) Borrower may prepay the amounts due under this Note at any time without premium or penalty.
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5481116.1 3
7. Event of Default; Acceleration.
(a) Upon the occurrence of an event of Default, the entire unpaid principal balance, together with all interest thereon, and together with all other sums then payable under this Note and the Deed of Trust will, at the option of City, become immediately due and payable without further demand.
(b) City's failure to exercise the remedy set forth in subsection 7(a) above or any other remedy provided by law upon the occurrence of an Event of Default does not constitute a waiver of the right to exercise any remedy at any subsequent time in respect to the same or any other Event of Default. The acceptance by City of any payment that is less than the total of all amounts due and payable at the time of such payment does not constitute a waiver of the right to exercise any of the foregoing remedies or options at that time or at any subsequent time or nullify any prior exercise of any such remedy or option, without the express consent of City, except as and to the extent otherwise provided by law.
8. Waivers.
(a) Borrower hereby waives diligence, presentment, protest and demand, and notice of protest, notice of demand, notice of dishonor and notice of non-payment of this Note.
Borrower expressly agrees that this Note or any payment hereunder may be extended from time to time, and that City may accept further security or release any security for this Note, all without in any way affecting the liability of Borrower.
(b) Any extension of time for payment of this Note or any installment hereof made by agreement of City with any person now or hereafter liable for payment of this Note must not operate to release, discharge, modify, change, or affect the original liability of Borrower under this Note, either in whole or in part.
(c) The obligations of the Borrower under this Note shall be absolute, and the Borrower waives any and all rights to offset, deduct or withhold any payments or charges due under this Note for any reason whatsoever.
9. Miscellaneous Provisions.
(a) All notices to City or Borrower shall be given in the manner and at the addresses set forth in the Loan Agreement, or to such addresses as City and Borrower may therein designate.
(b) Borrower promises to pay all costs and expenses, including reasonable attorney's fees, incurred by City in the enforcement of the provisions of this Note, regardless of whether suit is filed to seek enforcement.
(c) This Note may not be changed orally, but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, or discharge is sought.
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5481116.1 4
This Note shall be governed by and construed in accordance with the laws of the State of California. If any provision of this Note shall be invalid, illegal, or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Time is of the essence with respect to every provision of this Note. (d) The times for the performance of any obligations hereunder are to be strictly construed, time being of the essence.
(e) The Loan Documents, of which this Note is a part, contain the entire agreement between the parties as to the Loan. This Note may not be modified except upon the written consent of the parties.
[Signature Page Follows]
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Signature page
IN WITNESS WHEREOF, Borrower has executed this Promissory Note as of the day and year first above written.
BORROWER:
Visionary Home Builders of California, Inc.
By: ______________________
Title: ______________________
5481116.1
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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
EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
APN: ________ Space above this line for Recorder’s use.
REGULATORY AGREEMENT AND
DECLARATION OF RESTRICTIVE COVENANTS
(CDBG Loan - 7th street Village)
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 Visionary Home Builders of California, Inc., a California nonprofit corporation (the “Borrower”). City and Borrower are collectively referred to herein as the “Parties.”
RECITALS
1. City and Borrower have entered into certain loan agreement pursuant to which the City loaned to Borrower Two Million Dollars ($2,000,000) (the “Loan”).
2. The Loan is 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. The Borrower owns certain property located in the City of Modesto, California, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”).
4. The City has provided the Loan in order to assist Borrower in a multi-family residential project on the Property consisting of seventy-nine (79) housing units, of which seventy-seven (77) will be reserved for and affordable to households with an income of no greater than sixty percent (60%) of the Area Median Income for Stanislaus County (the “Project”).
5. In consideration of receipt of the Loan, the Borrower agrees to observe all the terms and conditions set forth in this Agreement.
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3337561.2 2
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) “Borrower” means Visionary Home Builders of California, Inc., a California nonprofit 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 after completion of the renovation work funded by the Loan, 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 repayment of the Loan and the performance the terms and conditions of the Note and 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. (i) “Grant” means all funds granted to the Borrower by the City pursuant to the Grant Agreement.
(j) “Grant Agreement” means the Loan Agreement between Borrower and City, dated of even date herewith, evidencing the Loan. (k) “HUD” means the United States Department of Housing and Urban Development.
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3337561.2 3
(l) “Loan” means all funds loaned to the Borrower by the City pursuant to the Note.
(m) “Loan Agreement” means the Loan Agreement between Borrower and City, dated of even date herewith, evidencing the Loan. (n) “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 Borrower with other income determinations which are reasonably similar with respect to methods of calculation to those previously published by HUD.
(o) “Note” means the promissory note in the amount of Two Million Dollars ($2,000,000) executed by the Borrower to the City evidencing the Loan, dated ___________, 2023.
(p) “Official Records” means the official land records of the County of Stanislaus, California
(q) “Property” means the property described in the attached Exhibit A. (r) “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 Date?.
ARTICLE 2
OPERATION OF PROJECT
2.1 Permitted Use.
The Property shall be used to develop the Project, as more particularly described int the Loan Agreement, along with other compatible and related uses, such as office space for Borrower. The Property shall not be used for any other purpose without the prior written consent of the City.
2.2 Compliance with Note and Deed of Trust.
Borrower shall comply with all the terms and provisions of the Loan Agreement, Grant Agreement, the Note 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 #27..
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other applicable law or regulation (including the Americans With Disabilities Act, to the extent applicable to the Property). Borrower agrees to indemnify, protect, hold harmless and defend (by counsel reasonably satisfactory to City) City, and its council members, officers, and employees, from all suits, actions, claims, causes of action, costs, demands, judgments and liens arising out of Borrower'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.
Borrower shall submit to the City annual reports in a form approved by the City, no later than sixty (60) days after the end of Borrower'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 Borrower 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, Borrower 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 Borrower 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 Borrower.
3.2 Additional Information.
The Borrower 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 Borrower that pertain to the Property. #27..
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3.3 Records.
The Borrower shall maintain complete, accurate and current records pertaining to the Property and all those records set forth in the Loan Agreement and shall permit any duly authorized representative of the City to inspect records. The Borrower shall retain copies of all materials obtained or produced with respect to occupancy of the Units for a period of at least five (5) years.
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 Borrower agrees to cooperate in such inspection and request tenants cooperate with such inspections.
ARTICLE 4
TAXES
4.1 Taxes and Assessments.
Borrower 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 Borrower shall have the right to contest in good faith, any such taxes, assessments, or charges. In the event Borrower exercises its right to contest any tax, assessment, or charge against it, Borrower, 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.
Borrower 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 Borrower 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. Borrower may retain a professional property #27..
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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 Borrower shall submit for the City's approval the identity of any proposed Management Agent and if applicable, the management agreement between Borrower and the Management Agent (the “Management Agreement”). The Borrower shall also submit such 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 Borrower 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 Borrower 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 Borrower 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 Borrower of such written notice, City staff and the Borrower 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 Borrower 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. #27..
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The Borrower 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:
(a) Landscaping. The Borrower shall have landscape maintenance performed on a regular basis, including replacement of dead or diseased plants with comparable plants.
Borrower 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. Borrower 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 Borrower 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 Borrower shall maintain, repair, and replace as necessary all public sidewalks 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 Borrower agrees to provide all necessary improvements to #27..
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assure the Property is maintained in good condition. The Borrower shall make all repairs and replacements necessary to keep the improvements in good condition and repair.
In the event that the Borrower 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 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 Borrower to the City upon demand.
(e) Safety Conditions. The Borrower 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 Borrower 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 #27..
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extent applicable to the Property). Borrower 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 Borrower'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.
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. The provisions of this Agreement shall apply to the Property for the entire Term even if the Loan is paid in full prior to the end of the Term. This Agreement shall bind any successor, heir, or assign of the Borrower, 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 Loan on the condition, and in consideration of, this provision, and would not do so otherwise.
6.3 Compliance with Program Requirements.
Borrower actions with respect to the Property shall at all times be in full conformity with:
(i) all requirements of the Loan 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, Borrower, and Borrower'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 Borrower 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 of Borrower's limited partner set forth in the Loan Agreement, if the Borrower fails to perform any obligation under this Agreement, and fails to cure the default within thirty (30) days after the City has notified the Borrower in writing of the #27..
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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) Calling the Loan. The City may declare a default under the Loan Agreement, declare a default under the Loan Agreement, accelerate the indebtedness evidenced by the Note, and proceed with foreclosure under the City Deed of Trust. City and Borrower agree and acknowledge that the enforcement by the City of Borrower's obligation to repay the Grant shall in no event constitute the collection of, or enforcement of, monetary damages. (b) Action to Compel Performance or for Damages. The City may bring an action at law or in equity to compel the Borrower's performance of its obligations under this Agreement, for damages, or for injunctive relief.
(c) Remedies Provided Under Note or Deed of Trust. The City may exercise any other remedy provided under the Note or Deed of Trust. (d) Special Remedy for Breach of Use Requirement. Pursuant to 24 C.F.R. 570.503(b)(7)(ii), if Borrower 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 Borrower 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 Borrower's new use of the Property (that is not permitted by this Agreement). Funds recovered from Borrower 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 Borrower 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.
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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
1010 10th Street
P. O. Box 642
Modesto, CA 95353
Attention: Community Development Manager
Borrower: Visionary Home Builders of California, Inc.,
315 N San Joaquin St,
Stockton, CA 95202
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 Borrower of record before the foreclosure, or deed in lieu of foreclosure, or any entity that includes the former Borrower or those with whom the former Borrower has or had family or business ties, obtains an ownership interest in the Property or Project. #27..
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6.15 Indemnification.
Borrower 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.
Borrower 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 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 Section 2.5 of the Loan Agreement.
6.18 Notice of Litigation.
Borrower shall promptly notify the City in writing of any litigation materially affecting Borrower 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 Borrower 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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IN WITNESS WHEREOF, the City and the Borrower have executed this Agreement by duly authorized representatives, all on the date first written above.
Visionary Home Builders of California, Inc.:
By: ________________________________
Title: ________________________________
CITY OF MODESTO
By: _______________________________
Joseph P. Lopez, City Manager
Date: ______________________________
ATTEST:
By:
Stephanie Lopez, City Clerk
Date: _______________________________
(SEAL)
APPROVED AS TO LEGAL FORM
By: _______________________________
Adam U. Lindgren, City Attorney
Date: _______________________________
APPROVED AS TO RISK MANAGEMENT:
By:
Name: __________________________
Risk Manager
Date: _______________________________
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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_____________________________
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1669\01\1593246.2 B-1
Exhibit A
Legal Description of the Property
The land is situated in the City of Modesto, County of Stanislaus, State of California, and is described as follows:
3337561.3
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
September 12, 2023
Date: August 11, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Christina Alger, Director of Human Resources
SUBJECT: City Auditing Services Agreement
CONTACT: Christina Alger, Director of Human Resources
[email protected], 209-571-5126
DESCRIPTION:
Consider approving the appointment of Colleen Rozillis as City Auditor and a Professional Services Agreement with Moss Adams, LLP, Stockton, CA, to provide auditing services for an annual amount not to exceed $250,000 per year. (Funding Source: General Fund) STRATEGIC PLAN ELEMENT:
This item supports the 2020-2025 Strategic Plan’s Service and Delivery Goals & Strategies - Building a High-Performing Organization by Attracting and Retaining High Performance Employees
BACKGROUND:
In February 2008, Modesto voters approved Measure M, otherwise entitled “The Accountability in City Hall Measure of 2008” which focused on amending Modesto’s Charter in ways that served to create a more open process in Modesto City governance. It particularly served to increase the oversight capacity of the elected Mayor and Councilmembers over certain matters such as budget and City operations. One such way proposed under the measure to provide greater opportunity to review City efficiencies was the creation of a separate Office of the City Auditor, who would serve as an independent Charter Office answering directly to the Council.
The Charter amendment also specifically delineated the duties of the City Auditor, with particular emphasis on the conduct of City process, or performance audits.
The City of Modesto Charter Article 9, Section 902.1, outlines the requirements of the Office of the City Auditor and the powers and duties. These include financial and performance audits to ensure activities and programs are conducted efficiently and compliant with applicable laws and regulations. The City Auditor also is charged with the methods of acquiring and expending resources.
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City Council, September 12, 2023
City Auditing Services Agreement