Modesto City Council
December 12, 2023

- 1 -
12/12/2023 5:30:00 PM

MODESTO CITY COUNCIL
www.modestogov.com
AGENDA
City of Modesto

CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, December 12, 2023 at 5:30 PM
Roll Call - Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
* Public Comment will only be in-person. Members of the public who wish to address the Council, by providing public comment, during the meeting must do so in-person in the Council Chambers.

As an alternative, members of the public may also provide written public comment submitted via email as indicated in the Submitting Comments by Email instructions on this agenda. Zoom will still be available for viewing and Wordly translation.
*Members of the public will be allowed to provide public comment through Zoom if a Councilmember is participating remotely pursuant to the provisions of Assembly Bill 2449. *Effective March 1, 2023, if a technical issue arises with Zoom or the phone dial-in option, the Council meeting will continue unless the meeting is being held pursuant to the provisions of Assembly Bill 2449. Alternative viewing options are listed below, and the meeting is physically open to the public.
“Wordly” can translate into 25+ different languages! To access written translation during the meeting, please scan the QR Code or click this link https://attend.wordly.ai/join/RJDY-6364.
"Wordly" puede traducir a más de 25 idiomas diferentes! Para acceder a la traducción durante la reunión, por favor escanee el código QR o haga clic en el enlace https://attend.wordly.ai/join/RJDY-6364.
- 1 -
12/12/2023
- 2 -
12/12/2023 5:30:00 PM
You may observe a livestream of the meeting at http://media.modestogov.com. You may also view or listen to the meeting as indicated below.

THE MEETING CAN BE VIEWED BY ZOOM VIDEO

CONFERENCING OR TELEPHONE
Joining the City Council meeting via Zoom
The City of Modesto is now offering the ability to view Council meetings via telephonic conferencing via “Zoom” video conferencing computer technology. The meeting may be accessed through the use of Zoom using the following options:
 Enter the following link into an Internet Browser
https://us02web.zoom.us/j/86945970570,
 Enter the following link into an Internet Browser https://zoom.us/ and using the Webinar ID 869 4597 0570
 Passcode 84326
To use Zoom, please visit: https://zoom.us/ and either sign-up for a free Zoom account or continue as a guest. Once you have downloaded the app onto your mobile device, joined from your web browser, or downloaded the Zoom software on your computer you will be ready for the upcoming Council meeting.

Joining the City Council meeting via Telephone
If you don’t have a smart phone or computer to access the meeting via Zoom, you can listen by phone, by calling 1-877-853-5257 (Toll Free) or 1-888-475-4499 (Toll Free) and enter the Webinar ID 869 4597 0570 Passcode 84326

SUBMITTING COMMENTS BY E-MAIL
Written comments may be submitted via email to: [email protected] (include Agenda Item Number in the subject line). All comments will be shared with the Councilmembers and placed in the record but will not be read aloud during the meeting. Written comments must be received two hours before the meeting.

This Agenda is on file in the City Clerk’s Office, Sixth Floor, 10th Street Place, Posting Board at entry of 10th Street Place, and is available on the City’s Web site at www.modestogov.com.

Materials related to an item on this Agenda submitted to the Council after distribution of the agenda packet are available for public inspection in the Clerk’s office during normal business hours. Such documents are also available online, subject to staff’s ability to post the documents before the meeting, at the following website https://www.modestogov.com/council-meetings In accordance with the requirements of Title II of the Americans with Disabilities Act (“ADA”) of 1990, the Fair Employment & Housing Act (“FEHA”), the Rehabilitation Act of 1973 (as amended), Government Code section 11135 and other applicable codes, the City of Modesto (“City”) will not discriminate against individuals on the basis of disability in the City’s services, - 2 -
12/12/2023
- 3 -
12/12/2023 5:30:00 PM
programs, or activities. For more information, please visit the City of Modesto website at https://www.modestogov.com/865/Americans-with-Disabilities-Act-ADA In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the City Clerk (209) 577-5396. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

Pledge of Allegiance to the Flag
Invocation: Jon Apodaca, Good Life Church
City Clerk’s Announcements
Declaration of Conflicts of Interest
Reports from Closed Session

PUBLIC COMMENT IN PERSON
Three-minute time limit per speaker
Only interested persons in the audience may present these matters. Under State law, Councilmembers may respond to matters being presented under this item only as follows:
a. Briefly respond to statements made or questions raised. b. Ask a question for clarification.
c. Provide a reference to staff or other resources for factual information. d. Request staff to report back at a subsequent meeting. e. Finally, a Councilmember or the Council itself may take action to direct staff to place a matter of business on a future agenda.

CONSENT ITEMS – ROLL CALL VOTE REQUIRED
Information concerning the consent items listed below has been forwarded to each Councilmember prior to this meeting for study. Unless some member of the audience or Councilmember has a question concerning an item and asks that it be withdrawn from the consent list, the Council approves the items at one time. The action taken by the Council in approving consent items is set forth in the explanation of this individual item.

Any and all of the following agenda items are subject to action by the Modesto City Council.

CONSENT
An item may be removed from consent and discussed at the request of an audience member or Councilmember.

Consent

1. Consider approving the minutes from the December 5, 2023 Council Meeting. - 3 -
12/12/2023
- 4 -
12/12/2023 5:30:00 PM
(Funding Source: Not Applicable)
Staff Recommendation:
 Motion approving the minutes from the December 5, 2023 Council Meeting.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent

2. Consider approving Final Adoption of Ordinance 3776-C.S. amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area. (Funding Source: Not Applicable)
Staff Recommendation:
 Motion approving Final Adoption of Ordinance 3776-C.S. amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] Consent

3. Consider approving a Fourth Amendment to the Legal Services Agreement with Nossaman LLP for a revised total amount not to exceed $2,200,000, adjust rates and extend the term of the agreement for one remaining year and a Sixth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. for a revised total amount not to exceed $392,300 for continued representation in water related matters. (Funding Source: Streets Capital Facility Fees, Regional Measure L and Water Fund)
Staff Recommendation:
 Resolution approving a Fourth Amendment to the Legal Services Agreement with Nossaman LLP increasing the Agreement amount by $200,000 from $2,000,000 for a revised total amount not to exceed $2,200,000, adjusting the blended hourly rate from $438 to $452 and extending the term of the agreement to December 31, 2024, to continue to provide Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project, and authorizing the City Manager, or his designee, to execute the Amendment.  Resolution approving a Sixth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. in the amount of $100,000, for a revised total amount not to exceed $392,300 for continued representation in water related matters and authorizing the City Manager or his designee, to execute the Agreement.

CITY ATTORNEY; Jose Sanchez, 209-577-5284, [email protected] Consent

4. Consider approving Amendments to Community Police Review Board Bylaws (Funding Source: Not Applicable)
- 4 -
12/12/2023
- 5 -
12/12/2023 5:30:00 PM
Staff Recommendation:
 Resolution amending the Community Police Review Board Bylaws changing the meeting date from the third Thursday of each month at 5:00 p.m. to the third Wednesday of each month at 5:30 p.m. starting on January 17, 2024.

CITY MANAGER; Allison Van Guilder, 209-577-5228, [email protected] Consent

5. Consider approving a ten-year Lease Agreement with John A. Paoluccio and Dorene J.

Paoluccio to lease approximately 5,325 square feet located at 4701 Quinturn Lane, Modesto (APN 078-013-031) in the amount of $1,681.24 for the 2024 payment with a cost-of-living increase of three percent (3%) each year for ten years, with two five year extension options. (Funding Source: NorthPointe Community Facilities District (CFD 2002-1))
Staff Recommendation:
 Resolution approving a ten-year Lease Agreement with John A. Paoluccio and Dorene J. Paoluccio to lease approximately 5,325 square feet located at 4701 Quinturn Lane, Modesto (APN 078-013-031) in the amount of $1,681.24 for the 2024 payment with a cost-of-living increase of three percent (3%) each year for ten years, with two five year extension options, and authorizing the City Manager or his designee to execute the Agreement.

CED; Peter Ibrahim, 209-577-5211, [email protected] Consent

6. Consider an Agreement with the Modesto Children’s Museum (MoChiMu) for a twoyear term for discounted employee parking. (Funding Source: Parking Services Enterprise Fund)
Staff Recommendation:
 Resolution approving an Agreement with the Modesto Children’s Museum for discounted employee parking and authorizing the City Manager or his designee to execute the Agreement.

CED; Trevin Barber, 209-860-1251, [email protected] Consent

7. Consider approving an amendment to the Section 4 Policy- “HOME Investment Partnership Program Policy” of the Housing and Urban Development Policies & Procedures Manual. (Funding Source: HOME Investment Partnerships) Staff Recommendation:
 Resolution approving an amendment to Section 4 Policy- “HOME Investment Partnership Program Policy” of the Housing and Urban Development Policies & Procedures Manual.

CED; Edgar Garcia, 209-571-5101, [email protected] Consent

8. Consider approving Administrative Amendments to the Consolidated Plan for Program Year 2015-2020 and Administrative Amendment #1 to City Annual Action Plan for Program Years 2017-2018 and 2023-2024 Annual Action Plan. (Funding Source:
- 5 -
12/12/2023
- 6 -
12/12/2023 5:30:00 PM
Various HUD Entitlement Funds)
Staff Recommendation:
 Resolution approving the proposed Administrative Amendment No. 1 to the Consolidated Plan for Program Year 2015-2020 and authorizing the City Manager or his designee, to execute any required documents for submittal to the U.S. Department of Housing and Urban Development.
 Resolution approving the proposed Administrative Amendments No. 1 to the City’s Annual Action Plan for Program Years 2017-2018 and 2023-2024 Annual Action Plan and authorizing the City Manager or his designee, to execute any required documents for submittal to the U.S. Department of Housing and Urban Development.

CED; Edgar Garcia, 209-571-5101, [email protected] Consent

9. Consider approving a First Amendment to the Catering and Concessionaire Agreement between the City of Modesto and Modesto Hospitality, LLC, to provide Catering and Concessionaire Services to the Modesto Centre Plaza. (Funding Source: Fund 4700 – Cultural Services Administration)
Staff Recommendation:
 Resolution approving a First Amendment extending the Catering and Concessionaire Agreement between the City of Modesto and Modesto Hospitality, LLC, by a six-month period ending June 30, 2024 followed by a month-to-month basis to provide Catering and Concessionaire Services to the Modesto Centre Plaza, and authorizing the City Manager, or designee, to negotiate, and execute the Amendment.

CED; Sean Rando, 209-577-5473, [email protected]
Consent

10. Consider approving the Fifth Amendment to Agreement regarding John Thurman Field with The Baseball Club of Modesto, LLC, as successor in interest to HWS Baseball IV, LLC, extending the expiration date of the accelerated termination provision from December 31, 2023 to February 29, 2024. (Funding Source: Capital Improvement Project (CIP) 101019/General Fund)
Staff Recommendation:
 Resolution approving the Fifth Amendment to Agreement regarding John Thurman Field with The Baseball Club of Modesto LLC, as successor in interest to HWS Baseball IV, LLC, extending the expiration date of the accelerated termination provision from December 31, 2023 to February 29, 2024, and authorizing the City Manager, or his designee, to negotiate and execute the Fifth Amendment to the Agreement.

CED; Sean Rando, 209-577-5473, [email protected]
Consent

11. Consider approving a Will Serve Letter and Outside Service Agreement with Maa Shakti Jagran and Raymayna Sanstha Inc., a California Non-Profit Corporation, to connect to the City of Modesto’s existing water system for the property located at 4801 - 6 -
12/12/2023
- 7 -
12/12/2023 5:30:00 PM
Tully Road (APN: 046-006-009). (Funding Source: Water Fund) Staff Recommendation:
 Resolution approving a Will Serve Letter and Outside Service Agreement between the City of Modesto and Maa Shakti Jagran and Raymayna Sanstha Inc., a California Non-Profit Corporation, to connect to the City of Modesto’s existing water system for the property located at 4801 Tully Road (APN: 046- 006-009), and authorizing the City Manager, or his designee, to the sign the Will Serve Letter and execute the Outside Service Agreement.

ENGINEERING SERVICES; Toby Wells, 209-571-5542, [email protected] Consent

12. Consider approving a Will Serve Letter and Outside Service Agreement with Panna Yi and Ravin Yi, husband and wife as joint tenants, to connect to the City of Modesto’s existing sewer system for the property located at 2012 Blue Gum Avenue (APN: 081- 022-007). (Funding Source: Sewer Fund)
Staff Recommendation:
 Resolution approving a Will Serve Letter and Outside Service Agreement with and Panna Yi and Ravin Yi, husband and wife as joint tenants, to connect to the City of Modesto’s existing sewer system for the property located at 2012 Blue Gum Avenue (APN: 081-022-007), and authorizing the City Manager, or his designee, to sign the Will Serve Letter and execute the Outside Service Agreement.

ENGINEERING SERVICES; Toby Wells, 209-571-5542, [email protected] Consent

13. Consider approving the Plans and Specifications for the State Route 99/Pelandale Interchange Reconstruction Phase II - Pelandale Avenue and Sisk Road, CML 5059(258) project, accepting the bid, and awarding a contract to United Pavement Maintenance, Inc. of Hughson, CA, in the amount of $1,669,217, authorizing the Director of Engineering Services to approve Change Orders up to the cumulative amount of $166,922 (10% of the original contract price), for a total agreement amount not to exceed $1,836,139. (Funding Source: Congestion Mitigation and Air Quality (CMAQ) and Streets Capital Facilities Fees (CFF))
Staff Recommendation:
 Resolution approving the Plans and Specifications for the State Route 99/Pelandale Interchange Reconstruction Phase II - Pelandale Avenue and Sisk Road, CML 5059(258) project, accepting the bid, and awarding a contract to United Pavement Maintenance, Inc. of Hughson, CA, in the amount of $1,669,217, authorizing the Director of Engineering Services to approve Change Orders up to the cumulative amount of $166,922 (10% of the original contract price), for a total agreement amount not to exceed $1,836,139 and authorizing the City Manager, or his designee, to execute the Agreement.

ENGINEERING SERVICES; Phillip Soares, 209-577-5258, [email protected] Consent

14. Consider approving a Second Amendment to increase the Agreement with Badger - 7 -
12/12/2023
- 8 -
12/12/2023 5:30:00 PM
Meter, Inc. for the purchase of Badger water meters, automated meter readers, and related parts to a total revised amount not to exceed $12,340,760 over five years. (Funding Source: Water Fund)
Staff Recommendation:
 Resolution approving a Second Amendment to increase the Agreement with Badger Meter, Inc. for the purchase of Badger water meters, automated meter readers, and related parts by $1,612,120 from $1,500,880 per year to a revised annual estimated total of $3,113,000 per year and increasing the total amount by $4,836,360 from $7,504,400 to a new revised total not to exceed $12,340,760 over five years and authorizing the Director of Finance, or her designee, to execute the Amendment.

FINANCE DEPARTMENT; Dianne Love, 209-571-5164, [email protected] Consent

15. Consider accepting the Monthly Investment Report for September 2023. (Funding Source: Various Funds)
Staff Recommendation:
 Motion accepting the Monthly Investment Report for September 2023.

FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected]
Consent

16. Consider approving a Memorandum of Understanding (MOU) with the Stanislaus County Fire Warden’s Office (SCFW) for Hazardous Materials Emergency Response, for a three-year term. (Funding Source: General Fund)
Staff Recommendation:
 Resolution approving a Memorandum of Understanding (MOU) with the Stanislaus County Fire Warden’s Office (SCFW) for Hazardous Materials Emergency Response for a three-year term and authorizing the City Manager, or his designee, to execute the MOU.

FIRE DEPARTMENT; Kevin Wise, 209-572-9590, [email protected] Consent

17. Consider approving an Agreement with Zoom Video Communications, Inc., for Professional Deployment Services in the amount of $53,297 and the Purchase of Zoom Room equipment from Think Fast Track for $188,307 for a total amount not to exceed $241,604. (Funding Source: Public Educational and Government (PEG) Fund and Fire Department General Fund)
Staff Recommendation:
 Resolution approving the Sole Source Agreement with Zoom Video Communications, Inc., for Professional Deployment Services in the amount of $53,297 and authorizing the City Manager, or his designee, to execute the Agreement.
 Resolution approving a Purchase Agreement for the Sole Source purchase of Zoom Room equipment from Think Fast Track in the amount of $175,593 plus an 8% contingency of $12,714 for a total amount not to exceed $188,307 and - 8 -
12/12/2023
- 9 -
12/12/2023 5:30:00 PM
authorizing the Director of Finance, or her designee to issue the Purchase Order.

IT; Kevin Harless, 209-571-5593, [email protected] Consent

18. Consider approving the purchase of Bi-Occular Box (BOB) cameras with Dotworkz Systems, San Diego, CA, for a total amount not to exceed $859,332; and a purchase of cradle points with AT&T FirstNet for a total amount not to exceed $158,376. (Funding Source: American Rescue Plan Act, General Fund, Measure H, Supplemental Law Enforcement Services Fund, and Traffic Safety Fund)
Staff Recommendation:
 Resolution approving the purchase of Bi-Ocular Box (BOB) cameras with Dotworkz Systems for a total amount not to exceed $859,332, and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.  Resolution approving the purchase of cradle points with AT&T FirstNet for a total amount not to exceed $158,376, and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
 Resolution amending the Fiscal Year 2023-2024 multi-year non-capital budget to create a new project and establish applicable revenue, expense and transfer budgets for the parking garage camera project to be funded with Measure H funds in the amount of $529,338 and authorizing the City Manager, or his designee, to take the necessary steps to implement the provisions of this resolution.

POLICE DEPARTMENT; Brandon Gillespie, 209-572-9501,
[email protected]
Consent

19. Consider approving a Purchasing Agreement with Axon Enterprise, Inc., Scottsdale, AZ, for body worn cameras, tasers and related equipment and software for a total amount not to exceed $6,125,690 over five years. (Funding Source: General Fund, Supplemental Law Enforcement Services Fund (SLESF) and Traffic Safety Fund) Staff Recommendation:
 Resolution approving a Purchasing Agreement with Axon Enterprise, Inc., Scottsdale, AZ, by utilizing the Competitive Bid Process with Omnia, University of Nebraska, NE, for body worn cameras, tasers and related equipment and software, for a five year agreement for a total amount not to exceed $6,125,690; and authorizing the City Manager, or his designee, to execute the Agreement.

POLICE DEPARTMENT; Brandon Gillespie, 209-572-9501,
[email protected]
Consent

20. Consider approving an Agreement with Officer Nicholas Largent for the purchase of Retired City of Modesto Police Canine, Hank in the amount of $1. (Funding Source:

General Fund)
Staff Recommendation:
- 9 -
12/12/2023
- 10 -
12/12/2023 5:30:00 PM
 Resolution approving the Agreement with Officer Nicholas Largent for the purchase of Retired City of Modesto Police Canine Hank for the amount of $1, and authorizing the City Manager, or his designee, to execute the Agreement.

POLICE DEPARTMENT; Brian Kleiber, 209-572-9500, [email protected] Consent

21. Consider accepting the Department of Health and Human Services Substance Abuse and Mental Health Services Administration Grant in the amount of $970,370 in Grants Funds with no match requirement. (Funding Source: Grant Funds) Staff Recommendation:
 Resolution accepting the Department of Health and Human Services Substance Abuse and Mental Health Services Administration Grant in the amount of $970,370 in Grant Funds with no match requirement, and authorizing the City Manager, or his designee, to execute and submit all documents which may be necessary for the completion of the grant acceptance.
 Resolution amending the Fiscal Year 2023-2024 annual Operating and MultiYear Non-Capital Project Budget to appropriate revenue and expenses in the total amount of $970,370 related to the Department of Health and Human Services Substance Abuse and Mental Health Services Administration Grant, and authorizing the City Manager, or his designee, to take the necessary steps to implement the required budget adjustment.

POLICE DEPARTMENT; Jessica Smart, 209-572-9500, [email protected] Consent

22. Consider approving the Second Amendment to the Agreement with Mansfield, Lierly and Associates for Polygraph Examination Services for a new total amount of $231,485 over three years and extending the term of the Agreement to July 12, 2024. (Funding Source: General Fund)
Staff Recommendation:
 Resolution approving the Second Amendment to the Agreement with Mansfield, Lierly and Associates for Polygraph Examination Services for a new total amount not to exceed $231,485 over three years and extending the term of the Agreement to July 12, 2024; and authorizing the City Manager, or his designee, to execute the Amendment.

POLICE DEPARTMENT; Jessica Smart, 209-572-9500, [email protected] Consent

23. Consider approving a Purchase Order with Vigilant Solutions, LLC, Dallas, TX, for the update and expansion of the Modesto Police Department’s Automated License Plate Reader Program, for an amount not to exceed $2,939,812; approving a Purchase Order with Special Services Group (SSG), Marina, CA, for the purchase of equipment, software, installation, and warranty for cameras and trackers for an amount not to exceed $122,366; approving a Purchase Order with Dotworkz, San Diego, CA, for the purchase of equipment, software, and warranty for quad/PTZ camera systems, for an amount not to exceed $357,528; and approving a Purchase Order with Vorp Energy, Rexburg, ID, for the purchase of equipment, software, and warranty for camera trailers, - 10 -
12/12/2023
- 11 -
12/12/2023 5:30:00 PM
for an amount not to exceed $218,883. (Funding Source: Police Grants) Staff Recommendation:
 Resolution approving a Purchase Order with Vigilant Solutions, LLC, Dallas, TX, for the update and expansion of the Modesto Police Department’s Automated License Plate Reader Program, for an amount not to exceed $2,939,812; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
 Resolution approving a Purchase Order with Special Services Group (SSG), Marina, CA, for the purchase of equipment, software, installation, and warranty for cameras and trackers for an amount not to exceed $122,366; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.  Resolution approving a Purchase Order with Dotworkz, San Diego, CA, for the purchase of equipment, software, and warranty for quad/PTZ camera systems, for an amount not to exceed $357,528; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.
 Resolution approving a Purchase Order with Vorp Energy, Rexburg, ID, for the purchase of equipment, software, and warranty for camera trailers, for an amount not to exceed $218,883; and authorizing the Purchasing Manager, or her designee, to issue the Purchase Order.

POLICE DEPARTMENT; Bob Meredith, 209-572-9500, [email protected] Consent

24. Consider an Engineering Services Agreement with Black Water Consulting Engineers, of Modesto, CA, for the Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project, in an amount not to exceed $489,500. (Funding Source: Water Fund) Staff Recommendation:
 Resolution approving an Engineering Services Agreement with Black Water Consulting Engineers, of Modesto, CA, for the Paradise-Grimes-Ohio Area Strengthen and Replace Water Mains Project in the amount of $445,000, plus $44,500 in additional services, if needed, for a total amount not to exceed $489,500 and authorizing the City Manager, or his designee, to execute the Agreement.

UTILITIES; Edgar Vargas, 209-577-5424, [email protected] Consent

25. Consider approving a Grant of Easement Rights to the Sacramento and San Joaquin Drainage District, and a Land Grant to Reclamation District 2091. (Funding Source:

Not Applicable)
Staff Recommendation:
 Resolution approving a Grant of Easement Rights to the Sacramento and San Joaquin Drainage District and authorizing the City Manager to execute the necessary documents.
 Resolution approving a Land Grant to Reclamation District 2091 and authorizing the City Manager to execute the necessary documents.

UTILITIES; Jeff Daniels, 209-577-6255, [email protected] - 11 -
12/12/2023
- 12 -
12/12/2023 5:30:00 PM

COUNCIL COMMENTS & REPORTS

CITY MANAGER COMMENTS & REPORTS

HEARINGS
Published in the Modesto Bee on November 27, 2023 and December 4, 2023.

26. Hearing to consider approving the abandonment of a 0.548-acre portion of E. Glenn Avenue, located east of Reliance Street and west of the Union-Pacific Railroad. (Funding Source: Developer Application Fees)
Staff Recommendation:
 Resolution approving the abandonment of a 0.548-acre portion of E. Glenn Avenue, located east of Reliance Street and west of the Union-Pacific Railroad.

CED; Michael Hren, 209-577-5273, [email protected]

MATTERS TOO LATE FOR THE AGENDA
These may be presented by members of the City Council and staff upon determination by a majority vote that an emergency exists, as defined by State law, or by a 2/3 vote that (1) there is a need to take immediate action, and (2) that the need for action came to the City’s attention after the agenda was posted.

ADJOURNMENT
- 12 -
12/12/2023
- 13 -
12/12/2023 5:30:00 PM

CLOSED SESSION

OFFICE OF THE CITY CLERK

NOTICE OF SPECIAL MEETING
Please take notice that a special Closed Session meeting of the Council of the City of Modesto has been called pursuant to Section 2-1.02 of the Modesto Municipal Code to be convened on
TUESDAY, DECEMBER 12, 2023 AT 5:00 PM
and after the regularly scheduled meeting in Tenth Street Place, Chambers Conference Room, Basement Level, 1010 Tenth Street, Modesto, California.

Any and all of the following agenda items are subject to action being taken by the Modesto City Council.

The business to be considered at said City Council meeting shall consist of a Closed Session concerning the following:

CLOSED SESSION
CONFERENCE WITH LABOR NEGOTIATOR:
(Pursuant to Section 54957.6 of the Government Code) – Unrepresented Employee Negotiator: Christina Alger
Unrepresented Employee: City Clerk
Posted pursuant to Government Code Section 54954.2 on the bulletin board at Tenth Street Place on
at by
date time signature
- 13 -
12/12/2023
- 1 -
12/5/2023 5:30:00 PM

MODESTO CITY COUNCIL
www.modestogov.com

MINUTES
City of Modesto

CITY COUNCIL MEETING
Chambers, Basement Level
Tenth Street Place, 1010 10th Street
Modesto, California
Tuesday, December 05, 2023 at 5:30 PM
Roll Call - Councilmembers Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
Pledge of Allegiance to the Flag
Invocation: Bill Kenoyer, Redeemer Church
City Clerk’s Announcements: None
Declaration of Conflicts of Interest: Bavaro - Item 9
Reports from Closed Session: Mayor Zwahlen report on the performance evaluation for the City Clerk. The council unanimously agreed that the City Clerk is doing an excellent job.

MISCELLANEOUS

1. Consider appointing Jim Stokes to the Citizen’s Housing and Community Development Committee for a four-year term beginning on January 1, 2024 through December 31, 2027. (Funding Source: Not Applicable)
Staff Recommendation:
 Resolution appointing Jim Stokes to the Citizen’s Housing and Community Development Committee (CH&CDC) for a four-year term beginning on January 1, 2024 through December 31, 2027.

CED; Cynthia Formosa, 209-577-5211, [email protected] #1..
- 14 -
- 2 -
12/5/2023 5:30:00 PM
ACTION: (Ricci/Escutia-Braaton; 7/0) Resolution 2023-514 appointing Jim Stokes to the Citizen’s Housing and Community Development Committee (CH&CDC) for a four-year term beginning on January 1, 2024 through December 31, 2027.

2. Consider appointing David Seymour, Babette Wagner, and Cheryl Lopina to the City of Modesto Landmark Preservation Commission with terms expiring December 31, 2027. (Funding Source: Not Applicable)
Staff Recommendation:
 Resolution appointing David Seymour, Babette Wagner, and Cheryl Lopina to the City of Modesto Landmark Preservation Commission with terms expiring December 31, 2027.

CED; Jessica Hill, 209-577-5267, [email protected]
ACTION: (Escutia-Braaton/Williams; 7/0) Resolution 2023-515 appointing David Seymour, Babette Wagner, and Cheryl Lopina to the City of Modesto Landmark Preservation Commission with terms expiring December 31, 2027.

PUBLIC COMMENT IN PERSON
 Nancy Robinson, President of the Modesto Garden Club, expressed gratitude for the opportunity to speak. She highlighted the Garden Club's centennial celebration and invited the City Council and the public to two holiday events hosted by the club, emphasizing their community endeavors.
 Michael Brazeale, from the Downtown Street Team Committee addressed issues faced by the Downtown Street Team, focusing on local fast-food places denying restroom access and the disrespectful attitudes encountered during their cleanup efforts. He urged for understanding and respect for their work.
 Steve raised concerns about the conduct of Modesto Police Officers and accused certain Council Members of targeting and harassing him. He expressed fear regarding a specific police officer's potential return to duty and demanded accountability for police actions.  Derek Castle advocated for establishing overnight warming centers for unsheltered men during winter months. They acknowledged efforts by the Modesto Gospel Mission but pointed out the need for additional options, suggesting support from the Salvation Army.  Taylor McGuire representing the Park Youth Committee, addressed inequities in park funding distribution. She urged the City Council to support a resolution aiming to allocate more funds to parks lacking basic amenities, emphasizing the impact on community health.
 Diane Kroeze emphasized the need for 24/7 warming centers for the homeless during winter, stating that daytime-only options are insufficient. She urged the council to prioritize this issue to prevent illnesses and deaths among the homeless population. #1..
- 15 -
- 3 -
12/5/2023 5:30:00 PM
 John Frailing shared two possible solutions for warming center. He also highlighted issues with trash in alleys behind houses and suggested modifying parking regulations to address the problem. He encouraged the council to explore solutions for safe parking to enhance street safety.
 John Lucas expressed concerns about homelessness and criticized the city's spending on housing projects. They urged the council to address the issue promptly to prevent further suffering and deaths among the homeless population.
 Sebastian Jones advocated for renaming the 10th Street Plaza after recently deceased Councilwoman Jenny Kenoyer. He emphasized her dedication to the city and urged the council to prioritize this change.
 Arthur Fabela expressed opposition to residential development at the Municipal Golf Course and advocated for modern commercial development to improve West Modesto.

He highlighted the potential economic benefits and urged the council to consider the community's needs.
 Loretta Carhart raised concerns about children misbehaving on city buses and suggested implementing legal laws to address the issue. She also inquired about property ownership responsibility for damaged sidewalks.
 Jerry Thompson congratulated recent appointments to the Modesto Landmark Preservation and thanked the city for a successful Christmas parade. He expressed appreciation for American Graffiti's historical significance and supported Sebastian's call to rename 10th Street Plaza.

CONSENT ITEMS – ROLL CALL VOTE REQUIRED
ACTION CONSENT ITEMS 3-8; 10-19: (Ricci/Wright; 7/0)

CONSENT
Consent

3. Consider approving the minutes from the November 14, 2023 Council Meeting. (Funding Source: Not Applicable)
 Motion approving the minutes from the November 14, 2023 Council Meeting.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Motion approving the minutes from the November 14, 2023 Council Meeting.

Consent

4. Consider approving the Mayor’s appointments to the City of Modesto Standing Committees, and City Council Liaison Committees; and appointment of a Vice Mayor for the 2024 calendar year. (Funding Source: Not Applicable)  Motion appointing Council Member Alvarez as Vice Mayor for the 2024 calendar year.
#1..
- 16 -
- 4 -
12/5/2023 5:30:00 PM
 Motion approving the appointments to the Standing Committees and City Council Liaison Committees for the 2024 calendar year.

CITY CLERK; Diane Nayares-Perez, 209-577-5396, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Motion appointing Council Member Alvarez as Vice Mayor for the 2024 calendar year.

ACTION: (Wright/Escutia-Braaton;7/0) Motion approving the appointments to the Standing Committees and City Council Liaison Committees for the 2024 calendar year.

Consent

5. Consider approving the recommended Budget Adjustments to Fiscal Year 2023-24 Annual Operating and Capital Improvement Program Budgets. (Funding Source:

Various Funds)
 Resolution amending Fiscal Year 2023-24 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to take the necessary steps to implement the provisions of this Resolution.

BUDGET; Steve Christensen, 209-577-5390, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-516 amending Fiscal Year 2023-24 Annual Operating and Capital Improvement Project Fund Budgets and authorizing the City Manager, to take the necessary steps to implement the provisions of this Resolution.

Consent

6. Consider approving the Fourth Amendment to the Joint Exercise of Powers Agreement between the City of Modesto and the County of Stanislaus for Emergency Dispatch Services to extend the Agreement to June 30, 2024. (Funding Source: Not Applicable)  Resolution approving the Fourth Amendment to the Joint Exercise of Powers Agreement between the City of Modesto and the County of Stanislaus for Emergency Services, extending the expiration date to June 30, 2024, and authorizing the City Manager or his designee to execute the Agreement.

CITY MANAGER; Forrest Ebbs, 209-577-9149, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-517 approving the Fourth Amendment to the Joint Exercise of Powers Agreement between the City of Modesto and the County of Stanislaus for Emergency Services, extending the expiration date to June 30, 2024, and authorizing the City Manager or his designee to execute the Agreement.

Consent

7. Consider approving an Agreement for Railroad Crossing Quiet Zone Consulting Services with RailPros of Irvine, CA for a total amount not to exceed $304,949. (Funding Source: American Rescue Plan Act Funds)
#1..
- 17 -
- 5 -
12/5/2023 5:30:00 PM
 Resolution approving an Agreement with RailPros of Irvine, CA, to provide Quiet Zone Consulting Services for a total amount not to exceed $304,949, and authorizing the City Manager, or his designee to execute the Agreement.

CED; Sean Rando, 209-577-5473, [email protected]
ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-518 approving an Agreement with RailPros of Irvine, CA, to provide Quiet Zone Consulting Services for a total amount not to exceed $304,949, and authorizing the City Manager, or his designee to execute the Agreement.

Consent

8. Consider approving the annexation of property (Annexation #1), approximately 24.62 acres, into the City of Modesto Community Facilities District (CFD) No. 2021-1 (Woodglen) and authorizing the levy of a special tax upon the annexation area (Funding Source: Developer Deposits)
 Resolution approving the annexation of property (Annexation #1) into the City of Modesto Community Facilities District (CFD) No. 2021-1 (Woodglen) and authorizing the levy of a special tax upon the annexation area.

CED; Peter Ibrahim, 209-577-5211, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-519 approving the annexation of property (Annexation #1) into the City of Modesto Community Facilities District (CFD) No. 2021-1 (Woodglen) and authorizing the levy of a special tax upon the annexation area.

Removed from Consent; Councilmember Bavaro recused due to conflict of interest Consent

9. Consider accepting the Jennings Water Quality Control (WQC) Plant New Entrance and Exit Project as complete, releasing securities, releasing payments totaling $3,533,015 to T&S Intermodal Maintenance Inc., d.b.a. T&S West. of Linden, CA., and authorizing the City Clerk to file a Notice of Completion. (Funding Source:

Wastewater Fund)
 Resolution accepting the Jennings Water Quality Control Plant New Entrance and Exit project as complete, releasing securities, releasing payments totaling $3,533,015 to T&S Intermodal Maintenance Inc., d.b.a. T&S West of Linden, CA., and authorizing the City Clerk to file a Notice of Completion.

ENGINEERING SERVICES; Peter Kambel, 209-577-5444, [email protected] ACTION: (Wright/Ricci; 6/0; Bavaro recused due to conflict of interest) Resolution 2023-520 accepting the Jennings Water Quality Control Plant New Entrance and Exit project as complete, releasing securities, releasing payments totaling $3,533,015 to T&S Intermodal Maintenance Inc., d.b.a. T&S West of Linden, CA., and authorizing the City Clerk to file a Notice of Completion. #1..
- 18 -
- 6 -
12/5/2023 5:30:00 PM
Consent

10. Consider accepting an Informational Report for the September 2023 Accounts Payable Payment Register and Void Report. (Funding Source: Not Applicable)  Motion accepting an Informational Report for the September 2023 Accounts Payable Payment Register and Void Report.

FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
ACTION: (Wright/Escutia-Braaton;7/0) Motion accepting an Informational Report for the September 2023 Accounts Payable Payment Register and Void Report.

Consent

11. Consider accepting an Informational Report on the May and June 2023 Grant Applications and Awards. (Funding Source: Not Applicable)  Motion accepting an Informational Report for the May and June 2023 Grant Applications and Awards.

FINANCE DEPARTMENT; Maria Garnica, 209-577-5249,
[email protected]
ACTION: (Wright/Escutia-Braaton;7/0) Motion accepting an Informational Report for the May and June 2023 Grant Applications and Awards.

Consent

12. Consider accepting the Monthly Investment Report for August 2023. (Funding Source:

Various Funds)
 Motion accepting the Monthly Investment Report for August 2023.

FINANCE DEPARTMENT; Calogero Maniscalco, 209-577-5219,
[email protected]
ACTION: (Wright/Escutia-Braaton;7/0) Motion accepting the Monthly Investment Report for August 2023.

Consent

13. Consider approving the Plans and Specifications for the Park Turf Reduction, Phase 1 Project, and awarding a Construction Contract to Marina Landscape, Inc., of Orange, CA, in an amount not to exceed $376,690. (Funding Source: American Rescue Plan Act (ARPA), Urban Community Drought Relief Grant Program)  Resolution approving the Plans and Specifications for the Park Turf Reduction, Phase 1 Project, and awarding a Construction Contract to Marina Landscape, Inc., of Orange, CA, in the amount of $342,445 plus $34,245 in contingency (if needed), for a total amount not to exceed $376,690 and authorizing the City Manager, or his designee, to execute the Contract.
 Resolution amending the Fiscal Year 2023-2024 Capital Improvement Program Budget to fund Project #101555 (PRN – 2022 Urban Drought Relief Program) in an amount not to exceed $3,359,922 in transfers, revenue, and to budget #1..
- 19 -
- 7 -
12/5/2023 5:30:00 PM
expenditures to fully fund the project, and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.

PRN; Nathan Houx, 209-571-5526, [email protected]
ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-521 approving the Plans and Specifications for the Park Turf Reduction, Phase 1 Project, and awarding a Construction Contract to Marina Landscape, Inc., of Orange, CA, in the amount of $342,445 plus $34,245 in contingency (if needed), for a total amount not to exceed $376,690 and authorizing the City Manager, or his designee, to execute the Contract.

ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-522 amending the Fiscal Year 2023-2024 Capital Improvement Program Budget to fund Project #101555 (PRN – 2022 Urban Drought Relief Program) in an amount not to exceed $3,359,922 in transfers, revenue, and to budget expenditures to fully fund the project, and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.

Consent

14. Consider approving an Agreement with Verde Design, Inc. to prepare construction documentation for the Mary E. Grogan Synthetic Turf Replacement Project for a total amount not to exceed $88,000.00 (Funding Source: American Rescue Plan Act)  Resolution approving an Agreement with Verde Design, Inc. to prepare construction documentation for the Mary E. Grogan Synthetic Turf Replacement Project for a total amount of $80,000 plus $8,000 for additional services, if needed, for an Agreement total amount not to exceed $88,000 and authorizing the City Manager, or his designee to execute the Agreement.

PRN; Nathan Houx, 209-571-5526, [email protected]
ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-523 approving an Agreement with Verde Design, Inc. to prepare construction documentation for the Mary E. Grogan Synthetic Turf Replacement Project for a total amount of $80,000 plus $8,000 for additional services, if needed, for an Agreement total amount not to exceed $88,000 and authorizing the City Manager, or his designee to execute the Agreement.

Consent

15. Consider approving an Agreement with Todd Groundwater, Alameda, CA, for the Groundwater Sustainability Plan Update and Annual Reporting for Years 2023-2028 for a total amount not to exceed $1,994,601 on behalf of the Stanislaus and Tuolumne Rivers Groundwater Basin Association – Groundwater Sustainability Agency and the associated Equitable Project Cost Sharing and Reimbursement Agreement. (Funding Source: Water Fund)
 Resolution approving an Agreement with Todd Groundwater, of Alameda, CA for the Groundwater Sustainability Plan Update and Annual Reporting, in the amount of $1,813,273, plus $181,328 in additional services, if needed, for a total amount not to exceed $1,994,601 and authorizing the City Manager, or his designee, to execute the Agreement.
#1..
- 20 -
- 8 -
12/5/2023 5:30:00 PM
 Resolution approving the Stanislaus and Tuolumne Rivers Groundwater Basin Association – Groundwater Sustainability Agency Equitable Project Cost Sharing and Reimbursement Agreement and authorizing the City Manager, or his designee, to execute the Agreement.
 Resolution amending the Fiscal Year 2023/24 Multi-Year Program Budget in the amount of $2,174,601 to be transferred into the project from Water Fund Reserves and authorizing the City Manager, or his designee, to implement the provision of the Resolution.

UTILITIES; Jim Alves, 209-571-5557, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-524 approving an Agreement with Todd Groundwater, of Alameda, CA for the Groundwater Sustainability Plan Update and Annual Reporting, in the amount of $1,813,273, plus $181,328 in additional services, if needed, for a total amount not to exceed $1,994,601 and authorizing the City Manager, or his designee, to execute the Agreement.

ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-525 approving the Stanislaus and Tuolumne Rivers Groundwater Basin Association – Groundwater Sustainability Agency Equitable Project Cost Sharing and Reimbursement Agreement and authorizing the City Manager, or his designee, to execute the Agreement.

ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-526 amending the Fiscal Year 2023/24 Multi-Year Program Budget in the amount of $2,174,601 to be transferred into the project from Water Fund Reserves and authorizing the City Manager, or his designee, to implement the provision of the Resolution.

Consent

16. Consider approving an Engineering Services Agreement with West Yost Associates, of Davis, CA, for the Chicago-Paradise Area Strengthen and Replace Water Mains Project, in an amount not to exceed $1,134,933. (Funding Source: Water Fund)  Resolution approving an Engineering Services Agreement with West Yost Associates, of Davis, CA, for the Chicago-Paradise Area Strengthen and Replace Water Mains Project in the amount of $1,031,757, plus $103,176 in additional services, if needed, for a total amount not to exceed $1,134,933 and authorizing the City Manager, or his designee, to execute the Agreement.  Resolution amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $12,815,417 to be transferred into the project from Water Fund Reserves to fund the Chicago-Paradise Area Strengthen and Replace Water Mains Project and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.

UTILITIES; Edgar Vargas, 209-577-5424, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-527 approving an Engineering Services Agreement with West Yost Associates, of Davis, CA, for the Chicago-Paradise Area Strengthen and Replace Water Mains Project in the amount of $1,031,757, plus $103,176 in additional services, if needed, for a total amount not to #1..
- 21 -
- 9 -
12/5/2023 5:30:00 PM
exceed $1,134,933 and authorizing the City Manager, or his designee, to execute the Agreement.

ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-528 amending the Fiscal Year 2023-24 Capital Improvement Program Budget in the amount of $12,815,417 to be transferred into the project from Water Fund Reserves to fund the Chicago-Paradise Area Strengthen and Replace Water Mains Project and authorizing the City Manager, or his designee, to implement the provisions of this Resolution.

Consent

17. Consider approving the purchase of 4,320 square feet of real property at 5132 South Avenue, Empire, CA owned by Stanislaus Regional Housing Authority for $26,073, plus $10,000 in closing costs to be used for the Well 312 Treatment System and Flushline Project. (Funding Source: Water Fund)
 Resolution approving the purchase of 4,320 square feet of real property located at 5132 South Avenue, Empire, CA 95319 owned by Stanislaus Regional Housing Authority for $26,073, plus $10,000 in closing costs, to be used for the Well 312 Treatment & Flushline Project, and authorizing the City Manager, or his designee, to execute the Purchase and Sale Agreement and all related documents required to complete the transaction.

UTILITIES; Edgar Vargas, 209-577-5424, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-529 approving the purchase of 4,320 square feet of real property located at 5132 South Avenue, Empire, CA 95319 owned by Stanislaus Regional Housing Authority for $26,073, plus $10,000 in closing costs, to be used for the Well 312 Treatment & Flushline Project, and authorizing the City Manager, or his designee, to execute the Purchase and Sale Agreement and all related documents required to complete the transaction.

Consent

18. Consider approving an Agreement for Material Hauling Services with Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials of Stockton, CA for a total amount not to exceed $2,375,000 over five years. (Funding Source: Green Waste; Storm Drain; Surface Transportation; Wastewater and Water Funds)  Resolution approving the Award of Bid and Agreements for Material Hauling Services to Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials, Inc. of Stockton, CA for a two year Agreement with three one-year extension options, for an annual estimated amount of $475,000 and a total amount not to exceed $2,375,000 over five years, and authorizing the City Manager or his designee, to execute the Amendment.

UTILITIES; Manuel Martinez, 209-342-4592, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-530 approving the Award of Bid and Agreements for Material Hauling Services to Sekhon and Son Trucking, Inc. of Modesto, CA and California Materials, Inc. of Stockton, CA for a two year Agreement with three one-year extension options, for an annual estimated amount of #1..
- 22 -
- 10 -
12/5/2023 5:30:00 PM
$475,000 and a total amount not to exceed $2,375,000 over five years, and authorizing the City Manager or his designee, to execute the Amendment.

Consent

19. Consider approving an Agreement with Olea Networks, Inc., Bee Cave, TX for Large Commercial Water Meter Health Analytic Software and Technology for a total cost not to exceed $1,500,000 over five years. (Funding Source: Water Fund)  Resolution approving an Agreement with Olea Networks Inc., Bee Cave, TX, for Large Commercial Water Meter Health Analytic Software and Technology for a two-year Agreement with three one-year extension options, for an annual estimated amount of $340,000 and a total amount not to exceed $1,500,000 over five years and authorizing the City Manager or his designee to execute the Agreement.

UTILITIES; Manuel Martinez, 209-342-4592, [email protected] ACTION: (Wright/Escutia-Braaton;7/0) Resolution 2023-531 approving an Agreement with Olea Networks Inc., Bee Cave, TX, for Large Commercial Water Meter Health Analytic Software and Technology for a two-year Agreement with three one-year extension options, for an annual estimated amount of $340,000 and a total amount not to exceed $1,500,000 over five years and authorizing the City Manager or his designee to execute the Agreement.

Recessed 6:02 p.m.

Reconvened 6:09 p.m.

COUNCIL COMMENTS & REPORTS
Council Member Williams congratulated Vice Mayor Ricci for role as Vice Mayor and mentioned his phenomenal job. He also congratulated Councilmember Alvarez for becoming the new Vice Mayor for the 2024 calendar year. He also highlighted positive developments in the Lakewood area, including street maintenance and playground updates. He further commends the Downtown Streets Team for their significant impact in picking up 750 tons of garbage over the last five and a half years.

Council Member Bavaro thanked Vice Mayor Ricci for his service. He discussed challenges faced by the Downtown Streets Team with some local businesses and spoke about updates on street maintenance projects in his district. He also reported on Measure H funding for playground updates. He further stressed the importance of supporting the Downtown Streets Team program.

Vice Mayor Ricci echoed Council Member Bavaro's praise for the Downtown Streets Team. He highlighted the team's success in finding shelter for 40 people in 2023. He reported on the success of the Celebration of Lights Parade and Christmas tree lighting. He further discussed ongoing efforts to improve the Safe Parking program and expressed concern about the closure of A&W Root Beer and hopes for its preservation. He further encouraged collaboration on bridge housing solutions to reduce homelessness.
#1..
- 23 -
- 11 -
12/5/2023 5:30:00 PM
Council Member Escutia-Braaton discussed Modesto hosting a clean air summit and efforts to improve air quality. She highlighted accomplishments in replacing old equipment to reduce emissions. She spoke about mitigating the impact of fireworks on air quality during the 4th of July. She further reported on attending the retirement event celebrating Laurie Smith, the Director of Parks and Recreation.

Mayor Zwahlen thanked Vice Mayor Ricci for his service and looks forward to Council Member Alvarez serving as the new Vice Mayor. She highlighted various community events, including the Salvation Army Kettle Kickoff, Interfaith Council event, Small Business Saturday, and the holiday parade. She appreciates the generosity and diversity of Modesto residents.

Council Member Alvarez highlighted his support for a mixed-use development at the Muni Golf Course, advocating for a comprehensive approach with both residential and commercial components on the 54-acre plot. He’ll advocate resident involvement in decision-making regarding the golf course. Alvarez also shared his participation in the South Modesto Business United event and their annual Posada, acknowledging the Skanless Car Club for their partnership with the Red Shield of Modesto in a toy drive benefiting 700 children. Expressing gratitude, he thanked Mayor Zwahlen for appointing him as Vice Mayor for the coming year and acknowledged his family, including the presence of his parents, for their unwavering support during his public service journey.

CITY MANAGER COMMENTS & REPORTS
None.

HEARINGS
Published in the Modesto Bee on November 24, 2023.

20. Hearing to consider adopting an Amendment to the General Plan approving the 6th Cycle Housing Element for 2023-2031. (Funding Source: General Fund)  Resolution approving an Amendment to the Modesto Urban Area General Plan to replace the 2015-2023 Housing Element with the 2023-2031 Housing Element, Chapter IV of the General Plan and authorizing the City Manager or designee to make all non-substantive changes to the Housing Element to make it internally consistent or to address any non-substantive changes or amendments requested by the Department of Housing and Community Development to achieve state certification of the Housing Element, and that such changes by the City Manager shall not change the policy of the City or include any legislative action.

CED; Michael Hren, 209-577-5273, [email protected]
ACTION: (Ricci/Williams; 7/0) Resolution 2023-532 approving an Amendment to the Modesto Urban Area General Plan to replace the 2015-2023 Housing Element with the 2023-2031 Housing Element, Chapter IV of the General Plan and authorizing the City Manager or designee to make all non-substantive changes to the Housing Element #1..
- 24 -
- 12 -
12/5/2023 5:30:00 PM
to make it internally consistent or to address any non-substantive changes or amendments requested by the Department of Housing and Community Development to achieve state certification of the Housing Element, and that such changes by the City Manager shall not change the policy of the City or include any legislative action.

Published in the Modesto Bee on November 24, 2023.

21. Hearing to consider accepting the Capital Facilities Fees Annual Report for Fiscal Year 2022-23 and making findings related to each of the fee categories. (Funding Source:

Capital Facilities Fees)
 Resolution accepting the Capital Facilities Fees Annual Report for Fiscal Year 2022-23 and making findings related to each of the fee categories.

CED; Peter Ibrahim, 209-577-5211, [email protected] ACTION: (Wright/Alvarez; 7/0) Resolution 2023-533 accepting the Capital Facilities Fees Annual Report for Fiscal Year 2022-23 and making findings related to each of the fee categories.

Published in the Modesto Bee on November 24, 2023.

22. Hearing to consider accepting the Fiscal Year 2022-23 Annual Report of Funds Held for Future Improvements and making findings related to each security on file. (Funding Source: Developer Deposits)
 Resolution accepting the Fiscal Year 2022-23 Annual Report of Funds Held for Future Improvements and making findings related to each security on file.

CED; Peter Ibrahim, 209-577-5211, [email protected] ACTION: (Wright/Escutia-Braaton; 7/0) Resolution 2023-534 accepting the Fiscal Year 2022-23 Annual Report of Funds Held for Future Improvements and making findings related to each security on file.

NEW BUSINESS

23. Consider an Ordinance amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area. (Funding Source:

Water Enterprise Fund)
 Motion introducing and waiving the first reading of the Ordinance amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area.

CED; Peter Ibrahim, 209-577-5211, [email protected] ACTION: (Williams/Ricci; 7/0) Motion introducing and waiving the first reading of the Ordinance 3776-C.S. amending Section 11-6.05 “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public #1..
- 25 -
- 13 -
12/5/2023 5:30:00 PM
Utilities,” of the Modesto Municipal Code to establish a Water Rate Surcharge for new water connections located outside of the City’s water service area.

MATTERS TOO LATE FOR THE AGENDA
None.

ADJOURNMENT
This meeting adjourned at 7:31 pm
Closed Session Matters heard prior to the meeting.

CLOSED SESSION

PUBLIC EMPLOYEE PERFORMANCE EVALUATION
(Pursuant to Section 54957 of the Government Code)
Title: City Clerk
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
One Case (Pursuant to Section 54956.9(d)(1) of the Government Code) Name of Case: Stephanie Lopez v. City of Modesto, et al.

Superior Court of California, County of Stanislaus
Stanislaus County Case No.: CV-21-00925
Attest:____________________________
Diane Nayares-Perez, City Clerk
#1..
- 26 -
- 1 - ORDINANCE NO. 3776-C.S.

EFFECTIVE DATE: January 11, 2024
ORDINANCE NO. 3776-C.S.

ORDINANCE AMENDING SECTION 11-6.05 “CHARGES FOR METERED WATER SERVICE,” OF CHAPTER 6, “COLLECTION OF PUBLIC UTILITIES CHARGES,” OF TITLE 11, “PUBLIC UTILITIES,” OF THE MODESTO

MUNICIPAL CODE TO ESTABLISH A WATER RATE SURCHARGE FOR NEW WATER CONNECTIONS LOCATED OUTSIDE OF THE CITY’S WATER

SERVICE AREA
WHEREAS, the City of Modesto provides retail water services to parcels located within the City’s boundaries and certain other areas; and WHEREAS, owners of property located outside of the City’s water service area occasionally request connection to the City’s water system; and WHEREAS, City Council Policy No. 5001 addresses the extension of water service into unincorporated areas; and
WHEREAS, the cost for the City of providing water service in incorporated areas is higher than other areas due to a variety of reasons, including the need to transport the water a further distance, as well as the need to acquire and treat a greater volume of water to accommodate the increased demand; and
WHEREAS, the City Council desires to establish a higher rate for water service for new water connections located outside of the City’s boundaries; and WHEREAS, the City desires to impose a 25% rate surcharge for areas within the City’s Sphere of Influence, and a 50% rate surcharge for all other properties; and WHEREAS, property owners in unincorporated areas have no obligation to connect to the City’s water system, and will voluntarily choose to connect subject to the surcharge water rate; and
WHEREAS, the surcharge rates shall not apply in areas where the City took over the role of water purveyor from a prior purveyor, and has an obligation to provide water #2..
- 27 -
- 2 - ORDINANCE NO. 3776-C.S.

EFFECTIVE DATE: January 11, 2024
service; and
WHEREAS, the City Council desires to adopt the proposed ordinance.

NOW, THEREFORE, the Council of the City of Modesto does ordain as follows:

SECTION 1 AMENDMENT OF CODE. Section 11-6.05, “Charges for Metered Water Service,” of Chapter 6, “Collection of Public Utilities Charges,” of Title 11, “Public Utilities,” of the Modesto Municipal Code is hereby amended to read in its entirety as follows:
“11-6.05 - Charges for Metered Water Service.

Charges for water delivered through a meter shall be paid to the City in accordance with rates and charges as established by the Council from time to time by resolution and on file in the office of the City Clerk and the Public Works Director. Charges for water delivered to a parcel located outside of the boundaries of the City, but otherwise within the City’s Sphere of Influence, shall be 125% of the otherwise applicable rate. Charges for water delivered to a parcel located outside of the boundaries of the City, and not located within the City’s Sphere of Influence shall be 150% of the otherwise applicable rate. The increased water rates for parcels located outside the City shall apply to parcels that connect to the City’s water system after January 1, 2024. The increased water rates for parcels located outside the City shall not apply to parcels located within County islands or for which the City has an obligation to provide water service because the City took over the role of water purveyor from the prior purveyor. Charges for metered service will be #2..
- 28 -
- 3 - ORDINANCE NO. 3776-C.S.

EFFECTIVE DATE: January 11, 2024
due and payable upon presentation of the bill, and no advance or partial payments of such charges will be accepted by the City without consent of the Finance Director.

SECTION 2. SEVERABILITY
If any provision of this Ordinance or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. This City Council declares that it would have adopted this ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the Ordinance be enforced.

SECTION 3. CALIFORNIA ENVIRONMENTAL QUALITY ACT.

The proposed Ordinance is exempt from CEQA under the general rule in CEQA Guidelines section 15061(b)(3), that CEQA only applies to projects that have the potential for causing a significant effect on the environment.

SECTION 4. EFFECTIVE DATE
This Ordinance shall go into effect and be in full force and operation from and after thirty (30) days after its final passage and adoption.

SECTION 5. PUBLICATION
At least two (2) days prior to its final adoption, copies of this Ordinance shall be posted in at least three (3) prominent and distinct locations in the City; and a notice shall be published once in The Modesto Bee, the official newspaper of the City of Modesto, setting forth the title of this ordinance, the date of its introduction and the places where this Ordinance is posted.
#2..
- 29 -
- 4 - ORDINANCE NO. 3776-C.S.

EFFECTIVE DATE: January 11, 2024
The foregoing Ordinance was introduced at a regular meeting of the Council of the City of Modesto held on the 5th day of December, 2023, by Councilmember Williams, who moved its introduction and passage to print which motion being duly seconded by Councilmember Ricci, was upon roll call carried and ordered printed and published by the following vote:

AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: __________________________
SUE ZWAHLEN, Mayor
ATTEST:

BY: _________________________________
DIANE NAYARES-PEREZ, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: _________________________________
JOSE M. SANCHEZ, City Attorney
#2..
- 30 -
- 5 - ORDINANCE NO. 3776-C.S.

EFFECTIVE DATE: January 11, 2024

FINAL ADOPTION CLAUSE
The foregoing ordinance, having been published as required by the Charter of the City of Modesto, and coming on for final consideration at the regular meeting of the Council of the City of Modesto held on the 12th day of December 2023, Councilmember ?? moved its final adoption, which motion being duly seconded by Councilmember ??, was upon roll call carried and the ordinance adopted by the following vote:

AYES: Councilmembers: Alvarez, Bavaro, Escutia-Braaton, Ricci, Williams, Wright, Mayor Zwahlen
NOES: Councilmembers: None
ABSENT: Councilmembers: None
APPROVED: ___________________________

SUE ZWAHLEN, MAYOR
ATTEST: ___________________________________
DIANE NAYARES-PEREZ, City Clerk
Effective Date: January 11, 2024
#2..
- 31 -

CITY OF MODESTO
ORDINANCE NO. 3776-C.S.

The following Ordinance was introduced by the City Council of the City of Modesto at the meeting of December 5, 2023:

ORDINANCE AMENDING SECTION 11-6.05 “CHARGES FOR METERED WATER SERVICE,” OF CHAPTER 6, “COLLECTION OF PUBLIC UTILITIES CHARGES,” OF TITLE 11, “PUBLIC UTILITIES,” OF THE MODESTO MUNICIPAL CODE TO

ESTABLISH A WATER RATE SURCHARGE FOR NEW WATER CONNECTIONS LOCATED OUTSIDE OF THE CITY’S WATER SERVICE AREA
Copies of the above-mentioned ordinance are posted at the following locations:
 Tenth Street Place, 1010 10th Street
 Maddux Youth Center, 615 Sierra Drive
 Senior Citizen Center, 211 Bodem Street
Diane Nayares-Perez
City Clerk
#2..
- 32 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 16, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jose M. Sanchez, City Attorney
Toby Wells, Director of Engineering Services/City Engineer Will Wong, Director of Utilities
SUBJECT: Amendments to Legal Services Agreements with Nossaman LLP and Bartkiewicz, Kronick, and Shanahan P.C. for Continued Representation CONTACT: Jose M. Sanchez, City Attorney, 209-577-5284, [email protected] DESCRIPTION:

Consider approving a Fourth Amendment to the Legal Services Agreement with Nossaman LLP for a revised total amount not to exceed $2,200,000, adjust rates and extend the term of the agreement for one remaining year and a Sixth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. for a revised total amount not to exceed $392,300 for continued representation in water related matters. (Funding Source: Streets Capital Facility Fees, Regional Measure L and Water Fund)
STRATEGIC PLAN ELEMENT:

This item supports the City’s 2020-2025 Strategic Plan Goals to build a high-performance organization and improve community safety.

BACKGROUND:

In 2014, in order to improve the transparency and delivery of legal services, the City Attorney’s Office prepared a standard legal services agreement for the City to use when hiring outside counsel. This standard legal services agreement template was approved by the Council. The City Attorney’s Office tracks the assigned budget and requests that Council amend the agreements when necessary.

DISCUSSION:

Nossaman, LLP
On September 4, 2018, by Resolution No. 2018- 381, Council approved a Legal Services Agreement with Nossaman LLP of Los Angeles, California for Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project in an amount not to exceed $2,000,000.
#3..
- 33 -
City Council, December 12, 2023
Amendments to Legal Services Agreements with Nossaman LLP and Bartkiewicz, Kronick, and Shanahan P.C. for Continued Representation

State Route (SR) 132 is an east-west highway that extends from I-580 in the Central Valley, south of the City of Tracy, to SR 49 in the foothills of the Sierra Mountains, terminating in the town of Coulterville. SR 132 is a vital link through the Central Valley, serving local traffic from these communities and providing for regional traffic between the Bay Area and the mountains for the movement of traffic and goods and services and provides access to the recreational areas east of Modesto via SR 49.

The purpose of the Project is to improve regional and interregional circulation, relieve traffic congestion along existing SR 132, and enhance safety and operations for the existing and proposed transportation network.

Staff formally solicited proposals to law firms for Eminent Domain Legal Services for the State Route 132 West Freeway/Expressway Phase 1 Project in accordance with state and federal requirements. The scope of services includes:
 Commencement of eminent domain proceedings
 Orders for prejudgment possession
 Defense of right to take objections
On January 26, 2021, by Resolution No. 2021-028, Council approved a First Amendment to the Legal Services Agreement with Nossaman LLP to adjust the blended hourly rate from $385 to $425 to continue to provide Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project, with no increase to the not to exceed amount of $2,000,000 for the Agreement.

On December 6, 2021, pursuant to Article 2. “Period of Performance,” of the agreement, the City entered into a Second Amendment to the Legal Services Agreement with Nossaman, LLP to extend the termination date of the agreement to December 31, 2022.

On December 13, 2022, by Resolution No. 2022-476, Council approved a Third Amendment to the Legal Services Agreement with Nossaman, LLP to adjust the blended hourly rate from $425 to $438 and extend the termination date of the agreement to December 31, 2023.

Although the construction portion of the project is complete, there continue to be legal services needed during the closeout process. A fourth amendment to the legal services agreement is necessary to increase the agreement amount by $200,000 and extend the agreement term date out one additional year, to December 31, 2024, to complete work in progress. This fourth amendment also includes a 3% rate increase based on the annual cost of living increase.

Nossaman typically seeks a 5% annual escalation for all other agencies but based on the partner relationship with the City for the success of this project, they are proposing a reduced increase. Nossaman’s new blended rate will increase by $14 an hour from $438 to $452.

Bartkiewicz, Kronick & Shanahan, P.C
On December 6, 2016, by Resolution No. 2016-479, Council approved an agreement with Bartkiewicz, Kronick & Shanahan, P.C. (BKS) to provide legal services for the State Water Resources Control Board Substitute Environmental Document, in the amount of $57,300. #3..
- 34 -
City Council, December 12, 2023
Amendments to Legal Services Agreements with Nossaman LLP and Bartkiewicz, Kronick, and Shanahan P.C. for Continued Representation

On July 11, 2017, by Resolution No. 2017-282, Council approved a First Amendment to the Legal Services Agreement with BKS in the amount of $35,000 for a not to exceed amount of $92,300.

On August 13, 2019, by Resolution No. 2019-367, Council approved a Second Amendment increasing the contract amount by $50,000 for a total agreement amount not to exceed $142,300.

On May 3, 2022, by Resolution 2022- 202, Council approved a Third Amendment to the Legal Services Agreement in the amount of $75,000, for a total not to exceed $217,300 for continued representation, and on February 14, 2023, by Resolution No. 2023-46, Council approved a Fourth Amendment to the Legal Services Agreement to adjust hourly rates.

On July 11, 2023, by Resolution No. 2023-326, Council approved a Fifth Amendment with BKS in the amount of $75,000, for a total not to exceed $292,300 for continued representation.

The City is currently seeking to overturn the State Water Resources Control Board’s action in approving the Bay-Delta Plan. This is the suit challenging the State Water Board’s approval of regulatory changes that require about 40% of the flow of the Tuolumne River remain in the stream for fish; the regulations are known locally as the “water grab”. The City relies on Tuolumne River supplies from Modesto Irrigation District to help meet the demands of City customers, and the City filed this suit to protect its interests in that water. The Sixth Amendment to the Legal Services Agreement will increase the amount of the agreement by $100,000 for a total amount not to exceed $392,300 for continued representation in the litigation matter and additional tasks already covered in the current scope of work related to water matters.

Modesto Municipal Code Section 8-3.203 generally requires all purchases which meet or exceed $100,000 for material, equipment, or contractual services to be formally bid. However, exceptions to the formal bidding process are granted in MMC 8-3.204(f) “Where the Purchasing Manager, in her discretion, determines that it is appropriate to amend the services or goods provided under the existing agreement to include additional similar goods or services, of limited quantity or scope, in order to increase efficiency and avoid delays or disruptions to City projects or services.

Attached are the amendments to the legal services agreements for Council approval.

FISCAL IMPACT:

Costs for the legal services agreement with Nossaman LLP are being paid from Project #100614 – State Route 132 West Expressway which is funded through Streets Capital Facility Fees and Regional Measure L and is currently budgeted in the project. Costs associated with the BKS Legal Services Agreement will be paid from the Water Fund current operating budget.

COMMITTEE RECOMMENDATION:

This item was not presented to a committee.
#3..
- 35 -
City Council, December 12, 2023
Amendments to Legal Services Agreements with Nossaman LLP and Bartkiewicz, Kronick, and Shanahan P.C. for Continued Representation

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a Fourth Amendment to the Legal Services Agreement with Nossaman LLP increasing the Agreement amount by $200,000 from $2,000,000 for a revised total amount not to exceed $2,200,000, adjusting the blended hourly rate from $438 to $452 and extending the term of the agreement to December 31, 2024, to continue to provide Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project, and authorizing the City Manager, or his designee, to execute the Amendment.

Resolution approving a Sixth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan P.C. in the amount of $100,000, for a revised total amount not to exceed $392,300 for continued representation in water related matters and authorizing the City Manager or his designee, to execute the Agreement.

Approved by:

Jose M. Sanchez, City Attorney
_____
Toby Wells, Director of Engineering Services/City
Engineer
__________________________________
Will Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:

1. Resolution- Nossaman LLP

2. Resolution- Bartkiewicz, Kronick & Shanahan P.C.

3. Fourth Amendment to LSA - Nossaman LLP & exhibit

4. Sixth Amendment to Legal Services Agreement -Bartkiewicz, Kronick & Shanahan P.C.
#3..
- 36 -

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX

RESOLUTION APPROVING A FOURTH AMENDMENT TO THE LEGAL

SERVICES AGREEMENT WITH NOSSAMAN LLP INCREASING THE
AGREEMENT AMOUNT BY $200,000 FROM $2,000,000 FOR A REVISED TOTAL AMOUNT NOT TO EXCEED $2,200,000, ADJUSTING THE BLENDED HOURLY RATE FROM $438 TO $452 AND EXTENDING THE TERM OF THE AGREEMENT TO DECEMBER 31, 2024, TO CONTINUE TO PROVIDE
EMINENT DOMAIN LEGAL SERVICES FOR STATE ROUTE 132 WEST
FREEWAY/EXPRESSWAY PHASE 1 PROJECT, AND AUTHORIZING THE

CITY MANAGER, OR HIS DESIGNEE, TO EXECUTE THE AMENDMENT WHEREAS, State Route (“SR”) 132 is an east-west highway that extends from I580 in the Central Valley, south of the City of Tracy, to SR 49 in the foothills of the Sierra Mountains, terminating in the town of Coulterville; and WHEREAS, SR 132 is a vital link through the Central Valley, serving local traffic from these communities and providing for regional traffic between the Bay Area and the mountains for the movement of traffic and goods and services, and provides access to the recreational areas east of Modesto via SR 49; and WHEREAS, the purpose of the Project is to improve regional and interregional circulation, relieve traffic congestion along existing SR 132, and enhance safety and operations for the existing and proposed transportation network; and WHEREAS, on September 4, 2018, by Resolution No. 2018- 381, Council approved a professional services agreement with Nossaman LLP of Los Angeles, California for Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project in an amount not to exceed $2,000,000; and WHEREAS, on January 26, 2021, by Resolution No. 2021-028, Council approved a First Amendment to the Legal Services Agreement with Nossaman LLP to adjust the blended hourly rate from $385 to $425, with no increase to the not to exceed amount of $2,000,000 for the Agreement; and
#3..
- 37 -
WHEREAS, on December 6, 2021, pursuant to Article 2. “Period of Performance,” of the agreement, the City entered into a Second Amendment to the Legal Services Agreement with Nossaman, LLP to extend the termination date of the agreement to December 31, 2022; and
WHEREAS, on December 13, 2022, by Resolution No. 2022-476, Council approved a Third Amendment to the Legal Services Agreement with Nossaman, LLP to adjust the blended hourly rate from $425 to $438 and extend the termination date of the agreement to December 31, 2023; and
WHEREAS, although the construction portion of the project is complete, there continue to be legal services during the closeout process; and WHEREAS, this amendment will increase the hourly rate from $438 to $452, increase the not to exceed amount by $200,000 and extend the agreement one additional year with the termination date of December 31, 2024.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Fourth Amendment to the Legal Services Agreement with Nossaman LLP increasing the Agreement amount by $200,000 from $2,000,000 to a new total amount not to exceed $2,200,000, adjusting the blended hourly rate from $438 to $452 and extending the term of the agreement to December 31, 2024 to continue to provide Eminent Domain Legal Services for State Route 132 West Freeway/Expressway Phase 1 Project, as provided in Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.

BE IT FURTHER RESOLVED, that the City Manager or his designee, are hereby authorized to execute the amendment, in a form approved by the City Attorney.

The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 12th day of December 2023, by Councilmember #3..
- 38 -
________, 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, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: _________________________________
JOSE M. SANCHEZ, City Attorney
#3..
- 39 -

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX

RESOLUTION APPROVING A SIXTH AMENDMENT TO THE LEGAL

SERVICES AGREEMENT WITH BARTKIEWICZ, KRONICK & SHANAHAN P.C. IN THE AMOUNT OF $100,000, FOR A REVISED TOTAL AMOUNT NOT TO EXCEED $392,300 FOR CONTINUED REPRESENTATION IN WATER

RELATED MATTERS AND AUTHORIZING THE CITY MANAGER OR HIS

DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, on December 6, 2016, by Resolution No. 2016-479, Council approved an agreement with Bartkiewicz, Kronick & Shanahan, P.C. (BKS) to provide legal services for the State Water Resources Control Board Substitute Environmental Document, in the amount of $57,300; and
WHEREAS, on July 11, 2017, by Resolution No. 2017-282, Council approved a First Amendment to the Legal Services Agreement with BKS for continued services in an amount of $35,000, for a total agreement not to exceed $92,300; and WHEREAS, on August 13, 2019, by Resolution No. 2019-367, Council approved a Second Amendment for continued services in the amount of $50,000, for a total agreement not to exceed $142,300; and
WHEREAS, on May 3, 2022, by Resolution 2022- 202, Council approved a Third Amendment to the Legal Services Agreement in the amount of $75,000, for a total not to exceed $217,300 for continued representation; and
WHEREAS, on February 14, 2023, by Resolution No. 2023-46, Council approved a Fourth Amendment to the Legal Services Agreement to adjust hourly rates; and WHEREAS, on July 11, 2023, by Resolution No. 2023-326, Council approved a Fifth Amendment with BKS in the amount of $75,000, for a total not to exceed $292,300 for continued representation; and
WHEREAS, the City is currently seeking to overturn the State Water Resources Control Board’s action in approving the Bay-Delta Plan; and #3..
- 40 -
WHEREAS, this is the suit challenging the State Water Board’s approval of regulatory changes that require that about 40% of the flow of the Tuolumne River remain in the stream for fish; the regulations are known locally as the “water grab”; and WHEREAS, the Sixth Amendment to the Legal Services Agreement will increase the amount of the agreement by $100,000 for a total amount not to exceed $392,300 for continued representation in the litigation matter and additional tasks already covered in the current scope of work related to water matters.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Sixth Amendment to the Legal Services Agreement with Bartkiewicz, Kronick & Shanahan, P.C., in the amount of $100,000, for a revised agreement total not to exceed $392,300 for continued representation in water related matters, as provided in Exhibit A attached hereto and incorporated herein, and further authorizes the City Attorney to execute such agreement in a form substantially similar to Exhibit A.

BE IT FURTHER RESOLVED that the City Manager or his designee, are hereby authorized to execute the amendment, in a form approved by the City Attorney.

The foregoing resolution was introduced in a regular meeting of the Council of the City of Modesto held on the 12th day of December 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:
#3..
- 41 -
ATTEST: ______________________________
DIANE NAYARES-PEREZ, CMC City
Clerk
APPROVED AS TO FORM:

BY: _______________________________________
JOSE M. SANCHEZ, City Attorney
#3..
- 42 -

FOURTH AMENDMENT TO LEGAL SERVICES AGREEMENT
This Fourth Amendment to the Legal Services (this “Fourth Amendment”), is made and entered into on this 12th day of December 2023 (“Effective Date”), by and between the CITY OF MODESTO, a California Municipal Corporation (“City”), and NOSSAMAN LLP (“Attorney”), located at 777 South Figueroa Street, 34th Floor, Los Angeles, California 90017.

City and Attorney are hereinafter collectively referred to as the “Parties,” and singularly as “Party”.

RECITALS
WHEREAS, City and Attorney entered into a Legal Services Agreement (“Agreement”) to provide Eminent Domain Legal Services for the State Route 132 West Freeway/Expressway Project; and
WHEREAS, Attorney is specially trained, experienced and competent to perform such services; and
WHEREAS, the public interest, economy and general welfare will be served by the Agreement; and
WHEREAS, City and Attorney desire to amend the Agreement for further service by increasing the blended hourly rate from $438 to $452, increasing the agreement by $200,000 and extending the agreement by one year, to December 31, 2024.

NOW, THEREFORE, it is hereby agreed that the Legal Services Agreement between the City of Modesto and Nossaman, LLP dated September 6, 2018, amended by Resolution No. 2021-028, by the Second Amendment dated December 6, 2021 and Resolution No. 2022-476 is amended as follows:

1. Article 2. “Period of Performance,” Section 2.1 is amended to read as follows:
“The Period of Performance by ATTORNEY under this Contract shall commence upon the Effective Date, unless agreed otherwise, and shall continue in full force and effect through December 31, 2024, or until otherwise terminated as provided in Article 16, or unless extended as hereinafter provided by written amendment, except that all indemnity and defense obligations hereunder shall survive termination of this Contract. ATTORNEY shall not be compensated for any work performed or costs incurred prior to issuance of the Effective Date.”

2. Article 3. “Compensation,” Sections 3.2 and 3.3 is amended to read as follows:

3.2 The total Not-To-Exceed Amount for all CTOs issued to ATTORNEY is $2,200,000.
#3..
- 43 -

3.3 Attachment B, “Price List Exhibit B for: Time and Materials”, is amended and replaced with the “ Price List Exhibit B for: (Time and Materials) Effective January 1, 2024”, attached hereto as Exhibit 1.

3. Entire Agreement. The parties to this Fourth Amendment understand and agree that except as stated herein all terms and conditions of the original Agreement, dated September 6, 2018, remain in full force and effect to the extent they are not in conflict with this Fourth Amendment. This document, including all exhibits, contain the entire amendment to the Agreement between the Parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Fourth Amendment. No alteration to the terms of this Fourth Amendment shall be valid unless approved in writing by Attorney and by City, in accordance with applicable provision of the Modesto City Code.

4. Authority. The person signing this Fourth Amendment for Attorney hereby represents and warrants that he/she is fully authorized to sign this Fourth Amendment on behalf of Attorney and to bind Attorney to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the Parties have executed this Fourth Amendment as of the dates stated below.

CITY OF MODESTO,
A Municipal Corporation
By:

Print name: Joseph P. Lopez
Title: City Manager
APPROVED TO AS FORM:
_____________________________________
Jose M. Sanchez, City Attorney
ATTEST:
____________________________________
Diane Nayares-Perez, City Clerk
________________________________
Christina Alger, Director of Human Resources
[Signatures Continued on Next Page.]
#3..
- 44 -
ATTORNEY:

NOSSAMAN, LLP
______________________________________
______________________________________
Federal I.D. No.
______________________________________
State I.D. No.
______________________________________
City of Modesto Business Op. Tax Cert. No.

TYPE OF BUSINESS ENTITY (check one):
_____ Individual/Sole Proprietor
_____ Partnership
_____ Corporation
_____ Limited Liability Company
_____ Other (please specify: ______________)
______________________________________
Signature of Authorized Person
______________________________________
Title
______________________________________
Additional Signature (if required)
______________________________________
Title
#3..
- 45 -
61099098.v1
No.

Name Classification/Title Job Function Hourly Rate*
Artin Shaverdian Partner Project Manager/Team
Leader
David Graeler Partner
Jill Jaffe Partner
Kristin Mendenhall Staff Attorney
Maya Hamouie Associate
Aleene Madikians Associate
Ren Smith Partner
Diana McMillin Paralegal
Philip Layzer Paralegal
*We will charge City one-half (1/2) attorneys’ applicable blended rate for any travel related to this project.

Other Direct Cost Schedule (ODC)
All ODC’s are to be proposed at cost-without mark-ups.

Type of ODC Unit Cost Estimated
Budget Amount
Air travel at cost but not first class or business select.

Lodging and other travel related expenses including ground transportation at cost.
$500/Trip $25,000
Computer assisted research expenses are charged at cost. $1,000/Case $5,000 We will pass on to the City postage-related charges at the actual cost, including overnight carrier and messenger fees as necessary.
$0.49/Ounce $5,000
We will pass on to the City direct cost of any filing fees charged by outside vendors for court filings, including fees for electronic court filings and service of process.
$8,000/Case $40,000
Photocopying will be passed on to the City at cost. $0.30/Copy $3,000 Experts $50,000/Expert $250,000
Proposer: Artin N. Shaverdian, Partner
Signature:

Exhibit 1 to Fourth Amendment to Nossaman LSA
Price List Exhibit B for: (Time and Materials) Effective January 1, 2024 $452
$452
$452
$452
$452
$452
$452
$239
$239
Date: 11/21/2023
#3..
- 46 -

SIXTH AMENDMENT TO LEGAL SERVICES AGREEMENT
This Sixth Amendment to the Legal Services (this “Sixth Amendment”), is made and entered into on this 12th day of December 2023 (“Effective Date”), by and between the CITY OF MODESTO, a California Municipal Corporation (“City”), and BARTKIEWICZ, KRONICK & SHANAHAN, P.C. (“Attorney”), located at 1600 K Street, Suite 4A, Sacramento, California 95814. City and Attorney are hereinafter collectively referred to as the “Parties,” and singularly as “Party”.

RECITALS
WHEREAS, City and Attorney entered into a Legal Services Agreement (“Agreement”) to provide legal services for the State Water Resources Control Board Substitute Environmental Document; and
WHEREAS, Attorney is specially trained, experienced and competent to perform such services; and
WHEREAS, the public interest, economy and general welfare will be served by the Agreement; and
WHEREAS, City and Attorney desire to amend the Agreement for further service by increasing the previously approved amount of fees from $292,300 to $392,300.

NOW, THEREFORE, it is hereby agreed that the Legal Services Agreement between the City of Modesto and Bartkiewicz, Kronick & Shanahan, P.C. dated December 6, 2016, and amended by Resolutions No. 2017-282, 2019-367, 2022-202, 2023-46 and 2023-326 is amended as follows:

1. Paragraph No. 3 “Compensation” is amended to state as follows:
“Consultant Services specifies the sum of THREE HUNDRED NINETY-TWO THOUSAND AND THREE HUNDRED DOLLARS ($392,300) as the total compensation, Consultant agrees to accept for performing all services and furnishing all staffing and materials for the project as well as performance by Consultant of all of its duties and obligations required in the Original Agreement.”

2. Entire Agreement. The parties to this Sixth Amendment understand and agree that except as stated herein all terms and conditions of the original Agreement, dated December 6, 2016, remain in full force and effect to the extent they are not in conflict with this Sixth Amendment. This document, including all exhibits, contain the entire amendment to the Agreement between the Parties and supersedes whatever oral or written understanding they may have had prior to the execution of this Sixth Amendment. No alteration to the terms of this Sixth Amendment shall be valid unless approved in writing by Attorney and by City, in accordance with applicable provision of the Modesto City Code.
#3..
- 47 -

3. Authority. The person signing this Sixth Amendment for Attorney hereby represents and warrants that he/she is fully authorized to sign this Sixth Amendment on behalf of Attorney and to bind Attorney to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the Parties have executed this Sixth Amendment as of the dates stated below.

CITY OF MODESTO,
A Municipal Corporation
By:

Print name: Joseph P. Lopez
Title: City Manager
APPROVED TO AS FORM:
_____________________________________
Jose M. Sanchez, City Attorney
ATTEST:
____________________________________
Diane Nayares-Perez, CMC City Clerk
________________________________
Christina Alger, Director of Human Resources
[Signatures Continued on Next Page.]
#3..
- 48 -
ATTORNEY:

BARTKIEWICZ, KRONICK & SHANAHAN, P.C.
______________________________________
______________________________________
Federal I.D. No.
______________________________________
State I.D. No.
______________________________________
City of Modesto Business Op. Tax Cert. No.

TYPE OF BUSINESS ENTITY (check one):
_____ Individual/Sole Proprietor
_____ Partnership
_____ Corporation
_____ Limited Liability Company
_____ Other (please specify: ______________)
______________________________________
Signature of Authorized Person
______________________________________
Title
______________________________________
Additional Signature (if required)
______________________________________
Title
#3..
- 49 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 17, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Allison Van Guilder, Deputy City Manager
SUBJECT: Amendments to the Community Police Review Board (CPRB) Bylaws CONTACT: Allison Van Guilder, Deputy City Manager, [email protected], 209- 577-5228
DESCRIPTION:

Consider approving Amendments to the Community Police Review Board Bylaws. (Funding Source: Not Applicable)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto’s 2020-2025 Strategic Plan Area of Focus for Governance and Service Delivery, Goal I: Promote trust and engagement between the community and the City.

BACKGROUND:

On December 13, 2022, by Resolution No. 2022-498, Council approved Bylaws for the establishment of the Modesto Community Police Review Board. The recommendation to create the board as a dual component of a hybrid police accountability model, was the culmination of the efforts of the Forward Together work group.

DISCUSSION:

Article III, Section 3.1, Item A of the CPRB Bylaws states, “Meetings will be held on the third, Thursday of each month at 5:00 p.m.”
In response to feedback staff received regarding the current time and meeting space in Conference Room 2001 at 1010 10th Street Place, staff is putting forth a recommendation to relocate the monthly CPRB meetings to the Council Chambers with a start time of 5:30 p.m.

Additionally, given the unavailability of Council Chambers on the current meeting dates, staff is also recommending that the meetings be rescheduled to the third Wednesday of each month to align with the chamber’s availability.

This proposed move stems from our commitment to enhance the overall meeting experience for both the board members and the community at large.
#4..
- 50 -
City Council, December 12, 2023
Revision of the Community Police Review Board Bylaws

The chambers have been chosen because this space offers a significantly larger area, ensuring that there is ample room for everyone whereas the current space is restrictive in terms of seating. The time and date change are to encourage more community engagement. In addition to the increased accessibility, the chambers are equipped with audio/visual technology.

On November 16, 2023, a meeting of the Community Police Review Board was convened, and the members voted in favor of changing the time and date of the meeting.

FISCAL IMPACT:

There is no fiscal impact related to this action.

COMMITTEE RECOMMENDATION:

This item is not required to be reviewed by a Council Committee.

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Resolution amending the Community Police Review Board Bylaws changing the meeting date from the third Thursday of each month at 5:00 p.m. to the third Wednesday of each month at 5:30 p.m. starting on January 17, 2024.

Approved by:

Allison Van Guilder, Deputy City Manager
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Resolution 2022-498

3. CPRB bylaws simple redline copy version
#4..
- 51 -

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-

RESOLUTION AMENDING THE COMMUNITY POLICE REVIEW BOARD BYLAWS

CHANGING THE MEETING DATE FROM THE THIRD THURSDAY OF EACH MONTH AT 5:00 P.M. TO THE THIRD WEDNESDAY OF EACH MONTH AT 5:30 P.M.

STARTING ON JANUARY 17, 2024
WHEREAS, Article III, Section 3.1, Item A of the CPRB Bylaws stipulates that meetings shall be held on the third Thursday of each month at 5:00 p.m., and WHEREAS, feedback received by staff indicates concerns regarding the current meeting time and space in Conference Room 2001, and
WHEREAS, due to the unavailability of Council Chambers on the current meeting dates, staff recommends rescheduling the meetings to the third Wednesday of each month to align with the chamber's availability, and
WHEREAS, the proposed changes aim to enhance the overall meeting experience for both board members and the community at large, and
WHEREAS, the Council Chambers provides a significantly larger area, ensuring ample room for attendees compared to the current restrictive seating arrangements, and WHEREAS, the recommended time and date change are intended to encourage increased community engagement, and
WHEREAS, the Council Chambers are equipped with advanced audio/visual technology, and
WHEREAS, on November 16, 2023, a meeting of the Community Police Review Board was convened, and members voted in favor of changing the time and date of the monthly meetings.
#4..
- 52 -
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves amending the Community Police Review Board Bylaws changing the meeting date from the third Thursday of each month at 5:00 p.m. to the third Wednesday of each month at 5:30 p.m. starting on January 17, 2024.
#4..
- 53 -
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th of December 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, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: _________________________________
JOSE M. SANCHEZ, City Attorney
#4..
- 54 -


 

!
"#!$"
%&"#'
(
'%!#
&&
)*+**,-./ (
'%!#
&011(
2#&3"

%&#!$1
'#"(2#45
0(
5$'04 67898 :;<=>?>@>@@A
B>@
C@<
>
=D>E
9FGH>
ID9HJ
E>
K
E>
G<E>

E
B<@FE@>?


L

 D>E >ID JM

 67898 :;<@
C@<
>?
>
=D>E9FGH>

@


E>L>

>?
<=CL>E
EE>

C=>;@<E

>
>?<??>@>?< N>G
O>B<G>AB>LE
>
P
;C=>
E9@>>
Q>R SM

67898 :;?>>F
=
;<G>AB>L<
@@>?LCEG>A@<>L@


<>E
B@?>E@>
<@@>?L>F
BL>EE>
=
>
@
<=
>?>@>M

 67898 :;C
@>
<N>G
O>B<G>ATUVWXYZU[\V]][^_`abV^ZcZa`dd

?<D 

D9H
@?>

>


EE>

C=E>L>

@

<
LL>L



@>L
M

 67898 :;
@>?
LEF
<:LC;;>
E
6>A@<>L?>E@>
L>E
EE>

C=>@;@
??<
@F>L<@E>L>? G>AI:6J?><D M

 67898 :;
B

;<>>?<D9HG?>>GC@L
EE@
@
>
?<Q
>

 @@>E
>
>?F

F@B<H>
@?>e
G
8 ?>E
IQ e8J


@@?><
@>?<=>?>@>>E
=> L>FE>
=
>
@G<<>@>D>EfL

M

 67898 :;<D9H@<
CE>L@>?

IJC@G<>@G<

#4..
- 55 -


 



 
!"

!#$#
!

%$



& %
&!#"#

'!

&#%

(
#


""
#



%
)#
##


##*

 +,-.- /&

!!

#)
)#"
0.1 )2#

%#)

3%#



34
5+&6,-.-7.-&1-6.-/8
-9)

#

#"

#"##



)

!!#$
1

"#
#

0#
.$ 1#


#


:;<=>=?@ABC??CD<EF
#



#!#


)
"

4
1-67G.6,-..-/8
-9


##0#
9!


)


#(#




"
$





#

"#
#
"#


!!

#))#"
#

0#
.$ 1#
"#
!!##"
#


%)

3%#



3&
#
%



"#
#

#

#

!$


4 #4..
- 56 -
#4..
- 57 -
1 Adopted 12/13/2022

EXHIBIT A

COMMUNITY POLICE REVIEW BOARD
BYLAWS

ARTICLE I

ORGANIZATION
Section 1.1 Establishment
The Community Police Review Board of the City of Modesto is established by Modesto City Council Resolution No. 2022-498 on December 13, 2022 as recommended by the Forward Together working group. Pursuant to Council Resolution No. 2022-358 on August 23, 2022 the Forward Together working group report was accepted by the Council. Included in the report was the recommendation to establish a community oversight board and independent police auditor for the City of Modesto.

Section 1.2 Background
The Forward Together initiative was catalyzed as a response to calls for police reform intensifying across the country and at our local level. Its formation was also a reflection of a commitment to strong relationships and trust between the community and law enforcement. On May 22, 2021, Council conducted a listening session to collect community input. As a result of the listening session, the following themes emerged and were confirmed by Council:
● Policies and Practices – that support safety, fairness and equity throughout the department and the community.
● Alternate Response Models – that ensure the right type of response and resources are applied to a situation.
● Accountability – for police conduct, decisions and how they impact the Modesto community.

Pursuant to Council Resolution No. 2021-216 on June 8, 2021, the Forward Together working group was created by the City Council and tasked with researching these specific themes relative to policing, engaging the broader community in the process and ultimately returned to Council with a set of recommendations to improve the police-community relations in the City of Modesto. The creation of a hybrid accountability model involving a Community Police Review Board and Independent Auditor were among these recommendations.

Section 1.3 Membership
#4..
- 58 -
2 Adopted 12/13/2022
A. Members interested in serving on the CPRB shall complete the City’s application process. Applications will be screened for completeness before being presented to the Appointments Committee for consideration.

B. The CPRB shall be comprised of nine (9) members who reside within the city limits with preference provided to residents representing diverse ethnicity, gender, sexual orientation, professional experience, organizational affiliations and neighborhoods/districts in Modesto.

C. CPRB members shall be registered electors of the City and each will have involvement or interest in improving the relationship between MPD and the Modesto community.

D. As part of the selection process, the Appointments Committee will conduct interviews of all CPRB applicants.

E. All appointments to the CPRB shall be recommended by the City’s Appointments Committee and approved by the City Council.

F. No Member of the CPRB shall be an employee of the City, nor of any bargaining unit for employees of the City, nor a person who receives compensation from the City.

G. No Member of the CPRB shall be a relative, by blood or marriage within the third degree of the Mayor, a Councilmember, a Charter Officer, or any Department Director.

H. CPRB service is entirely voluntary and without compensation. Members may receive reimbursement for necessary training and travel incurred as a part of their official duty when such expenditures have been approved in advance by the City Manager.

I. All Members must complete a Statement of Economic Interest (Form 700) by April 1st of each year and when assuming or leaving CPRB membership.

J. Members must reside in the City of Modesto for at least one year prior at the time of appointment and must reside in the City of Modesto during the entire tenure of service and be at least 18 years of age at the time of the application submittal.

K. Members will be expected to be fair, impartial and committed to community service, ability to build working relations, and communicate effectively with diverse groups.
#4..
- 59 -
3 Adopted 12/13/2022
L. All applicants for the CPRB will be subject to background checks. No person who illustrates behavior or conduct not consistent with the purpose of the CPRB, as determined by the City Manager, shall be eligible to serve on the CPRB.

M. CPRB members shall not hold a current sworn officer position or be an employee of any law enforcement agency.

N. Retired or former Modesto Police Department personnel shall not be eligible to serve on the CPRB.

O. No person who has a pending claim or litigation against the City of Modesto shall be eligible to serve on the CPRB.

Section 1.4 Terms of Office
A. The CPRB shall consist of nine qualified persons, comprised of the following:

Seat Designation Term
Chairperson One year, voted by simple
majority of CPRB.

Vice Chairperson One year, voted by simple
majority of CPRB.

Members Four years, appointed by
Council.

B. Members shall serve for a term of four years. If reappointed, incumbent members may serve a second, four-year term. Special consideration shall be given first to eligible incumbent members, then to eligible applicants.

C. Each member is to hold office for no more than two terms consecutively.

D. Members representing seats 1-5 shall have their terms expire on June 30 of the respective odd numbered years. Members in seats 6-9 shall have their terms expire on June 30 of the respective even numbered years.

E. Members representing seats 1-5 shall have their initial term expire on 2027 and members in seats 6-9 shall have their term expire on 2028).

F. Members may serve no more than two (2) terms.

G. Appointments to fill vacancies on the CPRB shall be handled in the same manner as the original appointments. When a vacancy occurs during a term, the appointment to fill such vacancy shall be for the unexpired portion of the term. If a member is serving an unexpired portion of a term with less than 2 years remaining, such service shall not count against the 2-term limit.
#4..
- 60 -
4 Adopted 12/13/2022
H. Members of the CPRB may be removed by a majority vote of the City Council.

ARTICLE II

DUTIES AND TRAINING
Section 2.1 Duties. The duties of the Community Police Review Board are:

A. Conduct monthly public meetings to promote community engagement and to afford the public regular opportunities to provide feedback and receive updates.

B. Meeting materials, including agendas, minutes, meeting recordings, will be available to the public online.

C. Review the independent auditor’s annual report and analysis of completed administrative investigations; department use of force incidents; and critical incidents such as officer involved shootings, in-custody deaths and other events resulting in a Major Incident Review.

D. Review the Modesto Police Department’s (MPD) response to the independent auditor’s report recommendations.

E. Prepare and submit an annual report to the City Manager and City Council outlining the CPRB’s activities and any recommendations related to any and all of the CPRB’s review of information including but not limited to officer-involved shootings, use of force and complaints.

F. Receive complaints from members of the public and directly refer those complaints to the City Manager for investigation by MPD.

G. Receive timely notification on major incidents; the Chair or designee is authorized to visit the location of certain critical incidents which result in the involvement of MPD’s Major Incident Response Team (MIRT) (e.g., officerinvolved shooting).

H. Receive access to relevant information to enable the CPRB to carry out its duties and responsibilities, as allowable by law.

I. Participate in community meetings hosted by MPD following major incidents and be provided the opportunity to explain the role of the CPRB, as necessary.

J. Conduct regular community engagement and outreach, with each member required to participate in events which raise awareness of the CPRB, and those focused on youth and improving police/community relationships. #4..
- 61 -
5 Adopted 12/13/2022
K. Participate in training provided by MPD and other sources regarding police practices, operations and functions. This training is to be presented whenever most practicable and beneficial in promoting the level of understanding and subject matter knowledge of the CPRB. This may include CPRB meetings and special training sessions.

L. All members shall comply with all state and federal laws requiring the confidentiality of law enforcement records, information, and confidential personnel records, including any briefs prepared by the independent auditor.

Members will be required to sign and abide by a confidentiality/non-disclosure agreement.

Section 2.2 Training. The required training of CPRB members include but are not limited to the following:

A. Adhere to the National Association for Civilian Oversight of Law Enforcement (NACOLE) Code of Ethics.

B. Comply with all applicable state and federal laws regarding confidentiality.

C. Participate in an initial 20-40 hour training program provided by the MPD and other sources regarding police practices, operations and functions. Annually thereafter, participate in 30 or more hours of training, including but not limited to: participation in a minimum of two ride-a-longs every year with a Modesto Police Department officer, and training on police practices, operations and functions.

D. Complete ethics training; AB 1234 requires training must be completed within one year from the date of service and at least once every two years thereafter.

ARTICLE III

MEETINGS AND ATTENDANCE
Sections 3.1 Regular Meetings
It shall be the responsibility of each Member to know the dates and times of all CPRB meetings. If a Member knows he or she will not be able to attend a regularly scheduled meeting, it shall be his or her responsibility to notify the staff appointed CPRB Secretary at least forty-eight (48) hours before the meeting, in order for the absence to be recorded as an excused absence.

A. Meetings will be held on the third, Thursday Wednesday of each month at 5:00 30 PM.
#4..
- 62 -
6 Adopted 12/13/2022
B. The minutes of each meeting will list those Members in attendance, those who are excused, and those who are unexcused.

C. Regular attendance at all meetings of the CPRB is required of all members to enable the CPRB to discharge its duties. If a member is absent from three (3) meetings of the CPRB consecutively, without securing the permission of the CPRB, expressed in its official minutes, the CPRB may recommend the City Council request the resignation from the CPRB of any such member under Section

1.4 (H). The Secretary shall report to the CPRB and City Council when a CPRB member has accrued 4 (four) absences during the calendar year (January – December) for consideration of the CPRB.

Section 3.2 Special Meetings
A special meeting may be called at any time by the Chair of the CPRB or upon the written request of three (3) members of the CPRB. Whenever a special meeting shall be called, written notice of such meeting shall be made in accordance with Section 3.6 hereof.

Section 3.3 Place of Meetings
Meetings shall be held at the location designated in the agenda for the meeting.

Section 3.4 Meetings to be Public
All meetings of the CPRB shall be open to the public.

Section 3.5 Agenda
In order to facilitate the orderly conduct of the business of the CPRB:

A. The secretary shall arrange a list of the matters to be considered by the CPRB at its next meeting in accordance with the order of business. The agenda and all other reports and other supplemental material shall be delivered (electronic, postal, or other means as needed to each member of the CPRB prior to the CPRB meeting at which they are to be considered as far as possible in advance of the meeting as time will permit. In accordance with amendments to the Ralph M. Brown Act, the agenda will be posted in a place freely accessible to the public at least 72 hours prior to the meeting. Copies will also be mailed to each person or organization requesting notice in writing, each local newspaper of general circulation, and radio or television stations requesting notice in writing.

B. Any interested person shall have the opportunity to make public comment on each agendized item and under the Oral Communications item. Public comment shall be limited to 3 minutes per person, except that the Chair may shorten this amount if necessary to accommodate a large number of speakers. Members of the public may not yield their time to other speakers.
#4..
- 63 -
7 Adopted 12/13/2022
C. With the approval of a majority of the members of the CPRB present at the meeting, matters may be taken up out of order.

D. The agenda shall specify the time and place of the meeting and a brief description of each item of business to be transacted.

E. The agenda shall be posted at Tenth Street Place, 1010 10th Street.

F. Notices of all meetings, including agendas, shall be given to all Members of the CPRB, to the City Clerk, to the City Manager, and to the public and all others as provided by law. All such notices shall be at least seventy-two (72) hours prior to the time of such meeting.

Section 3.6 Order of Proceedings
The order of proceedings of all meetings shall be as follows, subject to majority vote of the Members present:

A. Call to Order
B. Roll Call
C. Declaration of Conflict of Interest
D. Public Comment Period
E. Oral Communications
a. CPRB Members
b. Staff
F. Unfinished Business
G. New Business
H. Written Communications
I. Adjournment
Section 3.7 Reading the Minutes
Unless the reading of the minutes of the CPRB meeting is requested by a majority of the members of the CPRB present, such minutes may be approved without reading if the secretary has previously furnished each member of the CPRB with a copy thereof.

Section 3.8 Method of Action
All decisions of the CPRB shall be by motion. Upon the request of any member, roll call vote shall be taken and recorded on any vote. Whenever a roll call vote of the CPRB is in order, the names of the members shall be called in alphabetical order except that the name of the presiding officer shall be called last. The affirmative or negative vote of a majority of the entire membership of the CPRB shall be necessary for it to take action. #4..
- 64 -
8 Adopted 12/13/2022

ARTICLE IV
QUORUM
Section 4.1 Quorum
A quorum is necessary for the CPRB to transact any business. A quorum shall be defined as a simple majority of active CPRB Members, which is one-half of the active members plus one.

ARTICLE V

OFFICERS, SECRETARY AND STAFF LIAISON DUTIES
Section 5.1 Chair and Vice Chair
Officers shall consist of Chair and Vice-Chair elected by a simple majority vote of Members of the CPRB. All officers shall exercise all privileges of membership, including the making of motions, seconding, and debate.

A. Chairperson - The Chair shall preside at all meetings, shall appoint all ad hoc committees, and shall ensure that the bylaws, rules, and regulations as adopted by the CPRB are properly enforced. The chairperson is responsible to execute all documents on behalf of the CPRB and perform any duties requested by the CPRB.

The CPRB chairperson will also be responsible for responding to the scene of officer involved shootings and/or critical incidents and may assign any CPRB member to respond to a critical incident on a case-by-case basis, in lieu of the Chairperson’s absence. Priority and preference shall be given to the Vice Chairperson. No person shall serve more than two consecutive years as Chairperson.

B. Vice Chairperson - The Vice-Chair shall assist the Chair in his/her duties and in the absence of the Chair shall perform all duties usually performed by the Chair.

C. Secretary - The City shall appoint a staff representative to serve as the CPRB’s Secretary. The Secretary shall keep a written record of all business transacted by the CPRB, notify CPRB members of meetings, keep official records of the CPRB, and perform such other duties as the CPRB may require.

D. Staff Liaison - The City shall appoint a staff representative to serve as the CPRB’s Liaison to provide support and guidance to the CPRB so that they can have effective meetings, comply with regulations and work within the scope of the CPRB’s mission.
#4..
- 65 -
9 Adopted 12/13/2022
Section 5.2 Election of Officers
The Chair and Vice Chair of the CPRB shall be elected annually at the regular meeting in January.

Section 5.3 Interim Vacancies
If the Chair of the CPRB vacates that office prior to the end of his/her term, an interim Chair shall be elected by the CPRB for the remainder of the calendar year.

If the Vice Chair of the CPRB vacates that office prior to the end of his/her term, the Chair may appoint an interim Vice Chair for the remainder of the calendar year.

During the absence of both the Chairperson and the Vice Chairperson, the CPRB should select a temporary chairperson to conduct the meeting.

ARTICLE VI

PROCEDURES AND POWERS
Section 6.1 Authority
The provisions of the Charter, Municipal Code, and Personnel Rules of the City of Modesto, and these Rules of Procedure pertaining to procedures, and powers of the CPRB shall prevail in the order stated.

Section 6.2 Amendment of Rules of Procedure
These Rules of Procedure may be amended from time to time by the City Council.

ARTICLE VII

PARLIAMENTARY PROCEDURE
Section 7.1 Roberts Rules of Order
Except as otherwise provided in these Rules of Procedure, Roberts Rules of Order shall be the guide for the parliamentary procedures for conduct of CPRB meetings. #4..
- 66 -
10 Adopted 12/13/2022

ARTICLE VIII

AD HOC COMMITTEES
Section 8.1 Special Committees
There shall be such special ad hoc committees as the CPRB may establish from time to time. The members of ad hoc committees shall be appointed by the Chair of the CPRB and shall serve for terms established by the CPRB.

Section 8.2 Ex Officio Committee Member
The Chair of the CPRB shall serve as an ex officio member of all CPRB ad-hoc committees.

ARTICLE IX

CITY MANAGER AUTHORITY
Section 9.1 Administrative Support
A. The City Manager shall provide appropriate administrative support to staff the CPRB public meetings.

B. The City Manager shall provide staff to prepare and keep records of CPRB meetings.

Section 9.2 CPRB Recommendations
A. The City Manager shall receive and evaluate all recommendations issued by the CPRB, to include determining what next steps if any, will be taken relative to those recommendations. As appropriate, the City Manager will address the recommendations with the Chief of Police, and as appropriate, with the City Council.

B. The City Manager shall be the ultimate arbiter of issues that may arise between the CPRB and the independent auditor regarding policy recommendations, roles, and scope of authority.
#4..
- 67 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 7, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Paoluccio Lease Agreement for NorthPointe Storm Basin CONTACT: Peter Ibrahim, Infrastructure Financing Program Supervisor [email protected], 209-577-5211
DESCRIPTION:

Consider approving a ten-year Lease Agreement with John A. Paoluccio and Dorene J.

Paoluccio to lease approximately 5,325 square feet located at 4701 Quinturn Lane, Modesto (APN 078-013-031) in the amount of $1,681.24 for the 2024 payment with a cost-of-living increase of three percent (3%) each year for ten (10) years, with two five (5) year extension options. (Funding Source: NorthPointe Community Facilities District (CFD 2002-1)) STRATEGIC PLAN ELEMENT:

The recommended action supports the City’s 2020-2025 Strategic Plan Goal D: Provide safe, efficient and reliable infrastructure through proactive community investment, maintenance and sustainability efforts.

BACKGROUND:

The City of Modesto owns and operates the NorthPointe Storm Drain Basin, which accommodates stormwater runoff from the Costco Shopping Center on Pelandale Avenue.

The City’s Utilities Department has been maintaining the east basin perimeter to mitigate erosion. The erosion is caused by a combination of rodent burros and irrigation. There have been several basin wall collapses during irrigation season, and staff has recommended a buffer area around the basin that can be controlled and maintained to prevent rodents from entering the basin area.

In February 2014, the City of Modesto entered into a ten-year lease agreement with John A.

Paoluccio and Dorene J. Paoluccio Revocable Trust to help prevent further damage to the NorthPointe Storm Basin’s east basin wall, with an annual payment amount of $1,250. The agreement grants the City a lease on a portion of property to provide the required buffer area, approximately 25 feet in width, and 213 feet in length, for a total of 5,325 square feet. #5..
- 68 -
City Council, December 12, 2023
Paoluccio Lease Agreement for NorthPointe Storm Basin

DISCUSSION:

The executed 2014 Lease Agreement between the City of Modesto and John A. Paoluccio and Dorene J. Paoluccio Revocable Trust was for an initial ten (10) years, with the lease expiring on February 28, 2024.

The Utilities Department has determined that this land is still needed to assist with maintenance adjacent to the NorthPointe Storm Drain Basin.

The Lease Agreement anticipated extension of the lease for a maximum of 10 years upon mutual agreement of the parties regarding a new payment amount. Rather than simply extend the existing lease, a new 10-year lease is being proposed, with an option for two five (5) year extensions. The City Manager will have the authority to approve the lease extensions.

At the request of the property owners, City staff will be including a cost-of-living increase of three percent (3%) per annum, through the life of the lease agreement, which can be reviewed in Attachment 3.

FISCAL IMPACT:

The lease agreement’s first payment in 2024 will be $1,681.24, with an annual cost-of-living of three percent (3%) for each annual payment through the lease term in 2034. The ten-year total estimated cost is $19,273.53 and will be funded directly from the NorthPointe Community Facilities District (CFD 2002-1). There is no impact to the General Fund.

COMMITTEE RECOMMENDATION:

This item was presented to the Economic Development Committee on November 1, 2023, and the Committee approved forwarding the item to the City Council for approval.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving a ten-year Lease Agreement with John A. Paoluccio and Dorene J.

Paoluccio to lease approximately 5,325 square feet located at 4701 Quinturn Lane, Modesto (APN 078-013-031) in the amount of $1,681.24 for the 2024 payment with a cost-of-living increase of three percent (3%) each year for ten (10) years, with two five (5) year extension options, and authorizing the City Manager or his designee to execute the Agreement. #5..
- 69 -
City Council, December 12, 2023
Paoluccio Lease Agreement for NorthPointe Storm Basin

Approved by:

Jessica Hill, Director of Community
and Economic Development
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Proposed Lease Agreement

3. Paoluccio Annual Lease Payment Schedule

4. Memorandum of Lease

5. Exhibit A-B for Memorandum of Lease

6. Exhibit A-C for Lease Agreement
#5..
- 70 -
12/12/2023/CEDD/PIbrahim/Item # 1 2023-xxx

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XX

RESOLUTION APPROVING A TEN-YEAR LEASE AGREEMENT WITH JOHN A. PAOLUCCIO AND DORENE J. PAOLUCCIO TO LEASE APPROXIMATELY 5,325 SQUARE FEET LOCATED AT 4701 QUINTURN LANE, MODESTO (APN 078-013-031) IN THE AMOUNT OF $1,681.24 FOR THE 2024 PAYMENT WITH A COST-OF-LIVING INCREASE OF THREE PERCENT (3%) EACH YEAR FOR TEN (10) YEARS, WITH TWO FIVE (5) YEAR EXTENSION OPTIONS, AND

AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE THE

AGREEMENT
WHEREAS, the City of Modesto owns and operates the NorthPointe Storm Drain Basin, which accommodates stormwater runoff from the Costco Shopping Center on Pelandale Avenue; and
WHEREAS, in February 2014, the City of Modesto initially entered into a lease agreement with John A. Paoluccio and Dorene J. Paoluccio, property owners to prevent further damage to the NorthPointe Basin’s east wall; and WHEREAS, approving a new lease agreement would allow the City of Modesto to control the buffer area around the basin to maintain the basin wall and prevent rodents from entering the basin area; and
WHEREAS, the annual lease payment is $1,681.24 for the 2024 with an annual increase of three percent (3%) each year thereafter; and WHEREAS, the lease agreement is for ten (10) years, with two additional five year extensions options that may be authorized by the City Manager. #5..
- 71 -
12/12/2023/CEDD/PIbrahim/Item # 2 2023-xxx
NOW, THEREFORE, BE IT RESOLVED, by the Council of the City of Modesto that is hereby approves a ten-year Lease Agreement with John A. Paoluccio and Dorene J.

Paoluccio in the amount of $1,681.24 for the 2024 payment with a cost of living increase of three percent (3%) each year thereafter.

BE IT FURTHER RESOLVED that the City Manager, or his designee, is hereby authorized to execute the Agreement and all related documents, in a form approved by the City Attorney.
#5..
- 72 -
12/12/2023/CEDD/PIbrahim/Item # 3 2023-xxx
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 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: _____________________________

DIANA NAYARES-PEREZ, CMC
City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ________________________________
JOSE M. SANCHEZ, City Attorney
#5..
- 73 -

LEASE AGREEMENT
This Lease Agreement (hereafter the “Lease Agreement”) is entered into as of ____________________, 202__ (hereafter the “Effective Date”) by and BETWEEN JOHN A. PAOLUCCIO AND DORENE J.

PAOLUCCIO, TRUSTEES, JOHN A. PAOLUCCIO AND DORENE J. PAOLUCCIO REVOCABLE TRUST, property owner, (hereafter the “Lessor”), and the CITY OF MODESTO, a charter city and municipal corporation of the State of California (hereafter the “CITY”), the Lessee.

RECITALS
WHEREAS, Lessor is the owner of certain real property situated in the County of Stanislaus, California more particularly described in Exhibit "C" attached hereto and incorporated herein by this reference and having assessor's parcel number 078-013-031 and located on Quinturn Lane, (hereafter the "Property"); and
WHEREAS, a portion of the Property, including the portion of the Property that is subject of this Lease, is currently cultivated with almond trees; and
WHEREAS, CITY owns and operates a storm water collection basin known as the North Pointe Basin that is adjacent to and immediately west of the Property; and WHEREAS, CITY has discovered that the east side of the North Pointe Basin is eroding due to invasion and infestation of rodents from the Property; and WHEREAS, CITY desires to prevent erosion of the North Pointe Basin by preventing and controlling the infestation of rodents; and
WHEREAS, City desires to lease a portion of the Property hereafter defined and described as the Lease Area for the purpose of preventing damage to and stabilizing the east side of the North Pointe Basin by controlling the rodent population in and on the Lease Area; and, WHEREAS, City desires to lease from Lessor and Lessor is willing to lease to City the Lease Area on the terms and conditions set forth herein.

NOW, THEREFORE, the parties hereto mutually agree as follows:

1. Recitals
The Recitals set forth above are true and correct and are part of this Lease Agreement

2. Representations of LESSOR
a. Lessor represents it is the owner of the property described in Exhibit “C” attached hereto and made a part of hereof
b. Lessor has the power and authority to lease the Lease Area to CITY, to execute this Lease and to perform and observe the terms and conditions herein. #5..
- 74 -

3. Representations of CITY
CITY represents and warrants as follows:
a. CITY has the power and authority to execute this Lease and to perform and observe the terms and conditions herein.

4. Grant of Lease
a. Lessor grants to City a Lease (hereafter the "Lease") for that portion of the Property consisting of approximately 5,325 square feet described in Exhibit "A" and depicted in Exhibit "B" attached hereto and referred to as the Lease Area for CITY's exclusive occupancy and use to take and perform the following actions: CITY may remove all almond trees in and on the Lease Area and use and maintain the land thereof to prevent rodents from invading and/or damaging the North Pointe Basin. City may also construct and maintain an earthen berm to retain Lessor's irrigation water on Lessor's remaining Property and prevent Lessor's irrigation water from entering the Lease Area. b. It is expressly agreed that this Lease is for the exclusive use by CITY and CITY's agents, employees, contractors and assigns.
c. The term of this Lease shall be for a period often (10) years (hereafter referred to as the "Principal Term") commencing on March 1, 2024, and ending on February 28, 2033. d. CITY shall have reasonable access over, across and under the Property to operate, maintain, repair or service the Lease Area and carry out the purpose of this Lease. e. Lessor shall not impair, interfere or restrict CITY's access to or use of the Lease Area. f. City shall not knowingly cause, maintain, or suffer any waste or nuisance in, on or about any portion of the Lease Area, including, without limitation, storage, use or discharge of any substance or material that presents a fire, explosion, or environmental contamination hazard.
g. This Lease is made solely for the benefit of CITY, and except as expressly provided herein, it is not made for the benefit of any person, third party or entity not a party to this Lease Agreement. No person, entity or third party other than the CITY shall have any right to enforce this Lease Agreement other than a permissible third party assignee as set forth below.

5. Lease Non-assignable
This lease is personal to the CITY and shall not be assigned without the consent of CITY, which shall not be unreasonably withheld, conditioned or delayed. Any attempt to assign the Lease in violation of these terms shall automatically void such assignment. No legal title or other interest in the Property other than this Lease is created or vested in CITY by the grant of this Lease. Notwithstanding anything to the contrary set forth above, Lessor shall not require CITY's consent to assign the Lease to an entity that controls, is controlled by or under common control with CITY.
#5..
- 75 -

6. Rent Payment
CITY agrees to pay Lessor as rent for the use and occupancy of the Lease Area an annual rent first annual payment will be One Thousand Six Hundred Eighty One Dollars and Twenty Four Cents ($1,681.24) and increasing each year by three percent (3%) throughout the term of the Lease.

CITY Shall pay the annual rent in advance on or before the first day of March of each lease year, commencing on March 1, 2024 at 12:01 a.m.

7. Principal Term
Unless terminated earlier due to default or revocation, the term of this Lease shall be for a period often (10) years commencing at 12:01 a.m. on the March 1, 2024 and terminating at 12:00 p.m. on February 28, 2033 (the "Principal Term").

8. Renewal, Renewal Term
Unless terminated earlier due to default or revocation and provided that no material default or breach has occurred, CITY shall have an option to renew this Lease for two additional five (5) year terms (the "Renewal term") from the termination of the Principal Term on the same terms, conditions and covenants as herein contained. CITY shall notify Lessor in writing of CITY's intention to exercise the option to renew at least sixty (60) days prior to the expiration of the Principal Term of this Lease. The City Manager shall have the authority to execute the options described herein without further approval from the City Manager.

9. RESERVED

10. Termination Due to Default
Upon the failure of CITY to abide by or comply with any of the provisions of this Lease Agreement, Lessor may declare a default and if such breach or default is not cured to the satisfaction of Lessor within thirty (30) days, Lessor may, at its option, immediately terminate the Lease and remove CITY's property from the Lease Area and prevent entry on and use of the Lease Area by CITY, unless the default is of a nature that it cannot be cured within such 15 day period in which case Lessor may only terminate if CITY shall not have commenced curing such default within such 15 day period and be diligently pursuing such cure to completion.

11. City’s Duties Upon Revocation or Termination of Lease On or before the termination of the Lease, CITY shall remove all of CITY's property from the Lease Area and shall return the Lease Area to Lessor in good order and repair to the reasonable satisfaction of Lessor, normal wear and tear excepted.

12. Condition of Property
#5..
- 76 -
The Lease Area is being leased herein to CITY in its existing state and condition, "as is".

Lessor makes no warranty, express or implied, with respect to the condition of the Lease Area or its suitability for intended use.

13. Additions
Except as expressly provided herein, CITY shall not make or cause to be made any alterations, additions or improvements to the Lease Area or the Property or attach any fixtures or equipment, without first obtaining Lessor's written consent.

Except as expressly provided herein, CITY understands and agrees that no improvements to or upon the Lease Area may be made without the prior written consent of Lessor. Any improvements approved by Lessor will be done at the sole cost and expense of CITY. CITY agrees not to knowingly permit any liens to be placed upon the Property or the lease Area by reason of any improvements made thereon.

14. Release
CITY accepts the Lease Area in its "as is" condition. CITY hereby waives any right to recover from Lessor, and forever releases and discharges Lessor from any claims, damages, liabilities, losses, costs and expenses arising from or in any way connected with the use of the Lease Area by CITY.

15. Indemnification
CITY shall defend, indemnify and hold Lessor, its employees, and agents harmless from and against all damages, losses, claims and liabilities ("Claim") arising from any act, omission, negligence or other fault of CITY, CITY's agents, employees, officials and permitted users, or any of them, arising from any accident, injury or damage whatsoever caused to any person or property, occurring in the exercise of, or in any manner related directly or indirectly with the lease granted by this Lease Agreement. The indemnification required under this clause shall include all reasonable costs, expenses, liabilities and reasonable attorney's fees incurred in connection with any such Claim or proceeding or action connected to such Claim.

Notwithstanding the foregoing, Lessor shall have no obligation to indemnify and hold harmless CITY from and against any claims arising as the result of the acts or omissions of CITY, its employees, officials and agents.

16. Damages
CITY shall promptly pay Lessor, on demand, full money compensation for any damage to the Lease Area or the Property, caused by, or in any manner connected directly or indirectly with, the exercise of the Lease or any rights granted by this Lease Agreement. #5..
- 77 -

17. Venue
Venue for any dispute between the parties shall be the state or federal courts located in Stanislaus County, California.

18. Entire Agreement
This Lease Agreement constitutes the entire agreement between Lessor and CITY relating to the Lease. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Lease Agreement are of no force and effect. Any amendment to this agreement shall be in writing and signed by Lessor and CITY.

19. Waiver
Any waiver of any promise, condition or of any breach of any provision of this Lease Agreement must be in writing, and any such waiver shall not be construed to be a waiver of any other breach of any condition or promise or duty under this Lease. No waiver shall be implied from any delay or failure to take action on any breach or default.

20. Approval
Lessor acknowledges, understands and agrees that this Lease Agreement is subject to the approval by the City Council of the City of Modesto and this Lease Agreement shall have no force or effect unless and until such approval by the City Council of the City of Modesto is obtained.

21. Governing Law
This Lease Agreement shall be interpreted under and be governed by the laws of the State of California, with venue in the County of Stanislaus.

22. Notices
All notices permitted or required to be given under this Lease Agreement or which either CITY or Lessee desires to serve upon the other shall be in writing and shall be deemed duly given and effective (a) on actual delivery if delivery is by personal delivery, or (b) five (5) days after delivery in the United States Mail if delivery is by postage prepaid, to respective addresses as set forth below or to any other address as may be designated by a party:

City: By Personal Delivery:

City of Modesto
Attn: Infrastructure Financing Program
Community and Economic Development Department
1010 Tenth Street, 3rd Floor
Modesto, CA 95354
By Mail:

City of Modesto
Attn: Infrastructure Financing Program
Community and Economic Development Department
P.O. Box 642
Modesto, CA 95353
#5..
- 78 -
Lessor: By Mail:

John A. Paoluccio and Dorene J. Paoluccio
P.O. Box 1316
Salida, CA 95368

23. Authority
Each individual executing this lease Agreement on behalf of Lessor represents and warrants that he/she is duly authorized to execute this Lease Agreement on behalf of Lessor.

24. Failure To Vacate
CITY agrees to vacate the Lease Area upon termination of this Lease, and failing to vacate as herein provided, agrees that Lessor, or its authorized agents, may enter upon said Lease Area and remove all of City's property therefrom and store the same at CITY's cost and in such event, CITY waives any and all claims for damages against Lessor, its agents or employees. Nothing herein shall be deemed a waiver of any rights of Lessor to demand and obtain possession of the Lease Area in accordance with the law in the event of a violation on CITY's part of any of the terms or conditions hereof. Nothing herein shall be deemed to convey title to CITY's personality.

25. Relationship of Parties
The relationship of Lessor and CITY, is, and shall be at all times remain solely that of lessor and lessee. CITY neither undertakes nor assumes any responsibility or duty to Lessee or to any third party with respect to the Lease Area except as provided herein. Nothing in this Lease Agreement is intended or shall be interpreted or construed as creating or establishing a relationship of employer and employee, principal and agent, partnership or joint venture between CITY and Lessor. Except as CITY may specify in writing, Lessor shall have no authority to act as agent of CITY or to bind CITY to any obligation.

26. Right of Entry
Lessor and its agents and employees shall have the right to enter upon the Lease Area at all reasonable times to inspect the same, to determine if CITY is performing the covenants of this Lease Agreement.

27. Binding on Successors and Assigns
The terms and conditions of this Lease shall be binding upon and shall inure to the benefit of each of the parties hereto, their heirs, personal representatives, successors and assigns.

28. Amendment
Except as otherwise provided herein, this Lease may only be modified or amended in writing signed by the parties. Any amendment to this Lease shall expressly refer to this Lease.

29. Recording
This Lease or a Memorandum of Lease in the form attached hereto as Exhibit "D" shall be recorded in the Official Records of Stanislaus County, State of California. Upon the expiration or earlier termination of this Lease, CITY agrees to record a quitclaim deed to evidence the termination of CITY's interest in the Property.
#5..
- 79 -
IN WITNESS WHEREOF, the City of Modesto, a municipal corporation, has authorized the execution of this Lease Agreement in duplicate by its City Manager and attestation by its City Clerk under authority of Resolution No. 2023-_________ adopted by the Council of the City of Modesto on the ________ day of ___________________, 2023, and has caused this Agreement to be duly executed.
#5..
- 80 -
$1,250 Annually
3% Annually
Year Increase Estimate Year Annual Payment
2015 $ 1,288.53 2024 $ 1,681.24
2016 $ 1,327.19 2025 $ 1,731.68
2017 $ 1,367.00 2026 $ 1,783.63
2018 $ 1,408.01 2027 $ 1,837.14
2019 $ 1,450.25 2028 $ 1,892.25
2020 $ 1,493.76 2029 $ 1,949.02
2021 $ 1,538.57 2030 $ 2,007.49
2022 $ 1,584.73 2031 $ 2,067.71
2023 $ 1,632.27 2032 $ 2,129.74
2033 $ 2,193.64
$ 19,273.53
Exhibit A
Original Lease Amount
Cost of Living Increase
10 Year Payment Total
Paoluccio Annual Lease Payment Schedule
#5..
- 81 -

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Modesto
P.O. Box 642
Modesto, CA 95353
Attn: Community and Economic
Development Department

EXEMPT FROM RECORDING FEES PER
GOVERNMENT CODE §§6103, 27383
Space above this line for Recorder’s use.

MEMORANDUM OF LEASE
This Memorandum of Lease is entered into effective on the latest signature date below, by and between John A. Paoluccio and Dorene J. Paoluccio, Trustees, John A. and Dorene June Paoluccio Revocable Trust, having a mailing address of P.O. Box 1316, Salida, CA 95368 (hereafter referred to as "Landlord"), and the City of Modesto, a Charter City and Municipal Corporation of the State of California, having a mailing address of P.O. Box 642, Modesto, CA 95353 (hereinafter referred to as "Tenant").

1. Landlord and Tenant entered into a certain Land Lease Agreement (“Agreement”) on the _________ day of ___________________, 2023, for the purpose of maintain a buffer area for the NorthPointe Storm Basin, a storm water collection basin, and other improvements. All of the foregoing are set forth in the Agreement.

2. The initial lease term will be ten (10) years ("Initial Term") commencing on the Effective Date of written notification by Tenant to Landlord of Tenant's exercise of the Option, with two (2) successive five (5) year options to renew.

3. The portion of the land being leased to Tenant (the "Premises") is described in Exhibit "A" and depicted in Exhibit "B" annexed hereto.

4. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Lease Agreement, all of which are hereby ratified and affirmed. In the event of a conflict between the provisions of this Memorandum of Lease and the provisions of the Lease Agreement, the provisions of the Lease Agreement shall control.

The Lease Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, successors, and assigns, subject to the provisions of the Lease Agreement.
#5..
- 82 -
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year written below.

LESSE:

City of Modesto
A Municipal Corporation
By:_________________________
Joseph P. Lopez, City Manager

ATTEST:

By:__________________________
Diane Nayares-Perez, CMC,
City Clerk
________________________
Date
APPROVED AS TO FORM:

By:___________________________
Jose M. Sanchez, City Attorney
#5..
- 83 -
LESSOR:

John A. Paoluccio & Dorene J.

Paoluccio Revocable Trust
By:_________________________
John A. Paoluccio, Trustee
_________________________
Date
By:_________________________
Dorene J. Paoluccio, Trustee
_________________________
Date
#5..
- 84 -
•,

EXHIBIT A
1 Being a portion of Parcel 2, as described in that certain Grant 2 Deed filed for record as Document Number 2004-0028082, 3 Stanislaus County Records, same being Parcel B, as shown on 4 that certain Parcel Map, filed for record on December 11, 1985, in 5 Book 37 of Parcel Maps, at Page 51 and being situate in Section 6 2, Township 3 South, Range 10 East, Mount Diablo Meridian, said 7 portion of Parcel 2 being more particularly described as follows:
8 9 The westerly 25 feet of the southerly 213 feet of said Parcel B. 10 11 The above-described area contains 5,325 square feet, more or 12 less.
13 14 See Exhibit B attached hereto and made a part hereof. 15 16 This real property description has been prepared by me in 17 conformance with the Professional Land Surveyors' Act. 18 19
20 21
22 23
24 25
Curt Chappell, PLS 7992 Date
- 1 -
#5..
- 85 -
LEGEND

APN ASSESSOR'S PARCEL NUMBER
M.I.D MODESTO IRRIGATION DISTRICT

LANDS OF BRITT
APN 078-013-033

LEASE AGREEMENT
AREA= 5,325 S.F.

LANDS OF THE CITY OF MODESTO

STORM DRAINAGE BASIN
APN 078-013-034
25'

LANDS OF PAOLUCCIO
DOC. 2004-0028082
APN 078-013-031
:3l1 o[PJIMJ=!Si~
[Pl~~((;[E[L ~
_/
25' 1/4 SECTION LINE - 52 T3S RBE
SOUTHWEST CORNER OF (SOUTHERLY LINE OF PARCEL 8, 37-PM-51) PARCEL B, 37-PM-51
100' WIDE M.I.D. LATERAL NO.6
M.I.D. RIGHT OF WAY LINE
PREPARED BY: EXHIBIT 8
el~ C. CHAPPELL, PLS 7992
ASSOC. LAND SURVEYOR
DATE: LEASE AREA
AUGUST 5, 2013 APN 078-013-031 - PAOLUCCIO MODESTO
SCALE: CALIFO~NIA
1" =50' ( ) SHEET: PROJECT: NORTH POINTE BASIN PROJECT NUMBER ONE OF ONE 100460
#5..
- 86 -
I p -~~~ ~ ~ ' t~~ . u,n~~
1 ~~~-, . 2 I } li "· ~ H. ~ • ' I ,•;. }a . . lqltf·•J' "' • ~~14 ~ . 't ~I ,~t I E
: ~~ tl~ 1\ ' " p \, . i -I . lJ .Ul ''I'~ h :s ~ . ) t, .~u 1! .I i~~ t ~ " ~ i p•ht ~ "' ~ ~ I If
• ,, · .. ··· ... ,t,mt · ·~II'' ~ ~ ~" ~ I t I ·~ ~ ~ ~ { ~ #5..
- 87 -
flY .I'll ,_,...,_,
llfllt.f' . ..,•A(M
+===-----
o"f!!IH-~1/,.,; /"nffli.Nl<IJ #fi'M,t¥(111
NI.AtJI''iiJ,,.\''
,_ --~- .. - --··-. :r....-
nl·· • ':1• \·' • i • -~ ·!.~ I : ~ ... \ t
l
~
m
X
:I:
-
c:c
=i
ci
#5..
- 88 -
•,

EXHIBIT A
1 Being a portion of Parcel 2, as described in that certain Grant 2 Deed filed for record as Document Number 2004-0028082, 3 Stanislaus County Records, same being Parcel B, as shown on 4 that certain Parcel Map, filed for record on December 11, 1985, in 5 Book 37 of Parcel Maps, at Page 51 and being situate in Section 6 2, Township 3 South, Range 10 East, Mount Diablo Meridian, said 7 portion of Parcel 2 being more particularly described as follows:
8 9 The westerly 25 feet of the southerly 213 feet of said Parcel B. 10 11 The above-described area contains 5,325 square feet, more or 12 less.
13 14 See Exhibit B attached hereto and made a part hereof. 15 16 This real property description has been prepared by me in 17 conformance with the Professional Land Surveyors' Act. 18 19
20 21
22 23
24 25
Curt Chappell, PLS 7992 Date
- 1 -
#5..
- 89 -
LEGEND

APN ASSESSOR'S PARCEL NUMBER
M.I.D MODESTO IRRIGATION DISTRICT

LANDS OF BRITT
APN 078-013-033

LEASE AGREEMENT
AREA= 5,325 S.F.

LANDS OF THE CITY OF MODESTO

STORM DRAINAGE BASIN
APN 078-013-034
25'

LANDS OF PAOLUCCIO
DOC. 2004-0028082
APN 078-013-031
:3l1 o[PJIMJ=!Si~
[Pl~~((;[E[L ~
_/
25' 1/4 SECTION LINE - 52 T3S RBE
SOUTHWEST CORNER OF (SOUTHERLY LINE OF PARCEL 8, 37-PM-51) PARCEL B, 37-PM-51
100' WIDE M.I.D. LATERAL NO.6
M.I.D. RIGHT OF WAY LINE
PREPARED BY: EXHIBIT 8
el~ C. CHAPPELL, PLS 7992
ASSOC. LAND SURVEYOR
DATE: LEASE AREA
AUGUST 5, 2013 APN 078-013-031 - PAOLUCCIO MODESTO
SCALE: CALIFO~NIA
1" =50' ( ) SHEET: PROJECT: NORTH POINTE BASIN PROJECT NUMBER ONE OF ONE 100460
#5..
- 90 -
I p -~~~ ~ ~ ' t~~ . u,n~~
1 ~~~-, . 2 I } li "· ~ H. ~ • ' I ,•;. }a . . lqltf·•J' "' • ~~14 ~ . 't ~I ,~t I E
: ~~ tl~ 1\ ' " p \, . i -I . lJ .Ul ''I'~ h :s ~ . ) t, .~u 1! .I i~~ t ~ " ~ i p•ht ~ "' ~ ~ I If
• ,, · .. ··· ... ,t,mt · ·~II'' ~ ~ ~" ~ I t I ·~ ~ ~ ~ { ~ #5..
- 91 -
flY .I'll ,_,...,_,
llfllt.f' . ..,•A(M
+===-----
o"f!!IH-~1/,.,; /"nffli.Nl<IJ #fi'M,t¥(111
NI.AtJI''iiJ,,.\''
,_ --~- .. - --··-. :r....-
nl·· • ':1• \·' • i • -~ ·!.~ I : ~ ... \ t
l
~
m
X
:I:
-
c:c
=i
ci
#5..
- 92 -
•,

EXHIBIT A
1 Being a portion of Parcel 2, as described in that certain Grant 2 Deed filed for record as Document Number 2004-0028082, 3 Stanislaus County Records, same being Parcel B, as shown on 4 that certain Parcel Map, filed for record on December 11, 1985, in 5 Book 37 of Parcel Maps, at Page 51 and being situate in Section 6 2, Township 3 South, Range 10 East, Mount Diablo Meridian, said 7 portion of Parcel 2 being more particularly described as follows:
8 9 The westerly 25 feet of the southerly 213 feet of said Parcel B. 10 11 The above-described area contains 5,325 square feet, more or 12 less.
13 14 See Exhibit B attached hereto and made a part hereof. 15 16 This real property description has been prepared by me in 17 conformance with the Professional Land Surveyors' Act. 18 19
20 21
22 23
24 25
Curt Chappell, PLS 7992 Date
- 1 -
#5..
- 93 -
LEGEND

APN ASSESSOR'S PARCEL NUMBER
M.I.D MODESTO IRRIGATION DISTRICT

LANDS OF BRITT
APN 078-013-033

LEASE AGREEMENT
AREA= 5,325 S.F.

LANDS OF THE CITY OF MODESTO

STORM DRAINAGE BASIN
APN 078-013-034
25'

LANDS OF PAOLUCCIO
DOC. 2004-0028082
APN 078-013-031
:3l1 o[PJIMJ=!Si~
[Pl~~((;[E[L ~
_/
25' 1/4 SECTION LINE - 52 T3S RBE
SOUTHWEST CORNER OF (SOUTHERLY LINE OF PARCEL 8, 37-PM-51) PARCEL B, 37-PM-51
100' WIDE M.I.D. LATERAL NO.6
M.I.D. RIGHT OF WAY LINE
PREPARED BY: EXHIBIT 8
el~ C. CHAPPELL, PLS 7992
ASSOC. LAND SURVEYOR
DATE: LEASE AREA
AUGUST 5, 2013 APN 078-013-031 - PAOLUCCIO MODESTO
SCALE: CALIFO~NIA
1" =50' ( ) SHEET: PROJECT: NORTH POINTE BASIN PROJECT NUMBER ONE OF ONE 100460
#5..
- 94 -
I p -~~~ ~ ~ ' t~~ . u,n~~
1 ~~~-, . 2 I } li "· ~ H. ~ • ' I ,•;. }a . . lqltf·•J' "' • ~~14 ~ . 't ~I ,~t I E
: ~~ tl~ 1\ ' " p \, . i -I . lJ .Ul ''I'~ h :s ~ . ) t, .~u 1! .I i~~ t ~ " ~ i p•ht ~ "' ~ ~ I If
• ,, · .. ··· ... ,t,mt · ·~II'' ~ ~ ~" ~ I t I ·~ ~ ~ ~ { ~ #5..
- 95 -
flY .I'll ,_,...,_,
llfllt.f' . ..,•A(M
+===-----
o"f!!IH-~1/,.,; /"nffli.Nl<IJ #fi'M,t¥(111
NI.AtJI''iiJ,,.\''
,_ --~- .. - --··-. :r....-
nl·· • ':1• \·' • i • -~ ·!.~ I : ~ ... \ t
l
~
m
X
:I:
-
c:c
=i
ci
#5..
- 96 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: October 17, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community & Economic Development SUBJECT: Discounted Parking Agreement with Modesto Children’s Museum CONTACT: Trevin Barber, Economic Development Manager,
[email protected], 209-860-1251
DESCRIPTION:

Consider an Agreement with the Modesto Children’s Museum (MoChiMu) for a two-year term for discounted employee parking. (Funding Source: Parking Services Enterprise Fund) STRATEGIC PLAN ELEMENT:

The recommended action supports the 2020-2025 City of Modesto Strategic Plan Initiative:

Economic Vitality “retain and attract residential, commercial, and industrial development to meet the community’s needs today and for the next generation”; Goal G:” Make downtown Modesto a regional destination”.

BACKGROUND:

The City has a history of leveraging parking availability for spurring indirect economic development in Downtown. On July 8, 2014, the City approved the framework for an Employee Parking Program Resolution No. 2014-287 for Valley First Credit Union as an economic development incentive program (the “Program”) for the downtown area. In developing the incentives, the Downtown Modesto Partnership determined that a reduction in the cost of parking for employees is very important in helping the City best-realize the full economic value of downtown.

To support parking for their employees, the Gallo Center negotiated a sub agreement with American Specialty Healthcare (ASH) to use 25 parking permits during day use, and an additional five permits for evening use in the City Parking Lot #25, located at the corner of 9th and I streets. At that time, ASH had an approved parking agreement with the City of Modesto for parking permits associated with the use of the City’s Lot #25 to support their business and employees.
#6..
- 97 -
City Council, December 12, 2023
Discounted Parking Agreement with the Modesto Children’s Museum

On October 6, 2021, the ASH Parking Agreement, entered on February 28, 2017, and executed on October 4, 2017, was terminated pursuant to Sections 8(c) and 8(d) of the Parking Agreement, which had anticipated 150 downtown jobs and associated parking needs.

Unfortunately, ASH was unable to meet the terms of the agreement, which resulted in the termination of the ASH sublease to Gallo Center. Subsequently, all 30 parking permits reverted to the City of Modesto and ASH was no longer authorized to use Lot #25.

Due to the reversion of the parking permits associated with Lot #25, the City and Gallo Center management met on June 14, 2022, to discuss ongoing employee parking for the non-profit. On July 12, 2022, the City Council by resolution number 2022-309 authorized a two-year parking agreement set at a rate of $50 per month, a discount of $30 per month from the current Councilapproved set rate of $80. The agreement included the following requirements:
 Duration will be for two-years from date of execution, plus the number of months needed to conform to a fiscal year calendar.
 Permits will be annual permits paid on a quarterly basis by Gallo Center.  Monthly Parking Permit rates will be set at a rate of $50 per month, a discount of $30 per month from the current Council-approved set rate of $80.  Up to 40 permits may be issued each year.

Parking spaces are not reserved or guaranteed.

DISCUSSION:

Over the past decade and particularly since the pandemic, the economy has seen a shifting in the programming of real estate inventory in downtowns and shopping centers. As such, there may be a need to consider how we best program the highest and best use of our parking agreements. The City’s strategic plan successfully identified this shift and underscores the importance of downtown with the stated goal “Make Downtown a Destination” and a strategy to collaborate with downtown partners to expand upon existing successful downtown events and entertainment offerings.

The City has worked closely with the Modesto Children’s Museum, (MoChiMu), regarding its development and launch, including the provision of $500,000 American Rescue Plan Act funding. The City recognizes the arts, entertainment, and recreation industry group has a relatively high impact on the economy, supporting a job multiplier of 3.791 and expect a similar result with MoChiMu’s development in Downtown Modesto.

Based on preliminary estimates from the opening month, MoChiMu has been experiencing a steady flow of visitors. On weekdays, the museum sees an average of 200 visitors in the mornings and an equal number in the afternoons. This consistent turnout demonstrates the museum’s popularity among school groups and families seeking educational activities during the week. However, the attendance significantly increases over the weekend, with numbers soaring to over 500 visitors. This surge can be attributed to families taking advantage of their free time to engage in enriching experiences offered by the museum. The high visitor numbers underscore the museum’s role as a key educational and recreational resource in the Modesto community.
1 Updated employment multipliers for the U.S. economy | Economic Policy Institute (epi.org) #6..
- 98 -
City Council, December 12, 2023
Discounted Parking Agreement with the Modesto Children’s Museum

The City began discussions with MoChiMu on a potential parking agreement to support employees and volunteers of the museum in early 2023. The City and MoChiMu have since determined that a Parking Agreement in line with previous agreements and the former Employee Parking Pilot Program and Framework will advance the City’s goals of revitalizing downtown. The Parking Agreement is proposed to mirror existing agreements with the following deal points:
 Duration will be for two-years from date of execution, plus the remainder of FY24.  Permits will be annual permits paid on a quarterly basis by MoChiMu.  Parking Permit rates will be set at a rate of $50 per month, a discount of $30 per month from the current Council-approved set rate of $80.
 Up to 20 permits may be issued each year for parking in City operated Downtown Parking.
 Parking assignments will be made by the City parking division based upon parking availability.
 Parking spaces are not reserved or guaranteed.
 MoChiMu will provide annual records to justify the visitor count and support staff efforts in conducting a retrospective economic impact analysis.

If approved, the agreement will start upon execution and then later align with the City’s fiscal year period, beginning January 1, 2024, and continue thereafter until December 31, 2025.

The Director of Public Works is authorized under Modesto Municipal Code Title 3, Article17, Section 3-2.1701 to initiate the temporary approval of parking permits. Final long-term use of discounted parking permits requires formal Council approval.

FISCAL IMPACT:

Revenue generated through this agreement is anticipated to be up to $12,000 annually. This assumes the maximum of 20 permits are purchased for the duration of the 2-year period.

The annual parking permits, to be displayed on the dashboards of the employee’s vehicles, are covered through the Parking Services Enterprise Fund which is consistent with monthly permit holders.

The duration of this agreement will have minimal impact on the Parking Services Enterprise Fund and will generate guaranteed revenue by the Modesto Children’s Museum employees utilizing the parking that was not previously fully utilized.

DESCRIPTION COST
Revenue generated for the first year 2024 $12,000
Revenue generated for the second year, 2025 $12,000
Agreement Total Est. $24,000
#6..
- 99 -
City Council, December 12, 2023
Discounted Parking Agreement with the Modesto Children’s Museum

RECOMMENDED COMMITTEE ACTION:

Staff Recommendations:

Resolution approving an Agreement with the Modesto Children’s Museum for discounted employee parking and authorizing the City Manager or his designee to execute the Agreement.

Approved by:

Jessica Hill, Director of Community & Economic
Development
Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Draft - Parking Agreement - Modesto Children’s Museum #6..
- 100 -
12/12/2023/CED/TBarber 1 2023-

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX

RESOLUTION APPROVING AN AGREEMENT WITH THE MODESTO
CHILDREN’S MUSEUM FOR DISCOUNTED EMPLOYEE PARKING AND

AUTHORIZING THE CITY MANAGER OR HIS DESIGNEE TO EXECUTE

THE AGREEMENT
WHEREAS, the city has a history of leveraging parking availability for spurring indirect economic development in downtown, and
WHEREAS, in developing the incentives, the Downtown Modesto Partnership determined that a reduction in the cost of parking for employees is very important in helping the City best-realize the full economic value of downtown, and WHEREAS, over the past decade and particularly since the pandemic, the economy has seen a shifting in the programming of real estate inventory in downtowns and shopping centers, and
WHEREAS, the City’s strategic plan successfully identified this shift and underscores the importance of downtown with the stated goal “Make Downtown a Destination” and a strategy to collaborate with downtown partners to expand upon existing successful downtown events and entertainment offerings, and WHEREAS, the City has worked closely with the Modesto Children’s Museum, (MoChiMu), regarding its development and launch, including the provision of $500,000 American Rescue Plan Act funding, and
WHEREAS, the City recognizes the arts, entertainment, and recreation industry group has a relatively high impact on the economy, supporting a job multiplier of 3.79 and expect a similar result with MoChiMu’s development in Downtown Modesto, and #6..
- 101 -
12/12/2023/CED/TBarber 2 2023-
WHEREAS, based on preliminary estimates from the opening month, MoChiMu has been experiencing a steady flow of visitors, and
WHEREAS, on weekdays, the museum sees an average of 200 visitors in the mornings and an equal number in the afternoons, and
WHEREAS, this consistent turnout demonstrates the museum’s popularity among school groups and families seeking educational activities during the week, and WHEREAS, however, the attendance significantly increases over the weekend, with numbers soaring to over 500 visitors, and
WHEREAS, the City began discussions with MoChiMu on a potential parking agreement to support employees and volunteers of the museum in early 2023, and WHEREAS, the City and MoChiMu have since determined that a Parking Agreement in line with previous agreements and the former Employee Parking Pilot Program and Framework will advance the City’s goals of revitalizing downtown, and WHEREAS, permits will be annual permits paid on a quarterly basis by MoChiMu, and
WHEREAS, parking permit rates will be set at a rate of $50 per month, a discount of $30 per month from the current Council-approved set rate of $80, and WHEREAS, up to 20 permits may be issued each year for parking in City operated Downtown Parking Garages, and
WHEREAS, parking assignments will be made by the City parking division based upon parking availability, and
WHEREAS, MoChiMu will provide annual records to justify the visitor count and support staff efforts in conducting a retrospective economic impact analysis, and #6..
- 102 -
12/12/2023/CED/TBarber 3 2023-
WHEREAS, if approved, the agreement will start upon execution and then later align with the City’s fiscal year period, beginning January 1, 2024, and continue thereafter until December 31, 2025.

NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves an agreement with the Modesto Children’s Museum for discounted employee parking.

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.

The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December, 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, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#6..
- 103 -
- 403 -
1 | P a g e

AGREEMENT FOR DISCOUNTED EMPLOYEE PARKING
MODESTO CHILDREN’S MUSEUM
This AGREEMENT (“Agreement”), dated, January, ____ 2024 for reference purposes, is by and between the City of Modesto, a municipal corporation, hereinafter referred to as “Modesto”, and the Modesto Children’s Museum Inc., a 501(c)(3) non-profit organization, hereinafter referred to as “MoChiMu.” The Effective Date of this Agreement shall be retroactive to December 1, 2023.

Recitals
A. WHEREAS, Modesto manages public parking facilities commonly referred to as Parking Services; and
B. WHEREAS, Modesto utilizes Parking Services Enterprise (“Parking Fund”) funds for operation and maintenance of the parking facilities; and C. WHEREAS, MoChiMu and Modesto desire to enter into this Agreement whereby MoChiMu, requests to purchase discounted employee annual parking permits as set forth in this Agreement; and
D. WHEREAS, operation and maintenance of the parking garages is funded in part by pay-by-space user fees; and
E. WHEREAS, Modesto, as the lessor, will retain control over the properties and the sites will continue to be used for their authorized and intended purpose of parking garages; and F. WHEREAS, Modesto and MoChiMu desire to enter into an agreement for discounted employee parking on the terms and conditions contained herein.

Agreement
NOW, THEREFORE, in consideration of the terms and conditions set forth herein, Modesto and the MoChiMu do hereby agree as follows:

Section 1. Discounted Employee Parking Permits. MoChiMu shall purchase the discounted employee parking permits with the terms and conditions set forth in Exhibit “A” (“Use of Permits”).

Section 2. Term. The Term of this Agreement shall be for two (2) years commencing on December 1, 2023 (the “Commencement Date”) and expires on December 30, 2025 (the “Term”) unless this Agreement is sooner terminated as provided herein. #6..
- 104 -
- 404 -
1 | P a g e
Section 3. Method of Payment.

3.1. Annual Permits. Each quarter, MoChiMu shall submit payment to Modesto Finance Department for the next quarter’s use of the off-street parking. Any and all MoChiMu funds received by Modesto for the use of the parking shall be deposited into the Parking Services Enterprise Fund to pay in-part for the operation and maintenance of the parking facilities.

3.2. Termination of Agreement. If this Agreement is terminated by either party, MoChiMu and Modesto shall mutually agree on when the parking lot shall return to pay-perspace by the employees. Once all MoChiMu paid time have been used, this Agreement shall terminate and Authority shall have no further liability or obligation to Modesto.

3.3. Invoices. MoChiMu shall make payment to Modesto within thirty-five (35) calendar days of receipt of an invoice. Payment shall be based on the monthly cost aggregated to a quarterly total. All invoices shall be submitted not more than once a quarter, and shall be made in writing and delivered, mailed, or emailed to MoChiMu as follows:

Modesto Children’s Museum
928 11th Street Modesto, CA
95354
Email:

Attention:

Section 4. Termination.

4.1. Either party may terminate this Agreement in whole or in part at any time prior to completion of the use of permits specified in Exhibit “A” upon thirty (30) calendar days written notice to the other party. Upon receipt of written notice of such termination, the parties shall comply with the provisions of Section 3.3.

4.2. This Agreement shall terminate automatically upon the bankruptcy or insolvency of either party.

Section 5. Joint Venture. It is mutually understood and agreed that nothing in this Agreement is intended or shall be construed as in any way creating or establishing the relationship of a joint venture, co-partner or co-venturer between the parties or as constituting MoChiMu as an agent or representative of Modesto.
#6..
- 105 -
- 405 -
1 | P a g e
Section 6. Indemnification.

6.1. MoChiMu’s Indemnification of Modesto. MoChiMu shall hold Modesto, its agents, officers, employees, and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities and damages from every cause, including but not limited to injury to person or property or wrongful death, with the indemnity to include reasonable attorney’s fees, and all costs and expense, arising directly or indirectly out of any act or omission of MoChiMu, whether or not the act or omission arises from the negligence or other liability of Modesto, or its agents, officers, employees, or volunteers relating to or during the performance of its obligations under this Agreement.

Section 7. Assignment of Agreement. MoChiMu shall not assign this Agreement, or any part thereof, without prior written consent of Modesto.

Section 8. Laws and Regulations. MoChiMu shall comply with any and all laws, statutes, ordinances, rules, regulations, and procedural requirements of the Federal, State or local government, and any agency of such government which relate to or in any manner affect the performance of this Agreement.

Section 9. Notices. Any notice, communication, amendments, additions, or deletions to this Agreement including change of address of either party during the term of this Agreement which Modesto or MoChiMu shall be required or may desire to make, shall be in writing and may be personally served, mailed by prepaid, certified or registered mail or overnight courier, or transmitted by facsimile or electronic mail transmission, to the respective parties as follows:

To Modesto:

City of Modesto
1010 10th St
Modesto, CA 95354
Email: [email protected]
Attention: City Manager
To MoChiMu:

Modesto Children’s Museum
928 11th Street Modesto, CA
95354
#6..
- 106 -
- 406 -
1 | P a g e
Email:

Attention:

Any such notice or communication shall be deemed to have been given on (i) the day such notice or communication is personally delivered, (ii) three (3) days after such notice or communication is mailed by prepaid certified or registered mail, (iii) one (1) business day after such notice or communication is sent by overnight courier, or (iv) the day such notice or communication is faxed or sent electronically, provided that the sender has received a confirmation of such fax or electronic transmission.

Section 10. Force Majeure. The time for performance of an obligation other than the payment of compensation under this Agreement will be extended for the period during which a party is prevented from performing by acts of God, government actions, fire or other casualty, or other force or event beyond the reasonable control of that party including, but not limited to, governmental restrictions, laws, regulation, controls, requirements decrees, mandates or order requiring individuals to “shelter in place,” “stay at home” or otherwise quarantine, or requiring businesses to close or be limited in operations.

Section 11. Waiver. Waiver of any default by either party to this Agreement shall not be deemed a waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach and shall not be construed to be a modification of the terms of this Agreement unless modified pursuant to the terms of this Agreement.

Section 12. Severability. If any portion of this Agreement or application thereof to any person or circumstance shall be declared invalid by a court of competent jurisdiction or if it is found in contravention of any Federal, State, or local statutes, ordinances, or regulations the remaining provisions of this Agreement or the application thereof shall not be invalidated thereby and shall remain in full force and effect to the extent that the provisions of this Agreement are severable.

Section 13. Amendment. This Agreement, including any exhibits hereto, shall not be amended, except in writing signed by the parties. Any amendment or addendum to this Agreement shall expressly refer to this Agreement.

Section 14. Entire Agreement. This Agreement, with its exhibits, contains the sole and only agreement of the parties. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect.

Section 15. Governing Law. This Agreement is entered into and shall be construed and interpreted in accordance with the laws of the State of California.

Section 16. Venue/Jurisdiction. Venue for any action brought by either party to this Agreement against the other to enforce the terms and conditions thereof shall be maintained in Stanislaus #6..
- 107 -
- 407 -
1 | P a g e
County, California, in the proper court having jurisdiction. Each party irrevocably consents to the jurisdiction of each such court.

Section 17. No Third-Party Benefit. This Agreement is a contract between Modesto and MoChiMu and nothing herein is intended to create any third-party benefit.

Section 18. Number and Gender. All words used herein in the singular number shall include the plural and the present tense shall include the future and the masculine gender shall include the feminine and neutral.

Section 19. Construction. The language of each and all paragraphs, terms, and/or provisions of this Agreement shall, in all cases and for any and all purposes, be construed as a whole, according to its fair meaning, and not for or against any party hereto and with no regard whatsoever to the identity of status of any person or persons who drafted all or a portion of this Agreement.

Section 20. Counterparts and Electronic Signatures.

20.1. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which taken together shall constitute one and the same instrument.

20.2. Each party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
*** Signatures contained on next page ***
#6..
- 108 -
- 408 -
1 | P a g e
EXHIBIT “A”

USE OF PERMITS
MoChiMu shall obtain Parking Permits from Modesto for use of the parking facility located on 9th Street between K Street and L Street, referenced as 9th Street Garage as well as the parking facility located on 11th Street between I Street and J Street, referenced as 11th Street Garage.

I. Annual Parking Permit: Modesto shall make available for purchase 10 9th Street Garage parking permits and 10 11th Street Garage parking permits and invoice MoChiMu monthly as set forth in this section.

A. 2024 (01 January 2024 through 31 December 2024)

1. Employees will need to display permits on dashboard of vehicle

2. Parking space is not reserved

3. Parking space is not guaranteed, first-come first-served

4. Parking is at the risk of the user, Modesto does not take responsibility of fire, theft, vehicle damage or any article therein
B. 2025 (01 January 2025 through 31 December 2025)

1. Employees will need to display permits on dashboard of vehicle

2. Parking space is not reserved

3. Parking space is not guaranteed, first-come first-served

4. Parking is at the risk of the user, Modesto does not take responsibility of fire, theft, vehicle damage or any article therein
C. Financials

1. The permit is for a single vehicle per permit and costs are:
i. Discounted employee parking permit: $12,000/year or $50/month per permit;
ii. December 2023 will be available from City of Modesto Finance, 1010 10th Street, Suite 2100, Modesto, CA 95354, $_________ will be due upon pick-up for the initial month
iii. Quarterly payments will be invoiced to MoChiMu

2. MoChiMu employee discounted parking: $12,000/year, billed to MoChiMu quarterly at $3,000/quarter.

3. MoChiMu will provide annual records to justify the visitor count and support staff efforts in conducting a retrospective economic impact analysis. #6..
- 109 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 14, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Amendment to Section 4 of the Housing and Urban Development Polices & Procedures
CONTACT: Edgar Garcia, Housing and Urban Development Supervisor, [email protected], 209-571-5101
DESCRIPTION:

Consider approving an amendment to the Section 4 Policy- “HOME Investment Partnership Program Policy” of the Housing and Urban Development Policies & Procedures Manual. (Funding Source: HOME Investment Partnerships)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto’s 2020-2025 Strategic Plan Goal C: Develop Homelessness and Housing Plan.

BACKGROUND:

The City of Modesto is an entitlement grantee under the U.S. Department of Housing and Urban Development (HUD) Office of Community Planning and Development (CPD) which allocates the following program funds to the City of Modesto through a formula-based allocation: Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG). HOME is the largest federal block grant to state and local governments designed exclusively to create affordable housing for low-income households.

The objective of the HOME program is to support a wide range of activities including building, buying, and/or rehabilitating affordable housing for rent or homeownership or providing direct rental assistance to low-income people. The City receives approximately $1 million in HOME funds annually to support a wide range of activities, such as:
 Program Planning and Administration
 Affordable Housing – Rehabilitation and Construction
 City Owned Properties
 Community Housing Development Organization Set-Aside
 Community Housing Development Organization Operating Support #7..
- 110 -
City Council, December 12, 2023
Amendment to Section 4 of the Housing and Urban Development Policies & Procedures Manual

On October 2016, by Resolution No. 2016-425, Council adopted a Housing & Urban Development Policies & Procedures Manual (HUD Manual). This document consolidated all HUD-related Policies & Procedures into one document.

The HUD Manual were updated on September 8, 2020, amended on June 1, 2021, through Resolution No. 2021-195, and subsequently amended on November 14, 2023.

DISCUSSION:

Home Investment Partnership Program Funds (HOME) funds are used for a variety of affordable housing activities, according to local housing needs. Eligible uses of funds include tenant-based rental assistance; housing rehabilitation; assistance to homebuyers; and new construction of housing. HOME funding may also be used for site acquisition, site improvements, demolition, relocation, and other necessary and reasonable activities related to the development of housing.

All housing developed with HOME funds must serve low- and very low-income families. For rental housing, at least 90 percent of the families benefited must have incomes at or below 60 percent of the area median income; the remaining 10 percent of the families benefited must have incomes at or below 80 percent of area median income. Homeownership assistance must be to families with incomes at or below 80 percent of the area median income. Each year, HUD publishes the applicable HOME income limits by area, adjusted for family size.

HOME-assisted homebuyer and rental housing must remain affordable for a long-term affordability period, determined by the amount of per-unit HOME assistance or the nature of the activity. HOME-assisted homebuyer housing is also subject to resale or recapture requirements.

Participating jurisdictions must provide a 25 percent match of their HOME funds. Participating jurisdictions must also set aside at least 15 percent of their allocations for housing to be owned, developed, or sponsored by Community Housing Development Organizations (CHDO).

Section 4 Home Investment Partnerships Program Policies of the manual provides standards and guidance established by HUD and the City of Modesto for subrecipients receiving HOME funding.

The standards described in the manual include both general standards applicable to all HOMEfunded program components as well as component-specific standards.

Amending Section 4 of the manual will provide a framework to ensure compliance with applicable statutory and regulatory requirements and standards as well as the City’s strategic goals.

Key updates of the HOME Program Polices include but are not limited to:

Build America, Buy America (BABA Act):

The Build America, Buy America Act was enacted as part of the Infrastructure Investment and Jobs Act on November 15, 2021. The Act established a domestic content procurement preference for all Federal financial assistance obligated for infrastructure projects after May 14, 2022. The domestic content procurement preference requires that all iron, steel manufactured products, and construction materials used in covered infrastructure projects are produced in the United States.

The BABA Act is applicable to all Federally financial assisted projects where funds appropriated or otherwise made available and used for a project for infrastructure. #7..
- 111 -
City Council, December 12, 2023
Amendment to Section 4 of the Housing and Urban Development Policies & Procedures Manual

Violence Against Women’s Act (VAWA):

The Violence Against Women Act (VAWA) is a federal law that, in part, provides housing protections for people applying for or living in units subsidized by the federal government and who have experienced domestic violence, dating violence, sexual assault, or stalking, to help keep them safe and reduce their likelihood of experiencing homelessness. The VAWA Act is applicable to all Federally funded projects where VAWA’s housing protections are applicable.

Tenant Selection:

HOME regulations require that the City comply with 24 CFR Section 92.253, Tenant protections and selection. An owner of rental housing assisted with HOME funds must comply with the affirmative marketing requirements established by the participating jurisdiction pursuant to §

92.351(a). The owner must adopt and follow written tenant selection policies and criteria that:
1) Limit the housing to very low- income and low-income families. 2) Are reasonably related to the applicants' ability to perform the obligations of the lease (i.e., to pay the rent, not to damage the housing; not to interfere with the rights and quiet enjoyment of other tenants);
3) Limit eligibility or give a preference to a particular segment of the population if permitted in its written agreement with the participating jurisdiction (and only if the limitation or preference is described in the participating jurisdiction's consolidated plan).

Tenant Preference Policy:

The City does not require a preference be given to any one population for its use of funds including but not limited to HOME; however, it is recognized that there are scenarios such as layered funding that requires HOME units to be set-aside for a preferred population. This preference will be considered under the following conditions:
 The population is included as a preference population in the current Consolidated Plan.  The Marketing Plan supports the need for the preferred population and/or it is a stipulation of the layered funding from another Federal, State, or local source investing in the project.
 The preference does not violate nondiscrimination requirements in accordance with 24 CFR 92.350.
 The Tenant meets the requirements of the HOME program.

Affirmative Marketing Plan:

HOME regulations also require the City comply with 4 CFR Section 92.351(a)(1) – Affirmative marketing; Each participating jurisdiction must adopt and follow affirmative marketing procedures and requirement for rental and homebuyer projects containing five or more HOME assisted housing units. Affirmative marketing requirements and procedures apply to all HOME funded programs, including, but not limited to, tenant-based rental assistance and down payment assistance programs. Affirmative marketing steps consist of actions to provide information and otherwise attract eligible persons in the housing market area to the available housing without regard to race, color, national origin, sex, religion, familial status, or disability.

The updated HOME Investment Partnerships Program Policies & Procedures are included as Attachment 2.
#7..
- 112 -
City Council, December 12, 2023
Amendment to Section 4 of the Housing and Urban Development Policies & Procedures Manual

FISCAL IMPACT:

The HUD Policies & Procedures Manual is only applicable to those loans and grants funded through Community Development Block Grant (CDBG), Emergency Solutions Funds (ESG), or Home Investment Partnerships Program (HOME). There is no impact to the General Fund.

COMMITTEE RECOMMENDATION:

This item was presented to the Citizen Housing and Community Development Committee on November 9, 2023, and recommended forwarding to Council for acceptance.

RECOMMENDED COUNCIL ACTION:

Staff Recommendations:

Resolution approving an amendment to Section 4 Policy- “HOME Investment Partnership Program Policy” of the Housing and Urban Development Policies & Procedures Manual.

Approved by:

Jessica Hill, Director of Community and Economic Development Joseph P. Lopez, City Manager
Attachments:

1. Resolution

2. Draft Section 4 - HOME Investment Partnerships Program Policies #7..
- 113 -
12/12/2023/CEDD/EGarcia 1 2023-xx

MODESTO CITY COUNCIL
RESOLUTION NO. 2023-XXX
RESOLUTION APPROVING AN AMENDMENT TO SECTION 4 POLICY-
“HOME INVESTMENT PARTNERSHIP PROGRAM POLICY” OF THE

HOUSING AND URBAN DEVELOPMENT POLICIES AND PROCEDURES
MANUAL
WHEREAS, the City of Modesto is an entitlement grantee under the U.S.

Department of Housing and Urban Development (HUD) Office of Community Planning and Development (CPD) which allocates the following program funds to the City of Modesto through a formula-based allocation: Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG); and
WHEREAS, on October 2016, by Resolution No. 2016-425, Council adopted a Housing & Urban Development Policies & Procedures Manual (HUD Manual). This document consolidated all HUD-related Policies & Procedures into one document.

The HUD Manual was updated on September 8, 2020, and Amended on June 1, 2021, through Resolution No. 2021-195; and subsequently amended on November 14, 2023; and
WHEREAS, HOME funds are used for a variety of affordable housing activities, according to local housing needs; and
WHEREAS, eligible uses of funds include tenant-based rental assistance; housing rehabilitation; assistance to homebuyers; and new construction of housing; and WHEREAS, HOME funding may also be used for site acquisition, site improvements, demolition, relocation, and other necessary and reasonable activities related to the development of housing; and
#7..
- 114 -
12/12/2023/CEDD/EGarcia 2 2023-xx
WHEREAS, all housing developed with HOME funds must serve low- and very low-income families. For rental housing, at least 90 percent of the families benefited must have incomes at or below 60 percent of the area median income; the remaining 10 percent of the families benefited must have incomes at or below 80 percent of area median income; and
WHEREAS, each year, HUD publishes the applicable HOME income limits by area, adjusted for family size; and
WHEREAS, section 4 Home Investment Partnerships Program Policies of the manual provides standards and guidance established by HUD and the City of Modesto for subrecipients receiving HOME funding. The standards described in the manual include both general standards applicable to all HOME-funded program components as well as component-specific standards; and
WHEREAS, amending Section 4 of the manual will provide a framework to ensure compliance with applicable statutory and regulatory requirements and standards as well as the City’s strategic goals; and
WHEREAS, key updates of the HOME Program Polices include but are not limited to Build America, Buy America (BABA Act), Violence Against Women’s Act (VAWA), Tenant Selection, Tenant Preference Policy, and Affirmative Marketing Plan; and
WHEREAS, the updated HOME Investment Partnerships Program Policies & Procedures are included as Attachment 2.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Modesto that it hereby approves an amendment of the Section 4 Policy- “HOME #7..
- 115 -
12/12/2023/CEDD/EGarcia 3 2023-xx
Investment Partnership Program Policy” of the Housing and Urban Development Policies & Procedures Manual.

The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 12th day of December 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, City Clerk
(SEAL)
APPROVED AS TO FORM:

BY: __________________________________________
JOSE M. SANCHEZ, City Attorney
#7..
- 116 -
Section 4
City of Modesto
Home Investment Partnerships Program
City of Modesto
Community and Economic Development Department
1010 10th Street, Suite 3100
Modesto, CA 95354
www.cityofmodesto.com
[email protected]
City Council: December 12, 2023 Resolution No. 2023-
These policies supersede any previously adopted policies and are subject to review and revision by the City of Modesto’s Citizens Housing and Community Development
#7..
- 117 -
1 INTRODUCTION ....................................................................................................................................3 2 OBJECTIVE.............................................................................................................................................3 3 DEFINITIONS .........................................................................................................................................3 4 APPLICATION FOR FUNDS.....................................................................................................................7 5 ALLOCATION .........................................................................................................................................8 6 MAXIMUM FUNDING AMOUNT ...........................................................................................................8 7 Project Threshold Criteria...................................................................................................................11 8 General Policies and Procedures ........................................................................................................11 9 Project Maximums ...........................................................................................................................12 10 Other Regulations...........................................................................................................................12 11 Project Implementation..................................................................................................................13 12 Types of Housing .........................................................................................................................15 13 Rental Projects................................................................................................................................16 14 Homeownership Activities..............................................................................................................22 15 Owner Occupied Housing Rehabilitation........................................................................................24 16 CHDO ..............................................................................................................................................24 17 Monitoring......................................................................................................................................26 18 Affordability Period ........................................................................................................................27 19 Financial Management. ..................................................................................................................29 20 Appendix 1 Affirmative Marketing Policy .......................................................................................31 21 Appendix 3: Application Outline for HOME Investment Partnership Program Applications..........39 22 Appendix 2 Subsidy Layering Review and Underwriting Guidelines:..............................................51 #7..
- 118 -
1 INTRODUCTION

1.1 The HOME Investment Partnerships Program (HOME) was created under Title II of the National Affordable Housing Act of 1990. The HOME program policies are reviewed and amended regularly to ensure that it meets the standard under the HOME regulation. Under the HOME program, the Department of Housing and Urban Development (HUD) allocates funds to Participating Jurisdictions (PJ) to be used to implement housing strategies in accordance with Federal HOME regulations (24 CFR Part 92). The City of Modesto has been designated as the Participating Jurisdiction (PJ) to receive HOME funds.

1.2 Through the use of HOME funds, the City of Modesto strives to encourage and stimulate neighborhood revitalization. As a HUD designated PJ, the City is charged with the proficient administration of HOME funds. In an effort to increase the efficiency in which HOME funds are utilized and increase the impact of these dollars on our community, the City has developed the following policies and procedures.
2 OBJECTIVE

2.6 The intent of the HOME program as established by HUD is to:

2.6.1 Provide decent, safe, and affordable housing to low-income families, up to 80% of Area Median Income (AMI);

2.6.2 Expand the capacity of non-profit housing providers;

2.6.3 Strengthen the ability of local government to provide housing; and

2.6.4 Leverage private sector participation through public, private and non-profit partnerships to address affordable housing.

2.6.5 Participating Jurisdiction Responsibilities as defined in 24 CFR 92.504.

2.6.5.1 The participating jurisdiction is responsible for managing the day-to-day operations of its HOME program, ensuring that HOME funds are used in accordance with all program requirements and written agreements, and taking appropriate action when performance problems arise. The use of subrecipients, or contractors does not relieve the participating jurisdiction of this responsibility.

2.7 HOME funds may be used for the purposes of creating, maintaining, and expanding affordable rental and homeownership housing for low-income families through the following eligible activities:

2.7.1 Acquisition (including assistance to homebuyers);

2.7.1.1 The City of Modesto will comply with acquisition costs as specified at

92.205(a)(2) specifically requiring that construction of the intended housing project begins within 12 months of the HOME commitment date.

2.7.2 New construction in compliance with 92.251 CFR (including adding additional units to an existing structure);

2.7.3 Rehabilitation, in compliance with 92.251(b)(1), of non-luxury housing with suitable amenities including related costs such as:

2.7.4 Property acquisition, Site improvements, Demolition, and Other eligible expenses including financing costs, relocation expenses of any displaced persons, families, businesses, or organizations; Down payment and/or Closing Cost assistance.

2.7.5 Operating expenses of Community Housing Development Organizations (CHDO's).

2.7.6 All housing supported with HOME funds must be permanent or transitional housing. #7..
- 119 -

2.7.7 The on-site inspections must occur within 12 months after project completion and at least once every 3 years thereafter during the period of affordability.

2.7.8 If there are observed deficiencies for any of the inspectable items in the property standards established by the participating jurisdiction, in accordance with the inspection requirements of § 92.251, a follow-up on-site inspection to verify that deficiencies are corrected must occur within 12 months. The participating jurisdiction may establish a list of non-hazardous deficiencies for which correction can be verified by third party documentation (e.g., paid invoice for work order) rather than reinspection. Health and safety deficiencies must be corrected immediately, in accordance with § 92.251. The participating jurisdiction must adopt a more frequent inspection schedule for properties that have been found to have health and safety deficiencies.

2.7.9 The property owner must annually certify to the participating jurisdiction that each building and all HOME- assisted units in the project are suitable for occupancy, taking into account State and local health, safety, and other applicable codes, ordinances, and requirements, and the ongoing property standards established by the participating jurisdiction to meet the requirements of § 92.251.

2.7.10 Inspections must be based on a statistically valid sample of units appropriate for the size of the HOME-assisted project, as set forth by HUD through a document published in the Federal Register. For projects with one-to-four HOME-assisted units, a participating jurisdiction must inspect all of the HOME-assisted units and all inspectable areas for each building with HOME-assisted units.

2.7.11 Financial oversight. During the period of affordability, the participating jurisdiction must examine at least annually the financial condition of HOME-assisted rental projects with 10 units or more to determine the continued financial viability of the housing and must take actions to correct problems, to the extent feasible.

2.7.12 A HOME assisted project that is terminated before completion, either voluntarily or otherwise, constitutes an ineligible activity and will be subject to recapture by the City of Modesto.

2.7.13 Written agreement provides funds to for-profit owners or developers, nonprofit owners or developers or sponsors, subrecipients, homeowners, homebuyers, tenants (or landlords) receiving tenant-based rental assistance, or contractors who are providing services to the City,

2.7.13.1 Subrecipient. A subrecipient is a public agency or nonprofit organization selected by the participating jurisdiction to administer all or some of the participating jurisdiction's HOME programs to produce affordable housing, provide down payment assistance, or provide tenant-based rental assistance. The agreement must set forth and require the subrecipient to follow the participating jurisdiction's requirements, including requirements for income determinations, underwriting and subsidy layering guidelines, rehabilitation standards, refinancing guidelines, homebuyer program policies, and affordability requirements. The agreement between the participating jurisdiction and the subrecipient must include:

2.7.13.1.1 Use of the HOME funds. The agreement must describe the amount and use of the HOME funds for one or more programs, including the type and number #7..
- 120 -
of housing projects to be funded (e.g., the number of single-family homeowners loans to be made or the number of homebuyers to receive down payment assistance), tasks to be performed, a schedule for completing the tasks (including a schedule for committing funds to projects in accordance with deadlines established by this part), a budget, any requirement for matching contributions and the period of the agreement. These items must be in sufficient detail to provide a sound basis for the participating jurisdiction to effectively monitor performance under the agreement.

2.7.13.1.2 Program income. The agreement must state if program income is to be remitted to the participating jurisdiction or to be retained by the subrecipient for additional eligible activities.

2.7.13.1.3 Uniform administrative requirements. The agreement must require the subrecipient to comply with applicable uniform administrative requirements, as described in § 92.505.

2.7.13.1.4 Other program requirements. The agreement must require the subrecipient to carry out each activity in compliance with all Federal laws and regulations described in subpart H of this part, except that the subrecipient does not assume the participating jurisdiction's responsibilities for environmental review under § 92.352 and the intergovernmental review process in § 92.357 does not apply. The agreement must set forth the requirements the subrecipient must follow to enable the participating jurisdiction to carry environmental review responsibilities before HOME funds are committed to a project. If HOME funds are being provided to develop rental housing or provide tenant-based rental assistance, the agreement must set forth all obligations the participating jurisdiction imposes on the subrecipient in order to meet the VAWA requirements under § 92.359, including notice obligations and obligations under the emergency transfer plan.

2.7.13.1.5 Affirmative marketing. The agreement must specify the subrecipient's affirmative marketing responsibilities in accordance with § 92.351.

2.7.13.1.6 Requests for disbursement of funds. The agreement must specify that the subrecipient may not request disbursement of funds under the agreement until the funds are needed for payment of eligible costs. The amount of each request must be limited to the amount needed. Program income must be disbursed before the subrecipient requests funds from the participating jurisdiction.

2.7.13.1.7 Reversion of assets. The agreement must specify that upon expiration of the agreement, the subrecipient must transfer to the participating jurisdiction any HOME funds on hand at the time of expiration and any accounts receivable attributable to the use of HOME funds.

2.7.13.1.8 Records and reports. The agreement must specify the particular records that must be maintained and the information or reports that must be submitted in order to assist the participating jurisdiction in meeting its recordkeeping and reporting requirements.

2.7.13.1.9 Enforcement of the agreement. The agreement must specify remedies for breach of the provisions of the agreement. The agreement must specify that, in accordance with 2 CFR 200.338, suspension or termination may occur if the #7..
- 121 -
subrecipient materially fails to comply with any term of the agreement. The participating jurisdiction may permit the agreement to be terminated in whole or in part in accordance with 2 CFR 200.339.

2.7.13.1.10 Written agreement. Before the subrecipient provides HOME funds to forprofit owners or developers, nonprofit owners or developers or sponsors, subrecipients, homeowners, homebuyers, tenants (or landlords) receiving tenantbased rental assistance, or contractors, the subrecipient must have a written agreement that meets the requirements of this section. The agreement must state if repayment of HOME funds or recaptured HOME funds must be remitted to the participating jurisdiction or retained by the subrecipient for additional eligible activities.

2.7.13.1.10.1 Fees. The agreement must prohibit the subrecipient and any community housing development organizations from charging servicing, origination, or other fees for the costs of administering the HOME program, except as permitted by §

92.214(b)(1).

2.7.13.1.10.2 For-profit or nonprofit housing owner, sponsor, or developer (other than single-family owner-occupant). The participating jurisdiction may preliminarily award HOME funds for a proposed project, contingent on conditions such as obtaining other financing for the project. This preliminary award is not a commitment to a project. The written agreement committing the HOME funds to the project must meet the requirements of “commit to a specific local project” in the definition of “commitment” in § 92.2 and contain the following:

2.7.13.1.11 Use of the HOME funds. The agreement between the participating jurisdiction and a for-profit or nonprofit housing owner, sponsor, or developer must describe the address of the project or the legal description of the property if a street address has not been assigned to the property, the use of the HOME funds and other funds for the project, including the tasks to be performed for the project, a schedule for completing the tasks and the project, and a complete budget. These items must be in sufficient detail to provide a sound basis for the participating jurisdiction to effectively monitor performance under the agreement to achieve project completion and compliance with the HOME requirements.

2.7.13.1.12 Affordability. The agreement must require housing assisted with HOME funds to meet the affordability requirements of § 92.252 or § 92.254, as applicable, and must require repayment of the funds if the housing does not meet the affordability requirements for the specified time period. The affordability requirements in § 92.252 must be imposed by deed restrictions, covenants running with the land, use restrictions, or other mechanisms approved by HUD under which the participating jurisdiction has the right to require specific performance.

2.7.13.1.13 If the owner or developer is undertaking rental projects, the agreement must establish the initial rents, the procedures for rent increases pursuant to §

92.252(f)(2), the number of HOME units, the size of the HOME units, and the designation of the HOME units as fixed or floating, and include the requirement that the owner or developer provide the address (e.g., street address and apartment number) of each HOME unit no later than the time of initial occupancy. #7..
- 122 -

2.7.13.1.13.1 If the owner or developer is undertaking a homeownership project for sale to homebuyers in accordance with § 92.254(a), the agreement must set forth the resale or recapture requirements that must be imposed on the housing, the sales price or the basis upon which the sales price will be determined, and the disposition of the sales proceeds. Recaptured funds must be returned to the participating jurisdiction.

2.7.13.1.14 Project requirements. The agreement must require compliance with project requirements in subpart F of this part, as applicable in accordance with the type of project assisted. The agreement may permit the owner to limit eligibility or give a preference to a particular segment of the population in accordance with §

92.253(d).

2.7.13.1.15 Property standards. The agreement must require the housing to meet the property standards in § 92.251, upon project completion. The agreement must also require owners of rental housing assisted with HOME funds to maintain the housing compliance with § 92.251 for the duration of the affordability period.

2.7.13.1.16 Other program requirements. The agreement must require the owner, developer or sponsor to carry out each project in compliance with the following requirements of subpart H of this part:

2.7.13.1.16.1 The agreement must specify the owner or developer's affirmative marketing responsibilities as enumerated by the participating jurisdiction in accordance with § 92.351.

2.7.13.1.16.2 The federal requirements and nondiscrimination established in § 92.350.

2.7.13.1.16.3 Any displacement, relocation, and acquisition requirements imposed by the participating jurisdiction consistent with § 92.353.

2.7.13.1.16.4 The labor requirements in § 92.354.

2.7.13.1.16.5 The conflict of interest provisions prescribed in § 92.356(f).

2.7.13.1.16.6 If HOME funds are being provided to develop rental housing, the agreement must set forth all obligations the participating jurisdiction imposes on the owner in order to meet the VAWA requirements under § 92.359, including the owner's notice obligations and owner obligations under the emergency transfer plan.

2.7.13.1.16.7 Records and reports. The agreement must specify the particular records that must be maintained and the information or reports that must be submitted in order to assist the participating jurisdiction in meeting its recordkeeping and reporting requirements. The owner of rental housing must annually provide the participating jurisdiction with information on rents and occupancy of HOMEassisted units to demonstrate compliance with § 92.252. If the rental housing project has floating HOME units, the owner must provide the participating jurisdiction with information regarding unit substitution and filling vacancies so that the project remains in compliance with HOME rental occupancy requirements. The agreement must specify the reporting requirements (including copies of financial statements) to enable the participating jurisdiction to determine the financial condition (and continued financial viability) of the rental project.
#7..
- 123 -

2.7.13.1.16.8 Enforcement of the agreement. The agreement must provide for a means of enforcement of the affordable housing requirements by the participating jurisdiction and the intended beneficiaries. This means of enforcement may include liens on real property, deed restrictions, or covenants running with the land. The affordability requirements in § 92.252 must be imposed by deed restrictions, covenants running with the land, use restrictions, or other mechanisms approved by HUD under which the participating jurisdiction has the right to require specific performance. In addition, the agreement must specify remedies for breach of the provisions of the agreement.

2.7.13.1.16.9 Requests for disbursement of funds. The agreement must specify that the developer may not request disbursement of funds under the agreement until the funds are needed for payment of eligible costs. The amount of each request must be limited to the amount needed.

2.7.13.1.16.10 Duration of the agreement. The agreement must specify the duration of the agreement. If the housing assisted under this agreement is rental housing, the agreement must be in effect through the affordability period required by the participating jurisdiction under § 92.252. If the housing assisted under this agreement is homeownership housing, the agreement must be in effect at least until completion of the project and ownership by the low-income family.

2.7.13.1.17 Community housing development organization provisions. If the nonprofit owner or developer is a community housing development organization and is using set-aside funds under § 92.300, the agreement must include the appropriate provisions under §§ 92.300, 92.301, and 92.303.

2.7.13.1.17.1 If the community development organization is receiving HOME funds as a developer of homeownership housing, the agreement must specify if the organization may retain proceeds from the sale of the housing and whether the proceeds are to be used for HOME-eligible or other housing activities to benefit low-income families. Recaptured funds are subject to the requirements of §

92.503. If the community housing development organization is receiving assistance for operating expenses, see paragraph (c)(6) of this section.

2.7.13.1.18 Fees. The agreement must prohibit project owners from charging fees that are not customarily charged in rental housing such as laundry room access fees, and other fees. However, rental project owners may charge reasonable application fees to prospective tenants may charge parking fees to tenants only if such fees are customary for rental housing projects in the neighborhood; and may charge fees for services such as bus transportation or meals, as long as such services are voluntary. The agreement must also prohibit the developer that is undertaking a homeownership project from charging servicing, origination, processing, inspection, or other fees for the costs of providing homeownership assistance.

2.7.13.2 Contractor. The participating jurisdiction selects a contractor through applicable procurement procedures and requirements. The contractor provides goods or services in accordance with a written agreement (the contract). For contractors who are administering all or some of the participating jurisdiction's HOME programs or #7..
- 124 -
specific services for one or more programs, the contract must include at a minimum the following provisions:

2.7.13.2.1 Use of the HOME funds. The agreement must describe the use of the HOME funds, including the tasks to be performed, a schedule for completing the tasks, a budget, and the length of the agreement.

2.7.13.2.2 Program requirements. The agreement must provide that the contractor is subject to the requirements in part 92 that are applicable to the participating jurisdiction, except §§ 92.505 and 92.506 do not apply, and the contractor cannot assume the participating jurisdiction responsibilities for environmental review, decision-making, and action under § 92.352. Where the contractor is administering only a portion of the program, the agreement must list the requirements applicable to the activities the contractor is administering. If applicable to the work under the contract, the agreement must set forth all obligations the participating jurisdiction imposes on the contractor in order to meet the VAWA requirements under §

92.359, including any notice obligations and any obligations under the emergency transfer plan.

2.7.13.2.3 Duration of agreement. The agreement must specify the duration of the contract. Generally, the duration of a contract should not exceed two years.

2.7.13.2.4 Homebuyer, homeowner or tenant receiving tenant-based rental or security deposit assistance. When a participating jurisdiction provides assistance to a homebuyer, homeowner or tenant the written agreement may take many forms depending upon the nature of assistance. As appropriate, it must include as a minimum:

2.7.13.2.4.1 For homebuyers, the agreement must conform to the requirements in §

92.254(a), the value of the property, principal residence, lease-purchase, if applicable, and the resale or recapture provisions. The agreement must specify the amount of HOME funds, the form of assistance, e.g., grant, amortizing loan, deferred payment loan, the use of the funds (e.g., down-payment, closing costs, rehabilitation) and the time by which the housing must be acquired.

2.7.13.2.4.2 For homeowners, the agreement must conform to the requirements in §

92.254(b) and specify the amount and form of HOME assistance, rehabilitation work to be undertaken, date for completion, and property standards to be met.

2.7.13.2.4.3 For tenants, the rental assistance contract or the security deposit contract must conform to §§ 92.209 and 92.253.

2.7.13.2.5 Community housing development organization receiving assistance for operating expenses. The agreement must describe the use of HOME funds for operating expenses; e.g., salaries, wages, and other employee compensation and benefits; employee education, training, and travel; rent; utilities; communication costs; taxes; insurance; equipment; and materials and supplies. If the community housing development organization is not also receiving funds for a housing project to be developed, sponsored, or owned by the community housing development organization, the agreement must provide that the community housing development organization is expected to receive funds for a project within 24 months of the date of receiving the funds for operating expenses, and must specify #7..
- 125 -
the terms and conditions upon which this expectation is based and the consequences of failure to receive funding for a project.

2.7.13.2.5.1 Community housing development organization receiving assistance for project-specific technical assistance and site control loans or project-specific seed money loans. The agreement must identify the specific site or sites and describe the amount and use of the HOME funds (in accordance with § 92.301), including a budget for work, a period of performance, and a schedule for completion. The agreement must also set forth the basis upon which the participating jurisdiction may waive repayment of the loans, consistent with § 92.301, if applicable.

2.7.13.2.5.2 Technical assistance provider to develop the capacity of community housing development organizations in the jurisdiction. The agreement must identify the specific nonprofit organization(s) to receive capacity building assistance. The agreement must describe the amount and use (scope of work) of the HOME funds, including a budget, a period of performance, and a schedule for completion.

2.7.13.2.6 On-site inspections and financial oversight.

2.7.13.2.6.1 Inspections. The participating jurisdiction must inspect each project at project completion and during the period of affordability to determine that the project meets the property standards of § 92.251.

2.7.13.2.6.1.1 Completion inspections. Before completing the project in the disbursement and information system established by HUD, the participating jurisdiction must perform an on-site inspection of HOME-assisted housing to determine that all contracted work has been completed and that the project complies with the property standards of § 92.251.

2.7.13.2.6.1.2 Ongoing periodic inspections of HOME-assisted rental housing.

During the period of affordability, the participating jurisdiction must perform onsite inspections of HOME-assisted rental housing to determine compliance with the property standards of § 92.251 and to verify the information submitted by the owners in accordance with the requirements of § 92.252. The inspections must be in accordance with the inspection procedures that the participating jurisdiction establishes to meet the inspection requirements of § 92.251. 3 DEFINITIONS

3.1 Action Plan: The one-year portion of the Consolidated Plan. It includes the PJ's annual allocation of HOME funds.

3.2 Adjusted Income: Adjusted income is annual (gross) income reduced by deductions for dependents, elderly households, medical expenses, handicap assistance expenses and childcare (these are the same adjustment factors used by the Section 8 Program). The low HOME rent in rental projects in which rents are based on 30% of a family's adjusted gross income.

3.3 Affordability: The requirements of the HOME Program that relate to the cost of housing both at initial occupancy and over established time frames, as prescribed in the HOME Final Rule. Affordability requirements vary depending upon the nature of the HOME assisted activity (i.e., homeownership or rental housing). #7..
- 126 -

3.4 Annual Income: Annual income as defined in 24 CFR 5.609, referred to as "Part 5 annual income", also known as the rules for determining income under the Section 8 voucher program, or adjusted gross income as defined for the purposes of reporting under Internal Revenue Service (IRS) Form 1040 series for individual Federal annual tax purposes. Adjusted gross income as reported on Form 1040 shall be used for homebuyer, homeowner rehabilitation and down payment assistance programs.

3.5 Commitment: Commitment means (1) The participating jurisdiction has executed a legally binding written agreement (that includes the date of the signature of each person signing the agreement) with a Community Housing Development Organization (CHDO), subrecipient, or a contractor to use a specific amount of HOME funds to produce affordable housing, provide down payment assistance; or has met the requirements to commit to a specific local project, as defined in paragraph 2 of this definition. (See § 92.504(c) for minimum requirements for a written agreement.) An agreement between the participating jurisdiction and a subrecipient that is controlled by the participating jurisdiction (e.g., an agency whose officials or employees are official or employees of the participating jurisdiction) does not constitute a commitment.

3.6 Commitment to a specific local project: Commitment to a specific local project means that a legally binding agreement was executed meeting one of the following sets of requirements:

3.6.1 Prior to executing a written agreement for HOME funds, the City of Modesto will comply with all commitment requirements defined at 92.2; The City will ensure that acquisition costs are not paid prior to the valid commitment date and that the following requirements are in place:

3.6.1.1 For rehabilitation or new construction projects:

3.6.1.1.1 the PJ (or other entity) and the project owner will execute an agreement for an identifiable project for
which all necessary financing has been secured,

3.6.1.1.2 a budget and schedule have been established,

3.6.1.1.3 underwriting has been completed and under which construction is scheduled to start within 12 months of
the agreement date.

3.6.1.2 Modesto funded by projects must be set up in the Integrated Disbursement and Information System (IDIS) after the agreement was executed that is signed and dated by each signatory and by all parties; with the commitment date as evidence by the execution date of the City Manager’s signature to the agreement and through the underwriting process, it will be evident that construction is expected to start within 12 months the
commitment date.

3.6.2 If the project consists of acquisition of standard housing by the PJ, the agreement must be a binding contract for the sale of an identifiable property and the property title must be transferred to the PJ (or other entity) within six (6) months of the date of the contract.

3.6.3 If the project involves the acquisition of standard housing and the City is #7..
- 127 -
providing HOME funds to a purchaser, under the agreement, the title of the property must be transferred to the purchaser within six (6) months of the agreement date.

3.6.4 Note that preliminary or conditional "commitments" may be made, but no funds are considered committed under the rules unless the above conditions have been met.

3.7 Consolidated Plan: A plan prepared in accordance with the requirements set forth in 24 CFR Part 91 which describes community needs, resources, priorities, populations, and proposed activities to be undertaken under certain HUD programs, including HOME.

3.8 Community Housing Development Organization (CHDO): A private, nonprofit organization that meets a series of qualifications prescribed in the HOME regulations at 24 CFR Part 92.2. The HOME New Rule requires that CHDO's have paid staff with demonstrated capacity appropriate to the CHDO's role (this requirement cannot be met through volunteer, donated staff, shared staff, or board members). A participating jurisdiction must award at least 15 percent of its annual HOME allocation to CHDOs.

3.9 Draw-Down: The process of requesting and receiving HOME funds. The City of Modesto draws down funds from a line of credit established by HUD.

3.10 Final Rule: The Final HOME Rule was published at 24 CFR Part 92 on July 24, 2013 and became effective on August 24, 2013.

3.11 Geographic Distribution: The City of Modesto distributes HOME funds geographically within its boundaries and among different categories of housing need, according to the priorities of housing need identified in its approved Consolidated Plan and HOME Program Description. The City of Modesto only invests HOME funds in eligible projects within its boundaries.

3.11.1 Proposed development being considered for HOME funding must fully comply with all federally laws and regulations, including those in Title 24 of the Code of Federal Regulations, 24 CFR 92 and be in compliance with the priorities set forth in the current Consolidated Plan. https://www.modestogov.com/Archive.aspx?AMID=109

3.11.2 The competitive selection criteria for projects, if applicable, will be published at the time applications are solicited.

3.12 HOME-Assisted Units: A term that refers to the units within a HOME project for which rent, occupancy and/or resale restrictions apply. The number of units designated as HOME-assisted affects the maximum HOME subsidies that may be provided to a project as such may be amended.

3.13 HOME Funds: All appropriations for the HOME Program, plus all repayments and interest or other returns on the investment of these funds.

3.14 Household: One or more persons occupying a housing unit.

3.15 Jurisdiction: A unit of general local government.

3.16 Low-Income Families: Families whose annual incomes do not exceed 80 percent of the median income for the area (adjusted for family size).

3.17 Match: Match is the City of Modesto's contribution to the HOME Program - the local, non- Federal contribution to the partnership. The City of Modesto's match contribution must equal not less than 25 percent of the HOME funds drawn #7..
- 128 -
down for projects in that fiscal year.

3.18 New Construction: The creation of new dwelling units. Any project which includes the creation of new or additional dwelling units in an existing structure is considered new construction.

3.19 Participating Jurisdiction (PJ): The term given to any state, local government or consortium that has been designated by HUD to administer a HOME Program.

HUD designation as a PJ occurs if a state or local government meets the funding thresholds, notifies HUD that they intend to participate in the program and has a HUD-approved Consolidated Plan.

3.20 Project Preferences: project preferences refer to a preferred housing population.

3.21 Program Income: Gross income received by the City of Modesto, a CHDO that does not retain CHDO Proceeds, or a sub recipient directly generated from the use of HOME funds or matching contributions.

3.22 Project: A site or an entire building or two or more buildings, together with the site or sites on which the building or buildings is located, that are under common ownership, management and financing and are to be assisted with HOME funds, under a commitment by the owner, as a single undertaking.

3.23 Project completion: All necessary title transfer requirements and construction work have been performed; the project complies with all HOME requirements; the final draw-down of HOME funds has been disbursed for the project; and the project completion information has been entered in the disbursement and information system established by HUD, except that with respect to rental housing project completion, for the purposes of § 92.502(d) of this part, project completion occurs upon completion of construction and before occupancy.

3.24 Reconstruction (also rehabilitation): The rebuilding, on the same lot, of housing standing on a site at the time of project commitment. Except that housing that was destroyed may be rebuilt on the same lot if HOME funds are committed within 12 months of the date of destruction the number of housing units on the lot may not be changed as part of the reconstruction project, but the number of rooms per unit may change. Reconstruction also includes replacing an existing substandard unit of manufactured housing with a new or standard unit of manufactured housing.

3.25 Sub recipient: A public agency or nonprofit organization selected by the City of Modesto to administer all or a portion of the City of Modesto's HOME Program.

A public agency or nonprofit organization that receives HOME funds solely as a developer or owner of housing (CHDO) is not a sub recipient.

3.26 Targeting: Requirements of the HOME Program relating to the income or other characteristics of households that may occupy HOME-assisted units.

3.26.1 Very-Low-Income Families: Families whose annual incomes do not exceed 50 percent of the median income for the area (adjusted for family size).
4 APPLICATION FOR FUNDS
#7..
- 129 -

4.1. Application Timeline

4.1.1. The City of Modesto accepts applications on a continuous basis, unless otherwise noted.

4.1.2. Applications are submitted via The City of Modesto’s Online Application Portal.

4.1.3. Technical Assistance is provided at the request of the applicant by email at [email protected]

4.1.4. No application will be accepted that is not submitted through the online application portal.

4.1.5. Inaccurate information contained in an application can disqualify the Applicant from consideration.

4.2. Applications submitted for funding consideration must be complete for Tier 1.

4.2.1. Tier 1 is defined as New Construction or Rehabilitation with 50% of the project funding identified

4.2.2. Site identified and can be under contract by time of award, can obtain permits within 6 months, and can demonstrate construction can begin within 12 months of award.

4.2.3. Note, HOME funding will not be committed until all leveraged sources are secured for the project and a complete source and uses budget has been approved.

4.3. All application for funding are ranked by the following:

4.3.1. Development Experience and Capacity

4.3.2. Project Readiness

4.3.3. Urgency and Persistence of Need

4.3.4. Past Performance

4.3.5. Financial Management

4.3.6. General Compliance to Regulations

4.3.7. Budgeting, Funding and Leveraging for the proposed project development

4.4. The Minimum Threshold Requirements for each HOME application are included in the Notice of Funding Availability and periodically updated.

4.5. Applicants who fail to meet any minimum threshold requirement will not be considered for funding.

4.6. Minor corrections to applications may be allowed, but applications requiring substantial revision, or which are substantially incomplete will not be reviewed or ranked.
5 ALLOCATION

5.1 HOME program applicants must submit proposals that are consistent with the City's current Consolidated Plan (Con Plan) and HOME Program Description.

5.2 Before submitting an application, the applicant must review the Con Plan and HOME Program Description (found on the Community Development Division web site, https://www.modestogov.com/1849/Five-Year-Consolidated-Plan) to ensure that the activities are in conformance with the Plan and Description. #7..
- 130 -

5.3 The amount for eligible activities on an annual basis is 90% of HUD allocated HOME funds, after allocating the allowable 10% administrative funding. Up to 90% of Program Income funds may also be used for eligible activities.

5.4 A minimum of 15% of the total HOME funds is available exclusively for certified Community Housing Development Organizations (CHDO) performing CHDO eligible activities. Please refer to the CHDO section of these policies to determine an organization's eligibility as a CHDO and also to determine eligible CHDO activities.

5.5 An additional 5% of the total annual HOME grant funding may be used for CHDO administrative expenses.
6 MAXIMUM FUNDING AMOUNT

6.1 When allocating funds, HOME considers the total amount of assistance from both public and private sources needed to ensure project feasibility.

6.2 Applicants are encouraged to request only the amount of HOME funds needed as gap financing to make the project feasible.

6.3 Requesting funds for administration is not allowed; however, applicants may request reasonable amounts for developer fees and soft costs in an amount corresponding to the following housing activities. The amount for such fee allowances are presented in a Notice of Funding Availability (NOFA) and must be approved by City staff as part of the underwriting review.

6.4 All HOME costs, including soft costs must be tied to specific housing addresses.

6.5 Eligible Project Related Soft Costs, as described in 24 CFR 92.206(d), area costs that can be directly tied to an address of the project or individual being assisted. These costs must be reasonable and necessary costs associated with the financing or development (or both) of new construction, rehabilitation, or acquisition of housing assisted with HOME funds.

These include the following:

6.5.1 Project-specific fees for a HOME-assisted project (such as private lender origination fees, credit reports, fees for title evidence, fees for recordation and filing of legal documents, building permits, attorney’s fees, private appraisal fees, and fees for an independent cost estimate);

6.5.2 Architectural, engineering, or related professional services required to prepare plans, drawings or specifications of a project;

6.5.3 Preparation of work write-ups, work specifications, and cost estimates or review of these items if an owner has had them independently prepared;

6.5.4 Construction inspection and oversight;

6.5.5 Project document preparation;

6.5.6 Costs to process and settle the mortgage financing for a project;

6.5.7 Pre-purchase homebuyer counseling for a HOME-assisted homebuyer;

6.5.8 Costs to inspect property for compliance with property standards or to conduct a visual assessment for deteriorated paint;

6.5.9 Cost of inspection units for the presence of lead hazards or defective paint;

6.5.10 Developer fees (limited).

6.5.11 NOTE: Indirect costs are not eligible soft costs.

6.5.12 Applicants should request only the level of funding necessary to carry out their projects #7..
- 131 -
and must be in combination with other proposed funding sources, to complete the proposed activities within the contract period.

6.6 Eligible Applicants/Sponsors and Capacity

6.6.1 Applicants/Sponsors must have prior experience in developing and managing the type of project they plan to undertake. Applicants/Sponsors must demonstrate that they or their development team has the skills, experience, and capacity needed to develop and operate the property for a minimum period of affordability. Collaborative efforts with experienced parties and/or experienced development teams will be considered.

6.7 The following types of organizations are eligible to apply for funds:

6.7.1 Non-profit organizations, including Community Housing Development Organizations (CHDO). The CHDO must be certified by the City of Modesto.

6.7.2 For profit entities, including individuals, partnership, corporation and limited liability companies.

6.7.3 Stanislaus Regional Housing Authority or a controlled affiliate thereof.

6.8 Joint Applicants

6.9 Two or more eligible applicants may submit one application under the following conditions:

6.10 One joint applicant is designated as the Lead Applicant during the term of the HOME project and period of affordability. The lead applicant must accept full responsibility for application submission and for administrative, regulatory, and financial management requirements.

6.11 Eligibility Requirements

6.11.1 Applicants, including all entities of a joint application, currently administering a HOME project are eligible to apply for additional HOME funds if:

6.11.1.1 The applicant is in compliance with the project implementation schedule contained within its HOME funding agreement with the City for any open HOME-assisted housing project.

6.11.1.2 There are no unresolved audit, monitoring, or performance findings for any previous HOME funding allocations to the applicant.

6.11.1.3 All projects three years or older are completed and conditionally closed out (have submitted the final draw and may just be awaiting the submittal of demographic information) before applying for additional funds

6.12 Disclaimers

6.12.1 The City of Modesto reserves the right to recommend to the Citizens Housing and Community Development Committee (CH&CDC) and City Council to not award all available funds if submitted proposals do not meet the project threshold, evaluation and funding criteria, or do not address the program priorities.

6.12.2 Funds not allocated during a funding cycle may be awarded during a subsequent application cycle. The City also reserves the right to allocate these funds to projects during the course of the year.

6.12.3 The City reserves the right to reserve and allocate HOME funds to any project and may deny HOME funds for any project, regardless of the ranking score under the project selection criteria, if applicable, if it determines, in its sole discretion, the project is unacceptable based on, but not limited to the following:
#7..
- 132 -

6.12.3.1 Negative comments or lack of support from community organization(s) and stakeholder(s), or

6.12.3.2 Information that a particular market is saturated with affordable housing projects, or

6.12.3.3 The likelihood that the project may not comply with HOME program requirements in a timely manner, or

6.12.3.4 The applicant's (including any related party) lack of or unacceptable prior experience and performance related to compliance with housing assistance or other government-sponsored programs, regardless of type and location.

6.13 Use of Contractors

6.13.1 In accordance with federal regulations, HOME funds may not be used to directly or indirectly employ, award contracts to, or otherwise engage the services of any contractor or Sub-recipient during any period of debarment, suspension, or placement of ineligibility status.

6.13.2 The City will require participants to certify that any contractors or sub-contractors under the General Contractor that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or voluntarily excluded from any equity from a federally funded transaction.

6.13.3 Any participant that remains on a debarred or suspended condition shall be prohibited from participation in the City of Modesto HOME program as long as they are classified in this manner.

6.13.4 The City will verify this information by requiring that the applicant submit its Unique Entity ID number (UEI) that was previously as accepted as the Dun and Bradstreet (DUNS) number with the project application and within the scope of a project as new contractor, subcontractor, or participant.
7 Project Threshold Criteria

7.1 All projects submitted for funding consideration through the HOME Investment Partnership Program must meet the Proposal Requirements which include the following threshold criteria to be eligible for a funding commitment:

7.2 Contributes To Implementation Of Strategic Goals Of The Consolidated Plan

7.2.1 Proposed projects must match one or more of City of Modesto Funding Priorities as listed in the Consolidated Plan. Applicants must familiarize themselves with the City of Modesto’s currently approved Consolidated Plan.

7.2.2 The City does not require a preference be given to any one population for its use of HOME funds; however, it is recognized that there are scenarios such as layered funding that requires HOME units to be set-aside for a preferred population. This preference will be considered under the following conditions:

7.2.2.1 The population is included as a preference population in the current Consolidated Plan.

7.2.2.2 The Marketing Plan supports the need for the preferred population and/or it is a stipulation of the layered funding from another Federal, State, or local source investing in the project.

7.2.2.3 The preference does not violate nondiscrimination requirements in accordance #7..
- 133 -
with 24 CFR 92.350.

7.2.2.4 The Tenant meets the requirements of the HOME program.

7.3 Project Information

7.3.1 For purposes of providing a detailed project description in the Integrated Disbursement and Information System (IDIS), project proposals must provide detailed project information as defined by Appendix 3 Application Outline and HOME Investment Partnership Program Basics. At a minimum, a detailed project description will include each of the outlined components which shall be used, in whole or in part, to enter a project description in IDIS.
8 General Policies and Procedures

8.1 Eligible activities.

8.1.1 HOME funds may be used by a participating jurisdiction to provide incentives to develop and support affordable rental housing and homeownership affordability through the acquisition (including assistance to homebuyers), new construction, reconstruction, or rehabilitation of non-luxury housing with suitable amenities, including real property acquisition, site improvements, conversion, demolition, and other expenses, including financing costs, relocation expenses of any displaced persons, families, businesses, or organizations; to provide tenant-based rental assistance, including security deposits; to provide payment of reasonable administrative and planning costs; and to provide for the payment of operating expenses of community housing development organizations. The housing must be permanent or transitional housing. The specific eligible costs for these activities are set forth in §§ 92.206 through 92.209. The activities and costs are eligible only if the housing meets the property standards in § 92.251 upon project completion.

8.1.2 Acquisition of vacant land or demolition must be undertaken only with respect to a particular housing project intended to provide affordable housing within the time frames established in paragraph (2) of the definition of “commitment” in § 92.2.

8.1.3 Conversion of an existing structure to affordable housing is rehabilitation, unless the conversion entails adding one or more units beyond the existing walls, in which case, the project is new construction for purposes of this part.

8.1.4 Manufactured housing. HOME funds may be used to purchase and/or rehabilitate a manufactured housing unit, or purchase the land upon which a manufactured housing unit is located. Except for existing, owner-occupied manufactured housing that is rehabilitated with HOME funds, the manufactured housing unit must, at the time of project completion, be connected to permanent utility hook-ups and be located on land that is owned by the manufactured housing unit owner or land for which the manufactured housing owner has a lease for a period at least equal to the applicable period of affordability.

8.2 Forms of assistance.

8.2.1 A participating jurisdiction may invest HOME funds as equity investments, interestbearing loans or advances, non-interest-bearing loans or advances, interest subsidies consistent with the purposes of this part, deferred payment loans, grants, or other forms of assistance that HUD determines to be consistent with the purposes of this #7..
- 134 -
part and specifically approves in writing. Each participating jurisdiction has the right to establish the terms of assistance, subject to the requirements of this part.

8.2.2 A participating jurisdiction may invest HOME funds to guarantee loans made by lenders and, if required, the participating jurisdiction may establish a loan guarantee account with HOME funds. The HOME funds may be used to guarantee the timely payment of principal and interest or payment of the outstanding principal and interest upon foreclosure of the loan. The amount of the loan guarantee account must be based on a reasonable estimate of the default rate on the guaranteed loans, but under no circumstances may the amount on deposit exceed 20 percent of the total outstanding principal amount guaranteed; except that the account may include a reasonable minimum balance. While loan funds guaranteed with HOME funds are subject to all HOME requirements, funds which are used to repay the guaranteed loans are not.

8.2.3 Minimum amount of assistance. The minimum amount of HOME funds that must be invested in a project involving rental housing or homeownership is $1,000 times the number of HOME-assisted units in the project.

8.3 Multi-unit projects. HOME funds may be used to assist one or more housing units in a multi-unit project.

8.3.1 Only the actual HOME eligible development costs of the assisted units may be charged to the HOME program. If the assisted and non-assisted units are not comparable, the actual costs may be determined based on a method of cost allocation. If the assisted and non- assisted units are comparable in terms of size, features, and number of bedrooms, the actual cost of the HOME- assisted units can be determined by prorating the total HOME eligible development costs of the project so that the proportion of the total development costs charged to the HOME program does not exceed the proportion of the HOME-assisted units in the project.

8.3.2 After project completion, the number of units designated as HOME- assisted may be reduced only in accordance with § 92.210, except that in a project consisting of all HOME- assisted units, one unit may be subsequently converted to an on-site manager's unit if the participating jurisdiction determines that the conversion will contribute to the stability or effectiveness of the housing and that, notwithstanding the loss of one HOME-assisted unit, the costs charged to the HOME program do not exceed the actual costs of the HOME- assisted units and do not exceed the subsidy limit in § 92.250(b).

8.3.3 Terminated projects. A HOME assisted project that is terminated before completion, either voluntarily or involuntarily, constitutes an ineligible activity, and the participating jurisdiction must repay any HOME funds invested in the project to the participating jurisdiction's HOME Investment Trust Fund in accordance with §

92.503(b) (except for project- specific assistance to community housing development organizations as provided in § 92.301(a)(3) and (b)(3)).

8.3.4 A project that does not meet the requirements for affordable housing must be terminated and the participating jurisdiction must repay all HOME funds invested in the project to the participating jurisdiction's HOME Investment Trust Fund in accordance with § 92.503(b).

8.3.5 If a participating jurisdiction does not complete a project within 4 years of the date of #7..
- 135 -
commitment of funds, the project is considered to be terminated and the participating jurisdiction must repay all funds invested in the project to the participating jurisdiction's HOME Investment Trust Fund in accordance with § 92.503(b). The participating jurisdiction may request a one-year extension of this deadline in writing, by submitting information about the status of the project, steps being taken to overcome any obstacles to completion, proof of adequate funding to complete the project, and a schedule with milestones for completion of the project for HUD's review and approval.

8.4 Troubled HOME-assisted rental housing projects.

8.4.1 The provisions of this section apply only to an existing HOME- assisted rental project that, within the HOME period of affordability, is no longer financially viable. For purposes of this section, a HOME assisted rental project is no longer financially viable if its operating costs significantly exceed its operating revenue. HUD may approve one or both of the actions described in paragraphs (b) and (c) of this section to strategically preserve a rental project after consideration of market needs, available resources, and the likelihood of long-term viability of the project.

8.4.2 Notwithstanding § 92.214, a participating jurisdiction may request and HUD may permit, pursuant to a written memorandum of agreement, a participating jurisdiction to invest additional HOME funds in the existing HOME-assisted rental project. The total HOME funding for the project (original investment plus additional investment) must not exceed the per-unit subsidy limit in § 92.250(a). The use of HOME funds may include, but is not limited to, rehabilitation of the HOME units and recapitalization of project reserves for the HOME units (to fund capital costs). If additional HOME funds are invested, HUD may require the period of affordability to be extended, based on such considerations as the amount of additional HOME funds or additional units.

8.4.3 HUD Headquarters may, through written approval, permit the participating jurisdiction to reduce the number of HOME-assisted units, if the project contains more than the minimum number of units required to be designated as HOME-assisted under §

92.205(d). In determining whether to permit a reduction in the number of HOMEassisted units, HUD will take into account the required period of affordability and the amount of HOME assistance provided to the project.

8.5 Expenditure Time Frames

8.5.1 The City of Modesto will comply with 92.205(a)(2) Construction of the intended housing project must begin within 12 months of the HOME commitment date as evidence by the underwriting requirement reference in section 4 of this policy.

8.5.2 If the subrecipient of the City does not complete a project within 4 years of the date of commitment of funds, the project is considered to be terminated and The City may require the subrecipient to repay all funds invested in the project, unless prior approval is received from the regional HUD office extending the terms of the completion date.

8.5.3 Should a project not complete within the 4 years of the commitment date, the City may be required to pay HOME Investment Trust Fund in accordance with § 92.503(b); unless the City is granted extension approval to the 4 year completion deadline by HUD’s regional office.
#7..
- 136 -

8.6 Project Maximums

8.6.1 Rent Limits HOME rent limits apply to all rental housing projects. HOME rent limits are published each year by HUD. The current rent limits can be found at https://www.hudexchange.info/programs/home/home-rent-limits/

8.7 Per Unit Subsidy – Rental

8.7.1 HUD establishes maximum per unit subsidy, known as the 221(d)3 limits. The maximum per unit subsidy can be requested from CDD staff. HOME funding may not be utilized on projects that exceed these maximum per unit subsidies limits.

8.8 Homeownership Value Limit

8.8.1 HUD establishes, and updates periodically, the maximum allowable value for homeownership housing units. This is the after-rehab value for units that are either acquired or rehabilitated utilizing HOME funding. This is called the Homeownership Value Limits or the 95% limit. Section 92.254(a)(2)(iii) states that two (2) values will be established for the median purchase price/after rehab value. One is for newly constructed housing and one for existing housing. HOME funds may not be utilized on any property that exceeds these values. The current limits can be accessed at:
https://www.hudexchange.info/resource/2312/home-maximum-purchase-price-afterrehab-value/ 9 Other Regulations

9.1 Section 504 And Fair Housing Act

9.1.1 All projects receiving HOME funds must comply with section 504 of the Rehabilitation Act of 1973 and the Fair Housing Act of 1988. It is the applicant’s responsibility to become familiar with these legislative acts. The applicant may be asked to submit certification from a certified access specialist that the funded project design and construction complies with this requirement.

9.2 Labor Standards

9.2.1 Labor standards provisions apply to any contract for the construction of 12 or more HOME-assisted units. (Section 286, National Affordable Housing Act of 1990, as amended).

9.2.2 The City, subrecipient and any contractor(s) shall abide by the requirements of Davis Bacon and Related Acts (DBRA) for prevailing wages and of Section 3 New Rule economic opportunities for low and very low-income persons. The City shall provide appropriate guidance to both subrecipient and contractor regarding DBRA requirements, including wage determinations, and Section 3 requirements as applicable to all HOME-funded projects.

9.3 Build America, Buy America (BABA) Act

9.3.1 The Build America, Buy America Act, enacted as part of the Infrastructure Investment and Jobs Act on November 15, 2021, established a domestic content procurement preference for all Federal financial assistance obligated for infrastructure projects after May 14, 2022. The domestic content procurement preference requires that all iron, steel manufactured products, and construction materials used in covered infrastructure projects are produced in the United States.

9.3.2 The BABA Act is applicable to all Federally financial assisted projects where funds #7..
- 137 -
appropriated or otherwise made available and used for a project for infrastructure.

9.4 Violence Against Women Act (VAWA)

9.4.1 The Violence Against Women Act (VAWA) requirements set forth in 24 CFR part 5, subpart L, apply to all HOME tenant-based rental assistance and rental housing assisted with HOME funds, as supplemented by this section.

9.4.1.1 For the HOME program, the “covered housing provider,” as this term is used in HUD's regulations in 24 CFR part 5, subpart L, refers to:

9.4.1.1.1 The housing owner for the purposes of 24 CFR 5.2005(d)(1), (d)(3), and (d)(4) and § 5.2009(a); and

9.4.1.2 The participating jurisdiction and the owner for purposes of 24 CFR 5.2005(d)(2),

5.2005(e), and 5.2007, except as otherwise provided in paragraph (g) of this section.

9.4.2 Effective date. The core statutory protections of VAWA that prohibit denial or termination of assistance or eviction solely because an applicant or tenant is a victim of domestic violence, dating violence, sexual assault, or stalking became applicable upon enactment of VAWA 2013 on March 7, 2013. Compliance with the VAWA regulatory requirements under this section and 24 CFR part 5, subpart L, are required for any tenant-based rental assistance or rental housing project for which the date of the HOME funding commitment is on or after December 16, 2016.

9.4.3 For HOME-assisted units. The owner of HOME-assisted rental housing must provide the notice and certification form described in 24 CFR 5.2005(a) to the applicant for a HOMEassisted unit at the time the applicant is admitted to a HOME-assisted unit, or denied admission to a HOME-assisted unit based on the owner's tenant selection policies and criteria. The owner of HOME-assisted rental housing must also provide the notice and certification form described in 24 CFR 5.2005 with any notification of eviction from a HOME-assisted unit.
10 Project Implementation

10.1 Income Determination and Eligibility

10.1.1 Individuals receiving assistance through the HOME program must be determined income eligible using the most current definition of IRS Form 1040 Adjusted Annual Gross Income. Individuals receiving rental assistance must be determined income eligible using the most current definition of the "Part 5" Annual Income as defined at 24 CFR 5.609. The income eligibility determination is the responsibility of the entity providing the assistance, not that of the City of Modesto.

10.1.2 Initial income must be verified via third-party documentation. Income must be recertified annually in accordance with HOME regulations, utilizing third-party documentation. A minimum of three (3) months of income source documentation shall be reviewed when determining income.

10.1.3 Applicant requirements and documentation must be consistent for all participants of a project (i.e. criminal history checks, credit reports, etc.)

10.2 Lead-based Paint

10.2.1 Housing that is purchased, rehabilitated, or assisted in some way with HOME is subject to the Lead-based Paint Poisoning Prevention Act, the Residential Lead-based Paint Hazard Reduction Act and the implementing regulations for these Acts. #7..
- 138 -

10.2.2 HUD maintains a website for the Office of Healthy Homes and Lead Hazard Control where lead- based paint requirements are described as they apply to HUD programs.

The website is www.hud.gov/offices/lead/index.cfm.

10.2.3 Applicants for HOME funds shall discuss acquisition projects where units that are older than 1978 are being purchased with City of Modesto program staff prior to purchase.

10.2.4 Testing for lead, an assessment of its presence, and a plan for stabilization or removal will be required if HOME funds are used to acquire pre-1978 units. Testing for lead, an assessment of its presence, and a plan for stabilization or removal will be required if HOME funds are used to acquire pre-1978 units, and as otherwise required to comply with all applicable HUD regulations.

10.3 Record Retention

10.3.1 All records must be maintained and accessible for a minimum of five (5) years beyond the end of the affordability period.

10.4 General

10.4.1 In the event there is a turnover in agency staff administering any HOME funded project, the City of Modesto must be notified within thirty (30) days in order to provide technical assistance to new and/or reassigned staff to ensure program compliance.

10.4.2 All applications for funding of more than one unit are required to provide an operating Pro Forma for the length of time that is required by the maximum regulation.

10.4.2.1 Pro Formas for under the maximum regulation will be considered on a case-by-case basis and must demonstrate that they are not required to operate for the max term.

Applications not containing this information will not be funded.

10.5 Relocation

10.5.1 HOME projects must comply with the Uniform Relocation Act (URA) whenever displacement occurs as a direct result of HOME-assisted rehabilitation, demolition or acquisition, including acquisition for homebuyer activities. If the proposed project is occupied at the time of application, contact the City of Modesto for detailed regulations. Failure to do so may result in disqualification of your application as you may be required to submit notifications as part of your application.

10.5.2 It is the expressed policy of City of Modesto to strictly comply with the URA and to minimize displacement. Please reference the City of Modesto’s Uniform Relocation Assistance and Real Property Acquisition Policies, Policies and Procedures for details. https://www.modestogov.com/1943/Housing-and-Urban-Development-Policy-Man

10.6 Cost Overruns

10.6.1 Applicants should make every effort to be realistic when developing the construction and development budgets. Construction budgets should be comprehensive and should consider items such as the removal of lead-based paint and asbestos, and other entitlement factors.

10.6.2 The City does not keep a reserve account for cost overruns.

10.6.3 Funds will not be available to pay for cost overruns.

10.6.4 Overruns will be the responsibility of the owner or developer and can only come from funds already committed to the project such as Developer Fees or other soft costs.

10.7 The protocol for payment of HOME funds to the project is:

Commented [BR1]: Does this apply?
#7..
- 139 -

10.7.1 GAP Financing and cannot exceed the result of the maximum subsidy layering calculation, and the City reserves the right to provide gap funding in the amount needed to successfully produce the project even if this amount is below the maximum subsidy layering calculation cap.

10.7.2 Developer fees are considered at the time of underwriting and will not exceed the amount listed in the City’s Affordable Housing Notice of funding Availability guide.

10.7.2.1 The final payment of Developer fees will be the last funds paid for a project. In the event of cost overruns, developer fees must be used as a contingency fund if no other funds are available from the originally approved sources and uses budget.

10.8 Match Requirements

10.8.1 All projects for HOME assistance must provide a minimum of 25% match. Homebuyer projects will be subject to Section 92.221(d).

10.8.2 Eligible forms of project match include:

10.8.2.1 Cash contributions from non-federal sources

10.8.2.2 Participation of Federal Home Loan Bank Affordable Housing Program, Trust Fund, State and other public or private sources

10.8.2.3 Grants contributing to a below-market interest rate loan

10.8.2.4 Waived fees for a HOME-eligible project

10.8.2.5 Donation of real property

10.8.2.6 Donated labor and/or sweat equity

10.8.3 Ineligible forms of match include:

10.8.3.1 Owner equity or investment in a project

10.8.3.2 Interest rate subsidy attributable to the Federal tax-exemption on financing or Federal tax credits

10.8.3.3 Cash or other forms of contributions from applicants or recipients of HOME assistance (with the exception of sweat equity).

10.8.4 Documentation of match must be submitted to the City of Modesto at application and confirmed at project completion.

10.8.5 Agencies must also maintain documentation of match for a minimum of five (5) years after the completion of the project.
11 Types of Housing

11.1 HOME funds may be used for the construction or purchase of single-family (one unit) homes, doubles (two units sharing a common wall but owned individually), townhomes, cooperatives, and/or multi-unit rental apartments. All housing units developed with HOME assistance (homeownership and rental) must be affordable to buyer and renter households earning 80% of Area Median Income (AMI) or below.

11.2 Construction may be one or a combination of several methods including stick-built, panelized, or modular. Mobile and manufactured homes are not eligible for HOME funding assistance. For the purposes of this manual, the following definitions apply:

11.2.1 Stick-Built - a house that is constructed primarily on-site from raw materials. This construction method may utilize some pre-constructed elements such as roof framing.

11.2.2 Panelized - a house that is brought to the construction site in pre-built panels (wall sections), assembled on-site, and finished. Panelized houses are stick built houses with #7..
- 140 -
some of the components constructed off-site.

11.2.3 Modular - a home which is stick-built in modules (two or more boxes) in a factory, transported to the site by truck, and placed on a permanent basement or crawl space foundation. The modules are bolted together, finished and may also involve on-site additions i.e. porches, garages, and other customization. These houses are essentially the same as stick-built on-site only the majority of the construction is accomplished in a controlled factory environment.

11.2.4 Manufactured - a house that is fully constructed as a single unit in a factory, brought to the site by truck and placed on a fixed foundation.

11.3 For projects that require acquisition of land or property, the agency may obtain a purchase option agreement in lieu of full ownership.

11.4 The agreement must state that the purchase of the property is contingent upon the results of the National Environmental Policy Act (NEPA) review and the release of funds by HUD.

11.5 Verification of acquisition is required to be submitted to the City after closing. 12 Rental Projects

12.1 HOME funds may be used for acquisition, new construction, or rehabilitation of affordable rental housing. Owners of the rental housing may be small property owners, for-profit developers, non-profit housing providers, CHDOs or government agencies.

Owners will be monitored by the City to ensure compliance in occupancy, rent restrictions, affordability requirements, and property standards. Additionally, an on-site inspection will be required to be conducted a minimum of once every three (3) years.

12.2 General Requirements

12.2.1 Funds may not be committed to a project until:

12.2.1.1 all necessary project financing is secured,

12.2.1.2 a budget and time schedule are established and

12.2.1.3 underwriting and subsidy layering review are completed, as noted in Appendix 3.

12.2.1.4 Construction must commence within 12 months of the project commitment.

12.2.1.5 Agreements will not be signed until this information has been submitted to and approved by the City of Modesto.

12.2.2 Project records must be maintained by the owner for a minimum of five (5) years beyond the required affordability period.

12.3 Property Standards

12.3.1 New Construction

12.3.1.1 All newly constructed rental units must meet the applicable State and Local residential and building codes upon project completion.

12.3.1.2 All newly constructed rental units must also meet the accessibility requirements of 24 CFR Part 8 (implements Section 504 of the Rehabilitation Act of 1973) and Titles II and III of the Americans with Disabilities Act implemented at 28 CFR Parts 35 and 36, as applicable. Covered multifamily dwellings, (buildings consisting of 4 or more dwelling units if such buildings have one or more elevators; and ground floor dwelling units in other buildings consisting of 4 or more dwelling units) must also meet design and construction requirements at 24 CFR 100.205, which implements #7..
- 141 -
the Fair Housing Act (42 U.S.C. 3601-3619).

12.3.2 Rehabilitation

12.3.2.1 City of Modesto has adopted a modified version of the Minimum Housing Quality Standards (HQS) as the standard for all rehabilitation work.

12.3.2.2 Eligible projects may be existing one or more multifamily buildings with rental units on a single site; or multiple sites that are under common ownership, management and financing. In no case shall funding be provided for a unit to be converted to a rental unit if the existing use or former use was owner-occupied housing.

12.3.2.3 A Capital Needs Assessment is required for rehabilitation projects with a total of 26 or more units. The City will require that the scope of the rehabilitation work and replacement reserves deposits are sufficient to ensure the useful life of essential building components throughout the required Affordability Period.

12.3.2.4 Useful Life of Major Systems and Capital Needs Assessments

12.3.2.4.1 The 2013 Final Rule requires a Capital Needs Assessment to estimate the useful life of major systems when HOME funds assist a project. To this extent, the City is required to estimate the remaining useful life of major systems (based on age and current condition). Where it is estimated that the useful life is less than the affordability period, the City through project underwriting is required to ensure that a replacement reserve is established, and annual payments made to the replacement reserve are adequate to replace and/or replace major systems when needed. The City reserves the right to inspect Major Life Systems and may require owner to conduct Capital Needs Assessment periodically during affordability period, as necessary to comply with HUD requirements.

12.3.2.4.2 HOME funds are not eligible to fund replacement reserve accounts, but a larger HOME subsidy may be permitted to reduce debt payments and overall operating expenses, allowing a larger share of operating revenue to fund the replacement reserves.

12.3.2.4.3 For homeowner acquisition and/or rehabilitation projects and rehabilitation of owner-occupied housing, the City of Modesto is required to ensure that each major system has a remaining useful life of at least five (5) years at the time of project completion.

12.3.2.4.4 Major systems with a useful life of less than five years after project completion would be required to be rehabilitated or replaced to meet this requirement.

12.3.3 Fixed/Floating Units

12.3.3.1 For properties with both HOME-assisted and Non-HOME-assisted units (which is usually the case in the City HOME Program's funding history), HOME regulations require that a choice between fixed and floating unit designation must be determined at the time of project commitment.

12.3.3.2 A fixed unit designation requires that specific units be identified for HOME rent and occupancy restrictions. A floating unit designation indicates that the HOMEassisted units may change over time as long as the total number of HOME=assisted units in the project remains constant.

12.3.3.3 It is the policy of the City HOME Program to always fund only floating units and #7..
- 142 -
this designation is to be understood in all new City HOME Program funded rental projects.

12.3.4 Site and Neighborhood Standards

12.3.4.1 New construction rental projects must ensure that the project conforms to the "Site and Neighborhood Standards" as described in 24CFR 983.6(b).

12.3.5 Project Completion

12.3.5.1 Rental projects are considered complete once construction is completed and the units are ready for occupancy. All HOME units within a rental project must be rented to an initial occupant within 18 months of project completion. All HOME funding will be required to be repaid to HUD for units not occupied within the 18-month time frame.

12.3.5.2 All HOME assisted units must be completed within four (4) years of signing the funding agreement between the Owner and the City of Modesto. Funds expended on units that are not complete within the required 4 years will result in the repayment of all HOME funding to the City of Modesto for reimbursement to HUD. Funding agreements must be signed within 12 months of the beginning of the program year.

12.3.6 Funding Levels

12.3.6.1 The minimum amount of funding that can be applied to a HOME assisted unit is $1,000.

12.3.6.2 The maximum amount of funding that can be applied to a HOME assisted unit is the 221(d)(3) limit as published each year and provided to the City of Modesto by HUD. The current limit is available upon request.

12.3.7 Tenant protections and selection

12.3.7.1 Lease. There must be a written lease between the tenant and the owner of rental housing assisted with HOME funds that is for a period of not less than 1 year, unless by mutual agreement between the tenant and the owner a shorter period is specified. The lease must incorporate the VAWA lease term/addendum required under § 92.359(e), except as otherwise provided by § 92.359(b).

12.3.7.1.1 Prohibited lease terms. The lease may not contain any of the following provisions:

12.3.7.1.1.1 Agreement to be sued. Agreement by the tenant to be sued, to admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease;

12.3.7.1.1.2 Treatment of property. Agreement by the tenant that the owner may take, hold, or sell personal property of household members without notice to the tenant and a court decision on the rights of the parties. This prohibition, however, does not apply to an agreement by the tenant concerning disposition of personal property remaining in the housing unit after the tenant has moved out of the unit.

The owner may dispose of this personal property in accordance with State law;

12.3.7.1.1.3 Excusing owner from responsibility. Agreement by the tenant not to hold the owner or the owner's agents legally responsible for any action or failure to act, whether intentional or negligent;

12.3.7.1.1.4 Waiver of notice. Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant;
#7..
- 143 -

12.3.7.1.1.5 Waiver of legal proceedings. Agreement by the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties;

12.3.7.1.1.6 Waiver of a jury trial. Agreement by the tenant to waive any right to a trial by jury;

12.3.7.1.1.7 Waiver of right to appeal court decision. Agreement by the tenant to waive the tenant's right to appeal, or to otherwise challenge in court, a court decision in connection with the lease;

12.3.7.1.1.8 Tenant chargeable with cost of legal actions regardless of outcome.

Agreement by the tenant to pay attorney's fees or other legal costs even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses; and

12.3.7.1.1.9 Mandatory supportive services. Agreement by the tenant (other than a tenant in transitional housing) to accept supportive services that are offered.

12.3.7.2 Termination of tenancy. An owner may not terminate the tenancy or refuse to renew the lease of a tenant of rental housing assisted with HOME funds, except for serious or repeated violation of the terms and conditions of the lease; for violation of applicable Federal, State, or local law; for completion of the tenancy period for transitional housing or failure to follow any required transitional housing supportive services plan; or for other good cause. Good cause does not include an increase in the tenant's income or refusal of the tenant to purchase the housing. To terminate or refuse to renew tenancy, the owner must serve written notice upon the tenant specifying the grounds for the action at least 30 days before the termination of tenancy.

12.3.7.3 The Owner must comply with the Affirmative Marketing Policy (Appendix 1). The Owner must also adopt and follow written tenant selection policies and criteria (24 CFR 92.253 (d)) that are approved as part of the Underwriting process.

12.3.7.3.1 The Owner must submit the tenant selection policies and criteria to the City of Modesto with the funding agreement.

12.3.7.3.2 These policies and criteria must be approved by the City of Modesto prior to the leasing/renting of any properties.

12.3.8 Tenant selection. An owner of rental housing assisted with HOME funds must comply with the affirmative marketing requirements established by the participating jurisdiction pursuant to § 92.351(a). The owner must adopt and follow written tenant selection policies and criteria that:

12.3.8.1.1 Limit the housing to very low- income and low-income families;

12.3.8.1.2 Are reasonably related to the applicants' ability to perform the obligations of the lease (i.e., to pay the rent, not to damage the housing; not to interfere with the rights and quiet enjoyment of other tenants);

12.3.8.1.3 Limit eligibility or give a preference to a particular segment of the population if permitted in its written agreement with the participating jurisdiction (and only if the limitation or preference is described in the participating jurisdiction's consolidated plan).
#7..
- 144 -

12.3.8.1.3.1 Any limitation or preference must not violate nondiscrimination requirements in § 92.350. A limitation or preference does not violate nondiscrimination requirements if the housing also receives funding from a Federal program that limits eligibility to a particular segment of the population (e.g., the Housing Opportunity for Persons with AIDS program under 24 CFR part 574, the Shelter Plus Care program under 24 CFR part 582, the Supportive Housing program under 24 CFR part 583, supportive housing for the elderly or persons with disabilities under 24 CFR part 891), and the limit or preference is tailored to serve that segment of the population.

12.3.8.1.3.2 If a project does not receive funding from a Federal program that limits eligibility to a particular segment of the population, the project may have a limitation or preference for persons with disabilities who need services offered at a project only if:

12.3.8.1.3.2.1 The limitation or preference is limited to the population of families (including individuals) with disabilities that significantly interfere with their ability to obtain and maintain housing;

12.3.8.1.3.2.2 Such families will not be able to obtain or maintain themselves in housing without appropriate supportive services; and

12.3.8.1.3.2.3 Such services cannot be provided in a nonsegregated setting. The families must not be required to accept the services offered at the project. In advertising the project, the owner may advertise the project as offering services for a particular type of disability; however, the project must be open to all otherwise eligible persons with disabilities who may benefit from the services provided in the project.

12.3.8.1.3.3 Do not exclude an applicant with a certificate or voucher under the Section 8 Tenant-Based Assistance: Housing Choice Voucher Program (24 CFR part 982) or an applicant participating in a HOME tenant-based rental assistance program because of the status of the prospective tenant as a holder of such certificate, voucher, or comparable HOME tenant-based assistance document.

12.3.8.1.4 Provide for the selection of tenants from a written waiting list in the chronological order of their application, insofar as is practicable.

12.3.8.1.5 Give prompt written notification to any rejected applicant of the grounds for any rejection; and

12.3.8.1.6 Comply with the VAWA requirements prescribed in § 92.359.

12.3.8.1.6.1 Bifurcation of lease requirements. For the purposes of this part, the following requirements shall apply in place of the requirements at 24 CFR

5.2009(b):

12.3.8.1.6.1.1 If a family living in a HOME-assisted rental unit separates under 24 CFR 5.2009(a), the remaining tenant(s) may remain in the HOME-assisted unit.

12.3.8.1.6.2 VAWA lease term/addendum. The participating jurisdiction must develop a VAWA lease term/addendum to incorporate all requirements that apply to the owner or lease under 24 CFR part 5, subpart L, and this section, including the prohibited bases for eviction and restrictions on construing lease terms under 24 CFR 5.2005(b) and (c).
#7..
- 145 -

12.3.8.1.6.2.1 This VAWA lease term/addendum must also provide that the tenant may terminate the lease without penalty if the participating jurisdiction determines that the tenant has met the conditions for an emergency transfer under 24 CFR 5.2005(e), the VAWA lease term/addendum may be written to expire at the end of the rental assistance period.

12.3.8.1.6.3 Period of applicability. For HOME-assisted rental housing, the requirements of this section shall apply to the owner of the housing for the duration of the affordability period. For HOME tenant-based rental assistance, the requirements of this section shall apply to the owner of the tenant's housing for the period for which the rental assistance is provided.

12.3.8.1.7 Owners may terminate tenancy or refuse to renew a lease upon 30 days' written notice, and only for: serious or repeated violation of the terms and conditions of the lease; violation of applicable federal, state, or local law; completion of the tenancy period for transitional housing or for other good cause in accordance with 24 CFR 92.253(c).

12.3.9 Tenant Income Determinations

12.3.9.1.1 The HOME program has income targeting requirements for the HOME program and for HOME projects. Therefore, the participating jurisdiction must determine each family is income eligible by determining the family's annual income.

12.3.9.1.2 For families who are tenants in HOME-assisted housing and not receiving HOME tenant-based rental assistance, the participating jurisdiction must initially determine annual income using the method in paragraph (a)(1)(i) of this section.

For subsequent income determinations during the period of affordability, the participating jurisdiction may use any one of the following methods in accordance with § 92.252(h):

12.3.9.1.2.1 Examine at least 2 months of source documents evidencing annual income (e.g., wage statement, interest statement, unemployment compensation statement) for the family.

12.3.9.1.2.2 Obtain from the family a written statement of the amount of the family's annual income and family size, along with a certification that the information is complete and accurate. The certification must state that the family will provide source documents upon request.

12.3.9.1.2.3 Obtain a written statement from the administrator of a government program under which the family receives benefits and which examines each year the annual income of the family. The statement must indicate the tenant's family size and state the amount of the family's annual income; or alternatively, the statement must indicate the current dollar limit for very low- or low-income families for the family size of the tenant and state that the tenant's annual income does not exceed this limit.

12.3.9.1.3 When determining whether a family is income eligible, the owner must use adjusted gross income as defined for purposes of reporting under Internal Revenue Service Form 1040 series for individual Federal annual income tax purposes.

12.3.9.1.4 Annual income exclusions apply to programs under at 24 CFR 5.601 and 24 CFR

5.611.
#7..
- 146 -

12.3.9.1.4.1 The HOME rents for very low-income families established under §

92.252(b)(2) are based on adjusted income. In addition, the participating jurisdiction may base the amount of tenant-based rental assistance on the adjusted income of the family.

12.3.9.1.4.2 For HOME-assisted units. The owner of HOME-assisted rental housing must provide the notice and certification form described in 24 CFR 5.2005(a) to the applicant for a HOME-assisted unit at the time the applicant is admitted to a HOME-assisted unit or denied admission to a HOME-assisted unit based on the owner's tenant selection policies and criteria. The owner of HOME-assisted rental housing must also provide the notice and certification form described in 24 CFR 5.2005 with any notification of eviction from a HOME-assisted unit.

12.3.10 Tenant files must be maintained on all HOME units. Files must contain a current lease signed by the tenant, documentation of income, application and household information including family composition, documentation of Section 8 subsidy showing tenant and subsidized portions and documentation of correspondence with tenant, yearly income verifications, as well as any other pertinent information on the tenant (i.e. background/criminal checks, etc.)

12.3.11 Tenant participation plan.

12.3.11.1 A community housing development organization that receives assistance under this part must adhere to a fair lease and grievance procedure approved by the participating jurisdiction and provide a plan for and follow a program of tenant participation in management decisions.

12.3.12 Occupancy

12.3.12.1 Upon initial occupancy, renters must be at or below 50% of the Area Median Income (AMI). If after initial occupancy the family's income increases above 80% AMI, the family may continue to occupy the unit with the stipulation that they pay at least thirty percent (30%) of their adjusted monthly income as rent. An exception is made for units financed with Low Income Housing Tax Credits, in which case tax credit regulations apply.

12.3.12.2 In rental project of five (5) or more units, at least twenty percent (20%) of the HOME assisted units must be occupied by families with an annual gross income at or below fifty percent (50%) of the AMI. Rents for these units must be at or below the Low HOME rents. The City of Modesto's current policy is that all HOME assisted units in rental projects are subject to Low HOME rents.

12.3.12.3 All HOME assisted units must be fully occupied within 18 months of construction/rehab completion. Project completion is specified below. If a unit is not occupied within 18 months, the Owner will be required to repay the HOME funds that have been invested on that unit.

12.3.12.4 All tenants in HOME assisted units must have a lease that meets all of the requirements of the HOME program.

12.3.12.4.1 Leases

12.3.12.4.2 Lease must be for at least one year

12.3.12.4.3 Lease may not contain any of the following provisions:

12.3.12.4.3.1 Agreement to be sued: Agreement by the tenant to be sued, to #7..
- 147 -
admit guilt, or to a judgment in favor of the owner in a lawsuit brought in connection with the lease.

12.3.12.4.3.2 Treatment of property: Agreement by the tenant that the owner may seize or sell personal property of household
members without notice to the tenant and a court decision on the rights of the parties. This provision does not apply to disposition of personal property left by a tenant who has vacated a property.

12.3.12.4.3.3 Excusing owner from responsibility: Agreement by the tenant not to hold the owner or the owner's agents legally responsible for any action or failure to act, whether intentional or negligent.

12.3.12.4.3.4 Waiver of notice: Agreement of the tenant that the owner may institute a lawsuit without notice to the tenant.

12.3.12.4.3.5 Waiver of legal proceedings: Agreement of the tenant that the owner may evict the tenant or household members without instituting a civil court proceeding in which the tenant has the opportunity to present a defense, or before a court decision on the rights of the parties.

12.3.12.4.3.6 Waiver of a jury trial: Agreement by the tenant to waive any right to a trial by jury.

12.3.12.4.3.7 Waiver of right to appeal court decision: Agreement by the tenant to waive the tenant's right to appeal or to otherwise challenge in court a court decision in connection with the lease.

12.3.12.4.3.8 Tenant chargeable with cost of legal actions regardless of outcome: Agreement by the tenant to pay attorney's fees or other legal costs, even if the tenant wins in a court proceeding by the owner against the tenant. The tenant, however, may be obligated to pay costs if the tenant loses.

12.3.12.4.3.9 Mandatory supportive services: Agreement by the tenant (other than a tenant in transitional housing) to accept supportive services that are offered.

12.3.13 Rent Restrictions

12.3.13.1 Owners of HOME projects must keep units affordable to low-income tenants during the entire affordability period. Maximum rent limits are published by HUD annually and distributed to recipients of funds. In the event that limits go below the rate published at the time of contract execution, owners will not be required to lower rents and may retain their current rates.

12.3.13.2 Owners may request an increase in rent as rent limits change. However, the owners may not change a tenant's rent prior to the expiration date on the lease agreement. Owners must provide tenants at least thirty (30) days notification of rent increases. The City of Modesto shall review and approve all proposed rent increases.

12.3.14 Monitoring and Recordkeeping in rental housing
#7..
- 148 -

12.3.14.1 Third party documentation of income must be verified to determine eligibility prior to family moving in. Income documentation must be no more than three (3) months old. The tenant selection policy must conform with HUD requirements and must be approved in writing by the City.

12.3.14.2 Income must be verified annually to ensure compliance and maintained in the tenant's files. Third-party documentation must be performed every six (6) years.

12.3.14.3 Tenant files must be maintained for a minimum of five (5) years after the tenant vacates the unit.

12.3.14.4 All units must be maintained in compliance with HUD Housing Quality Standards and City of Modesto Minimum Housing Rehabilitation Standards and/or other governing jurisdiction building codes.

12.3.14.5 Owner must adhere to Equal Opportunity, Affirmative Marketing and Fair Housing (contained within these policies) practices in all marketing efforts, eligibility determinations and other transactions. Owners must solicit applications from persons in the housing market not likely to apply without special outreach efforts. All marketing efforts must be documented. The Owner may be required to complete an Affirmative Fair Housing Marketing Plan, to comply with HUD requirements.

12.3.14.6 The Equal Housing Opportunity Logo or statement must be used in all written communication and advertising of vacant units and must be displayed in the housing/ rental office.

12.3.14.7 No bidding or contracting may occur prior to written authorization of the City of Modesto. Failure to follow these requirements will cause the funding agreement to become void.

12.3.14.8 Progress inspections will be conducted by the City of Modesto in order to ensure that work is progressing in a timely manner, that the work is completed in accordance with the codes and construction contract and documents, and to initiate a progress payment. No final payment of HOME funds will be made until all construction is complete and the unit is ready for occupancy.

12.3.14.9 City of Modesto will monitor the project during the period of affordability. This will include on-site inspections to determine that the unit(s) continues to meet the property standards as well as a monitoring of files as required by HOME regulations.

The Owner may be required to pay a fee that will be invoiced to the Owner by the City of Modesto to cover the cost of on-going monitoring. 13 Homeownership Activities

13.1 Construction/Rehab of Homeownership Units for Resale

13.1.1 City of Modesto HOME funds may be utilized by entities for the construction or rehabilitation of units for resale for homeownership to qualified low-income (up to 80% of AMI) individuals and/or families.

13.1.2 Income Review must be determined annual income by examining at least 2 months of source documents evidencing annual income (e.g., wage statement, interest statement, unemployment compensation statement) for the family.

13.1.3 National Environmental Policy Act (NEPA) and historical reviews must be conducted by City of Modesto on every project. City of Modesto will notify the agency of #7..
- 149 -
documentation needed to complete the review. It is the responsibility of the owner/developer to insure that City of Modesto has all information necessary to complete the reviews. National Environmental Policy Act (NEPA) and historical reviews will be completed prior to the award of a Grant Agreement.

13.1.4 Projects may not commence and funds may not be expended (federal or non-federal) until the review is completed and HUD releases the project.

13.1.5 Agreements will only be signed upon the submission of project timeline final commitment of all funding sources, and the approval of the Request to Release grant funds.

13.1.6 Construction plans and/or work specifications must be submitted to City of Modesto to be reviewed prior to the execution of the HOME Grant Agreement between the City of Modesto and the owner/developer (non-profit). All plans must be approved prior to commencement of construction. Any changes to the approved plans must be submitted to City of Modesto for approval.

13.1.7 Funds may not be committed to a project until all necessary project financing is secured, a budget and time schedule are established and underwriting and subsidy layering review are completed, as noted in Appendix 2. Construction must commence within 12 months of the project commitment. Agreements will not be signed until this information has been submitted to and approved by the City of Modesto.

13.1.8 The City of Modesto will not approve an agreement until a buyer is pre-approved to purchase the property upon completion.

13.1.9 HOME Grant Agreements must be signed within fourteen (14) days of the receipt of the funding agreement from the City of Modesto.

13.1.10 Construction must begin within three (3) months of plans and/or work specification approval by the City of Modesto.

13.1.11 All legal notices and advertisements pertaining to construction of the project must be reviewed by the City of Modesto prior to publication.

13.1.12 All new construction projects must meet the federal energy efficiency standards and must meet or exceed building codes as established by City of Modesto.

13.1.13 All rehabilitation projects must meet the City of Modesto Minimum Housing

13.1.14 Quality Standards adopted by the City of Modesto and adopted local applicable building codes.

13.1.15 Construction files must be maintained and accessible for a minimum of five (5) years beyond the affordability period

13.2 Bid Procedures

13.2.1 All projects, except for CHDO projects, must be sent out for public bid regardless of other funding sources in the project. (Projects involving Low-Income Housing Tax Credit (LIHTC) funding may request a waiver of this requirement.) Bid documents must be approved by the City of Modesto prior to advertisement. Failure to receive prior approval will result the project non-compliance and termination of the funding agreement.

13.2.2 Bid packets must be available for pickup for a minimum of two (2) weeks.

13.2.3 Bids must be sealed when submitted to the agency. All bids will be opened by the agency at a pre-designated date and time.
#7..
- 150 -

13.2.4 City of Modesto staff and all bidders must be notified of date and time of bid opening.

13.2.5 Normally the lowest, responsive bidder will be awarded the contract. In the event the agency selects a bid other than the lowest, they must submit the bids along with documentation to support the selection to the City of Modesto for approval. This may or may not be approved by the City of Modesto.

13.3 Payment/Release of funds

13.3.1 Entities receiving HOME funding commitments will submit requests for payment according to their funding agreement. Failure to draw funds in a timely manner could result in a reduction of funding. Requests for payment may be made as often as needed. Requests for payment will be made via the Neighborly portal platform.

13.3.2 Funds are disbursed on a reimbursement basis. If the Agency is unable to meet the cost of construction and/or services on a reimbursement basis, payment terms must be discussed and approved by City prior to construction.

13.3.3 Agencies must submit one copy of a Request for Payment form along with copies of the invoice from the contractor or service provider to support the release of funding.

Claims submitted without proper documentation will be returned to the Agency.

13.3.4 The City may hold payment including final payment for the project pending inspection and approval by the City for possible Davis Bacon and all other federal requirements as well as requirements of the Grant Agreement. The funds will not be released until the City of Modesto has received and approved all required documentation. All new construction projects must have a Certificate of Occupancy from City or other governing jurisdiction. All rehab projects must be inspected by a City and have documentation indicating the property complies with building code regulations.

13.4 Project Completion

13.4.1 Upon completion, HOME rental and homebuyer housing must meet the following requirements, per 24 CFR 92.251.

13.4.1.1 For all housing types see Appendix 4 – Property Standards for HOME-Assisted Housing
14 Owner Occupied Housing Rehabilitation

14.1 The City’s owner-occupied housing rehabilitation program is under guidance and direction from the Section 6 Homeowner Rehabilitation Program Policies and Procedures; https://www.modestogov.com/DocumentCenter/View/6199/Section-6---HomeownersRehabilitation-Program-Policies-and-Procedures

14.2 Income Review must be determined annual income by examining at least 2 months of source documents evidencing annual income (e.g., wage statement, interest statement, unemployment compensation statement) for the family.
15 CHDO

15.1 Federal regulations require a minimum of 15% of the annual HOME allocation to the City be set aside for housing projects that are owned, sponsored or developed by CHDOs. A CHDO is a non-profit organization that meets a variety of criteria outlined in the HOME regulations. HUD has specific requirements to qualify as the owner, sponsor, #7..
- 151 -
or developer.

15.1.1 CHDO funds are available on annual basis. Existing CHDO's are required to submit a CHDO Recertification application to the City each year.

15.2 Rental Housing

15.2.1 OWNER - A CHDO that is an owner is required to own the HOME project during the development and throughout the period of affordability, and is required to hire a project manager or have a contract with a development contractor to oversee all aspects of the development.

15.2.2 DEVELOPER - A CHDO that is a developer of rental housing must arrange for the construction financing and is in sole charge of the construction, and must own the HOME-assisted housing throughout the period of affordability.

15.2.3 SPONSOR - A CHDO that is a sponsor of HOME-assisted rental housing "owns" and "develops" the rental housing project that it agrees to convey to a private non-profit organization at a predetermined time after completion of the development of the project.

15.3 Homebuyer Projects

15.3.1 DEVELOPER - Housing is developed by a CHDO if it is the owner (in fee simple absolute, or long-term ground leases) and developer of new housing that will be constructed or existing substandard housing that is owned or will be acquired by the CHDO and rehabilitated for sale to low-income families, in accordance with 92.254.

The CHDO must arrange financing of the project and be in sole charge of the construction.

15.3.2 Sole General Partner

15.3.2.1 24 CFR 92.300(a)(a1) requires that if a CHDO owns a project in partnership, or owns the project through its wholly-owned for-profit or non-profit subsidiary, it must be the managing general partner. This also extends to LLCs.

15.4 CHDO Commitment of Funds

15.4.1 Applications for City of Modesto HOME funds are solicited on a continuous basis, with the exception of CHDO funds, (subject to fund availability) and reviewed competitively.

15.4.2 CHDO funds must be committed by City of Modesto within 24 months of the obligation of HOME funds from HUD. Funds may not be committed to a project until all necessary project financing is secured, a budget and time schedule are established and underwriting and subsidy layering review are completed, as noted in Appendix 2.

Construction must commence within 12 months of the project commitment.

15.4.3 The City of Modesto urges CHDOs, which plan to submit applications for projects, to plan well in advance so that all financing is secured and the budget and time schedule are completed. This ensures that HOME funding may be utilized and that no funds will be withdrawn from the project for lack of being able to move forward and meet the HOME requirements.

15.4.4 The City of Modesto will not undertake the underwriting and subsidy layering review until all funding has been identified.

15.4.5 The CHDO and City of Modesto will enter into a written agreement which will stipulate all of the conditions of the HOME funding as well as the legal documents that will need to be signed and/or recorded for the project. #7..
- 152 -

15.4.6 CHDOs must apply for certification as a City of Modesto CHDO at the time of project application. It is recommended to begin work on this process prior to application submission as it may take some time for the City to certify.

15.4.7 CHDO Certification

15.4.7.1 An organization that meets the requirements of a CHDO found at 24 CFR 92.300 may apply for City CHDO Certification. This application must be done at the same time that application for funding is made. City of Modesto will certify only those organizations applying for CHDO set- aside funding each year. City of Modesto reserves the right to make the final determination on whether an organization meets all of the requirements of the HOME regulations.

15.4.8 CHDO Policies and Procedures

15.4.8.1 CHDO Policies and Procedures are reviewed and modified as needed on an annual basis. Those policies and procedures are included as a part of the City approved application portal https://portal.neighborlysoftware.com/MODESTOCA/participant

15.4.8.2 The applications and information should be made available to the City as well.

15.5 Community Housing Development Organizations (CHDOs) Records.

15.5.1 Written agreements committing HOME funds to CHDO projects in accordance with §

92.300(a).

15.5.2 Records setting forth the efforts made to identify and encourage CHDOs, as required by § 92.300(b).

15.5.3 The name and qualifications of each CHDO and amount of HOME CHDO set-aside funds committed.

15.5.4 Records demonstrating that each CHDO complies with the written agreements required by § 92.504.

15.5.5 Records concerning the use of CHDO setaside funds, including funds used to develop CHDO capacity pursuant to § 92.300(b).

15.5.6 Records concerning the use of funds for CHDO operating expenses and demonstrating compliance with the requirements of §§ 92.208, 92.300(e) and 92.300(f).

15.5.7 Records concerning the tenant participation plan required by § 92.303.

15.5.8 Records concerning project-specific assistance to CHDOs pursuant to § 92.301, including the impediments to repayment, if repayment is waived. 16 Monitoring

16.1 Projects will be monitored based on the specific regulatory requirements for all the layered funding source.

16.2 The City may charge fees to cover the cost of ongoing monitoring and physical inspection of developments period of affordability, that at a minimum adheres to CFR 92.252.

16.3 Some projects may have an extended affordability term to meet other funding requirements and is determined at the point of underwriting and included in the Regulatory Agreement at the time of Commitment.

16.4 Rental Projects, in accordance with the updated 2013 Final Rule, will be monitored a minimum of every 3 years.

16.5 While under construction, projects will be monitored more frequently at the discretion of City.
#7..
- 153 -

16.6 Follow-up monitoring and inspections will be completed in accordance with HUD guidelines. There will be a physical inspection of all HOME projects every 3 years.

16.7 During the Affordability Period, rental projects that contain 10 or more HOME-assisted units will be required to submit financial reports annually to the City.

16.7.1 Financial reports may include copies of the Operating Budget, Balance Sheet and Profit and Loss Statement, Rent Roll, as well as certified Audits.

16.7.1.1 The City will assess the financial condition of the project to ensure continued compliance with HOME Program requirements and to prevent project failure and repayment of HOME funds.

16.7.1.2 Where feasible, the City is required to take action to correct problems that threaten the project’s financial viability.

16.7.1.2.1 City of Modesto actions may consist of the following:

16.7.1.2.1.1technical assistance,

16.7.1.2.1.2 increased oversight,

16.7.1.2.1.3financial modifications,

16.7.1.2.1.4consultations with HUD and other project stakeholders,

16.7.1.2.1.5 foreclosure,

16.7.1.2.1.6transfer of project ownership

16.7.1.2.1.7receivership.
17 Affordability Period

17.1 HOME project owners/buyers are required to maintain HOME funded properties as affordable for a minimum affordability period based on the amount of HOME funds spent on the project. The guidelines are as follows:

17.1.1 HOME rental project owners are subject to a minimum 15-year affordability period (but more typically 20 years), regardless of funds invested, (See 92.206(b)(2)).

Under $15,000 per unit 5 years
$15,000 - $40,000 per unit 10 years
Over $40,000 15 years
New construction or acquisition within
one year of construction (for rental)
projects)
20 years

17.1.2 A deed restriction and/or restrictive covenant will be prepared by the City of Modesto, a subrecipient, or a CHDO, and must be signed by the owner/buyer. The agreement will establish the occupancy and affordability requirements for the property as well as the owner's obligations to the City of Modesto.

17.1.3 In signing the agreement, the owner will agree to the restrictions on the use of the property set forth in the document. This agreement will be recorded by the City of Modesto, its sub-recipient, or CHDO, in the office of the Stanislaus County Clerk Recorder and bind the project owner and all subsequent owners for the full term of the agreement.

17.1.4 In the event the Property or any interest therein is sold, refinanced, conveyed or transferred without advanced written consent of CITY during the period of the Affordable Housing Covenant, CITY shall be entitled to share in the sale proceeds under the recapture provision.
#7..
- 154 -

17.1.5 Pursuant to 24 CFR 92.254 (a) (5) (ii), CITY requires that HUD Funds be recaptured if the Property does not continue to be the principal residence of BUYER for the duration of the Affordable Housing Covenant. If all or any portion of the Property or any interest in it is sold, refinanced, conveyed or transferred the “Equity” as hereafter defined, in the Property shall be shared between BUYER and CITY on the following basis:

Number of Years
After Date of Purchase
BUYER’s Equity Share CITY’s Equity Share
0-5 25% 75%
6-10 50% 50%
11-15 75% 25%
Thereafter 100% 0%

17.1.6 If, for example, the Property is sold, rented, refinanced (outside the City’s allowable terms), conveyed, or transferred in the first year of the Affordable Housing Covenant, BUYER shall receive fifty percent (50%) of the Equity in the Property and the CITY shall receive fifty percent (50%) of the Equity. “Equity” is defined as the dollar amount that constitutes the difference between the sales price of the Property and the sum of the following amounts:

17.1.6.1.1 The principal on a Promissory Note and Deed of Trust from private financing; and

17.1.6.1.2 The principal on the Promissory Note, and Deed of Trust to CITY; and

17.1.6.1.3 All costs of sale, including costs of brokers’ commissions, escrow fees, title costs and fees, recording charges, etc.; and

17.1.6.1.4 Current year taxes, including all pro-rata real estate taxes calculated to the date of sale; and

17.1.6.1.5 BUYER’s down payment or cash contribution not including the Assumed Debt; and

17.1.6.1.6 the costs of any improvements to the Property, provided such improvements were approved by the CITY prior to construction and provided that such improvements have been documented to the satisfaction of CITY.

17.1.7 In the event that no Equity exists at the time of transfer or sale, the current balance of the Debt under the Promissory Note and Deed of Trust will still be due and payable.

17.1.8 In the event that a negative Equity exists at the time of transfer or sale, and the full amount of the current balance of the Promissory Note is not available to be recaptured, the amount of the HUD Funds required to be repaid to CITY shall be as set forth in 24 CFR 92.254(a) (ii) (A) (3). The formulas are as follows:

HUD Funds x Net Proceeds = HUD Funds amount to be recaptured HUD Funds + BUYER’S Investment
BUYER’S Investment x Net Proceeds = Amount to BUYER
HUD Funds + BUYER’s Investment
#7..
- 155 -
HUD Funds means the amount of Debt assumed under the Promissory Note and Deed of Trust.

17.1.9 BUYER’s Investment means the amount of down payment or other cash contribution towards purchase of the Property and the amount of any capital improvements made by BUYER to the Property since BUYER’s purchase. Capital improvements must be documented with receipts and provided to CITY at time of recapture proceedings.
18 § 92.508 Recordkeeping per 24 CFR 92.508

18.1 General. Each participating jurisdiction must establish and maintain sufficient records to enable HUD to determine whether the participating jurisdiction has met the requirements of this part. At a minimum, the following records are needed:

18.1.1 Records concerning designation as a participating jurisdiction.

18.1.1.1 For a consortium, the consortium agreement among the participating member units of general local government as required by § 92.101.

18.1.1.2 For a unit of general local government receiving a formula allocation of less than $750,000 (or less than $500,000 in fiscal years in which Congress appropriates less than $1.5 billion for this part), records demonstrating that funds have been made available (either by the State or the unit of general local government, or both) equal to or greater than the difference between its formula allocation and $750,000 (or $500,000 in fiscal years in which Congress appropriates less than $1.5 billion) as required by § 92.102(b).

18.2 Program records.

18.2.1 Records of the efforts to maximize participation by the private sector as required by §

92.200.

18.2.2 The forms of HOME assistance used in the program, including any forms of investment described in the Consolidated Plan under 24 CFR part 91 that are not identified in § 92.205(b), and which are specifically approved by HUD.

18.2.3 The underwriting and subsidy layering guidelines adopted in accordance with §

92.250 that support the participating jurisdiction's Consolidated Plan certification.

18.2.4 If existing debt is refinanced for multi-family rehabilitation projects, the refinancing guidelines established in accordance with § 92.206(b), described in the Consolidated Plan.

18.2.5 If HOME funds are used for tenant-based rental assistance, records supporting the participating jurisdiction's Consolidated Plan certification in accordance with §

92.209(b), including documentation of the local market conditions that led to the choice of this option; written selection policies and criteria; supporting documentation for preferences for specific categories of individuals with disabilities; and records supporting the rent standard and minimum tenant contribution established in accordance with § 92.209(h).

18.2.6 If HOME funds are used for tenant-based rental assistance or rental housing, records evidencing that not less than 90 percent of the families receiving such rental assistance meet the income requirements of § 92.216.
#7..
- 156 -

18.2.7 If HOME funds are used for homeownership housing, the procedures used for establishing 95 percent of the median purchase price for the area in accordance with §

92.254(a)(2), in the Consolidated Plan.

18.2.8 If HOME funds are used for acquisition of housing for homeownership, the resale or recapture guidelines established in accordance with § 92.254(a)(5), as set forth in the Consolidated Plan.

18.2.9 Records demonstrating compliance with the matching requirements of § 92.218 through § 92.222 including a running log and project records documenting the type and amount of match contributions by project.

18.2.10 Records documenting compliance with the 24 month commitment deadline of §

92.500(d).

18.2.11 Records demonstrating compliance with the fifteen percent CHDO set-aside requirement of § 92.300(a).

18.2.12 Records documenting compliance with the ten percent limitation on administrative and planning costs in accordance with § 92.207.

18.3 Project records.

18.3.1 A full description of each project assisted with HOME funds, including the location (address of each unit), form of HOME assistance, and the units or tenants assisted with HOME funds.

18.3.2 The source and application of funds for each project, including supporting documentation in accordance with 2 CFR 200.302; and records to document the eligibility and permissibility of the project costs, including the documentation of the actual HOME-eligible development costs of each HOME-assisted unit (through allocation of costs, if permissible under § 92.205(d)) where HOME funds are used to assist less than all of the units in a multi-unit project.

18.3.3 Records demonstrating that each rental housing or homeownership project meets the minimum per-unit subsidy amount of § 92.205(c), the maximum per-unit subsidy amount of § 92.250(a), and the subsidy layering and underwriting evaluation adopted in accordance with § 92.250(b).

18.3.4 Records (e.g., inspection reports) demonstrating that each project meets the property standards of § 92.251 at project completion. In addition, during the period of affordability, records for rental projects demonstrating compliance with the property standards and financial reviews and actions pursuant to § 92.504(d).

18.3.5 Records demonstrating that each family is income eligible in accordance with §

92.203.

18.3.6 Records demonstrating that each tenant-based rental assistance project meets the written tenant selection policies and criteria of § 92.209(c), including any targeting requirements, the rent reasonableness requirements of § 92.209(f), the maximum subsidy provisions of § 92.209(h), property inspection reports, and calculation of the HOME subsidy.

18.3.7 Records demonstrating that each rental housing project meets the affordability and income targeting requirements of § 92.252 for the required period. Records must be kept for each family assisted.

18.3.8 Records demonstrating that each multifamily rental housing project involving #7..
- 157 -
rehabilitation with refinancing complies with the refinancing guidelines established in accordance with § 92.206(b).

18.3.9 Records demonstrating that each lease for a tenant receiving tenant-based rental assistance and for an assisted rental housing unit complies with the tenant and participant protections of § 92.253. Records must be kept for each family.

18.3.10 Records demonstrating that the purchase price or estimated value after rehabilitation for each homeownership housing project does not exceed 95 percent of the median purchase price for the area in accordance with § 92.254(a)(2). The records must demonstrate how the estimated value was determined.

18.3.11 Records demonstrating that each homeownership project meets the affordability requirements of § 92.254 for the required period.

18.3.12 Records demonstrating that any pre-award costs charged to the HOME allocation meet the requirements of § 92.212.

18.3.13 Records demonstrating that a site and neighborhood standards review was conducted for each project which includes new construction of rental housing assisted under this part to determine that the site meets the requirements of 24 CFR 983.57(e)(2) and (e)(3), in accordance with § 92.202.

18.3.14 Records (written agreements) demonstrating compliance with the written agreements’ requirements in § 92.504.

18.4 Financial records.

18.4.1 Records, in accordance with 2 CFR 200.302, identifying the source and application of funds for each fiscal year, including the formula allocation, any reallocation (identified by federal fiscal year appropriation), and any State or local funds provided under §

92.102(b).

18.4.2 Records concerning the HOME Investment Trust Fund Treasury account and local account required to be established and maintained by § 92.500, including deposits, disbursements, balances, supporting documentation and any other information required by the program disbursement and information system established by HUD.

18.4.3 Records identifying the source and application of program income, repayments and recaptured funds.

18.4.4 Records demonstrating adequate budget control and other records required by 2 CFR 200.302, including evidence of periodic account reconciliations.

18.5 Program administration records.

18.5.1 Written policies, procedures, and systems, including a system for assessing risk of activities and projects and a system for monitoring entities consistent with this section, to ensure that the requirements of this part are met.

18.5.2 Records demonstrating compliance with the written agreements required by §

92.504.

18.5.3 Records demonstrating compliance with the applicable uniform administrative requirements required by § 92.505.

18.5.4 Records documenting required inspections, monitoring reviews and audits, and the resolution of any findings or concerns.

18.6 Records concerning other Federal requirements —

18.6.1 Equal opportunity and fair housing records.
#7..
- 158 -

18.6.1.1 Data on the extent to which each racial and ethnic group and single-headed households (by gender of household head) have applied for, participated in, or benefited from, any program or activity funded in whole or in part with HOME funds.

18.6.1.2 Documentation of the actions the participating jurisdiction has taken to affirmatively further fair housing pursuant to §§ 5.151, 5.152, 91.225, 91.325, and

91.425 of this title.

18.6.2 Affirmative marketing and MBE/WBE records.

18.6.2.1 Records demonstrating compliance with the affirmative marketing procedures and requirements of § 92.351.

18.6.2.2 Documentation and data on the steps taken to implement the jurisdiction's outreach programs to minority-owned (MBE) and female-owned (WBE) businesses including data indicating the racial/ethnic or gender character of each business entity receiving a contract or subcontract of $25,000 or more paid, or to be paid, with HOME funds; the amount of the contract or subcontract, and documentation of participating jurisdiction's affirmative steps to assure that minority business and women's business enterprises have an equal opportunity to obtain or compete for contracts and subcontracts as sources of supplies, equipment, construction, and services.

18.6.3 Records demonstrating compliance with the environmental review requirements of §

92.352 and 24 CFR part 58, including flood insurance requirements.

18.6.4 Records demonstrating compliance with the requirements of § 92.353 regarding displacement, relocation, and real property acquisition, including project occupancy lists identifying the name and address of all persons occupying the real property on the date described in § 92.353(c)(2)(i)(A), moving into the property on or after the date described in § 92.353(c)(2)(i)(A), and occupying the property upon completion of the project.

18.6.5 Records demonstrating compliance with the labor requirements of § 92.354, including contract provisions and payroll records.

18.6.6 Records demonstrating compliance with the lead-based paint requirements of part 35, subparts A, B, J, K, M and R of this title.

18.6.7 Records supporting exceptions to the conflict of interest prohibition pursuant to §

92.356.

18.6.8 Records demonstrating compliance with debarment and suspension requirements in 2 CFR part 2424.

18.6.9 Records concerning intergovernmental review, as required by § 92.357.

18.6.10 Records of emergency transfers requested under 24 CFR 5.2005(e) and 92.359 pertaining to victims of domestic violence, dating violence, sexual assault, or stalking, including data on the outcomes of those requests.

18.6.11 Documentation of actions undertaken to meet the requirements of 24 CFR part 75 which implements section 3 of the Housing Development Act of 1968, as amended (12 U.S.C. 1701u).

18.7 Period of record retention. All records pertaining to each fiscal year of HOME funds must be retained for the most recent five year period, except as provided below.

18.7.1 For rental housing projects, records may be retained for five years after the project #7..
- 159 -
completion date; except that records of individual tenant income verifications, project rents and project inspections must be retained for the most recent five year period, until five years after the affordability period terminates.

18.7.2 For homeownership housing projects, records may be retained for five years after the project completion date, except for documents imposing recapture/resale restrictions which must be retained for five years after the affordability period terminates.

18.7.3 For tenant-based rental assistance projects, records must be retained for five years after the period of rental assistance terminates.

18.7.4 Written agreements must be retained for five years after the agreement terminates.

18.7.5 Records covering displacements and acquisition must be retained for five years after the date by which all persons displaced from the property and all persons whose property is acquired for the project have received the final payment to which they are entitled in accordance with § 92.353.

18.8 If any litigation, claim, negotiation, audit, monitoring, inspection or other action has been started before the expiration of the required record retention period records must be retained until completion of the action and resolution of all issues which arise from it, or until the end of the required period, whichever is later.

18.8.1 Access to records.

18.8.1.1 The participating jurisdiction must provide citizens, public agencies, and other interested parties with reasonable access to records, consistent with applicable state and local laws regarding privacy and obligations of confidentiality.

18.8.1.2 HUD and the Comptroller General of the United States, any of their representatives, have the right of access to any pertinent books, documents, papers or other records of the participating jurisdiction, state recipients, and subrecipients, in order to make audits, examinations, excerpts, and transcripts. .
#7..
- 160 -
19 Appendix 1 Affirmative Marketing Policy

19.1 Abbreviations

19.1.1 ADA - Americans with Disabilities

19.1.2 AFH - Affirmative Fair Housing

19.1.3 AMP - Affirmative Marketing Plan

19.1.4 CFR - Code of Federal Regulations

19.1.5 CHDO - Community Housing Development Organization

19.1.6 HOME - HOME Investment Partnerships Program

19.1.7 HUD - United States Department of Housing and Urban Development

19.1.8 TBRA - Tenant Based Rental Assistance

19.2 Affirmative Marketing Plan

19.2.1 To further the commitment to nondiscrimination and equal opportunity in housing, and in accordance with the regulations of the HOME Investment Partnerships Program (HOME), The City of Modesto has established procedures to affirmatively market HOME-assisted housing units.

19.2.2 The City is committed to meeting the goals of affirmative marketing in furtherance of our fair housing objectives. As part of this commitment, The City requires HOME subgrantees, including Contract Administrators, Community Housing Development Organizations (CHDOs), Developers, and other subgrantees of HOME Program funds to comply with the affirmative marketing requirements. Subgrantees administering HOME funds must adopt policies and procedures that inform the public, potential tenants, homebuyers, homeowners, and rental property owners of their program through an Affirmative Marketing Plan (AMP or Plan).

19.2.3 As part of efforts to ensure that available housing is marketed to persons not likely to apply for such housing, subgrantees are encouraged to make HOME information available in non-English languages spoken by those residing in or near the community.

Furthermore, subgrantees are encouraged to distribute marketing materials to area social service agencies that work with minorities and disabled individuals.

19.3 Overview of Affirmative Marketing

19.3.1 An Affirmative Marketing Plan (Plan) and affirmative marketing procedures are required for subgrantees of HOME funds. Affirmative marketing procedures must continue throughout the length of the program, including the period of affordability.

For homebuyer assistance and homeowner rehabilitation, the plan remains in effect until HOME-funded activities are completed. For single-family homeownership dwellings, the plan remains in effect until all the dwelling units are sold.

19.3.2 Affirmative marketing should be an integral part of any project’s overall marketing effort. Affirmative marketing typically consists of efforts to inform persons that are “least likely to apply” or under-represented in a neighborhood or community about opportunities for housing under the HOME program. Through the Plan, a subgrantee indicates what special efforts the subgrantee will make to attract racial, ethnic, and other groups or communities who might not normally seek housing assistance. #7..
- 161 -
Affirmative marketing does not limit choices; choices are expanded to include those that might not otherwise be considered because of past discrimination. Increasingly, communities which make a long-term commitment to racial and ethnic diversity have found their efforts rewarded by increasing property values.

19.3.3 Affirmative marketing adds little to the cost of a project. Most of the cost associated with affirmative marketing is already reflected in the project’s broader marketing budget.

19.4 Minimum Affirmative Marketing Plan Requirements

19.4.1 Subgrantees must approve and distribute an Affirmative Marketing Plan that will be used to attract prospective applicants of all minority and non-minority groups regardless of their race, color, religion, sex, national origin, disability, familial status, or religious affiliation. Racial groups to be marketed to may include White, African American, Native American, Alaskan Native, Asian, Native Hawaiians or Other Pacific Islanders. Other groups who may be subject to housing discrimination include, but are not limited to, Hispanic or Latino groups, persons with disabilities, families with children, or persons with different religious affiliations. For multifamily developments, the Affirmative Marketing Plan must be provided to the property management and onsite staff. Single family administrators must be readily available to staff administering the program for use in selection of applicants that will be served.

19.4.2 Subgrantees are not required to use HUD forms 935.2A for multi-family projects or 935.2B for single family activities; however development owners and subgrantees are encouraged to use these forms. Regardless of format, Affirmative Marketing Plan and related records must include:

19.4.2.1 A list of the group(s) that are least likely to apply for housing without special outreach. All multi-family developments must select persons with disabilities as one of the groups identified as least likely to apply. When identifying racial/ethnic minority groups will be marketed to, factors such as the characteristics of the housing's market area should be considered.

19.4.2.2 Procedures that will be used to inform and solicit applications from persons who are least likely to apply. Specific media and community contacts that reach those groups designated as least likely to apply must be identified (community outreach contacts may include neighborhood, minority, or women's organizations, grass roots faith-based or community-based organizations, labor unions, employers, public and private agencies, disability advocates, or other groups or individuals well known in the community that connect with the identified group(s)).

19.4.2.3 How the subgrantee will assess the success of Affirmative Marketing efforts.

Affirmative Marketing Plans should be reviewed on an annual basis to determine if changes should be made and plans must be updated every five (5) years to fully capture demographic changes in the housing's market area.

19.4.3 At a minimum, the Plan will require projects involving five (5) or more HOME-assisted units to comply with the following:

19.4.3.1 Prior to sales or rental activity (or marketing of homebuyer assistance, or rehabilitation program), the subgrantee shall identify community contacts #7..
- 162 -
(individuals, organizations, or agencies) actively involved with serving low-income persons who would benefit from specific outreach efforts.

19.4.3.2 Any AMP which includes homeownership should require that potential home purchasers receive homeownership counseling and education.

19.4.3.3 If any rental units are publicly advertised during the period of affordability, the Equal Housing Opportunity logo must accompany the advertisement.

19.4.4 For multifamily developments, the AMP must provide that the developer will issue press releases announcing available units that will be circulated to media outlets within the marketing and outreach area. The press releases should include: location of the units; total number of units available; bedroom sizes of the units; rents or purchase price; income requirements and limits; building amenities and features; and neighborhood amenities.

19.4.4.1 Information about available units at different developments may appear in combined press releases, as appropriate; this is especially encouraged for small developments, including those with four units or less. Issuance of the initial press release will coincide with the commencement of the initial marketing period.

19.4.5 The subgrantee (or its agent, if applicable) must display the HUD fair housing poster in an area accessible to the public, such as the rental office or project office.

19.4.6 The subgrantee (or its agent, if applicable) will collect information on the race and ethnicity of program applicants to demonstrate the results of the owner’s affirmative marketing efforts.

19.4.7 For rental projects, the subgrantee/owner (or its agent, if applicable) will, for the entire period of affordability, maintain information demonstrating compliance and will make such information available to The City, HUD and other regulatory agencies.

Official public information requests during HOME onsite inspections may be requested as well.

19.4.7.1 The Plan must be signed by an authorized official of the sponsoring or ownership organization. By signing the Plan, the subgrantee assumes full responsibility for its implementation and agrees to make any changes which may be required to assure continued compliance with the marketing requirement of 24 CFR §200.620. The agreement to make changes is also applicable to plans covering rental projects during the affordability period. With respect to single family subdivisions, the subgrantee may request changes to the Plan only during the initial sales period.

19.4.7.2 The Plan must reference and include methods for informing the public, owners, and potential tenants about the following state and federal laws and executive orders, including, but not limited to:

19.5 The Fair Housing Act – Title VIII of the Civil Rights Action of 1968, as amended;

19.5.1 Title VI of the Civil Rights Act of 1964;

19.5.2 Section 504 of the Rehabilitation Act of 1973, as amended;

19.5.3 Executive Order 11063, as amended by Executive Order 12259;

19.5.4 Executive Order 12892, Leadership and Coordination of Fair Housing;

19.5.5 The California Civil Rights Department (CRD); and

19.5.6 Americans with Disabilities Act, as applicable.

19.5.7 Procedures for Implementing an Affirmative Marketing Plan #7..
- 163 -

19.5.8 When implementing the AMP, the subgrantee must do the following:

19.5.8.1 Targeting: Identify the segments of the eligible population that are least likely to apply for housing without special outreach efforts.

19.5.8.2 Outreach: Outline an outreach program that includes special measures designed to attract those groups identified as least likely to apply and other efforts designed to attract persons from the total population.

19.5.8.3 Indicators: State the indicators to be used to measure the success of the marketing program. The effectiveness of the marketing program can be determined by noting if the program effectively attracted buyers or renters who are:

19.5.9 Under-represented in the population of the housing market area where the HOME program will be operated;

19.5.9.1 Persons with disabilities and their families;

19.5.9.2 Families with children, unless exempted; or

19.5.9.3 Are members of a protected class.

19.5.9.4 Staff Training: Demonstrate the capacity to provide training and information on fair housing laws and objectives to project or rental staff.

19.5.10 Good Faith Effort: Subgrantees are required to make a good faith effort to carry out the provisions of their approved plan. Good faith efforts are recorded activities and documented outreach to those individuals identified as least likely to apply. Examples of such efforts include:

19.5.11 Advertising in print and electronic media that is used by those identified as least likely to apply. The press release or electronic media should contain the Equal Housing Opportunity slogan for press releases and the electronic media should contain the Equal Housing Opportunity logotype.

19.5.12 Marketing housing to specific community groups or organizations frequented by those least likely to apply.

19.5.13 Developing a brochure or handout that describes the HOME program that will be administered and the housing that will be constructed by the subgrantee or the rental assistance program that will be offered to applicants. The brochure or handout may include a range of information which influences decisions regarding housing choices.

19.5.14 The brochure or handout should communicate the subgrantees Equal Housing Opportunity policy. The Equal Housing Opportunity policy should be consistent with the Fair Housing Advertising guidelines. All brochures and handouts must contain the Equal Housing Opportunity logotype.

19.5.15 For those subgrantees that administer the HOME Homeowner Rehabilitation program, highlighting the benefits, such as accessibility modifications, energy efficiency of the homes that will be reconstructed/constructed and increased property value is valuable.

19.5.16 For those subgrantees that administer the HOME homebuyer or down payment assistance programs the brochure should highlight the benefits of homeownership and the type of down payment assistance that will be provided.

19.5.17 For subgrantees that administer a CHDO, HUD’s Fair Housing Poster must be conspicuously displayed wherever sales/rentals and showings take place. The #7..
- 164 -
subgrantee must indicate whether the poster will be displayed in the sales/rental office(s)/subgrantee’s office and/or model units and/or other places.

19.5.18 Ensuring that the project/administrative staff have read and understood the Fair Housing Act, and the purpose and objectives of the Plan

19.5.18.1 Developing a referral network with the local fair housing agency

19.5.18.2 Establish System for Documenting Outreach

19.5.18.3 Establish a system for documenting activities and maintaining records of such AFH activities. At minimum, the subgrantee must maintain documentation pertaining to:

19.5.18.4 The special outreach activities undertaken to attract groups that are least likely to apply and also the general public that applies for the housing;

19.5.18.5 How the groups considered least likely to apply were identified;

19.5.18.6 Race and ethnicity of all persons applying for the housing; and

19.5.18.7 Race and ethnicity of all individuals who visited the project in person.

19.5.18.8 A copy of training materials used to train project management/staff on Federal, State local civil rights laws and fair housing laws;

19.5.18.9 The selection of the community contacts who assisted or may assist in implementing the Plan. In addition, the subgrantee must:

19.5.18.10 List, with names and addresses, groups or organizations identified as serving least likely to apply populations and those serving special populations who may be served by the project, including those with physical disabilities.

19.5.18.11 List, with names and addresses, community contact(s) that serve the disabled community, such as an independent living center (ILC).

19.5.18.12 Indicate the method of contact for each of these outreach organizations e.g., community meetings, brochures, briefing sessions, etc., approximate date the group or individuals are to be contacted and how the project manager/agent/subgrantee will document such contact.

19.5.19 Communications with community contacts listed in the Plan;

19.5.19.1 Copies of public advertisements, brochures, leaflets, etc.;

19.5.19.2 The training given to staff on Federal, State and local civil rights laws;

19.5.19.3 Subgrantees must develop an affirmative marketing report that includes summaries of affirmative marketing efforts. The report details affirmative marketing activities and identifies actions to undertake or to correct any non-compliance with affirmative marketing policies or to mitigate any non-performance problems in implementing plans. If corrective measures have been identified, actions taken on such measures must be reported. The City may review reports at any time to determine compliance with affirmative marketing regulations.

19.5.19.4 Subgrantees must keep a record of complaints of unfair marketing and must notify The City in writing of the complaint.

19.5.19.5 Affirmative Marketing And Outreach To Minority And Women Owned Businesses Policy

19.5.19.6 The City shall administer its HOME Program in a manner that will further the purposes of federal, state, and local affirmative marketing and equal opportunity requirements. Affirmative marketing steps consist of actions to provide information and otherwise attract eligible persons in the housing market area to the available #7..
- 165 -
housing without regard to race, color, national origin, sex, religion, familial status, or disability. To that end, the City of Modesto will:

19.5.19.6.1 Conduct its affirmative marketing and outreach to minority (MBE) and women owned businesses (WBE) in conformance with 24 CFR Part 92.351

19.5.19.6.1.1 Compile and utilize a listing of all known MBE’s and WBE's, their capabilities, services, supplies and/or products in the Modesto area.

19.5.19.6.1.2 Encourage MBE's and WBE's to participate in the City of Modesto's HOME Program.

19.5.19.6.1.3 Require HOME sub-recipients to take affirmative steps to use MBE's and/or WBE's in HOME funded projects.

19.5.19.6.1.4 Require HOME sub-recipients to maintain appropriate records to document the number and types of contracts and subcontracts it awards, the dollar value of each award, and the gender and ethnic/racial status of the management/ownership of the business.

19.5.19.6.1.5 Compile an annual record of MBE's and WBE's participating in the HOME Program and conduct an annual review to assess the effectiveness of efforts to encourage participation by minority and women owned businesses.

19.5.20 Section 3: Requires that employment and other opportunities generated by federal financial assistance for housing and community development programs shall, to the greatest extent feasible, be directed toward low and very low-income persons, particularly those who are recipients of government assistance by the City of Modesto.

19.6 Affirmative Marketing Recordkeeping

19.6.1 The documentation of activities should be maintained in the project file. This information must be collected and maintained during the federal period of affordability and must be made available for review throughout the period.

19.6.2 Up-to-date records based on census data, application and surveys about community residents, applicants for housing units, residents of the project, and records about tenant selection or rejection must be kept in the project file.

19.6.3 Racial and ethnic data on all persons applying for housing units and participants must be collected and kept in the project file.

19.6.4 Data obtained voluntarily from applicants with disabilities should be collected and kept in a separate file.

19.6.5 Examples of documentation that should be maintained include:

19.6.5.1 Copies of newspaper advertisements and flyers or other printed material used;

19.6.5.2 Copies of mailing lists to organizations that were sent flyers and other material;

19.6.5.3 Copies of press releases and description of circulation;

19.6.5.4 Evidence of broadcast of television and radio advertisement ;

19.6.5.5 Photographs of site signs;

19.6.5.6 The racial, ethnic and gender characteristics of tenants;

19.6.5.7 List the names and addresses, of groups or organizations identified as serving least likely to apply populations and those serving special populations who may be served by the project, including those with physical disabilities; and

19.6.5.8 List the names and addresses, of community contact(s) that serve the disabled community, such as an independent living center (ILC).
#7..
- 166 -

19.7 Sample Documents to Demonstrate Compliance

19.7.1 Affirmative Fair Housing Marketing Plan - Multifamily Housing (HUD-935.2A)

19.7.2 Affirmative Fair Housing Marketing Plan - Single Family Housing (HUD-935.2B) #7..
- 167 -
20 Appendix 2: Application Outline for HOME Investment Partnership Program Applications

20.1 HOME INVESTMENT PARTNERSHIPS PROGRAM (HOME) PROGRAM BASICS

20.1.1 HOME program regulations can be found at 24 CFR Part 92.

20.1.1.1 Jurisdiction for HOME funds

20.1.1.2 City of Modesto may only invest its HOME funds in eligible developments within its boundaries, or in jointly funded developments within the boundaries of the City of Modesto.

20.1.2 Site and neighborhood standards

20.1.2.1 City of Modesto provides HOME funds for housing that furthers compliance with civil rights laws and that promotes greater choice of housing opportunities. Proposed new construction developments must meet site and neighborhood standards as outlined in 24 CFR 983.57(e)(2) and (3).

20.1.3 Property standards

20.1.3.1 New Construction – Housing that is newly constructed with HOME funds must meet applicable state and local codes, ordinances, and zoning requirements. HOMEassisted new construction developments must meet state or local residential and building codes, as applicable or, in the absence of a state or local building code, the International Residential Code or International Building Code (as applicable to the type of housing) of the International Code Council. The housing must meet the applicable requirements upon development completion. In addition, the following apply:

20.1.3.1.1 The housing must meet the accessibility requirements of 24 CFR Part 8, which implements Section 504 of the Rehabilitation Act of 1973 and Titles II and III of the Americans with Disabilities Act implemented at 28 CFR Part 35 and Part 36, as applicable. Covered multi-family dwellings, as defined at 24 CFR §100.201, must also meet the design and construction requirements at 24 CFR Part 100.205, which implements the Fair Housing Act.

20.1.3.1.2 Where relevant, the housing must be constructed to mitigate the impact of potential disasters (e.g., earthquakes, hurricanes, flooding, and wildfires), in accordance with state and local codes, ordinances or other state and local requirements, or such other requirements HUD may establish.

20.1.3.2 Existing Rental Housing – Existing rental housing that is acquired with HOME funding that was constructed or rehabilitated less than 12 months before receipt of a commitment of HOME funds, must meet the property standards required for new construction and rehabilitation developments as included in 24 CFR 92.251.

20.1.3.2.1 City of Modesto will document compliance with the regulations based upon a review of approved building plans and Certificates of Occupancy, and an inspection that is conducted no earlier than 90 days before the commitment of HOME funding.

20.1.3.2.2 All other existing rental housing that is acquired with HOME funding must meet the HOME rehabilitation property standards requirements.

20.1.3.2.3 City of Modesto will document compliance with the regulations based on an inspection that is conducted no earlier than 90 days before the commitment of HOME funding. If the property does not meet these standards, HOME funds cannot #7..
- 168 -
be used unless the property is rehabilitated to meet the standards as included in 24 CFR 92.251.

20.1.4 Broadband infrastructure - Construction and rehabilitation developments funded in part with HOME funds must include the installation of broadband infrastructure as defined in 24 CFR 5.100.

20.1.5 Vacant land - Acquisition of vacant land or demolition with HOME funds may be undertaken only for a particular affordable housing development on which construction will begin within 12 months. HOME funds may not be used to acquire property or demolish structures on land for which there is not an immediate, planned HOME-eligible use.

20.1.6 HOME-assisted units - Only units receiving HOME funds are considered "HOMEassisted units." HOME per unit subsidy limits, rent limits, and HOME occupancy requirements apply only to "HOME-assisted units." The proportion of rent restricted units to the total number of units in the development must, at a minimum, equal the proportion of Modesto’s investment in the total development cost. Unrestricted units are not eligible for HOME subsidy.

20.1.7 HOME subsidy limits - The minimum HOME investment in rental housing may not exceed the per-unit dollar limitations established under section 221(d)(3)(ii) or the National Housing act (12 U.S.C.17151(d)(3)(ii)) for elevator-type projects that apply to the area in which the housing is located. See 24 CFR 92.250 for additional information.

20.1.8 HOME affordability requirements - HOME-assisted units must be affordable at initial occupancy and as defined in the development regulatory agreement. If HOME assisted units remain unoccupied six months following the completion date in IDIS additional information will be required to be reported to HUD. If, within 18 months from the date of development completion in IDIS HOME assisted units remain unoccupied, HUD will require repayment of all HOME funds invested in the development.

20.1.9 OCCUPANCY REQUIREMENTS FOR HOME-ASSISTED UNITS - HOME-assisted units must be initially occupied by families who have annual incomes that are 60 percent or less of City of Modesto's Area Median Income. In developments of five or more HOME units, at least 20 percent of the HOME-assisted units must be continually occupied by families who have annual incomes that are 50 percent or less of City of Modesto's Area Median Income. See Attachment E for income limits.

20.1.10 Maximum initial rents for HOME-assisted rental units - Every HOME-assisted unit is subject to rent controls called "HOME rents." For properties of five or more units, there are two HOME rents established for every development: "High HOME rents" and "Low HOME rents." HOME rent limits include both the rent and utilities (or utility allowances). Review and approval of rents for each HOME-assisted rental development is required each year to ensure that rents comply with the HOME limits and do not result in undue increases from the previous year. Refer to the HOME regulations at 24 CFR §92.252 for a full definition.

20.1.11 Utility allowances - 24 CFR §92.252(d) requires Modesto to determine an individual utility allowance for each HOME rental development, either (1) by using the HUD Utility Schedule Model, or (2) by otherwise determining the allowance based upon the specific utilities used at the development.
#7..
- 169 -

20.1.11.1 The model can be found at: http://huduser.org/portal/resources/utilmodel.html.

As more developments are constructed or rehabilitated to higher energy-efficiency standards, the use of a standard utility allowance may not represent actual utility costs and is difficult to justify.

20.1.12 HOME-assisted unit restrictions - Tenant incomes and rents are strictly controlled during the affordability period. Owners are required to examine tenant incomes annually to ensure that tenants meet the HOME income requirements.

20.1.12.1 The rent and occupancy restrictions will be incorporated into a regulatory agreement and will bind the development for the full term of the regulatory agreement regardless of prepayment, sale, or transfer. In order to be effective, affordability restrictions will be recorded in the regulatory agreement.

20.1.12.2 Leases are required for all HOME-assisted rental units, consistent with §92.209(g). The lease term must be for a period of at least one year unless a shorter period is mutually agreed upon.

20.1.12.3 INCOME DETERMINATIONS - Applicants are responsible for ensuring income determination for HOME assisted units are in compliance with the following regulations, 24 CFR Section 92.230.

20.1.12.4 PROPERTY INSPECTION REQUIREMENTS - Developments must be inspected at time of acquisition and throughout the affordability period to ensure that the units meet the required property standards. On-site inspections will occur within 90 days of occupancy and at least once every 3 years thereafter during the period of affordability. Inspections may occur more often based on changes in program rules and/or at the City’s discretion.

20.2 Community Housing Development Organization (CHDO) - A CHDO is a specific type of private nonprofit entity. CHDOs must meet certain requirements pertaining to their legal status; organizational structure; and capacity and experience. The HUD Exchange provides resources related to requirements for CHDOs at:
https://www.hudexchange.info/programs/home/topics/chdo/#policy-guidance-andfaqs. The regulatory references are included in 24 CFR Part 92 Subpart G.

20.2.1 An overview of these requirements is provided below:

20.2.1.1 Legal Status:

20.2.1.1.1 The 501 (c) nonprofit must be organized under state/local law.

20.2.1.1.2 The CHDO must identify the provision of decent affordable housing as a purpose of its existence. This commitment must be evidenced in the CHDO’s Charter, Articles of Incorporation, or By-Laws.

20.2.1.1.3 There must be no individual benefit from earnings.

20.2.1.1.4 The CHDO must have a clearly defined service area (e.g. a neighborhood(s), citywide, countywide, or multi-county area).

20.2.1.2 Organizational Structure:

20.2.1.2.1 At least one-third of its board of directors must be low-income residents, reside in a low-income area, or serve as an elected representative of the lowincome community.

20.2.1.2.2 No more than one-third may be public officials or employees of the City of Modesto.
#7..
- 170 -

20.2.1.2.3 The balance of board make-up is unrestricted; may include people such as human and social service providers, lenders, individuals with access to philanthropic resources, or others willing to contribute their professional expertise.

20.2.1.2.4 The CHDO must additionally provide a formal process for input from the lowincome community. The process must be described in writing and must be included in the organization’s by-laws or a board resolution.

20.2.1.3 Capacity and Experience:

20.2.1.3.1 The CHDO must demonstrate that it has at least one year of experience serving the community where it intends to develop the HOME-assisted housing.

20.2.1.3.2 CHDO must demonstrate that their key staff has the capacity to carry out the proposed HOME-assisted activities:

20.2.1.3.3 Experienced key staff who have successfully completed similar projects to those proposed; or staff with little or no experience and will use experienced consultants for the planning and development of proposed activities, with a plan in place for consultant to train the key staff.

20.2.1.3.4 The CHDO must also have financial accountability standards that conform to 24 CFR § 84.21, “Standards for Financial Management Systems.”

20.2.2 CHDO Roles

20.2.2.1 CHDO set-aside funds may be used by CHDOs for those HOME activities where the CHDO acts as the owner, developer, and/or sponsor of the housing. Each role is described below.

20.2.2.1.1 Owner: The CHDO is an “owner” when it holds valid legal title to or has a longterm (99-year minimum) leasehold interest in a rental property. The CHDO may be an owner with one (1) or more individuals, three (3) corporations, partnerships, or other legal entities. Example: A CHDO owns a property and contracts with another entity (for-profit or nonprofit) to act as a developer, and to construct new buildings or rehabilitate existing building(s). After completion of the development, the CHDO will maintain ownership of the property.

20.2.2.1.2 While the CHDO may be the sole owner, with another entity acting as a developer, it may also be the owner and developer of its own project. The CHDO may own a property in partnership with either a majority or minority interest.

However, the CHDO, in partnership with a wholly owned for-profit or nonprofit subsidiary, must be the managing general partner with effective control (in decision-making authority) of the project.

20.2.2.1.3 Developer: A CHDO is a "developer" when it (1) either owns a property and develops a project or has a contractual obligation to a property owner to develop a project; and (2) performs all the functions typically expected of for-profit developers and assumes all the risks and rewards associated with being the project developer.

20.2.2.1.4 If the CHDO owns the property, it must obtain financing and rehabilitate or construct the project.

20.2.2.1.5 For HOME-assisted rental housing: At project completion, the CHDO may maintain ownership and manage the project over the long term, or it may transfer the project to another entity for long-term ownership and management. #7..
- 171 -

20.2.2.1.6 For HOME-assisted homebuyer project: The CHDO transfers title of the property and the HOME obligations to an eligible homebuyer within a specified timeframe of project completion.

20.2.2.1.7 If the CHDO does not own the property, it must be under a contractual obligation with the owner to obtain financing and rehabilitate or construct the project. Under this scenario, the CHDO assumes all of the risks and rewards associated with being the project developer. A written agreement between the CHDO and the property owner must detail the CHDO’s specific obligations.

20.2.2.1.8 For HOME-assisted rental housing: The CHDO may at project completion, manage the project for the owner.

20.2.2.1.9 For homebuyer housing: The owner must transfer title of the property and the HOME obligations to eligible homebuyers within a specified timeframe of project completion.

20.2.2.1.10 If the CHDO develops the property for an owner pursuant to a written or other agreement with the Participating Jurisdiction (PJ), the CHDO is acting in the capacity of a subrecipient and not as a CHDO.

20.2.2.2 Sponsor: A CHDO is a “sponsor” for HOME-assisted rental housing according to the circumstances outlined below. In either case, the CHDO must always own the property prior to the development phase of the project.

20.2.2.2.1 For Rental Housing: The CHDO develops a project that it solely or partially owns and agrees to convey ownership to a second nonprofit organization at a predetermined time. The conveyance may take place prior to, during or upon completion of the development phase.

20.2.2.2.2 The HOME funds are invested in the project owned by the CHDO sponsor.

20.2.2.2.2.1 The CHDO sponsor identifies the particular nonprofit organization that will obtain ownership of the property prior to commitment of HOME funds.

20.2.2.2.2.2 The other nonprofit will assume from the CHDO at a specified time all HOME obligations (including repayment of loans and tenant and rent requirements) for the project. If the property is not transferred to the nonprofit organization, the CHDO sponsor will remain liable for the HOME obligations.

20.2.2.2.2.3 The other nonprofit organization must be financially and legally separate from the CHDO sponsor.

20.2.2.2.3 The CHDO sponsor must provide sufficient resources to the nonprofit organization to ensure the completion of development and long-term operation of the project.

20.2.2.2.4 For Homebuyer’s Program: A CHDO may not serve as a sponsor of homebuyer housing under the 2013 HOME rule.

20.2.2.2.5 A community-based nonprofit organization may meet all of the regulatory requirements to be designated as a CHDO. However, in order for CHDO activities to count toward the CHDO set-aside, the CHDO must select their role as developer, sponsor and/or owner of the HOME-assisted housing project as defined above.

20.2.3 CHDO Set Aside Funding

20.2.3.1 The City of Modesto is required to set aside a minimum of 15% of each year’s allocation for housing development activities in which qualified Community Housing #7..
- 172 -
Development Organizations (CHDO) develop affordable housing. Per HOME regulations, HOME funds will be used for development of affordable housing through the 15% CHDO set aside funds.

20.2.3.2 A CHDO is a private nonprofit, community-based service organization whose primary purpose is to provide and develop decent, affordable housing for the community it serves. CHDOs must receive certification the City of Modesto indicating that they meet certain HOME Program requirements and therefore are eligible for HOME CHDO funding. The HOME Program definition of a CHDO is found at 24 CFR Part 92.2.

20.2.4 CHDO Operating

20.2.4.1 Certified CHDOs may receive funds from PJs to be used for operating expenses.

This allocation does not count towards the required 15 percent (15%) CHDO set-aside funds that are to be used by CHDOs for projects. A CHDO can be provided with CHDO operating expense funds if it is expected that it will be receiving CHDO project setaside funds within 24 months of receiving funds for operating expenses.

20.2.4.2 The PJ must enter into a written agreement with the CHDO specifying the terms and conditions upon which this expectation is based (§92.300(e)).

20.2.4.3 Eligible operating expenses: Operating expenses for which CHDOs may use the funds allocated by PJs include:

20.2.4.3.1 Organizational support

20.2.4.3.2 Housing education

20.2.4.3.3 Administrative expenses

20.2.4.3.4 Operating expenses

20.2.4.4 Funds Included in the CHDO Operating Expenses Cap: A PJ may elect to give operating funds to eligible CHDOs. However, HOME assistance for CHDO's operating expenses in each fiscal year may not exceed $50,000 or 50% of the CHDO's total annual operating expenses for that year, whichever is greater. The following types of funds are included as part of the maximum $50,000/50% rule a PJ is allowed to award to a CHDO:

20.2.4.5 Funds awarded to the CHDO by the PJ for operating expenses. (Under 24 CFR Part

92.208.)

20.2.5 Funds provided to the CHDO by HUD through intermediaries for organization support and housing education. (24 CFR Part 92.302)

20.2.6 Eligible Uses:

20.2.6.1 Operating expenses must be reasonable and necessary costs for the operation of the CHDO including:

20.2.6.2 Salaries, wages, benefits, and other employee compensation.

20.2.6.3 Rent and utilities;

20.2.6.4 Taxes and insurance; and

20.2.6.5 Equipment, materials, and supplies

20.3 Low-income tax credit and home

20.3.1.1 Qualified LIHTC units must not exceed LIHTC rent limits. HOME-assisted units must meet High and Low HOME rent requirements.

20.3.1.2 Combining HOME and tax credit affects rental properties in various complex ways #7..
- 173 -
and applicants are urged to consult a subject expert prior to submitting their proposal.

20.3.1.3 Fees charged by project owners

20.3.1.3.1 Project owners may not charge fees to tenants that are not reasonable or customary, such as a monthly fee for access to laundry facilities. Fees that are allowable include parking fees in neighborhoods where such fees are customary and the cost of non-mandatory services such as meal or bus service (as long as the services are voluntary). Note that HOME funding may support special needs rental housing projects. However, the use of services by residents may not be imposed on a mandatory basis. HOME requires that supportive services are made available on a voluntary basis.

20.4 Project commitment and completion

20.4.1.1 Commitment of HOME funds is defined as full execution of the City of Modesto loan documents. Modesto will not commit HOME funds to a new construction or rehabilitation project until:

20.4.1.1.1 All necessary financing is secured.

20.4.1.1.2 A budget and production schedule is established. Use of HOME funds must be clearly identified by line item.

20.4.1.1.3 Underwriting and subsidy layering reviews are completed.

20.4.1.1.4 Market assessment is completed.

20.4.1.1.5 Assessment of the experience and financial capacity of the developer/applicant is completed.

20.4.1.1.6 Construction is expected to start within 12 months.

20.4.1.1.7 Projects must be fully occupied within four years from the date the written agreement is executed (project commitment). A development will be terminated if not completed within four years and repayment of the HOME funds will be triggered. In the event that a development is not completed within the four-year timeframe, the City may request a 12-month extension from HUD. The request should provide information about the status of the development, steps being taken to overcome obstacles to completion, proof of adequate funding to complete the development, and a schedule with milestones for completion of the development.

20.5 Application Outline

20.5.1 Development narrative

20.5.1.1 Development Overview - Provide a brief overview description including but not limited to development location, the existing use of the site and proposed development/design including number of units, unit types, development amenities, population to be served, supportive services provided, and extent to which the development will involve community organizations and partnerships. Also include program goals/objectives as applicable.

20.5.1.2 Describe how the development meets the needs, as identified in the City of Modesto’s 2020-2025 Consolidated Plan

20.5.1.3 How does the development incorporate housing and/or City initiatives that meet and/or exceed current standards: Housing First as applicable per funding source and the City of Modesto’s Strategic Plan,
#7..
- 174 -

20.5.1.4 Describe the degree to which Owner/Developer/Applicants and/or proposed development will integrate or comply with any of the initiatives listed above.

20.5.1.5 Provide documentation as applicable.

20.5.1.6 How will the proposed development address racial equity and inequities for the target population including any local disproportionate impact by race and other protected classes?

20.5.2 Development Timeline

20.5.2.1 Describe the development’s timeline and applicant’s ability to complete in a timely manner.

20.5.2.2 Enforceable Commitments and Financial Feasibility

20.5.2.3 Provide a list of enforceable commitments or other enforceable reservations of funds for all needed development funding. All funds other than tax credits must be secure prior to applying for funds available through this NOFA due to program commitment and expenditure requirements. Tier 1 - Proposals that have not provided evidence of enforceable funding commitments from all funding sources, will be deemed “non-responsive” to the NOFA.

20.5.2.4 Provide list of enforceable commitments or reservations of rental or operating subsidies as well as any fundraising plans.

20.5.2.5 Describe how the development will leverage other funding sources, including capital financing, housing subsidies and complementary supportive services. Provide evidence of terms and the status of those commitments to the proposed developments. City of Modesto will require senior lenders to subordinate to its regulatory restrictions. City of Modesto must be advised if the applicant will be requesting that the City subordinate financial interests.

20.5.2.6 Describe a plan for repayment of the requested amount of City of Modesto NOFA funds. At the City’s discretion, consideration of forgivable loans or grants will be case by case where funding rules allow it.

20.5.2.7 If the funding for the proposed development is in part dependent upon the award of Low- Income Housing Tax Credits or bonds, describe how the development will be implemented in the event financing is denied. Be specific as to the amount, sources, likelihood, and timing of alternative funding, as well as how the development will be scaled down, if necessary.

20.5.2.8 Describe the plan to maintain operations and financial feasibility for the full affordability period.

20.5.2.9 Describe any in-kind contributions to the development. Include the name(s) of the contributors, the items or services that are being contributed and the value of the contributions.

20.5.3 Development Site

20.5.3.1 Describe all Community Project Partnerships related to this development.

20.5.3.2 Describe all Community outreach and engagement related to this development.

20.5.3.3 Are there other housing developments or facilities that address the same need in the area?

20.5.3.4 Describe how the development will not overly concentrate low-income housing in the community?
#7..
- 175 -

20.5.3.5 Attach sample lease and tenant agreement.

20.5.3.6 Attach your Housing First Policy

20.5.3.7 Provide a detailed description of the development location; attach detailed street map(s) identifying the development and neighborhood boundaries, highlight local amenities, community resources, goods and services, access to transportation, etc.

20.5.4 Target Population and Support Services

20.5.4.1 Attach sample lease and tenant agreement.

20.5.4.2 If supportive services will be provided for the populations listed above, include the following:

20.5.4.3 Supportive service provider experience, including tenant population descriptions

20.5.4.4 Support services descriptions, including service model, services offered, staffing plan with FTEs, and location of services (on site or off site)

20.5.4.5 Role of Peers in service delivery

20.5.4.6 Services budget and funding sources

20.5.4.7 If the support services provider is a separate organization, a description of partnership history and draft MOU.

20.5.5 Project Readiness

20.5.5.1 Provide proof of site control?

20.5.5.2 Is the development consistent with the site zoning, General Plan designation, and the local community plan?

20.5.5.3 Provide proof that all necessary land use, zoning, permitting, or building plans have been approved or a reasonable plan and timeline detailing how the applicant will obtain any discretionary approvals for the project.

20.5.5.4 Evidence from approving body of completion of all necessary environmental clearances (CEQA, NEPA), and completion of a Phase I Environmental Site Assessment and Phase II Environmental Site Assessment (if applicable).

20.5.5.5 Market Study

20.5.5.6 Attach a market study documenting supply and demand for the proposed development. Data must be recent (within the last six months), for at least three rental housing developments similar in size and amenities to the proposed development.

20.5.5.7 Development Design and Implementation

20.5.5.8 Describe preliminary site plan(s), floor plans, etc. Attach plans and photos as applicable.

20.5.5.9 Describe environmentally sustainable development features and technologies.

20.5.5.10 Describe various levels of safety design features, technologies, and policies for tenants.

20.5.5.11 If applicable, how will the development incorporate the use of universal design principles and/or design features for special needs populations.

20.5.6 Applicant Experience

20.5.6.1 Describe in detail Owner/Developer/Applicants experience as listed below.

Provide supportive attachments as applicable:

20.5.6.2 Mission Statement

20.5.6.3 Past activities/experience
#7..
- 176 -

20.5.6.4 Administrative structure/organizational chart

20.5.6.5 Supportive Policies (Upload in the Financial Management Section)

20.5.6.6 Diversity, Equity, and Inclusion Statement and/or governing practices/policies

20.5.6.7 Procurement Policy

20.5.6.8 Housing First Policy

20.5.6.9 Displacement/Relocation Policy

20.5.6.10 Financial Management Policies

20.5.6.11 Tenant Selection Process

20.5.6.12 Affirmative Action Marketing Plan Policy

20.5.6.13 Describe the degree in which Owner/Developer/Applicants integrates Diversity, Equity, and Inclusion within the organization, including but not limited to; workplace values, hiring and training practices, executive leadership, Board of Directors, etc.

20.5.7 Technical Capacity

20.5.7.1 Describe Owner/Developer/Applicant’s technical capacity. Describe the project team’s experience, including but not limited to; acquisition, sale, rehabilitation, construction, management and/or support services. Describe your organization’s ability to deliver high quality services to the target resident population.

20.5.7.2 Attach resumes of staff specifically assigned to this project. Include the credentials of the development’s team members.

20.5.7.3 Include a list or description of the organization’s ability to successfully develop and manage the real estate component of the project.

20.5.7.4 Number of rental housing developments/units completed

20.5.7.5 Number of rental housing developments/units currently owned

20.5.7.6 Number of rental housing developments/units currently managed.

20.5.7.7 Number of rental housing developments/units in development phase (funding committed but not ready for occupancy)

20.5.8 Required Documents at Application

20.5.8.1 Articles of Incorporation as a nonprofit corporation from the California Secretary of State

20.5.8.2 By-Laws as registered with the California Secretary of State

20.5.8.3 Letter from the California Franchise Tax Board determining tax-exempt status under Section 23701d

20.5.8.4 Board Resolution authorizing Applicant to submit application to the City of Modesto

20.5.8.5 Organizational Chart

20.5.8.6 501(c)(3)

20.5.8.7 Project Staff Resume(s)

20.5.8.8 Site Control

20.5.8.9 Project location maps

20.5.8.10 Documentation to support past projects

20.5.8.11 Statistical back-up or supplemental project summary

20.5.8.12 History of Fundraising Efforts

20.5.8.13 Certified Audit and/or Financial Statement (most recent)

20.5.8.14 Documentation for findings or concerns issued by any audits #7..
- 177 -

20.5.8.15 Policies and Procedures that support compliance with Local, State, and Federal Regulations (included but not limited to)

20.5.8.16 Administrative structure/organizational chart

20.5.8.17 Supportive Policies (Upload in the Financial Management Section)

20.5.8.18 Diversity, Equity, and Inclusion Statement and/or governing practices/policies

20.5.8.19 Procurement Policy

20.5.8.20 Housing First Policy

20.5.8.21 Displacement/Relocation Policy

20.5.8.22 Financial Management Policies

20.5.8.23 Procurement Policies

20.5.8.24 Fiscal Policies & Procedures

20.5.8.25 Tenant Selection Policy

20.5.8.26 Affirmative Marketing Plan

20.5.8.27 For CHDO Applicants

20.5.8.28 Required Documents for Commitment

20.5.8.29 Business License (If Applicable)

20.5.8.30 Proof of Insurance: Provide a copy of the Insurance Certificate per the requirements on the template

20.5.8.31 Sample Lease/Tenant Agreement

20.5.8.32 Preliminary Construction Documents

20.5.8.33 Engineering Report

20.5.8.34 Phase One Environmental Documents

20.5.8.35 Appraisal

20.5.8.36 Market Study prior to Execution of HOME Agreements.

20.5.8.37 Award Letters

20.5.8.38 Documents supporting leverage/match funds

20.5.8.39 Displacement/Relocation Policies

20.5.8.40 Non-Displacement Certification
21 Appendix 2 Subsidy Layering Review and Underwriting Guidelines:

21.1 As described in 24 CFR 92.250, the City of Modesto is required to:

21.1.1 Evaluate subsidy layering and conduct or examine the underwriting of all projects to ensure that the HOME subsidy is not excessive and does not result in an undue or excessive return to the owner; and

21.1.2 Assess, at a minimum, the current market demand in the neighborhood in which the project will be located, the experience of the developer, the financial capacity of the developer, and firm financial commitments for the project.

21.1.3 Underwriting capacity does not apply to owner-occupied rehabilitation projects where is assistance is provided as a grant or deferred, forgivable loans to owneroccupants, or to homebuyer assistance projects that do not involve development or rehabilitation of housing, such as down payment assistance.

21.1.3.1 Underwriting capacity does apply to owner-occupied rehabilitation projects with an amortizing HOME-funded rehabilitation loan.

21.1.3.2 The City of Modesto also will not be required to perform neighborhood market analyses or evaluate developer capacity for owner-occupied rehabilitation projects, #7..
- 178 -
or projects involving HOME-funded down payment assistance, but no HOME-funded development.

21.2 The City of Modesto will use the following types of subsidy layering review before committing HOME program funds to any project:

21.2.1 A subsidy layering review produced by HUD, when the source of funding is provided by HUD, and HUD conducts a subsidy layering review;

21.2.2 Subsidy layering analysis produced when Low-Income Housing Tax Credit (LIHTC)is used, and an evaluation to determine whether there are excess tax subsidies;

21.2.3 A subsidy layering analysis produced by the developer and reviewed by the City of Modesto in accordance with the guidelines in HUD Notice CPD 98-1

21.2.4 Documentation Needed:

21.2.4.1 Project Pro Forma including sources and uses of funds statement, operating pro forma (rate of return on equity investment) that covers the entire HOME affordability period of the proposed

21.2.4.2 project, project development budget along with certification of federal assistance.

The pro forma should include achievable rent levels, market vacancies, and operating expenses.

21.2.5 Sources of Funds

21.2.5.1 Commitment letters with all terms and conditions for all mortgages, grants, subordination agreements, bridge (interim) loans and investment tax credits (historical, low-income, if applicable); and

21.2.5.2 If a partnership, a copy of the partnership agreement, which indicates the cash contribution by the general partner(s) and/or limited partner(s)

21.2.5.3 Documentation of owner cash equity and any deferred developer fees

21.2.6 Uses of Funds

21.2.6.1 Earnest money agreement; option or closing statement for land and/or buildings

21.2.6.2 Construction cost estimate including acquisition costs, rehabilitation or new

21.2.6.3 construction costs, financing costs and professional fees

21.2.6.4 Construction contract or preliminary bid(s)

21.2.6.5 Agreements governing the various reserves which are capitalized at closing (to verity

21.2.6.6 that the reserves cannot be withdrawn later as fees or distributions)

21.2.6.7 Appraisal (to substantiate the value of the land and the value of the property after

21.2.6.8 rehabilitation or construction of the structure being built)

21.2.6.9 If low-income tax credits are utilized, documentation on the syndication costs (legal,

21.2.6.10 accounting, tax opinion, etc) from the organization/individual who will syndicate and sell the offering to ensure that the project can support the fees necessary to syndicate/fund the project

21.2.6.11 Supporting documentation for all other costs specified in the Sources/Uses of Funds statement

21.3 Certification of Federal Assistance

21.3.1 Formal certification concerning any other governmental assistance provided or to be provided to the project - one certification for each funding source #7..
- 179 -

21.3.2 If no other governmental assistance, certification to this affect

21.3.3 If this changes during the course of the project, the City of Modesto needs to be informed immediately in the form of a new certification.

21.4 Project Development Budget

21.4.1 The City of Modesto will review the project development budget to determine that the development costs are necessary and "reasonable". The budget will include all costs associated with the development, regardless of the funding sources.

21.4.2 "Reasonableness" of costs shall be based on the following factors:

21.4.2.1 Cost of comparable projects in the same geographical area;

21.4.2.2 The qualifications of the cost estimators for the various budget line items; and

21.4.2.3 Comparable costs published by recognized industry cost index services.

21.5 Underwriting Standards

21.5.1 City of Modesto HOME projects will utilize the underwriting criteria as set forth below.

21.5.1.1 Generally underwriting will review the risk analysis of the project including market risk, developer risk, and project risk.

21.5.1.1.1 Market risk is defined as the likelihood that the units can be sold. Developer risk is defined as the likelihood that the developer can complete the project on-time and budget. Project risk is defined as the adequacy and reasonableness of the costs and sources to complete and sell the project.

21.5.1.1.2 Developer fees & overhead and any consultant fees may not exceed the sum of: 15% of total rehabilitation and new construction eligible basis; and 5% of total acquisition eligible basis; however a fee up to 10% of total acquisition eligible basis will be permitted for projects that require the approval of HUD for the transfer of the property.

21.5.1.1.3 Limits for Contractor Fee, Contractor Overhead and General Requirements will be calculated as follows:

21.5.1.1.3.1 Contractor Fee = 6% of hard construction costs

21.5.1.1.3.2 Contractor Overhead = 2% of hard construction costs

21.5.1.1.3.3 General Requirements = 6% of hard construction costs.

21.5.1.1.4 Total soft costs may not exceed 35% of total eligible basis.

21.5.1.1.5 Total soft costs equal the sum of general requirements, contractor overhead, contractor profit, architectural fees, survey costs, engineering fees, permanent loan fees, cost of tax-exempt bond issuance, taxes, appraisal, market study, environmental reports, rent-up/marketing costs, title & recording fees, nonsyndication legal fees, accounting fees, developer fees & overhead, consultant fees, organizational fees, and syndication expenses.
#7..
- 180 -
22 Appendix 4 - Property Standards for HOME-Assisted Housing Project Type
Upon completion, HOME rental and homebuyer
housing must meet the following requirements, per
24 CFR 92.251
Documentation
New
Construction
 State/local codes & standards; or, in their absence,
International Residential Code or International Building Code of the International Code Council, for the property type
 Accessibility, per Section 504 of the Rehabilitation Act of 1973 (24 CFR part 8); Titles II and III of the American Disabilities Act; and, for multifamily dwellings, design and construction requirements of the Fair Housing Act (24 CFR 100.205)
 Disaster mitigation, as applicable
 Broadband infrastructure for buildings with five or more units, if HOME funds committed after 1/19/2017, except in limited situations when PJ makes exception
 Scope of work in
construction contract and
related documents – must
be in sufficient detail to
perform inspection and
determine costs are
reasonable
 Plans and specifications
o Consistent with scope of
work
o Evidence of accessibility, as
applicable
o Evidence of broadband
infrastructure, as applicable
 Progress inspection(s) reports –
must verify compliance with
standards and scope of work in
construction contract
 Final inspection report –
must verify compliance with
applicable property
standards upon completion
 Evidence of disaster mitigation, as
applicable
Rehabilitation  PJ’s written rehabilitation standards - details methods, materials, & requirements. Must include:
o State/local codes & standards, or in their absence,
International Existing Building Code of the
International Code Council for the property type
o Health and safety -life threatening deficiencies that must be addressed immediately if housing is
occupied
o Evaluation of remaining useful life of major systems
 For rental housing with more than 26 units
in project, capital needs assessment
required
 For rental housing, if remaining useful life is
less than affordability period, system must
be replaced as part of rehab or sufficient
capital reserves must be set aside for
replacement later
 For homeownership housing, upon
completion, each major system must have
remaining useful life of 5 year minimum, or
the major system(s) must be rehabilitated
or replaced as part of the rehabilitation
work
 Initial (pre-rehab) inspection report
– to identify deficiencies to be
addressed in rehab (i.e., scope of
work)
 Scope of work in construction
contract and related documents
– must be in sufficient detail to
ensure compliance with rehab
standard and correct
deficiencies identified in initial
inspection
 Plans and specifications
o Consistent with
scope of work
evidence of
accessibility, if
applicable
o Evidence of broadband
infrastructure, for rental
housing, as applicable
 Progress inspection(s) reports –
must verify compliance with
standards and scope of work in
#7..
- 181 -
o Lead-based paint (pre-1978 housing), per 24 CFR part
35 construction documents
 If lead paint present – evidence of
evaluation and treatment of paint
per 24 CFR part 35 along with
clearance and issuance of all
required notices
 Final inspection report – must
verify compliance with PJ’s
written rehab standards
 Evidence of disaster mitigation, as
applicable
o Accessibility, per Section 504 of the Rehabilitation
Act of 1973 (24 CFR part 8); Titles II and III of the
American Disabilities Act; and, for multifamily
dwellings, design and construction requirements of
the Fair Housing Act (24 CFR 100.205)
o Disaster mitigation, as applicable
o Housing must be decent, safe, sanitary and in good
condition; must correct certain minimum
deficiencies based on inspectable items and areas in
HUD’s Uniform Physical Condition Standards, as
identified by HUD
o Broadband infrastructure, for buildings with 5 or
more units that are substantially rehabilitated (as
defined in 24 CFR 5.100), if HOME funds
committed after 1/19/2017, except in
limited situations if PJ makes exception
Acquisition  For rental housing that will be acquired:
o New construction standards apply when housing
was newly constructed within 12 months of
commitment date
o Rehabilitation standards apply when
housing was rehabilitated within 12
months of commitment date
o PJ must inspect property within 90 days of
commitment. If housing does not meet
standards, it must be rehabbed to meet rehab
standards
 For homeownership units that will be acquired:
o Housing must meet PJ-established standards of
decent, safe, sanitary and in good repair at the time
title is transferred to the buyer.
o PJ standard must include state and local standards
and must address, at a minimum, specific
deficiencies based on inspectable items and areas
in HUD’s Uniform Physical Condition Standards, as
identified by HUD
o PJ must inspect property within 90 days of
commitment. If housing does not meet
standards, it must be rehabbed to meet rehab
standard
 Approved building plans and
certificate of occupancy, if
recently constructed or
rehabilitated
 Copy of property inspection
report, no earlier than 90 days
before the commitment of HOME
funds for acquisition
#7..
- 182 -
Manufactured
Housing - new
or
replacement
unit
(reconstructio
n)
 Manufactured Home Construction and Safety Standards
codified at 24 CFR part 3280 (pre-empts State and local codes that do not meet federal standards)
 Applicable State and local laws or codes for manufactured housing; in their absence, must follow manufacturer's
instructions for installation
 Permanent foundation must comply with 24 CFR 203.43f(c)(i)  At completion, unit must be connected to permanent utility hook-ups
 Manufactured housing unit owner must own land where
unit is installed, or have lease for length of affordability period, at minimum
 For rehab of existing manufactured housing:
o Foundation and anchoring must meet applicable
State and local codes and requirements; in their
absence, it must meet Model Manufactured Home
Installation Standards at 24 CFR part 3285
o Upon completion, unit must meet PJ’s written
rehabilitation standard, described under
Rehabilitation above
 See Notice CPD-03-05, Guidance on Manufactured Housing under the
HOME Program for more information on the standards that apply to manufactured housing.
 Copy of inspection report, per PJ’s
inspection procedures
 Title search or land records search
showing land ownership by
manufactured housing unit owner;
or if manufactured housing unit
owner is leasing the land on which
the unit sits, copy of lease
Ongoing
Property
Condition
Standards
(Rental
housing)
 PJ-established standards to ensure property remains in decent, safe, and sanitary condition throughout
affordability period
 Must include:
o Compliance with State/local codes and standards;
or in their absence, address inspectable items and
areas from the Uniform Physical Conditions
Standards (UPCS), as identified by HUD
o Health & safety – must be free of health and
safety defects; life-threatening defects must be
addressed immediately
o Ongoing compliance with lead-based paint
requirements, per 24 CFR part 35
 For projects with HOME funding commitments made prior to 1/24/15, all applicable State or local housing quality
standards or code requirements apply; absent such
standards/codes, the housing must meet the HUD housing
quality standards at 24 CFR 982.401
 Annual certification by owner
that units are suitable for
occupancy
 PJ inspection procedures that include:
o Inspection checklists
o Description of how and
by whom inspections will
occur
o Frequency of inspections
o Procedures for training and
certifying inspectors
o Procedures for ensuring
timely corrective and
remedial action by
owners to correct
deficiencies.
 Inspection reports to determine if
property meets applicable standards
o If deficiencies found, reinspection report(s)
conducted within 12
months to show
deficiencies are
corrected, or other
documentation for nonhazardous deficiencies
o Inspections dated w/in 12
months of completion & at
least every 3 years during
affordability period
#7..
- 183 -
Tenantbased Rental
Assistance
Programs
 HUD housing quality standards at 24 CFR 982.401  Inspection report prior to initial movein  Annual re-inspection reports for
duration of tenancy
NOTE: On January 13, 2021, HUD issued a Proposed Rule related to the implementation of National Standards for the Physical Inspection of Real Estate (NSPIRE). This proposed Rule would revise the way HUD-assisted housing is inspected and evaluated. It proposes to align and consolidate the inspection regulations used to evaluate HUD housing and create a unified assessment of housing quality across HUD programs. Any changes to the HOME property standards requirements that may result from these efforts will be announced on the HUD Exchange.
#7..
- 184 -
Appendix 5
City of Modesto Emergency Transfer Plan
For Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking

1. The City of Modesto in accordance with the federal Violence Against Women Act at 42 U.S.C. 13925 and 42 U.S.C. 14043e et seq. (“VAWA”) and the implementing regulations for VAWA at 24 CFR part 5, subpart L (the “Implementing Regulations”), is required by law to extend special concerns and efforts to and on behalf of a certain class of tenants who live in housing located within Modesto city limits or, under certain programs, a certain class of tenants who live in eligible housing located within Modesto city limits, and a certain class of homeless persons who live within Modesto city limits, each of whom benefit from or are supported by funding provided by certain programs of the U.S. Department of Housing and Urban Development (“HUD”) (such persons, collectively, “Eligible Persons”).

1.1. About VAWA

1.1.1. VAWA provides certain protections for victims of domestic violence, dating violence, sexual assault, or stalking. VAWA protections are not limited only to women but, instead, are available equally to all qualifying individuals regardless of sex, sexual orientation or gender identity.

1.1.2. The relevant HUD programs for City purposes are: (i) the HOME Program, (ii) the Emergency Solutions Grants (ESG) program, (iii) the Housing Opportunities for Persons With AIDS (HOPWA) program, and (iv) the Continuum of Care (CoC) program (collectively, “HUD Programs”). For purposes of this Plan, eligible housing within the City of Modesto, that is supported by funding provided through any of these four HUD Programs, shall be called “HUD Program- Supported Housing.”

1.2. About this VAWA Emergency Transfer Plan

1.2.1. Under the Implementing Regulations, an Eligible Person who is a victim of domestic violence, dating violence, sexual assault, or stalking, as those terms are defined in the Implementing Regulations, is eligible for an emergency transfer, if the Eligible Person expressly requests the transfer and

1.2.1.1. The Eligible Person reasonably believes there is a threat of imminent harm from further violence if the Eligible Person remains within the same dwelling unit that the Eligible Person is currently occupying; or

1.2.1.2. In the case of an Eligible Person who is a victim of sexual assault, either the Eligible Person reasonably believes there is a threat of imminent harm from further violence if the Eligible Person remains within the same dwelling unit that the Eligible Person is currently occupying, or the sexual assault occurred on the premises during the 90- calendar-day period preceding the date of the request for transfer.

1.2.2. An Eligible Person requesting an emergency transfer must expressly request the transfer with the appropriate covered housing provider as described below.

1.2.2.1. An Eligible Person who is not in good standing under the Eligible Person’s HUD Program- Supported Housing may still request an emergency transfer if the Eligible Person meets the eligibility requirements herein.

1.3. The City is not a landlord and operates no HUD Program-Supported Housing directly. #7..
- 185 -
Therefore, the City will undertake the following actions under this Plan. However, nothing in this Plan is intended to supersede any eligibility or other occupancy requirements that may apply under any individual HUD Program-Supported Housing program.

1.4. This Plan may be amended from time to time by the City.

1.5. Assisting Covered Housing Providers in Fulfilling Their VAWA Responsibilities Generally

1.5.1. The City, through its contractual relationships with covered housing providers such as the owners of HOME, ESG subrecipients, delegate agents for HOPWA and CoC delegate agencies, will undertake to assist them in fulfilling their VAWA responsibilities. This will include:

1.5.1.1. Adding requisite text concerning VAWA, including changes to tenant lease addenda and lease bifurcation text, to delegate agency agreements, HOME loan agreements, HOME regulatory agreements, and the like;

1.5.1.2. Ensuring that covered housing providers give priority, if so required under the relevant HUD Program, to Eligible Persons who qualify for an emergency transfer over other categories of tenants seeking transfers and individuals seeking placement on waiting lists;

1.5.1.3. Seeking confirmation that covered housing providers have an emergency transfer plan in place, and that they have provided all required VAWA information to all appropriate tenants and applicants; and collecting from covered housing providers all information that the City is required to collect under the Implementing Regulations.

1.6. Emergency Transfer Plan Procedures for Each HUD Program-Supported Housing Program

1.6.1. To request an emergency transfer, the Eligible Person should follow the procedures listed for the particular HUD Program that provides the Eligible Person’s housing. The Eligible Person should be prepared to present the covered housing provider the written documentation referred to in the Emergency Transfer Request Documentation section below.

1.6.1.1. Information specific to each program will also be listed in the Eligible Person’s lease and/or notice for reference.

1.6.1.2. If an Eligible Person requests an internal transfer, as defined in the Implementing Regulations, the covered housing provider will facilitate the provision of VAWA protections for the Eligible Person as set out in the program-specific regulations below.

1.6.1.3. If an Eligible Person requests an external transfer, as defined in the Implementing Regulations – whether the transfer would be out of a covered housing provider’s project, or into a covered housing provider’s project – the covered housing provider will assist the Eligible Person in the provision of a safe and available unit for the Eligible Person.

1.6.1.4. The City may also coordinate with covered housing providers that are providing HUD Program- Supported Housing to develop their emergency transfer plans, to make referrals, and to facilitate emergency transfers to safe and available units.

1.6.1.5. The City is aware that nothing precludes an Eligible Person from seeking #7..
- 186 -
an internal emergency transfer and an external emergency transfer concurrently if a safe unit is not immediately available.

1.6.2. HOPWA

1.6.2.1. If an Eligible Person seeks VAWA protections, the Eligible Person must submit such request through the project sponsor—the delegate agency that receives HOPWA funds.

1.6.3. HOME

1.6.3.1. If an Eligible Person seeks VAWA protections, the request may be made through the Eligible Person’s housing or facility owner, or manager. If a request for internal or external transfer is made, the housing or facility owner, or manager may, in addition to other actions indicated above, provide a list of properties within the City limits that include HOME-assisted units.

1.6.3.2. The City maintains a list of HOME-assisted properties and can be obtained by contacting the Community Development Division at [email protected] or calling 209-577-5211. The list includes the following information for each property: The property's address, contact information, the unit sizes (number of bedrooms) for the HOME-assisted units, and, to the extent known, any tenant preferences or eligibility restrictions for the HOME-assisted units.

1.6.4. ESG

1.6.4.1. For ESG tenant-based rental assistance arrangements, the City will assist delegate agencies with the provision of VAWA protections and quick moving assistance for Eligible Persons. The City will also require subrecipient agencies to have procedures that will specify what will happen with respect to the nontransferring family member(s) if the family separates in order to affect an emergency transfer.

1.6.5. CoC

1.6.5.1. For the Eligible Person or for families receiving tenant-based rental assistance under CoC, the City will assist the delegate agency or tenant to the CoC Collaborative Applicant to assist with the appropriate provisions under CFR 24 CFR 578.93(b)(1), (4), (6), or (7).

1.7. Emergency Transfer Request Documentation

1.7.1. Written documentation required under all HUD Programs shall be either as described in (i) or (ii) below:

1.7.2. The Eligible Person's submission of a written certification that the Eligible Person reasonably believes there is a threat of imminent harm from further violence if the Eligible Person remains within the same dwelling unit that the Eligible Person is currently occupying, or

1.7.3. One of the following:

1.7.3.1. A completed and signed Certification on the form attached hereto

1.7.3.2. A document that is (A) signed by an employee, agent, or volunteer of a victim service provider, an attorney, or medical professional, or a mental health professional (collectively, “professional”) from whom the victim has sought assistance relating to domestic violence, dating violence, sexual assault, or stalking, or the effects of abuse; (B) signed by the Eligible Person; and (C) that specifies, under penalty of perjury, that the professional believes in the #7..
- 187 -
occurrence of the incident of domestic violence, dating violence, sexual assault, or stalking that is the ground for protection and remedies under this subpart, and that the incident meets the applicable definition of domestic violence, dating violence, sexual assault, or stalking under VAWA

1.7.3.2.1. Court order of protection in favor of the Eligible Person

1.7.3.2.2. A statement or other evidence provided by the applicant or tenant

1.8. Confidentiality

1.8.1. The City will keep confidential any information that an Eligible Person submits to the City related to the exercise of the Eligible Person’s rights under VAWA, including the fact that the Eligible Person is exercising rights under VAWA.

1.8.2. If the City learns that an Eligible Person has relocated to a safe unit, the City will not disclose the location of that unit to a person who committed or threatened to commit an act of domestic violence, dating violence, sexual assault, or stalking against the Eligible Person.

1.8.3. The City will not allow any individual administering assistance or other services on behalf of the City in connection with the exercise of an Eligible Person’s rights under VAWA (for example, employees and contractors) to have access to confidential information about the Eligible Person unless for reasons that specifically call for these individuals to have access to this information under applicable Federal, State, or local law.

1.8.4. The City will not enter an Eligible Person’s information into any shared database (e.g., a database outside the City’s control) or disclose the information to any other entity or individual. The City, however, may disclose the information provided if:

1.8.4.1. The Eligible Person gives written permission to the City to release the information on a time limited basis; or

1.8.4.2. The City needs to use the information in an eviction or termination proceeding, such as to evict the Eligible Person’s abuser or perpetrator or to terminate such abuser or perpetrator from assistance under this program; or

1.8.4.3. A law requires the City to release the information. VAWA does not limit the City’s duty to honor court orders about access to or control of the property.

This includes orders issued to protect a victim and orders dividing property among household members in cases where a family breaks up.

1.9. City Cannot Assist With Eviction Problems

1.9.1. The City is not a landlord for any HUD Program-Supported Housing. The City does not have any new or special duties under this Plan or the Implementing Regulations to assist Eligible Persons experiencing eviction problems.

1.10. This Plan Does Not Replace Other Laws

1.10.1. This Plan, and VAWA and the Implementing Regulations, do not replace any Federal, State, or local law that provides greater protection for victims of domestic violence, dating violence, sexual assault, or stalking. Eligible Persons may be entitled to additional housing protections for victims of domestic violence, dating violence, sexual assault, or stalking under other Federal laws, as well as under State and local laws.

1.11. Recordkeeping and Reporting

1.11.1. The covered housing provider is required, under the Implementing Regulations, to keep certain information in its files.
#7..
- 188 -

1.11.2. The covered housing provider must keep a record of all emergency transfer requests made or the outcomes of such requests, and (i) retain records of such requests and outcomes for three years (four years for HOPWA), and (ii) while not violating the confidentiality requirements listed above, report certain information to HUD annually.

1.12. Safety and Security of Eligible Persons

1.12.1. Pending processing of the transfer and the actual transfer, if it is approved and occurs, the Eligible Person is urged to take all reasonable precautions to be safe.

Eligible Persons who have been victims of domestic violence are encouraged to contact the National Domestic Violence Hotline at 1– 800–799–7233 (English and Spanish), locally Haven’s 24-Crisis Line 209-577-5980 for assistance in creating a safety plan. For persons with hearing impairments, the National Domestic Violence Hotline can be accessed by calling 1– 800–787–3224 (TTY). For General Assistance contact 211 or 711 for Hearing Impaired.

1.12.2. Eligible Persons who have been victims of sexual assault are encouraged to contact the Rape, Abuse & Incest National Network’s National Sexual Assault Hotline at 800–656–HOPE or visit the online hotline at https://ohl.rainn.org/online/.

1.12.3. Eligible Persons who have been victims of stalking are encouraged to contact the National Center for Victims of Crime’s Stalking Resource Center at https://victimsofcrime.org/stalking-resource-center/about-us/

1.13. For Additional Information

1.13.1. The Violence Against Women Act at 42 U.S.C. 13925 and 42 U.S.C. 14043e et seq. the Implementing Regulations at https://www.gpo.gov/fdsys/pkg/FR-2016-11- 16/pdf/2016-25888.pdf
Attachments: Please see the attached Certification of Domestic Violence form #7..
- 189 -

MODEL EMERGENCY TRANSFER PLAN FOR VICTIMS OF

DOMESTIC VIOLENCE, DATING VIOLECE, SEXUAL

ASSAULT, OR STALKING
U.S. Department of Housing and Urban Development
OMB Approval No. 2577-0286
Expires 06/30/2017
Form HUD-5381
(06/2017)
[Insert name of covered housing provider]
Model Emergency Transfer Plan for Victims of Domestic Violence, Dating Violence, Sexual Assault, or Stalking
Emergency Transfers
[Insert name of covered housing provider (acronym HP for purposes of this model plan)] is concerned about the safety of its tenants, and such concern extends to tenants who are victims of domestic violence, dating violence, sexual assault, or stalking. In accordance with the Violence Against Women Act (VAWA),1 HP allows tenants who are victims of domestic violence, dating violence, sexual assault, or stalking to request an emergency transfer from the tenant’s current unit to another unit. The ability to request a transfer is available regardless of sex, gender identity, or sexual orientation.2 The ability of HP to honor such request for tenants currently receiving assistance, however, may depend upon a preliminary determination that the tenant is or has been a victim of domestic violence, dating violence, sexual assault, or stalking, and on whether HP has another dwelling unit that is available and is safe to offer the tenant for temporary or more permanent occupancy.

This plan identifies tenants who are eligible for an emergency transfer, the documentation needed to request an emergency transfer, confidentiality protections, how an emergency transfer may occur, and guidance to tenants on safety and security. This plan is based on a model 1 Despite the name of this law, VAWA protection is available to all victims of domestic violence, dating violence, sexual assault, and stalking, regardless of sex, gender identity, or sexual orientation. 2 Housing providers cannot discriminate on the basis of any protected characteristic, including race, color, national origin, religion, sex, familial status, disability, or age. HUD-assisted and HUD-insured housing must be made available to all otherwise eligible individuals regardless of actual or perceived sexual orientation, gender identity, or marital status.
#7..
- 190 -

MODEL EMERGENCY TRANSFER PLAN FOR VICTIMS OF

DOMESTIC VIOLENCE, DATING VIOLECE, SEXUAL

ASSAULT, OR STALKING
U.S. Department of Housing and Urban Development
OMB Approval No. 2577-0286
Expires 06/30/2017
Form HUD-5381
(06/2017)
emergency transfer plan published by the U.S. Department of Housing and Urban Development (HUD), the Federal agency that oversees that [insert name of program or rental assistance here] is in compliance with VAWA.

Eligibility for Emergency Transfers
A tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking, as provided in HUD’s regulations at 24 CFR part 5, subpart L is eligible for an emergency transfer, if: the tenant reasonably believes that there is a threat of imminent harm from further violence if the tenant remains within the same unit. If the tenant is a victim of sexual assault, the tenant may also be eligible to transfer if the sexual assault occurred on the premises within the 90-calendarday period preceding a request for an emergency transfer.

A tenant requesting an emergency transfer must expressly request the transfer in accordance with the procedures described in this plan.

Tenants who are not in good standing may still request an emergency transfer if they meet the eligibility requirements in this section.

Emergency Transfer Request Documentation
To request an emergency transfer, the tenant shall notify HP’s management office and submit a written request for a transfer to [HP to insert location]. HP will provide reasonable accommodations to this policy for individuals with disabilities. The tenant’s written request for an emergency transfer should include either:

1. A statement expressing that the tenant reasonably believes that there is a threat of imminent harm from further violence if the tenant were to remain in the same dwelling unit assisted under HP’s program; OR
#7..
- 191 -

MODEL EMERGENCY TRANSFER PLAN FOR VICTIMS OF

DOMESTIC VIOLENCE, DATING VIOLECE, SEXUAL

ASSAULT, OR STALKING
U.S. Department of Housing and Urban Development
OMB Approval No. 2577-0286
Expires 06/30/2017
Form HUD-5381
(06/2017)

2. A statement that the tenant was a sexual assault victim and that the sexual assault occurred on the premises during the 90-calendar-day period preceding the tenant’s request for an emergency transfer.

Confidentiality
HP will keep confidential any information that the tenant submits in requesting an emergency transfer, and information about the emergency transfer, unless the tenant gives HP written permission to release the information on a time limited basis, or disclosure of the information is required by law or required for use in an eviction proceeding or hearing regarding termination of assistance from the covered program. This includes keeping confidential the new location of the dwelling unit of the tenant, if one is provided, from the person(s) that committed an act(s) of domestic violence, dating violence, sexual assault, or stalking against the tenant. See the Notice of Occupancy Rights under the Violence Against Women Act For All Tenants for more information about HP’s responsibility to maintain the confidentiality of information related to incidents of domestic violence, dating violence, sexual assault, or stalking.

Emergency Transfer Timing and Availability
HP cannot guarantee that a transfer request will be approved or how long it will take to process a transfer request. HP will, however, act as quickly as possible to move a tenant who is a victim of domestic violence, dating violence, sexual assault, or stalking to another unit, subject to availability and safety of a unit. If a tenant reasonably believes a proposed transfer would not be safe, the tenant may request a transfer to a different unit. If a unit is available, the transferred tenant must agree to abide by the terms and conditions that govern occupancy in the unit to #7..
- 192 -

MODEL EMERGENCY TRANSFER PLAN FOR VICTIMS OF

DOMESTIC VIOLENCE, DATING VIOLECE, SEXUAL

ASSAULT, OR STALKING
U.S. Department of Housing and Urban Development
OMB Approval No. 2577-0286
Expires 06/30/2017
Form HUD-5381
(06/2017)
which the tenant has been transferred. HP may be unable to transfer a tenant to a particular unit if the tenant has not or cannot establish eligibility for that unit.

If HP has no safe and available units for which a tenant who needs an emergency is eligible, HP will assist the tenant in identifying other housing providers who may have safe and available units to which the tenant could move. At the tenant’s request, HP will also assist tenants in contacting the local organizations offering assistance to victims of domestic violence, dating violence, sexual assault, or stalking that are attached to this plan.

Safety and Security of Tenants
Pending processing of the transfer and the actual transfer, if it is approved and occurs, the tenant is urged to take all reasonable precautions to be safe.

Tenants who are or have been victims of domestic violence are encouraged to contact the National Domestic Violence Hotline at 1-800-799-7233, or a local domestic violence shelter, for assistance in creating a safety plan. For persons with hearing impairments, that hotline can be accessed by calling 1-800-787-3224 (TTY).

Tenants who have been victims of sexual assault may call the Rape, Abuse & Incest National Network’s National Sexual Assault Hotline at 800-656-HOPE, or visit the online hotline at https://ohl.rainn.org/online/.

Tenants who are or have been victims of stalking seeking help may visit the National Center for Victims of Crime’s Stalking Resource Center at https://www.victimsofcrime.org/ourprograms/stalking-resource-center.

Attachment: Local organizations offering assistance to victims of domestic violence, dating violence, sexual assault, or stalking.
#7..
- 193 -

CITY OF MODESTO

COUNCIL AGENDA REPORT
DATE OF MEETING:

December 12, 2023
Date: November 14, 2023
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Administrative Amendment No.1 to Consolidated Plan Program Year 2015-2020 and the Annual Action Plans Program Years 2017-2018 and 2023-2024 CONTACT: Edgar Garcia, Housing and Urban Development Supervisor, [email protected], 209- 571-5101
DESCRIPTION:

Consider approving Administrative Amendments to the Consolidated Plan for Program Year 2015-2020 and Administrative Amendment #1 to City Annual Action Plan for Program Years 2017-2018 and 2023-2024 Annual Action Plan. (Funding Sources: Various HUD Entitlement Funds)
STRATEGIC PLAN ELEMENT:

This item supports the City of Modesto’s 2020-2025 Strategic Plan Goal C: Develop Homelessness and Housing Plan.

BACKGROUND:

The City of Modesto is an entitlement grantee under the U.S. Department of Housing and Urban Development (HUD) Office of Community Planning and Development (CPD) which allocates the following program funds to the City of Modesto through a formula-based allocation: Community Development Block Grant (CDBG), HOME Investment Partnerships (HOME), and Emergency Solutions Grant (ESG).

HUD requires entitlement grantees adopt a comprehensive, long‐term plan known as the Five‐Year Consolidated Plan for the use of HUD funds allocated to the City. The Consolidated Plan analyzes the City’s housing and community development needs, with a priority focus on low and moderate-income individuals, households, and neighborhoods, and describes a fiveyear strategy for meeting those needs. HUD funds must be used to revitalize low-income neighborhoods and to assist disadvantaged populations by providing adequate public facilities and services, generating affordable housing opportunities, and implementing effective strategies to reduce homelessness.

On August 5, 2015, by Resolution 2015-281, the City Council approved the Program Year 2015- 2020 Consolidated Plan through which CDBG, ESG, and HOME Program funds were allocated #8..
- 194 -
City Council, December 12, 2023
Administrative Amendments to the Consolidated and Annual Action Plans