parts, calibration standards and equipment, replacement units and manufacturer service fees.
Hach Company will also provide full replacement of any failed units under this agreement for as long as the unit is a supported product.
On July 6, 2021, by Resolution No. 2021-265, Council approved a sole source agreement with Hach Company, Loveland, CO, for field services for a one (1) year agreement with two (2) oneyear extension options, for an estimated annual amount of $27,922 and a total amount not to exceed $86,305 over three (3) years. Because all of the parts had been purchased, and were new, this Agreement was for field services only and did not include the funds to purchase parts.
DISCUSSION:
This agreement is crucial to the reliability of critical process control and compliance instruments.
Between Phase 1 and Phase 2 of the tertiary treatment facility, there are thirty (30) meters and twenty (20) controllers needing regular service. This agreement will ensure dependable service and warranty compliance for these units.
Modesto Municipal Code Section 8-3.204 generally requires all purchases in excess of one hundred thousand dollars ($100,000) to follow formal bid procedures. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process. Hach Company, Loveland, CO should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(b) since they are the original equipment manufacturer and the only vendor that is able to service the equipment. Therefore, this purchase qualifies for exemption from the formal bidding procedures.
FISCAL IMPACT:
The actual expenditures for both, the current agreement for field services, and parts that were not included in the current Annual Agreement, are listed below:
Agreement
Year
Expenditure
1 $34,203
2 $92,450
3 $68,668
TOTAL $195,321
ANTICIPATED AGREEMENT EXPENDITURES:
There is a significant increase requested for the new three-year Agreement to allow for the purchase of replacement parts that will be meeting the end of their life cycle during the term of this Agreement.
Year 1 Year 2 Year 3 Total
Annual Cost for Service $43,134 $44,860 $46,723 $134,717 Parts* $80,000 $84,800 $89,888 $254,688
Total $123,134 $129,660 $136,611 $389,405
*Includes a 6% increase in Year 2 and Year 3 for additional replacement parts #22..
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City Council, June 25, 2024
Sole Source Agreement for Field Services and Parts
Year Amount
6%
Increase
for Parts
Total
One $80,000 0 $80,000
Two $80,000 $4,800 $84,800
Three $84,800 $5,088 $89,888
Parts Total - Not to Exceed $254,688
The estimated first year expenditure of $123,134, is based on the $43,134 for year-one of the service Agreement with an $80,000 estimated cost for new and replacement parts, for a new three-year Agreement not to exceed $389,405.
Agreement Years 2-3 includes a 6% increase per year for additional replacement parts. Sufficient funds are budgeted in Fiscal Year 2024-25 in the Sewer Operations Fund.
COMMITTEE RECOMMENDATION
This item was considered by the Economic Development Committee at the June 3, 2024, meeting where it was recommended that it be forwarded to Council for approval.
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving the Sole Source Agreement with Hach Company, Loveland, CO, for Field Services and Parts for a three (3) year Agreement, for an estimated annual amount of $123,134, and a total amount not to exceed $389,405 over three (3) years and authorizing the Director of Finance, or her designee, the ability to add parts based on the department’s needs, ensuring the total amount does not exceed the authorized total; and authorizing the City Manager, or his designee, to execute the Agreement.
Approved by:
William Wong, Director of Utilities
Joseph P. Lopez, City Manager
Attachments:
1. Resolution
2. Agreement
3. Exhibit B – Hach Service Partnership Quote and Parts Quote
4. Bid Waiver w/Sole Source
#22..
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1 2024
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING THE SOLE SOURCE AGREEMENT WITH HACH
COMPANY, LOVELAND, CO, FOR FIELD SERVICES AND PARTS FOR A THREE (3) YEAR AGREEMENT, FOR AN ESTIMATED ANNUAL AMOUNT OF $123,134, AND A TOTAL AMOUNT NOT TO EXCEED $389,405 OVER THREE (3) YEARS AND AUTHORIZING THE DIRECTOR OF FINANCE, OR HER DESIGNEE, THE ABILITY TO ADD PARTS BASED ON THE DEPARTMENT’S
NEEDS, ENSURING THE TOTAL AMOUNT DOES NOT EXCEED THE
AUTHORIZED TOTAL; AND AUTHORIZING THE CITY MANAGER, OR HIS
DESIGNEE, TO EXECUTE THE AGREEMENT
WHEREAS, the Utilities Wastewater Recycling Facilities have installed various Hach Company instruments at both sites; and
WHEREAS, these instruments ensure process control and compliance by monitoring and collecting critical data needed for the City’s National Pollutant Discharge Elimination System (NPDES) Permit. The instruments also assist the operations staff in maintaining equipment and processes with real-time data; and WHEREAS, this service agreement includes, but is not limited to, onsite calibration, onsite routine maintenance, and parts necessary to keep equipment in service; and
WHEREAS, Hach Company’s factory-trained service personnel are authorized to perform any repair, start-up service, or maintenance on these instruments. This will ensure accuracy of critical data points required for plant optimization and regulatory compliance, as well as dependability of the instruments, to minimize downtime of the facility and potential lost water sales to the North Valley Regional Recycled Water Project; and WHEREAS, this agreement is crucial to the reliability of critical process control and compliance instruments. Between Phase 1 and Phase 2 of the tertiary treatment facility, #22..
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2 2024
there are thirty (30) meters and twenty (20) controllers needing regular service. This agreement will ensure dependable service and warranty compliance for these units; and WHEREAS, the Modesto Municipal Code Section 8-3.204 generally requires all purchases in excess of one hundred thousand dollars ($100,000) to follow formal bid procedures. However, MMC 8-3.204(b) provides that a purchase may be exempted from the City’s formal bidding requirement where the Purchasing Agency’s requirements can be met solely by a single article or process; and
WHEREAS, Hach Company, Loveland, CO should be exempt from the formal bidding procedure in accordance with Modesto Municipal Code 8-3.204(b) since they are the original equipment manufacturer and the only vendor that is able to service the equipment. Therefore, this purchase qualifies for exemption from the formal bidding procedures.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Sole Source Agreement with Hach Company, Loveland, CO, for field services and parts for a three (3) year agreement, for an estimated annual amount of $123,134, and a total amount not to exceed $389,405 over three (3) years and authorizing the Director of Finance, or her designee, the ability to add parts based on the department’s needs, ensuring the total amount does not exceed the authorized total.
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 25th day of June, 2024, by Councilmember ?, who moved its #22..
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3 2024
adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers:
NOES: Councilmembers:
ABSENT: Councilmembers:
ATTEST: ____________________________________
DIANE NAYARES-PEREZ, CMC, City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
#22..
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1 ANNUAL AGREEMENT NO 272374
FOR FIELD SERVICES AND PARTS
HACH COMPANY
This agreement, hereinafter called AGREEMENT, made and entered into in the City of Modesto, State of California, this _______ day of _____________, 2024, by and between the City of Modesto, a municipal corporation of the State of California, hereinafter called CITY, and Hach Company, hereinafter called CONTRACTOR.
W I T N E S E T H:
WHEREAS, the Modesto City Council adopted Resolution No. 2024- _______ authorizing an agreement for Field Services and Parts to CONTRACTOR, attached hereto as Exhibit “A” and made a part hereof, and
WHEREAS, the CONTRACTOR is the sole manufacture and service provider for Field Services and Parts, and
WHEREAS, the CONTRACTOR shall provide services to CITY as defined in the “Hach Service Partnership Quotation” and “Parts Quotation” that best meets the CITY needs, attached hereto as Exhibit “B” and made a part hereof, and
#22..
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2 WHEREAS, the CITY and CONTRACTOR shall enter into an agreement for furnishing of Field Services and Parts as described in the “Hach Partnership Quotation and Parts Quotation” attached herto as Exhibit “B” made a part hereof, and
WHEREAS, the City shall have the authorization to add additional parts and services as needed throughout the life of the agreement, and
NOW, THEREFORE, the parties hereto mutually agree as follows:
1. THE WORK:
a) CONTRACTOR shall furnish all labor, materials, equipment, fuel, tools, licenses and insurance necessary to perform and complete the required work as specified in Exhibit “B”, and in strict accordance with the conditions of the complete AGREEMENT. b) CONTRACTOR shall do and perform the work contemplated hereby in a good workmanlike manner under the direction of and to the satisfaction of the CITY Representative. c) CONTRACTOR shall maintain proper insurance with the CITY for the duration of the AGREEMENT.
d) CONTRACTOR shall maintain a CITY business license for the duration of the AGREEMENT.
e) CONTRACTOR shall furnish said services at the following AGREEMENT rates for an estimated annual amount $123,134. The total amount paid by CITY to CONTRACTOR over the full term of the AGREEMENT shall not exceed $389,405. Unless the services provided are for a lump sum or flat fee, fees for work performed by CONTRACTOR on an hourly basis shall not exceed the amounts shown on the “Hach Service Partnership Quotation” and “Parts Quotation”attached hereto as Exhibit B. #22..
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3 AGREEMENT PRICING
SERVICE RATES
Part Number Description Qty Unit
Price
Year 1
Extended
Price
Year 2
Extended
Price
Year 3
Extended
Price
FSPLDO2
Fld Svc LDO2-1 Visit
Field Service Partnership provides full coverage,
including one (1) on-site annual preventive
maintenance/calibration service and probe
replacement upon failure.
11 $496.65 $5,463.15 $5,463.15 $5,463.15
FSPSC200 Fld Svc-1V SC200 Controller 20 $334.95 $6,699.00 $6,699.00 $6,699.00 FSPUVASPRB Fld Svc-2V UVAS Sensor 2 $1,735.65 $3,471.30 $3,471.30 $3,471.30 BSPPLUSDR6000
BenchPlus-DR6000
The Bench Service Plus Partnership includes
repairs at the Hach Service Center, one (1) on-site
start-up or preventative maintenance/calibration
visit, unlimited technical support calls, and free
software upgrades.
1 $1861.65 $1,861.65 $1,861.65 $1,861.65
FSPCL17
aa Fld Svc-2V CL17 (current version) For CL17
p/n 5440000 only. Field Service includes all parts,
labor and travel for on-site repairs, two (2)
preventative maintenance visits per year (including
required parts), unlimited technical support calls,
and free firmware updates.
2 $1,726.20 $3,452.40 $3,452.40 $3,452.40
PMP-GLPHORP1V PMP-GLI pH ORP PROBE-1V 4 $369.60 $1,478.40 $1,478.40 $1,478.40 FSPTU53XX-4
VISIT
Fld Svc TU53XX 4 VST
Field Service includes: All parts, labor, and travel
for on-site repairs, four (4) on-site calibrations per
year, factory recommended maintenance
(including required parts), unlimited technical
support calls, and free firmware updates. Please
see service terms and conditions for additional
details on our service plans, and to ensure you
have an opportunity to review our environmental
and safety requirements. Cleaning Module
Accessory is not covered under this offering
12 $1,167.60 $14,011.20 $14,011.20 $14,011.20
FSPTUACM Fld Svc TU Automatic Cleaning Module 12 $274.05 $3,288.60 $3,288.60 $3,288.60
FSPAMTAXSC
aa Fld Svc-sV Amtax SCV Field Service includes:
All parts, labor, and travel for on-site repairs, 2 onsite calibrations per year, factory recommended maintenance (including required parts), unlimited
technical support calls, and free firmware updates.
Separate FSP coverage for the Filtrax or Filter
Probe must also be purchased.
1 $3,408.30 $3,408.30 $3,408.30 $3,408.30
Year 2 Increase $1,725.36
Year 3 Increase $3,588.75
Total $43,134.00 $44,859.36 $46,722.75
#22..
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4 PARTS PRICING
Year 1 Pricing
Part Number Description QTY Unit Price Extended Price
9020000 Hach LDO sc Model 2, DO Probe with Luminescent
Dissolved Oxygen Technology. Standard lead time 3 days. 11 $3,337.94 $36,718.00 LXV525.99A11551
SC4500 Controller, Prognosys, 5x mA Output, 2 digital
Sensors, 100-240 VA, withour power cord, Standard lead
time 3 days.
20 $3,560.54 $71,220.00
8572300
CL17sc Colorimetric Chlorine Analyzer with Standpipe
Installation Kit, w/o Reagants. Standard lead time 3 days. 2 $3,661.24 $7,3220.00 LXV418.99.90002 UVAS plus sc UV Sensor, 50 mm path length, with automatic cleaning. Standard lead time 3 days. 2 $28,009.44 $56,018.00 LPV441.99.00012
DR6000 UV VIS Spectrophotometer wth RFID
Technology. Standard lead time 3 days. 1 $14,630.12 $14,630.00 LXV445.99.53112
TU5 Series TU5300sc Low Range Laser Turbidimeter
with Flow Sensor, Automatic Cleaning, RFID, and System
Check, EPA Version. Standard lead time 10 days.
12 $4,224.10 $50,688.00
DPD1R1 Hach pHD sc Online Process pH Sensor – pH Sensor for Clean Water. Standard lead time 3 days. 3 $1,566.68 $4,701.00 DPD2P1 Hach pHD sc Online Process pH Sensor – General Purpose Insertion Mount pH Sensor. Standard lead time 3 days. 1 $1,724.62 $1,725.00 LXV421.99.43002
db AMTAX SC (0.02-5 MG/L NH4-N), 1 CHAN.
Standard lead time 23 days. 1 $24,064.12 $24,064.00
Subtotal $267,086.00
Year 2 Pricing
Part Number Description QTY Unit Price Extended Price
9020000
Hach LDO sc Model 2, DO Probe with Luminescent
Dissolved Oxygen Technology. Standard lead time 3 days. 11 $3,538.00 $38,918.00 LXV525.99A11551
SC4500 Controller, Prognosys, 5x mA Output, 2 digital
Sensors, 100-240 VA, withour power cord, Standard lead
time 3 days.
20 $3,774.00 $75,480.00
8572300
CL17sc Colorimetric Chlorine Analyzer with Standpipe
Installation Kit, w/o Reagants. Standard lead time 3 days. 2 $3,881.00 $7,762.00 LXV418.99.90002
UVAS plus sc UV Sensor, 50 mm path length, with
automatic cleaning. Standard lead time 3 days. 2 $29,690.00 $59,380.00 LPV441.99.00012
DR6000 UV VIS Spectrophotometer wth RFID
Technology. Standard lead time 3 days. 1 $15,508.00 $15,508.00 LXV445.99.53112
TU5 Series TU5300sc Low Range Laser Turbidimeter
with Flow Sensor, Automatic Cleaning, RFID, and System
Check, EPA Version. Standard lead time 10 days.
12 $4,478.00 $53,736.00
DPD1R1
Hach pHD sc Online Process pH Sensor – pH Sensor for
Clean Water. Standard lead time 3 days. 3 $1,661.00 $4,983.00 DPD2P1
Hach pHD sc Online Process pH Sensor – General Purpose
Insertion Mount pH Sensor. Standard lead time 3 days. 1 $1,828.00 $1,828.00 LXV421.99.43002
db AMTAX SC (0.02-5 MG/L NH4-N), 1 CHAN.
Standard lead time 23 days. 1 $25,508.00 $25,508.00
Subtotal $283,103.00
Year 3 Prcing
#22..
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5 Part Number Description QTY Unit Price Extended Price 9020000
Hach LDO sc Model 2, DO Probe with Luminescent
Dissolved Oxygen Technology. Standard lead time 3 days. 11 $3,750.00 $41,261.00 LXV525.99A11551
SC4500 Controller, Prognosys, 5x mA Output, 2 digital
Sensors, 100-240 VA, withour power cord, Standard lead
time 3 days.
20 $4,001.00 $80,020.00
8572300
CL17sc Colorimetric Chlorine Analyzer with Standpipe
Installation Kit, w/o Reagants. Standard lead time 3 days. 2 $4,114.00 $8,228.00 LXV418.99.90002
UVAS plus sc UV Sensor, 50 mm path length, with
automatic cleaning. Standard lead time 3 days. 2 $31,471.00 $62,942.00 LPV441.99.00012
DR6000 UV VIS Spectrophotometer wth RFID
Technology. Standard lead time 3 days. 1 $16,438.00 $16,438.00 LXV445.99.53112
TU5 Series TU5300sc Low Range Laser Turbidimeter
with Flow Sensor, Automatic Cleaning, RFID, and System
Check, EPA Version. Standard lead time 10 days.
12 $4,746.00 $56,952.00
DPD1R1
Hach pHD sc Online Process pH Sensor – pH Sensor for
Clean Water. Standard lead time 3 days. 3 $1,760.00 $5,280.00 DPD2P1
Hach pHD sc Online Process pH Sensor – General Purpose
Insertion Mount pH Sensor. Standard lead time 3 days. 1 $1,938.00 $1,938.00 LXV421.99.43002
db AMTAX SC (0.02-5 MG/L NH4-N), 1 CHAN.
Standard lead time 23 days. 1 $27,038.00 $27,038.00
Subtotal $300,097.00
2. CITY REPRESENTATIVE:
CITY Representative is: Ben Koehler, WCQ Superintendent Chief Plant Operator, (209) 342- 5402
Purchasing Representative: Melvin Rosal, Buyer, (209) 577-5420 The CITY Representative is not authorized to commit the CITY to changes in specifications, requirements, or scope of work, changes in price(s), period of performance or delivery date(s) or method of shipment. Changes of a contractual or business nature shall be effective only by written change to the AGREEMENT, issued by the City of Modesto, Purchasing Division.
3. CONTRACTOR:
Julia Johnson, Regional Sales Manager, (916) 479-6512, [email protected]
4. TERM OF AGREEMENT:
The term of the AGREEMENT shall be for a period of three (3) years.
Year 1: July 9, 2024 through July 8, 2025
#22..
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6 Year 2: July 9, 2025 through July 8, 2026
Year 3: July 9, 2026 through July 8, 2027
Pricing as set forth in Section 1.e above, shall remain firm for the three years of the AGREEMENT.
Price increases for any Agreement years, shall not exceed the percentage change in the Consumer Price Index (CPI) for West Urban Area in any one Agreement year, and shall be negotiated through the Purchasing Division. Requests for price increases shall be submitted by CONTRACTOR in writing 90 days prior to the annual anniversary date of the AGREEMENT to be effective for the subsequent year.
5. LIABILITY INSURANCE:
The CONTRACTOR shall provide, at its own expense, and maintain at all times the following insurance with insurance companies licensed in the State of California and shall provide evidence of such insurance to the CITY as may be required by the City Clerk of the CITY. The policies or certificates thereof shall provide that, at least 30 days prior to cancellation or material change in the policy, notices of same shall be given to the Risk Manager of the CITY via PINS Advantage Insurance Program, for all of the following stated insurance policies.
a. General Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. The insurance shall indicate on the certificate of insurance the following coverage and indicate the policy aggregate limit applying to: premises and operations; broad form contractual; independent contractors and subcontractors; products and completed operations; and/or professional liability.
b. Automobile Liability – insurance with a minimum limit of liability per occurrence of $1,000,000 for bodily injury and property damage and transportation related pollution liability. This insurance shall cover any automobile for bodily injury and property damage.
#22..
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7 c. Workers' Compensation – in compliance with the statutes of the State of California, plus employer's liability with a minimum limit of liability of $1,000,000 per accident for bodily injury or disease.
If at any time any of said policies shall be unsatisfactory to the CITY, as to form or substance or if a company issuing such policy shall be unsatisfactory to the CITY, the CONTRACTOR shall promptly obtain a new policy, submit the same to the CITY’s Risk Manager for approval and submit a certificate thereof as hereinabove provided. Upon failure of the CONTRACTOR to furnish, deliver or maintain such insurance and certificates as above provided, this AGREEMENT, at the election of the CITY, may be forthwith declared suspended, or terminated. Failure of the CONTRACTOR to obtain and/or maintain any required insurance shall not relieve the CONTRACTOR from any liability under this Agreement, nor shall the insurance requirements be construed to conflict with or otherwise limit the obligations of the CONTRACTOR concerning indemnification.
The CITY, its officers, officials, employees, agents and volunteers shall be named as an additional insured on all insurance policies required herein, except Workers' Compensation.
The Workers' Compensation insurer shall agree to waive all rights of subrogation against the CITY, its officers, officials, employees, agents and volunteers for losses arising from work performed by CONTRACTOR for the CITY.
The CONTRACTOR’s insurance policy(ices) shall include a provision that the coverage is primary as respects the CITY; shall include no special limitations to coverage provided to additional insured; and, shall be placed with insurer(s) with acceptable Best's rating of A:VII or with approval of the CITY’s Risk Manager.
For any claims related to this AGREEMENT, the CONTRACTOR’s insurance coverage shall be primary insurance as respects CITY, its officers, officials, employees, agents and volunteers. Any insurance or selfinsurance maintained by CITY, its officers, officials, employees, agents and volunteers shall be excess of the CONTRACTOR’s insurance and shall not contribute with it.
6. PAYMENT:
CONTRACTOR shall invoice CITY not less than once per month based on the cost for services performed and reimbursable costs incurred prior to the invoice date. All invoices shall be paid in full the #22..
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8 following payment terms within thirty days after completion and acceptance of the Services by the CITY, and receipt of a properly prepared invoice, CITY will pay CONTRACTOR Net 30 Days via manual check. The CITY is exempt from payment of Federal Excise Tax, and all invoices shall be exclusive of such excise tax.
Invoice to: City of Modesto
Attn: Accounts Payable
P.O. Box 642
Modesto, CA 95353
Email to: [email protected]
At a minimum, invoices shall state the following:
This AGREEMENT number 272374
CITY department/division name and address
Billing period
Service hours worked day and week
Unit price, extended price, sales tax and total
7. INDEMNITY:
The CONTRACTOR shall hold the CITY, its officers, officials, employees, agents and volunteers, harmless from and save, defend and indemnify them against any and all claims, losses, liabilities, judgments or damages from every cause, including but not limited to injury to person or property or wrongful death, including reasonable costs and expenses of defense of any judicial or administrative action, arising directly or indirectly out of any negligent or intentional act or omission of CONTRACTOR, or its officers, officials, employees, agents and volunteers relating to or during the performance of its obligations under this AGREEMENT. CONTRACTOR’s obligation to defend, indemnify, and hold the CITY, its officers, officials, employees, agents, and volunteers harmless under the provisions of this paragraph is not limited to or restricted by any requirement in this AGREEMENT for CONTRACTOR to procure and maintain a policy of insurance.
Any and all indemnification obligations imposed upon CONTRACTOR are limited to the extent of those damages proportionately caused by CONTRACTOR'S breach of the Agreement, negligence, wrongful conduct, #22..
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9 or violations of law. In no case is CONTRACTOR liable for any damages caused by negligence, misuse or misapplication of goods by others.
8. VENUE & GOVERNING LAW:
Venue for any dispute or claim arising or related to this AGREEMENT its performance, breach, or interpretation (including issues about its validity or enforceability), shall be exclusively in the Superior Court of Stanislaus County or the United States District Court for the Eastern District of California This AGREEMENT shall be deemed made in, governed by, performed in, and construed and enforced in accordance with the laws of the State of California, without giving effect to its conflicts of laws provisions or principles.
9. LIMITATION ON LIABILITY:
The total liability of CONTRACTOR and its subsidiaries, affiliates, employees, directors, officers and agents arising out of performance, nonperformance, or obligations in connection with the design, manufacture, sale, delivery, and/or use of goods and/or services in no circumstance includes any liquidated, penalty, incidental or consequential damages of any kind, nor exceed $1,000,000, except only in the case of damages arising due to CONTRACTOR'S willful misconduct.
10. ATTORNEYS’ FEES:
If a party to this AGREEMENT brings any action, including an action for declaratory relief, to enforce or interpret the provision of this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees in addition to any other relief to which that party may be entitled. The court may set such fees in the same action or in a separate action brought for that purpose.
11. COMMENCEMENT AND COMPLETION OF THE WORK:
The work contemplated herein shall be commenced as immediately after the agreement administrator receives and has on file:
Proofs of insurance (approved by CITY Risk Manager); and Executed Agreement;
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10 a. Exhibit A – Resolution No.2024-_______;
b. Exhibit B – Hach Service Partnership Quatation and Parts Quotation c. Insurance Certificates;
d. CONTRACTOR City of Modesto business license
12. TERMINATION OF SERVICES:
Termination for Default: In the event either party fails to perform under this AGREEMENT or breaches any condition contained herein, the other party shall notify in writing the breaching party of the nonperformance. Within 10 days after receipt of notification, the breaching party shall correct any non-performance to the reasonable satisfaction of the non-breaching party, or such other time as may be identified in the notice.
Failure to correct any non-performance shall allow the non-breaching party to terminate this AGREEMENT for cause.
Termination by City for Convenience:
The City may also terminate this AGREEMENT the Contractor's performance under the Agreement, either in whole or in part, at its own discretion and without cause.
Post-Termination Procedure
Upon receipt of a written notice of termination pursuant to either of the foregoing paragraphs, the CONTRACTOR shall:
a. Cease its work as directed in the notice of termination as of the termination date and see to it that its employees, subcontractors and agents are notified of such termination and act as specified in the notice of termination; b. Terminate all orders and subcontracts except as necessary to complete any portion of the SERVICES that are not terminated;
c. If directed in writing by the CITY to do so, assign all right, title and interest in subcontracts and materials in progress to CITY, in which case the CITY will have the right at its discretion to settle, or pay any or all claims arising out #22..
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11 of the termination of such, but in no event shall recovery by any CONTRACTOR or subcontractor include lost profits for portions of the SERVICES not completed or undertaken, including materials not delivered; d. Deliver or otherwise make available to the CITY all data, drawings, specifications, reports, estimates, summaries and such other information and material as may have been accumulated by the CONTRACTOR in performing the SERVICES whether completed or in process;
e. Settle outstanding liabilities and claims, subject to the approval of CITY; f. Complete performance of such part of the SERVICES as has not been terminated; g. Take such other actions as may be necessary, or as may be directed by the CITY for the protection and preservation of the SERVICES and/or property related to the SERVICES;
h. If CITY so requests, and at CITY's cost, CONTRACTOR shall provide sufficient oral or written status reports to make CITY reasonably aware of the status of CONTRACTOR’s work on the SERVICES.
i. CONTRACTOR understands and agrees that CITY may, in CITY’s sole discretion, refuse to pay CONTRACTOR for that portion of CONTRACTOR's SERVICES which were performed by CONTRACTOR on the project prior to the termination date and which remain unacceptable and/or not useful to CONTRACTOR as of the termination date.
CITY will pay CONTRACTOR for SERVICES actually completed prior to the receipt of the termination notice or otherwise completed in accordance with the notice of termination. The final payment to the CONTRACTOR after termination for convenience shall be limited to amounts due and owing under the AGREEMENT at time of termination, including the following:
a. The cost of settling and paying valid claims arising out of the termination of the #22..
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12 SERVICES such as subcontractor agreements or contracts for materials; b. The AGREEMENT price allocable to the portion of the SERVICES properly performed or goods supplied to the work site by the CONTRACTOR as of the date of termination, as determined in accordance with the notice of termination, reduced by any sums previously paid to the CONTRACTOR for such SERVICES.
13. COMPLIANCE WITH ALL LAWS:
CONTRACTOR hereby agrees that CONTRACTOR and its subcontractors, if any, in the performance of the SERVICES described herein, will comply with all federal, state, county and municipal laws, rules and regulations which may be applicable to the work herein contracted for, whether now in existence or hereafter adopted.
14. FAILURE TO PERFORM SATISFACTORY WORK:
It is agreed and understood that if the CONTRACTOR fails to perform the SERVICES as specified herein, CITY's representative may:
a. Consent to accept such unsatisfactory service with an appropriate adjustment in contract price, based on established cost factors,
b. Recommend termination of AGREEMENT between said the CONTRACTOR and the City of Modesto.
Those discrepancies and deficiencies in the SERVICES that remains uncorrected after the date set for correction may be the necessary justification for a billing adjustment in the month following the occurrence.
Unless otherwise negotiated, billing adjustments for this incomplete or uncorrected work shall be permanent retention of 100% of the estimated monthly cost for the SERVICES not corrected or completed.
15. ASSIGNMENT OF RIGHTS:
The CONTRACTOR offers and agrees, and will require all subcontractors and suppliers to agree, to assign to the CITY all rights, title, and interest in and to all causes of action it and they may have under #22..
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13 Section 4 of the Clayton Act (15 United States code, Section 15) or under the Cartwright Act (Business and Professions Code, Section 16700 et seq.), arising from the acquisition of goods, services, or materials pursuant to this AGREEMENT or any allowed subcontract. The assignment made by CONTRACTOR and all assignments made by subcontractors and suppliers shall be made and become effective at the time the CITY makes final payment to The CONTRACTOR, without further acknowledgment by the parties (Government Code, Sections 4550-4554).
16. CITY PROCESS/PROCEDURE APPROVALS:
CITY approval of any process or procedure shall not relieve CONTRACTOR of its responsibility to furnish the required SERVICES meeting all specifications contained herein.
17. CONTRACTOR'S RESPONSIBILITY FOR DAMAGES:
If CONTRACTOR damages any property belonging to the CITY or a third party, the CONTRACTOR will be required to make repairs immediately, at CONTRACTOR’s sole cost and expense, to the satisfaction of the CITY. In the event that CONTRACTOR fails to perform the necessary repairs, the CITY may either retain from the money due to CONTRACTOR an amount sufficient to repair the damage or perform the repairs and send an invoice to the CONTRACTOR for such costs, which shall be paid within thirty (30) days.
18. NOTICES:
Any notice, payment or instrument required or permitted by this AGREEMENT to be given or delivered to either party shall be deemed to have been received when personally delivered, or one calendar week following deposit of the same in any United States Post Office, registered or certified mail, postage prepaid, addressed as follows:
CONTRACTOR: Hach Company
P.O. Box 389
5600 Lindbergh Drive
Loveland, CO 80539-0389
CITY: City of Modesto
Purchasing Division
P.O. Box 642
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14 Modesto, CA 95353
Each party may change its address for delivery of notice by delivering written notice of such change of address to the other party.
19. SIGNATORY(IES) FOR CONTRACTOR:
Each signatory for CONTRACTOR below warrants and represents that it is legally competent to, and have full authority to, execute the AGREEMENT.
20. QUANTITIES:
No minimum or maximum is guaranteed or implied.
21. FUNDING:
All annual extensions are based upon continuous funding for that purpose by the City Council.
Failure to fund any annual extension shall result in an immediate termination of the AGREEMENT without redress.
22. OTHER GOVERNMENT/PUBLICLY FUNDED AGENCIES:
If mutually agreeable to all parties, the issuance of any resultant contract/purchase order referencing these specifications and modified by mutual agreement between all parties may be extended to other government or publicly funded agencies. It shall be understood that all terms and conditions as specified herein shall apply.
23. NON-DISCRIMINATION:
a. During the performance of this AGREEMENT, CONTRACTOR and any allowed subcontractors shall not unlawfully discriminate against any employee or applicant for employment because of race, color, ancestry, religion, sex, national origin, marital status, age, medical condition (cancer related), physical handicap (including AIDS), sexual orientation, or any other basis prohibited by Federal or California law. Equal employment opportunity extends, but is not limited to recruitment, compensation, benefits, layoff, termination, and all other conditions of employment. The CONTRACTOR and any allowed subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are free of such discrimination. #22..
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15 The CONTRACTOR and any allowed subcontractors shall comply with the provisions of the Fair Employment and Housing Act (Government Code, Section 12900 et seq.) and the applicable regulations promulgated thereunder (California Administrative Code, Title 2, and Section 7285.0 et seq.). The applicable regulations of the Fair Employment and Housing Commission implementing Government Code, Section 12900, set forth in Chapter 5 of Division 4 of Title 2 of the California Administrative Code are incorporated into this contract by reference and made a part hereof as if set forth in full. b. The CONTRACTOR and any allowed subcontractors shall give written notice of their obligations under this clause to labor organizations with which they have a collective bargaining or other agreement.
c. The CONTRACTOR shall include the nondiscrimination and compliance provisions of this clause in any allowed subcontracts to perform SERVICES. d. The Contractor shall permit access by representatives of the Department of Fair Employment and Housing and the CITY upon reasonable notice at any time during the normal business hours, but in no case less than 24 hours notice, to such of its books, records, accounts, other sources of information and its facilities as said Department or CITY shall require to ascertain compliance with this AGREEMENT. e. By executing this AGREEMENT, CONTRACTOR certifies that it shall follow and be in compliance with the Americans with Disabilities Act of 1990, the applicable administrative requirements promulgated in response thereto, and any other applicable Federal laws and regulations relating to handicap discrimination and participation, and will continue to do so for at least the duration of the AGREEMENT and any extensions thereof.
24. CONTRACTOR LICENSES & PERMITS:
CONTRACTOR warrants and represents that it possesses and shall maintain all licenses, and shall secure and maintain all necessary permits, necessary to perform the SERVICES.
25. RECORDS:
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16 All final versions of reports, data, maps, models, charts, studies, surveys, photographs, memoranda, plans, studies, specifications, records, files, or any other documents or materials, in electronic or any other form, that CONTRACTOR prepares or obtains pursuant to this Agreement and that relate to the matters covered hereunder shall be the property of the CITY. CONTRACTOR hereby agrees to deliver those documents to the CITY upon termination of the AGREEMENT, and the CITY may use, reuse or otherwise dispose of the documents without CONTRACTOR’s permission. It is understood and agreed that the documents and other materials, including but not limited to those described above, prepared pursuant to this AGREEMENT are prepared specifically for the City and are not necessarily suitable for any future or other use.
CONTRACTOR retains all rights in and to any intellectual property and confidential information created or procured by it or its representatives at any time, and CONTRACTOR grants CITY a non-exclusive, nontransferable, and non-revocable license to use such intellectual property and information to the extent necessary and solely for CITY’s use of SERVICES purchased hereunder.
26. FACILITIES AND EQUIPMENT:
Except as set forth herein, CONTRACTOR shall, at its sole cost and expense, provide all facilities and equipment that may be necessary to perform the services required by this AGREEMENT. CITY shall make available to CONTRACTOR only the facilities and equipment listed in EXHIBIT “B” and only under the terms and conditions set forth herein.
27. INDEPENDENT CONTRACTOR; NOT AGENT:
At all times during the term of this AGREEMENT, CONTRACTOR shall be an independent contractor and shall not be an employee of CITY. CITY shall have the right to control CONTRACTOR only insofar as the results of CONTRACTOR’s services rendered pursuant to this AGREEMENT. Except as City may specify in writing, CONTRACTOR shall have no authority, express or implied, to act on behalf of CITY in any capacity whatsoever as an agent. CONTRACTOR shall have no authority, express or implied, pursuant to this AGREEMENT to bind City to any obligation whatsoever.
28. DRUG FREE WORKPLACE:
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17 CONTRACTOR certifies that it is following and in compliance with Sections 8350 - 8355 of Chapter 5.5 of the Government Code, Drug Free Workplace Act whereby each person or organization awarded a contract/purchase order or grant for the procurement of any property or service from any state agency (city) shall certify to the contracting or granting agency that it will provide a drug free workplace.
29. ASSIGNMENT:
Neither this AGREEMENT nor any SERVICES hereunder shall be subcontracted or assigned by CONTRACTOR without the prior written consent of the CITY in each and every instance.
30. WAIVER:
The waiver by any party to this AGREEMENT of a breach of any provision hereof shall be in writing and shall not operate or be construed as a waiver of any other or subsequent breach hereof unless specifically stated in writing.
31. HEADINGS NOT CONTROLLING:
Headings used in the Agreement are for reference purposes only and shall not be considered in construing this AGREEMENT.
32. MISCELLANEOUS:
Time is of the essence in CONTRACTOR’s performance under each provision of this AGREEMENT.
33. ENTIRE AGREEMENT:
This Agreement and its exhibits contain the entire understanding between CONTRACTOR and CITY. Additional or new terms contained in this AGREEMENT which vary from CONTRACTOR’S bid are controlling and are deemed accepted by CONTRACTOR by performance of any SERVICES or other commencement of performance hereunder. The terms and conditions of the quote, attached hereto as Exhibit B, are incorporated herein. In the event of a conflict between the quote and this AGREEMENT, this AGREEMENT shall control. All previous bids, offers and communications relative to this Agreement, whether oral or written, are hereby superseded except to the extent that they have been incorporated into this Agreement. #22..
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18 No future waiver or exception to any of the terms, conditions, and provisions of this AGREEMENT shall be considered valid unless specifically agreed to in writing by the parties.
34. PARTIAL INVALIDITY:
If any provision in this AGREEMENT is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.
35. WARRANTY:
CONTRACTOR warrants that it will perform all Services in accordance with its standard practices and that the Services will be free from defects in workmanship for a period of ninety (90) days from their date of performance. If CONTRACTOR breaches this warranty and the CITY notifies CONTRACTOR of such breach within 30 days of the end of the applicable warranty period, CONTRACTOR will, at its option, reperform any nonconforming Services, or refund the amounts paid by CITY to CONTRACTOR for the nonconforming Services. THIS IS THE EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.
CONTRACTOR EXPRESSLY DISCLAIMS ANY REMEDIES OF “COVER” AND ANY WARRANTIES
IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
36. FORCE MAJEURE:
Under no circumstances shall CONTRACTOR have any liability for any breach relating to nonperformance or underperformance caused by extreme weather, natural disaster, fire, accident or other act of God; strike, lock out or other labor shortage or disturbance, except by CONTRACTOR’s employees; lock down, boycott, embargo or tariff; terrorism or act of terrorism, war or war condition or civil disturbance or riot; failure of public or private telecommunications networks; delay of carriers or other industrial, agricultural or transportation disturbance; failure of normal sources of supply; epidemics, pandemics, contagion, disease or quarantine; law, regulation or any act of government; or any other cause beyond CONTRACTOR’s reasonable #22..
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19 control. CONTRACTOR’s performance shall be excused and deemed suspended during the continuation of such event or events and, for a reasonable time thereafter, delayed or adjusted accordingly. #22..
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56 IN WITNESS WHEREOF, the CITY OF MODESTO, a municipal corporation, has authorized the execution of this Agreement by its City Manager and attested by its City Clerk under authority of Resolution No. 2024 -_______, adopted by the Council of the City of Modesto on the _____________ day of _____________________, 2024 and Hach Company has caused this Agreement to be duly executed. #22..
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Melvin Rosal (Mar 26, 2024 08:12 PDT)
Melvin Rosal Mar 26, 2024 Mar 26, 2024 Dianne Love (Mar 26, 2024 11:48 PDT) Dianne Love Mar 26, 2024 Mar 26, 2024
Hach Company is the Sole Source manufacturer and distributor of Hach equipment and services.
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CITY OF MODESTO
COUNCIL AGENDA REPORT
DATE OF MEETING:
June 25, 2024
Date: May 20, 2024
TO: Mayor and City Council
THROUGH: Joseph P. Lopez, City Manager
FROM: Jessica Hill, Director of Community and Economic Development SUBJECT: Bridge Housing Project at 402 9th Street
CONTACT: Edgar Garcia, Community Development Manager,
[email protected], 209-577-5211
DESCRIPTION:
Consider approving a Right of Entry Agreement with DignityMoves for the development of a 42- unit bridge housing project on a City-owned parcel located on the corner of 9th and E Street, and approving a three (3) year lease agreement with Modesto BHBH LP in the amount of $1 per year for the operation of the Bridge Housing project. (Funding Source: Stanislaus County Funds)
STRATEGIC PLAN ELEMENT:
The recommended action supports the City’s 2020-2025 Strategic Plan Initiative: Develop a Homelessness and Housing Plan.
BACKGROUND:
Through the Behavioral Health Bridge Housing (BHBH) Program, the California Department of Health Care Services (DHCS) provided $1.5 billion in funding to operate Bridge Housing settings to address the immediate and sustainable housing needs of people experiencing homelessness who have serious behavioral health conditions, including a serious mental illness (SMI) and/or substance use disorder (SUD). The program, which was signed into law on September 2022 under Assembly Bill (AB) 179 and provides funding through June 30, 2027.
The State has provided a significant amount of capital funding to create housing and treatment settings in recent years, through programs such as Homekey, the Community Care Expansion program, and the Behavioral Health Continuum Infrastructure Program. The BHBH Program is designed to complement these capital investments. In contrast to previous capital funding programs, the BHBH Program primarily provides operational and supportive services funding to expand Bridge Housing implementation. The primary focus of the BHBH Program is to help people experiencing homelessness who have serious behavioral health conditions that prevent them from accessing help and moving out of homelessness. #23..
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City Council, June 25, 2024
Bridge Housing Project at 402 9th Street
Stanislaus County Behavioral Health and Recovery Services (BHRS) applied for and on June 23, 2023, was awarded $10,819,200 in BHBH funds.Of this amount, the County is allocating $3,023,037 for the development of this project with a maximum allocation for infrastructure of $75,000 per unit.
Upon approval of this funding, the County sought a partnership with the City of Modesto to develop a bridge housing project for the most vulnerable eligible individuals who have serious mental illness (SMI) and substance use disorder (SUD). The City owns the parcel at the corner of 9th and E Street (APN 106045003) which is located near homeless services in Modesto.
Stanislaus County Behavioral Health and Recovery Services approached the City for the use of this site to develop a Bridge Housing project that includes the utilization of Behavioral Health Bridge Housing Funding (BHBH) for an interim housing project. On April 30, 2024, the Stanislaus County Board of Supervisors approved an agreement with DignityMoves for the design and development of the project located at 402 9th Street.
DISCUSSION:
Staff has developed a framework and implementation strategy for multiple Bridge Housing sites throughout the City and pursued this partnership with BHRS to create the variety of temporary housing options needed to respond to homelessness.
This Bridge Housing project is being developed by a team of public and private partners. BHRS will pay for the construction and operations of the project proposed at the 402 9th Street site. They will also serve as the day-to-day service provider for any individuals that are living on this campus.
Through this program, BHRS is partnering and fully funding the development costs and the operator expenses for the duration of this project. BHRS has partnered with DignityMoves as the developer for this project who brings its expertise to develop this project. They have been actively working with local jurisdictions to build effective bridge housing sites.
UP Holdings and RH Developers (DBA Modesto BHBH, LP) is partnering with BHRS for the property management, maintenance, and security of the site, utilizing the BHBH funding to provide these services.
The vacant property located at 402 9th Street, was identified as the location to accommodate 42 interim housing units because the site allows for easy access to essential homeless services such as the Access Center, Salvation Army Berberian Shelter, the Day Center as well as public transportation and other mainstream resources that include, housing navigation services and mail services. The City, as property owner, requires a Right of Entry agreement between the City and DignityMoves to authorize implementing the identified improvements to City property.
Additionally, City staff is recommending a lease with Modesto BHBH LP at the cost of $1 per year for 3 years to be used for this Bridge Housing project with a term from June 26, 2024, through September 30, 2027.
The 42-unit interim housing complex is patterned after a similar complex in Santa Barbara and includes toilets, showers, dining facilities, laundry facilities, clinic space, offices, a dog run, a garden, a wall mural opportunity, and social areas. Four of the units will accommodate residents with accessibility needs. The target population to be served is CARE Court clients as the primary population and other BHRS homeless clients with serious behavioral health conditions. #23..
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City Council, June 25, 2024
Bridge Housing Project at 402 9th Street
The infrastructure development budget for the 42-units is at a not to exceed amount of $3,023,037. Additionally, in accordance with the requirements of the funding source, the project is required to be developed and occupied by December 2024.
The total project cost and construction timeline are provided in detail in the tables below:
Infrastructure Development Costs Cost
Modular Units $813,453
Site Improvements $226,468
Underground Work $340,000
Facility Improvements $348,100
Modular Unit Placement $335,500
General Contractor Fees and Contingency $300,016
Subtotal Hard Costs and Contingency $2,363,537
Subtotal Soft Costs, Furnishing, Fixtures, and Equipment $659,500 Total Project Cost (Not to Exceed) $3,023,037
Annual Operations Projected Budget Amount
Annual Operations Projected Budgets $1,022,578
Total Projected Operational Budget for 3 Years $3,067,734 Milestone Estimate Timeline
Design Development Complete by July 26, 2024
Construction Documents Complete by July 26, 2024
Permit and Finalize Gross Maximum Price Complete by August 16, 2024 Start Construction Start on or before August 16, 2024
Construction Completed and Client Move In Complete by Winter 2024 FISCAL IMPACT:
This construction and ongoing operations of this project will be fully funded by Stanislaus County Behavioral Health and Recovery Services and the total cost of construction is not to exceed $3,023,037, and the operations will cost $3,067,734 throughout the three-year term. The proposed Lease and Right of Entry Agreements will result in a $1 per year payment for three years. The remainder of the project will have no impact to the General Fund.
COMMITTEE RECOMENDATION:
On November 9, 2023 the Citizens Housing and Community Development Committee met and approved to forward this item to Council for approval.
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City Council, June 25, 2024
Bridge Housing Project at 402 9th Street
RECOMMENDED COUNCIL ACTION:
Staff Recommendations:
Resolution approving a Right of Access Agreement with DignityMoves for the development of a 42-unit bridge housing project on a City-owned parcel located on the corner of 9th and E Street and authorizing the City Manager, or his designee, to negotiate and execute the Agreement.
Resolution approving a three-year lease with Modesto BHBH, LP in the amount of $1 per year for the operations of a 42-unit bridge housing project on a City-owned parcel located on the corner of 9th and E Street and authorizing the City Manager, or his designee, to negotiate and execute the Agreement.
Approved by:
Jessica Hill, Director of Community
and Economic Development
Joseph P. Lopez, City Manager
Attachments:
1. Resolution- Agreement Right of Access Agreement
2. Resolution- Lease Agreement
3. Draft Lease Agreement
4. Draft Right of Access Agreement
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06/25/2024/CED/EGarcia/Item X 1 2024-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING A RIGHT OF ACCESS AGREEMENT WITH
DIGNITYMOVES FOR THE DEVELOPMENT OF A 42-UNIT BRIDGE HOUSING PROJECT ON A CITY-OWNED PARCEL LOCATED ON THE CORNER OF 9TH AND E
STREET AND AUTHORIZING THE CITY MANAGER, OR HIS DESIGNEE, TO
NEGOTIATE AND EXECUTE THE AGREEMENT
WHEREAS, the City owns the parcel at the corner of 9th and E Street (APN 106045003) that is partially paved and near the County’s homeless services operating in Modesto, and
WHEREAS, the Stanislaus County Behavioral Health and Recovery Services (BHRS) approached the City for the use of this site to develop a Bridge Housing project, and
WHEREAS, BHRS has proposed to utilize Behavioral Health Funding (BHBH) for a Bridge Housing project and on April 30, 2024, approved the agreement with DignityMoves for the design and development of the project located at 402 9th Street, and
WHEREAS, to provide access for the development and continued operations the City staff is proposing to grant access to the site for the development and lease to the BHRS approved operator for the three years that the project is expected to operate, and WHEREAS, the proposed 42-unit interim housing complex with four of the units will be able to accommodate residents with accessibility needs to serve the target population to be served is CARE Court clients as the primary population and other BHRS clients with serious behavioral health conditions who are homeless, and WHEREAS, the site allows for easy access to essential homeless services such as the Access Center, Salvation Army Berberian, the newly opened day center as well as #23..
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06/25/2024/CED/EGarcia/Item X 2 2024-XX
public transportation and other mainstream resources that include, housing navigation services and mail services, and
WHEREAS, this Bridge Housing project is being delivered through a team of private and public partnership, BHRS will pay for the construction and operations of the project proposed at the 402 9th Street site, and will also serve as the day-to-day service provider for any individuals that are living on this campus, and WHEREAS, UP Holdings and RH Developers DBA Modesto BHBH, LP is partnering with BHRS for the property management, maintenance, and security of the site and will utilize the BHBH funding to provide for these project components, and WHEREAS, DignityMoves brings its expertise to the design and development of this project site and have been actively working with local jurisdictions to build effective Bridge Housing sites, and
WHEREAS, the City, as property owner, requires a Right of Entry Agreement between the City and DignityMoves to design and develop this project on City property.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a Right of Access Agreement with DignityMoves for the development of a 42-unit bridge housing project on a City-owned parcel located on the corner of 9th and E Street.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to negotiate and execute agreements in a form approved by the City Attorney.
The foregoing resolution was introduced at a regular meeting of the Council of the City of Modesto held on the 25th day of June, 2024 by Councilmember ?, who moved #23..
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06/25/2024/CED/EGarcia/Item X 3 2024-XX
its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: ?
NOES: Councilmembers: ?
ABSENT: Councilmembers: ?
ATTEST: ____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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06/25/2024/CED/EGarcia/Item X 1 2024-XX
MODESTO CITY COUNCIL
RESOLUTION NO. 2024-
RESOLUTION APPROVING A THREE-YEAR LEASE WITH MODESTO
BHBH, LP IN THE AMOUNT OF $1 PER YEAR FOR THE OPERATIONS OF A 42-UNIT BRIDGE HOUSING PROJECT ON A CITY-OWNED PARCEL
LOCATED ON THE CORNER OF 9TH AND E STREET AND AUTHORIZING
THE CITY MANAGER, OR HIS DESIGNEE, TO NEGOTIATE AND EXECUTE
THE AGREEMENT
WHEREAS, the City owns the parcel at the corner of 9th and E Street (APN 106045003) that is partially paved and near the County’s homeless services in operating in Modesto, so the Stanislaus County Behavioral Health and Recovery Services (BHRS) approached the City for the use of this site to develop a Bridge Housing project that utilizes Behavioral Health Funding (BHBH) for a Bridge Housing program, and WHEREAS, on April 30, 2024, approved the agreement with DignityMoves for the design and development of the project located at 402 9th Street and is preparing an agreement with UP Holdings and RH Developers DBA Modesto BHBH, LP for its operations, and
WHEREAS, to provide access for the development and continued operations the City staff is proposing to grant access to the site for the development and lease to the BHRS approved operator for the three years that the project is proposed to operate, and WHERESAS, the proposed 42-unit interim housing complex with four of the units will be able to accommodate residents with accessibility needs to serve the target population to be served is CARE Court clients as the primary population and other BHRS clients with serious behavioral health conditions who are homeless, and WHEREAS, the site allows for easy access to essential homeless services such as the Access Center, Salvation Army Berberian, the newly opened day center as well as #23..
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06/25/2024/CED/EGarcia/Item X 2 2024-XX
public transportation and other mainstream resources that include, housing navigation services and mail services, and
WHEREAS, this Bridge Housing project is being delivered through a team of private and public partnership BHRS will pay for the construction and operations of the project proposed at the 402 9th Street site. They will also serve as the day-to-day service provider for any individuals that are living on this campus. Through this program BHRS is partnering with both a developer and an operator for this project, and WHEREAS, UP Holdings and RH Developers DBA Modesto BHBH, LP is partnering with BHRS for the property management, maintenance, and security of the site and will utilize the BHBH funding to provide for these project components, and WHEREAS, City Staff is recommending to lease the property to Modesto BHBH LP at the cost of $1 per year for 3 years to be used for this Bridge Housing Operations from June 25, 2024, through September 30, 2027.
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Modesto that it hereby approves a three-year lease with Modesto BHBH, LP in the amount of $1 per year for the operations of a 42-unit bridge housing project on a City-owned parcel located on the corner of 9th and E Street.
BE IT FURTHER RESOLVED that the City Manager, or his designee, is authorized to negotiate and execute the lease 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 25th day of June, 2024 by Councilmember ?, who moved #23..
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06/25/2024/CED/EGarcia/Item X 3 2024-XX
its adoption, which motion being duly seconded by Councilmember ?, was upon roll call carried and the resolution adopted by the following vote:
AYES: Councilmembers: ?
NOES: Councilmembers: ?
ABSENT: Councilmembers: ?
ATTEST: ____________________________
DIANE NAYARES-PEREZ, CMC,
City Clerk
(SEAL)
APPROVED AS TO FORM:
BY: ____________________________________
JOSE M. SANCHEZ, City Attorney
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LEASE AGREEMENT
by and between the
CITY OF MODESTO
and
MODESTO BHBH, LP
402 9th Street, Modesto, CA
___, 2024
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TABLE OF CONTENTS
LEASE AGREEMENT ................................................................................................................................................1 CITY OF MODESTO ...................................................................................................................................................1 RECITALS.....................................................................................................................................................................1 ARTICLE I DEFINITIONS; DEMISE OF PROPERTY...........................................................................................2
1.1 DEFINITIONS.....................................................................................................................................................2
1.2 INCORPORATION OF RECITALS ........................................................................................................................2
1.3 CREATION OF LEASE........................................................................................................................................2 ARTICLE II TERM OF LEASE; RENT; SECURITY DEPOSIT............................................................................3
2.1 TERM. ...............................................................................................................................................................3
2.3 ADDITIONAL RENT............................................................................................................................................3
2.4 TRIPLE NET LEASE...........................................................................................................................................3 ARTICLE III TAXES, ASSESSMENTS AND OTHER CHARGES......................................................................4
3.1 IMPOSITIONS.....................................................................................................................................................4
3.1.1 Installments...........................................................................................................................................4
3.1.2 Evidence of Payment...........................................................................................................................4
3.2 TENANT RIGHT TO CONTEST...........................................................................................................................4
3.3 TENANT DUTY TO FILE.....................................................................................................................................5 ARTICLE IV TENANT’S USE OF THE PROPERTY.............................................................................................6 ARTICLE V ALTERATIONS AND NEW CONSTRUCTION ................................................................................6 ARTICLE VI MANAGEMENT, USE AND OPERATION OF THE PROPERTY................................................7
6.1 PERMITTED USES.............................................................................................................................................7
6.2 NONDISCRIMINATION........................................................................................................................................7
6.3 EASEMENTS; RESERVATION OF RIGHTS.........................................................................................................7
6.4 MAINTENANCE AND INSPECTION OF THE PROPERTY......................................................................................7
6.4.1 Maintenance. ........................................................................................................................................8
6.4.2 Inspection..............................................................................................................................................8
6.5 CITY’S RIGHT TO PERFORM TENANT OBLIGATIONS........................................................................................8
6.6 CITY NOT OBLIGATED TO PERFORM REPAIRS................................................................................................9
6.7 COMPLIANCE WITH LAWS.................................................................................................................................9
6.8 TENANT RIGHT TO CONTEST...........................................................................................................................9 ARTICLE VII CONDITION OF THE PROPERTY; ENVIRONMENTAL MATTERS.........................................9
7.1 CONDITION OF THE PROPERTY........................................................................................................................9
7.1.1 AS-IS Condition..................................................................................................................................10
7.1.2 No Representations...........................................................................................................................10
7.2 TENANT’S COVENANTS...................................................................................................................................10
7.3 ENVIRONMENTAL INDEMNITY.........................................................................................................................11
7.4 DEFINITIONS...................................................................................................................................................12
7.4.1 Hazardous Materials..........................................................................................................................12
7.4.2 Hazardous Materials Laws...............................................................................................................12 ARTICLE VIII INDEMNITY AND INSURANCE ....................................................................................................12
8.1 INDEMNITY......................................................................................................................................................13
8.2 INSURANCE REQUIREMENTS..........................................................................................................................13 ARTICLE IX DAMAGE AND DESTRUCTION......................................................................................................14
9.1 DAMAGE OR DESTRUCTION...........................................................................................................................14 #23..
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ii 402 9th Street Lease Agreement
9.2 NOTICE REQUIRED.........................................................................................................................................14
9.3 CITY’S RIGHT TO TERMINATE. .......................................................................................................................14 ARTICLE X CITY’S RIGHT TO PERFORM TENANT’S COVENANTS...........................................................14 ARTICLE XI MORTGAGES.....................................................................................................................................15
11.1 NON-SUBORDINATION OF FEE.......................................................................................................................15 ARTICLE XII ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND ATTORNMENT 15
12.1 RESTRICTIONS ON TRANSFER, ASSIGNMENT AND ENCUMBRANCE. ............................................................15
12.4 SALE BY CITY. ................................................................................................................................................16
12.5 NONDISTURBANCE. ........................................................................................................................................16 ARTICLE XIII DEFAULT, REMEDIES AND TERMINATION.............................................................................16
13.1 EVENT OF DEFAULT. ......................................................................................................................................16
13.2 NOTICE AND OPPORTUNITY TO CURE...........................................................................................................17
13.2.1 Notice of Default............................................................................................................................17
13.2.2 Failure to Give Notice; No Waiver..............................................................................................17
13.3 REMEDIES UPON DEFAULT............................................................................................................................17
13.3.1 City’s Remedies.............................................................................................................................17
13.3.2 Right to Injunction; Specific Performance.................................................................................17
13.4 REMEDIES CUMULATIVE.................................................................................................................................18 ARTICLE XIV GENERAL PROVISIONS...............................................................................................................18
14.1 FORCE MAJEURE; EXTENSION OF TIMES OF PERFORMANCE......................................................................18
14.2 CITY’S RIGHT TO ENTER THE PROPERTY......................................................................................................18
14.4 REPRESENTATIONS OF CITY AND TENANT....................................................................................................18
14.5 MISCELLANEOUS............................................................................................................................................19
14.5.1 Severability.....................................................................................................................................19
14.5.2 Notices............................................................................................................................................19
14.5.3 Captions; Construction.................................................................................................................19
14.5.4 Successors and Assigns..............................................................................................................20
14.5.5 Governing Law...............................................................................................................................20
14.5.6 Attorney’s Fees..............................................................................................................................20
14.5.7 Indemnity Includes Defense Costs.............................................................................................20
14.5.8 No Third-Party Beneficiaries; Disclaimer of Partnership, Lender/Borrower Relationship..20
14.5.9 Entire Agreement. .........................................................................................................................21
14.5.10 Waiver; Modification......................................................................................................................21
14.5.11 Time is of the Essence.................................................................................................................21
14.5.12 Counterparts. .................................................................................................................................21
14.5.13 Action by the Parties.....................................................................................................................21
14.5.14 Non-Liability of Officials, Employees and Agents. ...................................................................21 EXHIBIT A.....................................................................................................................................................................1 EXHIBIT B.....................................................................................................................................................................2 SITE PLAN....................................................................................................................................................................2 #23..
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1 .
This LEASE AGREEMENT (this “Lease” or this “Agreement”), dated as of _________, 2024 (the “Effective Date”), is entered into by and between the City of Modesto, a California charter city (hereafter the “City” or the “Landlord”) and Stanislaus Affordable Housing Corporation, a California nonprofit corporation (the “Tenant”).
Landlord and Tenant are hereafter collectively referred to as the “Parties.”
RECITALS
A. City is the owner of that certain parcel of real property located at 402 9th Street, Modesto, California 95351, also known as Stanislaus County Assessor’s Parcel Number ______________ as well as all improvements located thereon, as further described and depicted in Exhibit A, attached hereto and incorporated herein the “Property”).
B. The Property generally consists of an unimproved dirt lot, which has been partially covered with a layer of gravel.
C. Tenant has substantial experience providing affordable housing within Stanislaus County, including temporary and transitional housing options.
D. City desires to construct or cause the construction of forty-two(42) temporary semi-detached housing units thereon, as well as separate detached related facilities such as an office, dining facility, restrooms, and outdoor improvements (collectively, the “Transitional Housing Facility”) . A site plan for Transitional Housing Facility is attached hereto as Exhibit B, and incorporated herein by reference.
E. Upon completion of the construction of the Transitional Housing Facility, the Tenant wishes to lease the Property from the Landlord to operate and maintain the Temporary Housing Facility as transitional housing for individuals and households experiencing homelessness or at risk of homelessness. The Transitional Housing Facility will be temporary in nature, and will not have permanent foundations.
F. Tenant shall partner with a qualified entity to provide supportive services to the residents of the Transitional Housing Facility.
G. There is a ongoing housing and homelessness crisis in the City of Modesto and Stanislaus County, and the City has determined that there is public benefit in allowing Tenant to use the Property for the Transitional Housing Facility.
H. The Tenant desires to lease the Property from City, and City desires to lease the Property to the Tenant, subject to the terms and conditions contained herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and the Tenant hereby agree as of the Effective Date as follows.
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ARTICLE I
DEFINITIONS; DEMISE OF PROPERTY
1.1 Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth in this Section. Additional definitions are set forth in the Recitals and the text of this Agreement.
(a) “Applicable Laws” is defined in Section 6.7.
(b) “Claims” is defined in Section 3.2.
(c) “Commencement Date” is defined in Section 2.1.
(d) “Default Rate” is defined in Article X.
(e) “Expiration Date” is defined in Section 2.1.
(f) “Force Majeure” is defined in Section 14.1.
(g) “Hazardous Materials” is defined in Section 7.5.1.
(h) “Hazardous Materials Claims” is defined in Section 7.2(c). (i) “Hazardous Materials Laws” is defined in Section 7.5.2. (j) “Impositions” is defined in Section 3.1.
(k) “Improvements” is defined in Article V.
(l) “Indemnitees” is defined in Section 3.2.
(m) “Lease Termination” is defined in Section 2.1.
(n) “Property” is defined in Recital A.
(o) “Rent” is defined in Section 2.2.
(p) “Term” is defined in Section 2.1.
1.2 Incorporation of Recitals The Parties acknowledge the truth of the Recitals set forth above, and all such Recitals are hereby incorporated into this Agreement.
1.3 Creation of Lease.
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City hereby leases to Tenant, and Tenant hereby leases from City, the Property for the Term subject to the terms and conditions and for the purposes set forth in this Agreement.
ARTICLE II
TERM OF LEASE; RENT; SECURITY DEPOSIT
2.1 Term. This term of this Agreement shall be for a period of five (5) years, commencing upon the Effective Date (the “Commencement Date”), unless sooner terminated as provided for herein (the “Term”). The expiration of the Term or the sooner termination of this Agreement is referred to herein as the “Lease Termination.” The Term shall automatically renew annually for an additional one (1) year term unless either Party notifies the other Party of its intent to terminate the Lease at least ninety (90) days prior to the end of the Term.
2.2 Rent. Commencing on the Commencement Date, the Tenant shall pay to the City rent for the Property (“Rent”) during the Term in the amount of One Dollar ($1) per year. Annual Rent is due and payable on the Commencement Date, and thereafter on each anniversary of the Commencement Date, at the address shown in Section 14.5.2 or such other place as the City may designate in writing. The Rent has been established based on the City’s determination that there is public benefit in allowing Tenant to use the Property as the location for temporary transitional housing for individuals experiencing or at risk of homelessness. .
2.3 Additional Rent. As additional rent (the “Additional Rent”), the Tenant shall pay and discharge when due, all Impositions described in Article III, all insurance premiums, utility costs, maintenance costs and all other liabilities and obligations which the Tenant assumes or agrees to pay or undertake pursuant to this Agreement.
2.4 Triple Net Lease. This is a triple net lease to the City. It is the intent of the Parties that the Rent shall be an absolutely net return to the City and that the Tenant shall pay all costs and expenses relating to the Property of any kind or nature whatsoever. Such costs and expenses shall include, without limitation, all amounts attributable to, paid or incurred in connection with the operation, repair, restoration, maintenance and management of the Property; real property taxes; possessory interest; rent taxes; gross receipt taxes (whether assessed against the City or assessed against the Tenant and collected by the City, or both); water and sewer charges; insurance premiums (including earthquake); utilities; refuse disposal; lighting (including outside lighting); fire detection systems including monitoring, maintenance and repair; security; janitorial services; labor; maintenance and repair costs and service contracts; costs of licenses, permits and inspections; and all other costs and expenses paid or incurred with respect to the Property.
2.5 Termination. The Parties may mutually agree in writing to terminate this Agreement at any time. In addition, the Agreement may be terminated pursuant to the provisions of Article XIII.
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ARTICLE III
TAXES, ASSESSMENTS AND OTHER CHARGES
3.1 Impositions. Throughout the Term, the Tenant shall pay prior to delinquency, all real property taxes, possessory interest taxes, license and permit fees, sales, use or occupancy taxes, assessments whether general or special, ordinary or extraordinary, unforeseen, as well as foreseen, of any kind or nature whatsoever, pertaining to the Tenant’s use of the Property or part thereof, including, but not limited to (i) any assessment, levy, imposition or charge in lieu of or in substitution for real estate taxes, and (ii) any assessment for public improvements or benefits which is assessed, levied, or imposed upon or which becomes due and payable and a lien upon (a) the Property or any part thereof or any personal property, equipment or other facility used in the operation thereof, (b) the rent or income received by the Tenant from subtenants or licensees, (c) any use or occupancy of the Property or part thereof, or (d) this transaction or any document to which the Tenant is a party creating or transferring an estate or interest in the Property or part thereof. All of the foregoing are hereinafter referred to as “Impositions.” (WHAT WILL THE TENANT RENT SITUATION BE? WILL YOU BE TRYING FOR THE WELFARE EXEMPTION?)
3.1.1 Installments. If by law any Imposition is payable, or may at the option of the taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of such Imposition), the Tenant may pay the same together with any accrued interest on the unpaid balance of such Imposition in installments as the same respectively become due and before any fine or penalty may be added thereto for the nonpayment of any such installment and interest. Any Impositions relating to tax years that are only partially included in the Term of this Agreement shall be prorated between the Tenant and the City.
3.1.2 Evidence of Payment. Upon request by the City, the Tenant shall furnish evidence of payment prior to delinquency of all Impositions payable by the Tenant.
3.2 Tenant Right to Contest. The Tenant shall have the right before any delinquency occurs to contest or object to the amount or validity of any Imposition by appropriate legal proceedings, but such right shall not be deemed or construed in any way as relieving, modifying or extending the Tenant’s covenant to pay any such Imposition at the time and in the manner required by law. Any such contest shall be conducted in accordance with and subject to the requirements of all Applicable Laws and otherwise in a manner that does not subject the City’s title to the Property or Property to foreclosure or forfeiture.
The Tenant shall indemnify, defend, and hold the City and its elected and appointed officers, officials, employees, agents and representatives (all of the foregoing, collectively the “Indemnitees”) harmless from and against all liabilities, losses, damages, fines, deficiencies, penalties, claims, demands, suits, actions, causes of action, legal or administrative proceedings, judgments, costs and expenses (including without limitation reasonable attorneys’ fees and court costs) (all of the foregoing, collectively “Claims”) arising as a result of or in connection with any such contest brought by the Tenant. During #23..
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any contest of an Imposition, the Tenant shall (by payment of disputed sums, if necessary) prevent any advertisement of tax sale, foreclosure of, or any divesting of the City’s title, reversion or other interest in the Property. Upon final determination of the amount or validity of any Imposition contested pursuant to this Section 3.2, the Tenant shall immediately pay such Imposition and all costs and expenses relating to such challenge.
3.3 Tenant Duty to File. The Tenant shall have the duty of making or filing any declaration, statement or report which may be necessary or advisable in connection with the determination, equalization, reduction or payment of any Imposition which is or which may become payable by the Tenant under the provisions of this Article III, and shall notify the City in writing upon making such filing, declaration, statement or report, and the City shall not be responsible for the contents of any such declaration, statement or report; provided however, the City shall cooperate with the Tenant in connection with the foregoing, including joinder in any application pertaining thereto to the extent required under Applicable Law, all at no cost to the City.
ARTICLE IV
TENANT’S USE OF THE PROPERTY
4.1 Temporary Transitional Housing. During the Term of this Agreement, Tenant shall use the Property solely for the construction and operation of temporary transitional housing for individuals and households experiencing or at risk of homelessness.
4.2 Support Services. At all times during the Term of the Agreement, Tenant shall contract with a qualified nonprofit entity or government agency to provide services to the residents occupying the Transitional Housing Facility. Tenant has selected Stanislaus County Behavioral Health and Recovery Services (“BHRS”) to provide the required services to residents of the Transitional Housing Facility. In the event that Tenant replaces BHRS) shall notify the City of the new entity or governmental agency selected by Tenant to provide services.
4.3 Operation of Transitional Housing. Tenant may elect to contract with a qualified property management company to operate the Transitional Housing Facility constructed by Tenant. If Tenant so elects, it shall notify the City in writing of the entity selected to operate the Transitional Housing Facility. Tenant’s decisions to contract with a qualified entity to operate the Transitional Housing Facility shall not in any way relieve Tenant of its obligations hereunder.
ARTICLE V
ALTERATIONS AND NEW CONSTRUCTION
5.1 Construction of Improvements. During the Term of this Agreement, the Tenant shall not make any permanent change, alteration or addition to the Property #23..
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(collectively, the “Improvements”) without the prior written consent of the City, and shall comply with any requirements imposed by the City as a condition of such consent.
5.2 No Right to Demolish. Notwithstanding any other provisions of this Agreement, Tenant shall have no right to demolish any Improvement, once built, without prior written consent of City.
5.3 Prevailing Wages. To the extent required by applicable state laws, rules and regulations, Tenant and its contractors and agents shall comply with California Labor Code Section 1720 et seq. and applicable federal labor laws and standards, and the regulations adopted pursuant thereto (“Prevailing Wage Laws”), and shall be responsible for carrying out the requirements of such provisions.
ARTICLE VI
MANAGEMENT, USE AND OPERATION OF THE PROPERTY
6.1 Permitted Uses. The Tenant may use the Property solely for the purposes and according to the requirements set forth in Article IV. The Tenant shall not use or permit the Property to be used in whole or in part during the Term for any purpose other than as permitted pursuant to this Agreement or by the City’s written consent.
6.2 Nondiscrimination. The Tenant herein covenants by and for the himself or herself, his or her heirs, executors, administrators, and assigns, and all persons claiming under or through him or her, and this lease is made and accepted upon and subject to the following conditions: that there shall be no discrimination against or segregation of any person or group of persons, on account of any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Property herein leased nor shall the Tenant himself or herself, or any person claiming under or through him or her, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the Property herein leased.
6.3 Maintenance and Inspection of the Property.
6.4.1 Maintenance. At the Tenant’s sole cost and expense throughout the Term, the Tenant shall operate, maintain and manage the Property, including all landscaping and improvements thereon, in good order and repair and in neat, clean sanitary and safe condition in compliance with all local, state and federal laws, statutes and regulations relating to the use, occupancy or operation of the Property. The Tenant shall promptly, at the Tenant’s own cost and expense, make all necessary repairs, including replacements or renewals when necessary, and all such repairs shall be at least equal in #23..
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quality to the original work, reasonable wear and tear accepted. The Tenant shall keep and maintain all portions of the Property in a reasonably clean and orderly condition, free of accumulation of rubbish, graffiti and noxious weeds, and keep the Property in condition not detrimental to the surrounding properties and free from hazards to the general public.
The Tenant’s failure to maintain the Property in accordance with this Agreement shall subject to notice and cure rights, in the City’s discretion, be grounds for termination of this Agreement pursuant to Article XIII.
6.4.2 Inspection. At any time during the Term, upon reasonable advance notice and during normal business hours and subject to the rights of the tenants in the units, the City may conduct inspections of the Property to confirm that it is being properly maintained as required herein. Following its inspection, the City may deliver to the Tenant written notification of any portions of the Property which the City has determined are not being properly maintained, and the Tenant shall promptly prepare and deliver to the City the Tenant’s proposed plan for remedying the indicated deficiencies. The Tenant’s failure to deliver a remedial plan and to complete remedial work within a reasonable time as determined by the City in its reasonable discretion shall be a default under this Agreement.
The failure of the City to inspect or to notify the Tenant of any deficiency shall not be a waiver of default or of the City’s right to enforce the Tenant’s maintenance and repair obligations. The Tenant shall defend (with counsel reasonably acceptable to the City), indemnify and hold the Indemnitees harmless from and against any and all Claims arising out of the Tenant’s failure to fully and timely fulfill its obligations to maintain and repair the Property as required hereunder.
6.5 City’s Right to Perform Tenant Obligations. If following notice and the expiration of any applicable cure period as set forth in Section 13.2.1, the Tenant fails to perform its obligations to maintain the Property in accordance with the standards set forth in this Agreement, the City shall have the right, but not the obligation, to perform such work upon delivery of written notice to the Tenant, and the Tenant shall reimburse the City for all reasonable expenditures the City incurs in connection with such work together with interest thereon at the Default Rate specified in Article X. The City’s election to undertake such obligation shall not operate as a waiver of any other right or remedy the City may have pursuant to this Agreement.
6.6 City Not Obligated to Perform Repairs. Notwithstanding any contrary provision herein, the City shall not be obligated to make any repairs, alterations, additions, improvements or betterments to the Property during the term of this Agreement nor shall the City be obligated to maintain or operate the Property.
6.7 Compliance with Laws. Tenant, at its sole cost and expense, shall comply with all applicable state and federal laws and regulations, including without limitation, all applicable state and federal labor laws and standards, and all applicable disabled and #23..
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handicapped access requirements, including without limitation, the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., California Government Code Section 4450, et seq., California Government Code Section 11135, et seq., and the Unruh Civil Rights Act, California Civil Code Section 51, et seq. Tenant shall comply with all City ordinances and regulations relating to noise, business hours, pertaining to the use, operation, and management of the Property. (All of the foregoing state, federal and local laws, regulations and ordinances are referred in this Lease as the “Applicable Laws.”) The Tenant shall not itself use the Property for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property which would result in a nuisance or a violation of law. The Tenant shall use its best efforts to not permit any permittees, licensees, guests or invitees to use the Property for any unlawful purpose or perform, permit or suffer any act of omission or commission upon or about the Property which would result in a nuisance or a violation of law.
6.8 Tenant Right to Contest. The Tenant shall have the right to contest by appropriate proceedings, in the name of the Tenant, and without cost or expense to the City, the validity or application of any Applicable Law. If compliance with any Applicable Law may legally be delayed pending the prosecution of any such proceeding without the incurrence of any lien, charge or liability against the Property or Tenant’s interest therein, and without subjecting the Tenant or the City to any liability, civil or criminal, for failure so to comply therewith, the Tenant may delay compliance therewith until the final determination of such proceeding. The Tenant shall indemnify, defend (with counsel approved by the City), protect and hold the Indemnitees harmless from and against all Claims arising in connection with any such contest brought by the Tenant. The foregoing indemnity obligation shall survive the expiration or earlier termination of this Agreement.
ARTICLE VII
CONDITION OF THE PROPERTY; ENVIRONMENTAL MATTERS
7.1 Condition of the Property.
7.1.1 AS-IS Condition. The Tenant will lease the Property in its “AS IS” condition as such condition exists as of the Commencement Date, without any warranties whatsoever regarding its condition except as specifically described in this Agreement, and with all faults and defects, if any, that may be located on, under, or around the Property, whether known or unknown, suspected or unsuspected, actual or potential.
Tenant has had the opportunity to complete physical inspections of the Property and due diligence related to the lease of the Property, and Tenant hereby waives the opportunity to conduct further due diligence and physical inspection of the Property.
7.1.2 No Representations. The Tenant acknowledges that except as expressly set forth herein, the City makes no representations or warranties expressed or implied regarding the condition of the Property or the fitness or suitability thereof for the Tenant’s purposes, including but not limited to, the condition of the soil, its geology, topography, the presence or absence of fill, the presence or absence of Hazardous Materials, drainage, flood zone designation, or compliance with Hazardous Materials Laws, and no #23..
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patent or latent defect or deficiency in the condition of the Property shall affect the rights of the Tenant or the City hereunder. The Tenant shall rely solely on its own independent knowledge of the Property and judgment as to all matters relating to the Property. The Tenant acknowledges and agrees that prior to the Effective Date it has made such investigations of the Property, including without limitation such inquiries of governmental agencies, soils testing, tests and inspections as Tenant deemed necessary to determine the condition of the Property, and has approved all such characteristics and conditions and shall lease the Property in its condition as of the Effective Date “AS-IS” “WHERE-IS” AND WITH ALL FAULTS. The Tenant further acknowledges that the City has made available all data and information on the Property available to the City, but without warranty or representation by the City as to the completeness, correctness or validity of such data and information, except as otherwise set forth in this Agreement.
7.2 Tenant’s Covenants. The Tenant hereby covenants and agrees that throughout the Term:
(a) Tenant’s use and operation of the Property shall be in compliance with all Hazardous Materials Laws, and the Tenant shall not cause or permit the Property or any portion thereof to be in violation of any Hazardous Materials Laws. Tenant shall have no obligation for violations of Hazardous Material Laws occurring at the Property prior to the Effective Date.
(b) The Tenant shall not permit the Property or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials nor shall the Tenant permit the presence or release of Hazardous Materials in, on, under, about or from the Property with the exception of materials customarily used for the operation of ambulances, provided such materials are used, stored and disposed of in compliance with Hazardous Materials Laws. (c) Upon receiving knowledge of the same, the Tenant shall immediately advise the City in writing of: (i) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Tenant or the Property pursuant to any applicable Hazardous Materials Laws; (ii) any and all complaints, claims, citations, demands, inquiries, reports, or notices made or threatened by any third party against the Tenant or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials; (iii) the presence or release of any Hazardous Materials in, on, under, about or from the Property; or (iv) Tenant’s discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Property classified as "Border Zone Property" under the provisions of California Health and Safety Code, Sections 25220 et seq., or any regulation adopted in connection therewith, that may in any way affect the Property pursuant to any Hazardous Materials Laws or cause it or any part thereof to be designated as Border Zone Property. The matters set forth in the foregoing clauses (i) through (iv) are hereinafter referred to as “Hazardous Materials Claims.” The City shall have the right to join and participate in, as a party if it so elects, any legal proceedings #23..
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or actions initiated in connection with any Hazardous Materials Claim, and to have its reasonable attorney's fees in connection therewith paid by the Tenant. (d) Without the City’s prior written consent, which shall not be unreasonably withheld, the Tenant shall not take any remedial action in response to the presence of any Hazardous Materials in, on, under, or about the Property (other than in emergency situations or as required by governmental agencies having jurisdiction in which case the City agrees to provide its consent), nor enter into any settlement agreement, consent decree, or other compromise with respect to any Hazardous Materials Claim. (e) If the presence of any Hazardous Material on the Property caused by Tenant’s use of the Property results in any contamination of the Property and/or Property in violation of Hazardous Materials Laws, except to the extent such contamination is caused by the City or caused by actions prior to the Effective Date, the Tenant shall promptly take all actions at its sole expense as are necessary to remediate the Property as required by law; provided that the City’s approval of such actions shall first be obtained, which approval may be withheld in the City’s reasonable discretion.
All costs and expenses of any remedial work shall be paid by the Tenant, it being understood that the City shall incur no cost, expense or liability in connection with any remedial work. The City shall have the right, but no obligation, to join and participate in, as a party if it so elects at the City’s cost, any legal proceedings or actions initiated in connection with any Hazardous Material Claims.
7.3 Environmental Indemnity. The Tenant shall indemnify, defend (with counsel reasonably acceptable to the City) and hold the Indemnitees harmless from and against all Claims arising during the Term and resulting, arising, or based directly or indirectly in whole or in part, upon (i) the presence, release, use, generation, discharge, transport, storage or disposal of any Hazardous Materials on, under, in or about the Property arising out of Tenant’s use of the Property, or the transportation of any such Hazardous Materials to or from the Property by Tenant during the Term, including by Tenant’s licenses and guests (ii) the failure of the Tenant, the Tenant’s employees, agents, contractors, subcontractors, licensees, permittees, or any person acting on behalf of any of the foregoing to comply with Hazardous Materials Laws, or (iii) the breach by the Tenant of any of its covenants contained in this Article VII. The foregoing indemnity shall further apply to any residual contamination in, on, under or about the Property or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws and shall include, without limitation, any Claims arising in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work ordered by a court or required by any federal, state, or local governmental agency or political subdivision. This Section 7.3 shall survive the expiration or earlier termination of this Agreement. Add same language requested to be added to 7.2(a).
7.4 Definitions.
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7.4.1 Hazardous Materials. As used herein, “Hazardous Materials” means any substance, material, or waste which is or becomes regulated by any local, state or federal authority, agency or governmental body, including any material or substance which is: (i) defined as a “hazardous waste,” “extremely hazardous waste,” or “restricted hazardous waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a “hazardous substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act); (iii) defined as a “hazardous material,” “hazardous substance,” or “hazardous waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory); (iv) defined as a “hazardous substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances); (v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9 or defined as “hazardous” or “extremely hazardous” pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20; (ix) designated as “hazardous substances” pursuant to Section 311 of the Clean Water Act (33 U.S.C. §1317); (x) defined as a “hazardous waste” pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. §6901, et seq. (42 U.S.C. §6903); or (xi) defined as “hazardous substances” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be amended. Hazardous Materials shall not include such substances generally used in the construction, operation or maintenance of projects similar to the Transitional Housing Facility so long as such substances are used and stored in a manner consistent with industry standards.
7.4.2 Hazardous Materials Laws. As used herein “Hazardous Materials Laws” means all federal, state and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials, including without limitation, the laws, statutes and regulations cited in the preceding Section 7.4.1, as any of the foregoing may be amended from time to time.
ARTICLE VIII
INDEMNITY AND INSURANCE
8.1 Indemnity. The Tenant shall indemnify, defend (with counsel reasonably acceptable to the City) and hold the Indemnitees harmless from and against any and all Claims arising during the Term and arising from or in connection with any of the following:
(i) Tenant’s operation or management of the Property and Transitional Housing Facility, (ii) any work or thing done by Tenant on or in the Property, (iii) any condition of any alteration or addition constructed by the Tenant on the Property, (iv) any breach or default by the Tenant in the performance of any covenant or agreement to be performed by the Tenant pursuant to the terms of this Agreement, (v) any negligence of the Tenant, or any #23..
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of its agents, contractors, subcontractors, employees, or licensees, (vi) any accident, injury or damage caused by Tenant , or any of its agents, contractors, subcontractors, employees, or licensees to any person occurring during the Term in or on the Property, and (vii) the furnishing of labor or materials by the Tenant or its contractors, subcontractors, employees, or agents. In the event any such action or proceeding is brought against the City by reason of any such Claim set forth in this Section 8.1, the Tenant, upon notice from the City, covenants to defend such action or proceeding by counsel reasonably satisfactory to the City. If an insurer under insurance required to be maintained by the Tenant hereunder shall undertake to defend the City under a reservation of rights with respect to ultimate coverage and the City shall reasonably deem it necessary to retain independent counsel with respect to such matter, the Tenant shall pay the reasonable fees of such counsel. The obligations of the Tenant under this Article XIII shall not apply to any Claim or other matter to the extent such arises as a result of the negligence or willful misconduct of the Indemnitees. This Section shall survive the expiration or earlier termination of this Agreement.
8.2 Insurance Requirements. The Tenant shall procure, at its sole expense, and maintain in full force and effect during the Term, the following insurance naming the City as additional insured and/or loss payee:
a. Comprehensive General Liability insurance against claims for bodily and personal injury, death and property damage caused by or occurring in conjunction with the Tenant’s use of the Property and the operation of a business thereon, with a policy limit of at least Two Million Dollars ($2,000,000) per occurrence. b. Tenant shall maintain property insurance covering all risks of loss caused by or occurring in conjunction with the Tenant’s use of the Property and the operation of a business thereon including flood (if required) for 100% of the replacement value of the Property, the Fixtures, and any Improvements, naming the City as loss payee as its interests may appear.
c. Tenant represents and warrants that it does not have any employees, and therefore is not required to obtain worker’s compensation insurance. In the event that Tenant hires any employees during the term of this Agreement, Tenant shall obtain and maintain workers’ compensation insurance that complies with the statutory requirements of the state of California.
If the Tenant undertakes the construction of any improvements pursuant to Article V, the Tenant shall ensure that its general contractor carries liability, property damage, workers’ compensation, and builder’s risk insurance throughout construction of the Improvements, naming the Indemnitees as additional insureds and otherwise in compliance with all requirements set forth in this Section 8.2. #23..
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ARTICLE IX
DAMAGE AND DESTRUCTION
9.1 Damage or Destruction. In the event of any damage to or destruction of the Property during the Term, the City shall elect by written notice delivered to Tenant within sixty (60) days following the date of the occurrence of the damage to either remove the Property or restore and rebuild the Property as nearly as possible to their condition immediately prior to such damage or destruction, subject to any restrictions imposed by changes in any Applicable Law. If the City elects to restore the Property, the City shall commence diligently and continuously to carry out such rebuilding to full completion as soon as possible and shall commence reconstruction of the Property within the earlier of ninety (90) days following the date of occurrence of the damage or the date upon which insurance proceeds are made available for such work. If the City does not elect to restore the Property because of the extent of the damage to the Property, then the City may exercise its right to terminate this Agreement pursuant to Section 9.3 upon delivery of written notice to the Tenant. In the event of damage to the Property which was not caused by Tenant’s negligent acts or omissions or Tenant’s use of the Property, the Rent payable by Tenant for the period required for the repair, remediation, or restoration of such damage shall be abated in proportion to the degree to which Tenant’s use of the Property is impaired. This section does not work where the City is not constructing the units. The Tenant should have the right to decide.
9.2 Notice Required. In the event of material damage to or destruction of the Property, or any part thereof, the Tenant shall promptly give the City notice of such occurrence and take all actions reasonably required to protect against hazards caused by such damage or destruction. For purposes of this Article IX, damage or destruction shall be deemed to be material if the estimated cost to repair equals or exceeds Five Thousand Dollars ($5,000).
9.3 City’s Right to Terminate. Notwithstanding any contrary provision of this Article IX, the City shall have the option to terminate this Agreement and be relieved of the obligation to restore the Property only where all or substantially all of the Property are substantially damaged or destroyed.
ARTICLE X
CITY’S RIGHT TO PERFORM TENANT’S COVENANTS
If the Tenant shall at any time fail to pay any Imposition or other charge payable by the Tenant to a third party as required by this Agreement, or to comply with the requirements set forth in Section 8.2 pertaining to insurance, or to make any other payment or perform any other act on its part to be made or performed hereunder within the time permitted by this Agreement, then the City, after fourteen (14) days’ written notice to the Tenant and without waiving or releasing the Tenant from any obligation of the Tenant hereunder, may (but shall not be required to): (i) pay such Imposition or other charge payable by the Tenant; (ii) pay for and maintain the insurance policies #23..
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required pursuant to this Agreement, or (iii) make such other payment or perform such other act on the Tenant’s part to be made or performed under this Agreement; and the City may enter upon the Property for such purpose and take all such action thereon as may be reasonably necessary therefor.
All sums paid by the City and all costs and expenses incurred by the City in connection with any such payment or the performance of any such act (together with interest thereon at the Default Rate from the respective dates of the City’s making of each such payment) shall constitute additional Rent payable by the Tenant under this Agreement and shall be paid by the Tenant to the City on demand. The “Default Rate” shall mean interest calculated at an annual rate equal to the lesser of twelve percent (12%) or the maximum rate of interest permitted by law.
ARTICLE XI
MORTGAGES
11.1 Non-Subordination of Fee. Nothing in this Agreement shall be construed as an agreement by the City to subordinate its fee interest in the Property or its right to rent payments hereunder or any other right of the City herein. Except as expressly set forth in this Agreement, the Tenant shall not mortgage its interest in the Property without the City’s prior written approval. Notwithstanding anything to the contrary, the City shall have no obligation to encumber or otherwise subordinate its fee interest in the Property or approve any mortgage of the Tenant’s leasehold estate. Can we get preapproval if we know any of the financing?
ARTICLE XII
ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND
ATTORNMENT
12.1 Restrictions on Transfer, Assignment and Encumbrance. The Tenant shall have no right to sell, transfer, sublet, assign, encumber, hypothecate or otherwise convey (“Transfer”) its leasehold interest hereunder or any portion of its interest in the Property or this Agreement voluntarily, involuntarily, by operation of law, or otherwise, without the City’s prior written consent. No voluntary or involuntary assignee, subtenant, or successor in interest of the Tenant shall acquire any rights or powers under this Agreement absent such consent. Nothing herein shall be interpreted as prohibiting the Tenant from contracting with a third party to operate the Transitional Housing Facility as provided by Article IV herein. (Clarify tenant can lease the units.) Any transfer described in this Section 12.1 shall constitute an Event of Default under this Agreement by the Tenant, and the City shall have the right to terminate this Agreement pursuant to Article XIII as a result of any such transfer taking place, in which case this Agreement shall not be treated as an asset of the Tenant. #23..
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12.4 Sale by City. Nothing contained in this Agreement shall be deemed in any way to limit, restrict or otherwise affect the right of the City to sell, transfer, assign or convey all or any portion of the right, title and estate of the City in the Property and in this Agreement.
At such time as the City shall sell, transfer, assign or convey the entire right, title and estate of the City in the Property and in this Agreement, all obligations and liability on the part of the City arising under this Agreement after the effective date of such sale, transfer, assignment or conveyance shall terminate as to the City, and thereupon all such liabilities and obligations shall be binding upon the transferee. .
12.5 Nondisturbance. Provided that the Tenant is not in default under this Agreement, the Tenant’s possession, use and enjoyment of the Property shall not be interfered with, disturbed or diminished, or otherwise affected in any manner as a result of any act or omission of the City, or any exercise of any remedies under this Agreement. (Add Record a Memo of Lease)
ARTICLE XIII
DEFAULT, REMEDIES AND TERMINATION
13.1 Event of Default. The Tenant shall be in default under this Agreement upon the occurrence of any of the following (“Events of Default”):
(a) Payment of Rent. The Tenant at any time is in default hereunder as to payment of Rent and such default continues for five (5) days. City is not required to provide written notice of Tenant’s failure to pay Rent. (b) Other Monetary Obligations. The Tenant at any time is in default hereunder as to any monetary obligation (including without limitation, the Additional Rent and the Tenant’s obligation to pay taxes and assessments due on the Property or part thereof, subject to the Tenant’s rights to contest such charges pursuant to Section
3.2), and such default continues for thirty (30) days after the date upon which the City shall have given the Tenant a Notice of Default (as defined in Section 13.2.1) unless a different cure period is specified for such default;
(c) Insurance. The Tenant fails to obtain and maintain any insurance required pursuant to Section 8.2 of this Agreement, and the Tenant fails to cure such default within thirty (30) days following receipt of Notice of Default; (d) Abandonment. The Tenant abandons the Property and ceases to use it for the purposes authorized hereby for a period of ninety (90) days or more or as established pursuant to Section 1951.3 of the California Civil Code; (e) Transfer. A voluntary or involuntary Transfer of all or any portion of the Tenant’s interest in this Agreement occurs in violation of the provisions of Article XII; (f) Non-Monetary Obligations. The Tenant defaults in the performance of any term, provision, covenant or agreement contained in this Agreement other than an #23..
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obligation enumerated in this Section 13.1 (including, but not limited to, the obligation to retain a qualified entity to provide services to residents of the Transitional Housing Facility), and unless a shorter cure period is specified for such default, the default continues for thirty (30) days after the date upon which the City shall have given written notice of the default to the Tenant;
(g) Attachment. A writ of execution or attachment or any similar process is issued or levied against all or any part of the interest of the Tenant in the Property and such execution, attachment or similar process is not released, bonded, satisfied, or vacated or stayed within sixty (60) days after its entry or levy, such sixty (60) day period to be extended during any period of a bona fide appeal diligently pursued by Tenant;
13.2 Notice and Opportunity to Cure.
13.2.1 Notice of Default. Upon the occurrence of a default hereunder, the nondefaulting party shall deliver a notice to the nonperforming party (the “Notice of Default”), stating the nature of the obligation which such nonperforming party has failed to perform, and stating the applicable period of time, if any, permitted to cure the default, which period shall be not less than thirty (30) days. In the event such cure cannot be achieved in thirty (30) days, Tenant shall have such additional reasonable time to cure so long as Tenant has initiated such cure within thirty (30) days.
13.2.2 Failure to Give Notice; No Waiver. Failure to give, or delay in giving, the Notice of Default shall not constitute a waiver of any obligation, requirement or covenant required to be performed hereunder. No failure or delay by either party in asserting any rights and remedies as to any breach shall operate as a waiver of any breach or of any such rights or remedies. Delay by either party in asserting any of its rights and remedies shall not deprive such party of the right to institute and maintain any action or proceeding which it may deem appropriate to protect, assert or enforce any such rights or remedies.
13.3 Remedies Upon Default.
13.3.1 City’s Remedies. Upon the occurrence of any Event of Default and in addition to any and all other rights or remedies of the City hereunder and/or provided by law, the City shall have the right to terminate this Agreement to re-enter the Property and take possession thereof. The City’s re-entry or taking of possession of the Property shall not be construed as an election on the City’s part to terminate this Agreement unless the City shall have given written notice of such intention to the Tenant. In no event shall this Agreement be treated as an asset of the Tenant after any final adjudication in bankruptcy except at the City’s option so to treat the same but no trustee, receiver, or liquidator of the Tenant shall have any right to disaffirm this Agreement.
13.3.2 Right to Injunction; Specific Performance. In the event of a default by the Tenant under this Agreement, the City shall have the right to commence an action against the Tenant for damages, injunction and/or specific performance. The Tenant’s failure, for #23..
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17 402 9th Street Lease Agreement
any reason, to comply with a court-ordered injunction or order for specific performance shall constitute a breach under this Agreement.
13.4 Remedies Cumulative. No remedy specified in this Article XIII shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy provided hereunder or now or hereafter existing at law or in equity or by statute, and every power and remedy provided by this Agreement may be exercised from time to time and as often as occasion may arise or as may be deemed expedient, subject to any limitations set forth herein.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Force Majeure; Extension of Times of Performance. Subject to the limitations set forth below, performance by either Party shall not be deemed to be in default, and all performance and other dates specified in this Agreement shall be extended where delays are due to: war, insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public enemy, epidemics, quarantine restrictions, freight embargoes, governmental restrictions or priority, litigation, including court delays, unusually severe weather, acts or omissions of the other Party, acts or failures to act of any public or governmental agency or entity (other than the Parties which shall not excuse delay in performance), or any other cause beyond the affected Party’s reasonable control (all of the foregoing “Force Majeure”). An extension of time for any such cause shall be for the period of the enforced delay and shall commence to run from the time of the commencement of the cause, if notice by the Party claiming such extension is sent to the other Party within thirty (30) days of the commencement of the cause and such extension is not rejected in writing by the other Party within ten (10) days of receipt of the notice.
Neither Party shall unreasonably withhold consent to an extension of time pursuant to this Section.
14.2 City’s Right to Enter the Property. The City and its agents may enter the Property from time to time with reasonable notice subject to the right of the tenants in the Units, except in the case of emergency in which case no notice shall be required, to inspect the same, to post notices of nonresponsibility and similar notices, and to discharge the Tenant’s obligations hereunder when the Tenant has failed to do so within a reasonable time after written notice from the City.
14.4 Representations of City and Tenant.
14.4.1 The Tenant hereby represents and warrants that as of the Effective Date the following are true and correct: (a) this Agreement constitutes the legally valid and binding obligation of the Tenant, enforceable against the Tenant in accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles relating to or limiting the rights of contracting parties generally; and (b) the person executing this Agreement is authorized to do so; and (c) the execution of #23..
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18 402 9th Street Lease Agreement
this Agreement and the acceptance of the obligations set forth herein do not violate any court order or ruling binding upon the Tenant or any agreement to which Tenant is a party or may be bound.
14.4.2 City hereby represents and warrants that as of the Effective Date the following are true and correct: (a) this Agreement constitutes the legally valid and binding obligation of the City, enforceable against the City in accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar laws or by legal or equitable principles relating to or limiting the rights of contracting parties generally. (ADD CITY
HAS THE AUTHORITY TO LEASE THE PROPERTY ACCORDING TO THE TERMS HEREIN.)
14.5 Miscellaneous.
14.5.1 Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law.
14.5.2 Notices. Except as otherwise specified herein, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other parties in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender’s account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or
City: 1010 Tenth Street, Suite 4300
Modesto, CA 95354
P.O. Box 642
Attention: Community Development Manager
Phone:(209) 577-5417
Tenant: Modesto BHBH LP
3040 N. Fresno Street
Fresno, CA 93703
Attention: Leslie Alvarado
Phone: 559-429-1373
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14.5.3 Captions; Construction. The section headings and captions used herein are solely for convenience and shall not be used to interpret this Lease. The Parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both Parties, and the Parties agree that since both Parties have participated in the negotiation and drafting of this Agreement with the advice of counsel, this Agreement shall not be construed as if prepared by one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it.
14.5.4 Successors and Assigns. Subject to the restrictions on transfer set forth in Article XIV, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and assigns. Any reference in this Lease to a specifically named Party shall be deemed to apply to any permitted successor and assign of such Party who has acquired an interest in compliance with this Agreement as if in every case so expressed.
14.5.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflicts of laws. Any action to enforce or interpret this Agreement shall be filed in the Superior Court of Stanislaus County, California or in the Federal District Court for the Eastern District of California.
14.5.6 Attorney’s Fees. If either Party commences an action against the other to enforce any obligation contained herein, or to interpret any provision hereof, the prevailing party shall be entitled to recover from the other Party reasonable counsel fees, costs and necessary disbursements, as determined by the court having jurisdiction over the action.
14.5.7 Indemnity Includes Defense Costs. In any case where either Party is obligated under an express provision of this Lease, to indemnify and to save the other Party harmless from any damage or liability, the same shall be deemed to include defense of the indemnitee by the indemnitor, such defense to be through legal counsel reasonably acceptable to the indemnitee.
14.5.8 No Third-Party Beneficiaries; Disclaimer of Partnership, Lender/Borrower Relationship. Nothing contained in this Agreement is intended to or shall be deemed to confer upon any person, other than the Parties any rights or remedies hereunder. The relationship of the parties under this Agreement is solely that of landlord and tenant, and it is expressly understood and agreed that the City does not as a result of this Agreement in any way nor for any purpose become a partner of the Tenant or a joint venturer with the Tenant in the conduct of the Tenant’s business or otherwise. This Agreement is not intended to, and shall not be construed to, create the relationship of principal and agent, partnership, joint venture, or association as between the City and the Tenant. It is further expressly understood and agreed that this Agreement is not intended to, and shall not be construed to create the relationship of lender and borrower, and the City does not, solely as a result of this Agreement, become a lender to the Tenant. #23..
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14.5.9 Entire Agreement. This Agreement, together with all exhibits, which by this reference is hereby incorporated herein, contains the entire agreement between the Parties relative to the transactions covered hereby. All previous correspondence, communications, discussions, agreements, understandings or proposals and acceptances thereof between the Parties or their representatives, whether oral or written, are deemed to have been integrated into and superseded by this Agreement and are of no further force and effect except as expressly provided in this Agreement.
14.5.10 Waiver; Modification. No waiver of any breach of any covenant or provision of this Agreement shall be deemed a waiver of any subsequent breach of the same or any other covenant or provision hereof. No waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act, and no extension shall be valid unless in writing and executed by the waiving party. This Agreement may be amended or modified only by a written instrument executed by the Parties.
14.5.11 Time is of the Essence. Time is of the essence of this Agreement and of each provision hereof.
14.5.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be an original and all of which together shall constitute one and the same instrument.
14.5.13 Action by the Parties. Except as may be otherwise specifically provided herein, whenever any approval, notice, direction, consent or request by the City in its capacity as landlord hereunder is required or permitted under this Agreement, such action shall be in writing, and such action may be given, made or taken by the City Manager or by any person who shall have been designated by the City Manager, without further approval by the City Council unless the City Manager determines in his or her discretion that such matter requires consideration by the City Council.
14.5.14 Non-Liability of Officials, Employees and Agents. No member, official, employee or agent of the City shall be personally liable to Tenant or its successors in interest in the event of any default or breach by the City or for any amount which may become due to the Tenant or the Tenant’s permitted successors in interest pursuant to this Agreement.
SIGNATURES ON THE NEXT PAGE
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21 402 9th Street Lease Agreement
IN WITNESS WHEREOF, the Parties have entered into this Lease as of the Effective Date.
TENANT: LANDLORD:
MODESTO BHBH LP CITY OF MODESTO,
a California limited partnership a California Charter City By: __________________________ By:
Joseph P. Lopez, City Manager
Title: __________________________
ATTEST:
______________________________
Diane Nayares-Perez, City Clerk
APPROVED AS TO FORM
Jose Sanchez, City Attorney
APPROVED AS TO RISK MANAGEMENT
Risk Manager
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C-3
Exhibit A
PROPERTY
(Attach legal description.)
LEGAL DESCRIPTION
Real property in the City of Modesto, County of Stanislaus, State of California, described as follows:
LOTS 17, 18, 19 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 AND 32, IN BLOCK 51 OF THE
CITY OF MODESTO ACCORDING TO THE MAPS OF TOWN OF MODESTO FILED IN THE OFFICE OF THE COUNTY, RECORDER OF STANISLAUS COUNTY, CALIFORNIA ON APRIL 18, 1903 IN VOL. 1 OF MAPS AT PAGE 82.
APN: 106-045-003
5480080.1
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2 402 9th Street Lease Agreement
Exhibit B
Site Plan
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1 RIGHT OF ENTRY AGREEMENT
THIS RIGHT OF ENTRY AGREEMENT (this “Agreement”) is entered into as of ______________, 2024 (the “Effective Date”), by and between the City of Modesto, a California municipal corporation (the “City”), and DignityMoves, a California nonprofit corporation (“Licensee”), to provide for access to certain property located in the City.
RECITALS
A. City is the owner of that certain parcel of real property located at 402 9th Street, Modesto, California 95354 also known as Stanislaus County Assessor’s Parcel Number 106-045-003 (the “Property”), as more particularly depicted in Exhibit A attached hereto and incorporated herein by this reference.
B. City has leased, or will lease, the Property to UPHoldings (“Lessee”) for the purposes of operating a bridge housing facility for individuals who are homeless or at risk of homelessness (the “Project”).
C. Licensee has been retained by the County of Modesto to construct and develop improvements on the Property for the Project.
D. Licensee has requested, and City has agreed to provide, access and use of the Property for certain activities as described herein. The lease between the City and Lessee (the “Lease”) will be subject to the provisions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the City and Licensee do hereby agree as follows:
1. License to Enter. The City hereby grants to Licensee, its contractors, consultants and subcontractors, and their respective employees, licensees, subcontractors and agents (collectively the “Licensee Parties”) a non-exclusive and non-possessive license to enter upon the Property for the purposes of surveying, performing site preparation activities, and installing and constructing the improvements set forth in Exhibit B, attached hereto and incorporated herein by this reference (the “Permitted Activities”). The Permitted Activities shall include all activities reasonably necessary to construct and install the improvements identified in Exhibit B. The Lease between the City and Lessee shall be subject to this license to enter granted by this Agreement, but Lessee shall have rights to enter and use the Property as specified in such Lease.
2. Conditions of Entry. Licensee may engage in the Permitted Activities subject to the following conditions:
(a) Licensee shall provide the City and Lessee with at least seventy-two (72) hours’ notice prior to Licensee Parties first entering upon the Property. Licensee #23..
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2 should notify the City when the Permitted Activities are complete and Licensee Parties will no longer be entering the Property.
(b) After completion of the Permitted Activities, Licensee shall remove from the Property all equipment, tools, personnel property, rubbish or debris of or brought onto the Property by Licensee Parties from the Property, and leave the Property in clean condition as reasonably determined by the City. (c) Licensee will permit only Licensee Parties to enter upon the Property. (d) City and Lessee shall have the right to enter upon the Property at any time, and for any purpose, without prior notice to Licensee. (e) Licensee and Licensee Parties will comply with all applicable laws, regulations, rules and permits pertaining to the Property, including, but not limited to, the Occupational Health & Safety Act and all applicable environmental laws, health and safety laws and regulations, whether federal, state or local. Licensee shall obtain all permits and approvals required for the Permitted Activities, from the City and any other public agency with jurisdiction, prior to the commencement of the Permitted Activities. (f) Licensee shall be liable for any damage to the Property that occurs as a result of this Agreement and the Permitted Activities, except and to the extent the damage is caused by the negligence or willful misconduct of Lessee, City, or their respective employees, guests, invitees or agents.
(g) Licensee and Licensee Parties shall exercise good faith and act with reasonable skill and care in carrying out the acts authorized by the Agreement. (h) Licensee shall at all times keep the Property free and clear of all liens and encumbrances affecting title to the Property in connection with the Permitted Activities. Upon notice of any such lien or claim, Licensee may bond and contest in good faith the validity and the amount of such lien, but Licensee shall immediately pay any judgment rendered, shall pay all proper costs and charges, shall have the lien or claim released at its sole expense and will indemnify, defend, protect and hold the City harmless from and against all such claims.
3. Term. The right of entry granted in this Agreement will commence on the Effective Date and shall terminate upon the completion of the Permitted Activities (the “Term”). Either party may terminate this Agreement, without cause, upon seven (7) days’ written notice to the other party. Licensee’s indemnity obligations set forth in this Agreement survive termination of this Agreement for any reason.
4. Insurance. Licensee shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Permitted Activities by the Licensee, its agents, representatives, employees, or subcontractors.
4.1 Minimum Scope and Limit of Insurance. Coverage shall be at least as #23..
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3 broad as:
a. Commercial General Liability (CGL): Insurance Services Office Form CG 00 01, including products and completed operations, with limits of no less than $1,000,000 per occurrence for bodily injury, personal injury, and property damage. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. b. CGL umbrella coverage with limits of no less than $1,000,000. c. Automobile Liability: Insurance Services Office Form Number CA 0001 covering Code 1 (any auto), with limits no less than $2,000,000 per accident for bodily injury and property damage.
d. Workers’ Compensation insurance as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease. e. Builder’s Risk (Course of Construction) insurance utilizing an “All Risk” (Special Perils) coverage form, with limits equal to the completed value of the project and no coinsurance penalty provisions, is not required. f. Licensees’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate, is required.
4.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either:
the Licensee shall cause the insurer shall reduce or eliminate such deductibles or selfinsured retentions as respects the City, its officers, officials, employees, and volunteers; or the Licensee shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses.
4.3 Other Insurance Provisions
a. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL and automobile liability policies with respect to liability arising out of work or operations performed by or on behalf of the Licensee including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Licensee. General liability coverage can be provided in the form of an endorsement to the Licensee’s insurance (at least as broad as ISO Form CG 20 10, 11 85 or both CG 20 10 and CG 23 37 forms if later revisions used).
b. For any claims related to this project, the Licensee’s insurance coverage shall be primary insurance as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained #23..
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4 by the City, its officers, officials, employees, or volunteers shall be excess of the Licensee’s insurance and shall not contribute with it. c. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.
4.4 Builder’s Risk (Course of Construction) Insurance. Licensee may submit evidence of Builder’s Risk insurance in the form of Course of Construction coverage.
Such coverage shall name the City as a loss payee as their interest may appear.
4.5 Claims Made Policies
a. The retroactive date must be shown, and this date must be before the execution date of the Agreement.
b. Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of Permitted Activities.
c. If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the Agreement effective, or start of work date, the Licensee must purchase extended reporting period coverage for a minimum of five (5) years after completion of Permitted Activities.
d. A copy of the claims reporting requirements must be submitted to the City for review.
e. If the services involve lead-based paint or asbestos identification/remediation, the Licensees Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Licensees Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
4.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.
4.7 Waiver of Subrogation. Licensee hereby agrees to waive rights of subrogation which any insurer of Licensee may acquire from Licensee by virtue of the payment of any loss. Licensee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Licensee, its employees, agents and subcontractors.
4.8 Verification of Coverage Licensee shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this Agreement. The Licensee must deliver certificates evidencing existence of the insurance and specified endorsements listed above to the Director of Engineering Services within 5 business days after the Notice of #23..
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5 Award is received. However, failure to obtain the required documents prior to the work beginning shall not waive the Licensee’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by the Contract Documents, at any time.
4.9 Subcontractors. Licensee shall require and verify that all subcontractors maintain insurance for the duration of the project and through acceptance by City Council.
5. Indemnification. Licensee agrees to indemnify, protect, defend and hold harmless the City and its employees, officers, and agents (collectively, the “Indemnitees”), from and against any and all claims, demands, liabilities, losses, damages, suits, expenses, costs, penalties or judgments, including without limitation attorneys’ fees and interest that may be claimed, brought or had against any Indemnitee, or to which any Indemnitee may be subjected and arising out of, connected with or in any way resulting from the acts or omissions of Licensee or Licensee Parties in conducting the Permitted Activities or exercising the right of entry onto the Property, except to the extent caused by the sole negligence or willful misconduct of Lessee, its employees and/or agents or any Indemnitee.
6. Release & Waiver. Licensee hereby releases, discharges and waives any and all claims in law or equity, for loss, damage, expense, personal injury, charges or costs of any kind or character, including attorneys' fees and court costs, which Licensee could assert arising out of or in any way connected to actions arising out of this Agreement, against the City or the Indemnitees, except to the extent such claims arise as a result of the negligence or recklessness of the City or Indemnitees.
7. Miscellaneous Provisions.
(a) Incorporation of Recitals. The Recitals are incorporated into the Agreement.
(b) No Real Property Interest. It is expressly understood that this Agreement is non-possessory and does not in any way grant or convey any permanent easement, lease, fee or other interest in the Property to Licensee. (c) Waiver. No failure by either party to insist upon strict performance of any term or condition of this Agreement will constitute a waiver of such term or condition or of a breach thereof. Any such waiver must be in writing and signed by the waiving party.
(d) Modification. This Agreement may be modified only in writing, signed by the parties to this Agreement.
(e) Interpretation. This Agreement will be performed entirely within California and shall be construed in accordance with the laws of the State of California #23..
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6 and any action to enforce the terms of this Agreement must be brought in the County of Stanislaus, State of California.
(f) Notices, Demands and Communications between the Parties. Any approval, disapproval, demand, document or other notice which either party may desire to give to the other party under this Agreement must be in writing and may be given by first class mail, postage prepaid, or reputable overnight delivery service or personal delivery addressed to the party to whom the notice is directed as set forth below, or at any other address as that party may later designate:
To City of Modesto: City of Modesto
1010 10th Street
P.O. Box 642
Modesto, CA 94353
Attn: Community Development Manager
To Licensee: DignityMoves
2406 Bush Street
San Francisco, CA 94115
Attn: Maureen Boyer
Any written notice, demand or communication shall be deemed received immediately if delivered by hand or upon the third day from the date it is postmarked if delivered by first class, registered or certified mail. (g) Integration. This Agreement contains the entire understanding between the parties relating to the transaction contemplated by this Agreement, notwithstanding any previous negotiations or agreements between the parties or their predecessors in interest with respect to all or any part of the subject matter hereof. All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged in this Agreement and shall be of no further force or effect. Each party is entering this Agreement based solely upon the representations set forth herein and upon each party’s own independent investigation of any and all facts such party deems material.
(h) Attorneys’ Fees. In the event any proceeding or action is brought in connection with the enforcement of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs, including those on appeal. (i) Authorized Representative. Each person signing on behalf of the Parties warrants that he/she is the authorized representative of the party for whom he/she is signing and has been expressly authorized to bind that party to this Agreement and will provide proof of such authority if requested. #23..
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7 (j) Counterparts. This Agreement may be executed and/or delivered in counterparts and/or by electronic means. A counterpart so executed and/or delivered shall bind the party executing the same to the same extent as an executed original and all counterparts taken together shall be deemed one and the same Agreement.
SIGNATURES ON FOLLOWING PAGE
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8 IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of the date first set forth above.
DIGNITYMOVES
By: __________________________________
Joanne Price, Co-Founder and Chief Real Estate Officer
CITY OF MODESTO
______________________________
Joseph Lopez, City Manager
Attest:
______________________________
Diana Nayares-Perez, City Clerk
Approved as to Form:
______________________________
Jose M. Sanchez, City Attorney
IN WITNESS WHEREOF, Modesto BHBH LP consents to the execution of this Agreement.
By: __________________________________
Title: __________________________________
EXHIBIT A
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9 Property
LEGAL DESCRIPTION
Real property in the City of Modesto, County of Stanislaus, State of California, described as follows:
LOTS 17, 18, 19 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 AND 32, IN BLOCK 51 OF THE
CITY OF MODESTO ACCORDING TO THE MAPS OF TOWN OF MODESTO FILED IN THE OFFICE OF THE COUNTY, RECORDER OF STANISLAUS COUNTY, CALIFORNIA ON APRIL 18, 1903 IN VOL. 1 OF MAPS AT PAGE 82.
APN: 106-045-003
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10 EXHIBIT B
Improvements
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4/23/2024 5:00:00 PM
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, JUNE 25, 2024 AT 4:30 PM
and after the regularly scheduled meeting in the 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
1. Consider appointing Real Property Negotiator Joseph P. Lopez, City Manager for Properties: APN: 102-012-001 and 102-012-004
Motion appointing Real Property Negotiator Joseph P. Lopez, City Manager for Properties:
APN: 102-012-001 and 102-012-004
City Attorney, Jose M. Sanchez, 577-5284, [email protected] CONFERENCE WITH REAL PROPERTY NEGOTIATORS:
(Pursuant to Section 54956.8 of the Government Code)
Property: 601 Neece Dr., Modesto, CA 95351; APN: 102-012-001 and 102-012-004 Property Owners: City of Modesto
Negotiating Parties:
For City: Joseph P. Lopez, City Manager
For Lessee: The Baseball Club of Modesto, LLC
Under Negotiation: Price and Terms of Lease
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4/23/2024 5:00:00 PM
BY ORDER OF THE CHAIR
/S
Diane Nayares-Perez, City Clerk
Posted pursuant to Government Code Section 54956 on the bulletin board at Tenth Street Place on at by
date time signature
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