CITY OF MONTCLAIR
CITY COUNCIL
SUCCESSOR REDEVELOPMENT AGENCY,
MONTCLAIR HOUSING CORPORATION, MONTCLAIR
HOUSING AUTHORITY, AND MONTCLAIR COMMUNITY
FOUNDATION MEETINGS
AGENDA PACKET
Tuesday, September 3, 2024
7:00 p.m.
Montclair City Council Chambers
5111 Benito Street
Montclair, CA 91763
Mayor
Javier “John” Dutrey
Mayor Pro Tem
Tenice Johnson
Council Members
Bill Ruh
Corysa Martinez
Benjamin “Ben” Lopez
City Manager
Edward C. Starr
City Attorney
Diane E. Robbins
City Clerk
Andrea M. Myrick
REGULAR JOINT MEETING OF THE
CITY COUNCIL, SUCCESSOR AGENCY, MONTCLAIR HOUSING CORPORATION,
MONTCLAIR HOUSING AUTHORITY, AND MONTCLAIR COMMUNITY FOUNDATION to be held in the Council Chambers
5111 Benito Street, Montclair, California
Tuesday, September 3, 2024
7:00 p.m.
If you want to provide comments on an agenda item, including public hearing and closed session items, please complete a Speaker Card located in the Council Chambers. The Mayor/Chair (or the meeting’s Presiding Officer) will call on those who submitted requests to speak at the appropriate times during the meeting. Written comments (200–word limit per agenda item, and 200–word limit for all non–agenda items combined) can also be emailed to [email protected] at least one hour before the meeting begins.
Watch Council meetings live on the City’s official YouTube Channel at https://www.youtube.com/@cityofmontclair, or via Zoom using the following information: Zoom Link: https://zoom.us/j/93717150550 / Dial Number: 1 (669) 900–6833 / Meeting ID: 937–1715–0550.
Video recordings of Council meetings are available on the City’s website and can be accessed by the end of the business day following the meeting at https://www.cityofmontclair.org/council–meetings/.
AGENDA
I. CALL TO ORDER City Council [CC], Successor Agency Board [SA], Montclair Housing Corporation Board [MHC],
Montclair Housing Authority Commission [MHA],
Montclair Community Foundation Board [MCF]
II. INVOCATION
In keeping with our long-standing tradition of opening our Council meetings with an invocation, this meeting may include a nonsectarian invocation. Such invocations are not intended to proselytize or advance any faith or belief or to disparage any faith or belief. Neither the City nor the City Council endorses any particular religious belief or form of invocation.
III. PLEDGE OF ALLEGIANCE
IV. ROLL CALL
V. PRESENTATIONS — None
VI. PUBLIC COMMENT
During Public Comment, you may comment on any subject that does not appear on this agenda. Each speaker has up to five minutes. The meeting’s presiding officer may provide more or less time to accommodate speakers with special needs or a large number of speakers waiting in line. (Government Code Section 54954.3).
Under the provisions of the Brown Act, the meeting bodies are prohibited from participating in substantial discussion of or taking action on items not listed on the agenda.
VII. PUBLIC HEARINGS — None Page No.
VIII. CONSENT CALENDAR
A. Approval of Minutes
1. Regular Joint Meeting – August 19, 2024 [CC/SA/MHC/MHA/MCF] 79 B. Administrative Reports
1. Consider Approval of Warrant Register & Payroll Documentation [CC] 4
XXXXXXXXXXXXX
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 1 of 87 Page No.
2. Consider Authorizing a $70,808.82 Appropriation from the Equipment Replacement Fund for the Purchase of a 2025 Case 580EV Electric Backhoe Loader from Sonsray Machinery for the Public Works Department [CC] Consider Declaring a 2005 CASE Backhoe Loader (Unit 304) as Surplus and Available for Sale at Auction [CC] 5
3. Consider Authorizing a $160,561.38 Appropriation from the Equipment Replacement Fund for the Purchase of Three 2025 Ford Explorer Interceptor Utility Vehicles from Fritts Ford for the Police Department [CC] Consider Declaring One Ford Police Interceptor Utility Vehicle (Unit 411) as Surplus and Available for Parts or for Sale at Auction [CC] Consider Authorizing the Reassignment of One Ford Police Interceptor Utility Vehicle (Unit 425) as a Cadet Vehicle [CC] 7
4. Consider Declaring a 1999 Chevrolet Blazer (Unit 112) as a Surplus Vehicle Available for Parts or for Sale at Auction [CC]. 9 C. Agreements
1. Consider Approval of Agreement No. 24–73 with the Department of Homeland Security, Federal Emergency Management Agency to Accept a Staffing for Adequate Fire and Emergency Response (SAFER) Grant in the Amount of $691,129 to Hire Two Full-Time Firefighter Paramedics [CC] Consider Authorizing Receptionist/Office Specialist Amanda Romano to Accept the Grant Award and Terms in the FEMA Online Portal [CC] 10
2. Consider Approval of Agreement No. 24–74 with CRP/VP Montclair Village Owner LLC for the Purchase of Real Property Generally Located at the Intersection of Arrow Highway and Fremont Avenue (APN 1007–703– 06–0000), Subject to Any Revisions Deemed Necessary by the City Attorney [CC]
Consider Authorizing City Manager Edward C. Starr to Sign Agreement No. 24–74 and Related Documents [CC] 32
D. Resolutions — None
IX. PULLED CONSENT CALENDAR ITEMS
X. COUNCIL WORKSHOP
A. Capital Improvement Program
(The City Council may consider continuing this item to an adjourned meeting on Monday, September 16, 2024, at 5:45 p.m. in the City Council Chambers) XI. COMMUNICATIONS
A. Department Reports
1. Police Department — Pink Patches for Breast Cancer Awareness Month in October
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 2 of 87 Page No.
B. City Attorney
1. Request for City Council to Meet in Closed Session Pursuant to Government Code §54956.9(d)(1) Regarding Pending Litigation [CC] Delgado v. City of Montclair
2. Request for City Council to Meet in Closed Session Pursuant to Government Code §54957.6 Regarding Conference with Designated Labor Negotiator Edward C. Starr [CC]
Agency: City of Montclair
Employee Management Employees
Associations: Montclair City Confidential Employees Association General Employees – Teamsters Local 1932
Montclair Fire Fighters Association
Montclair Police Officers Association
C. City Manager/Executive Director
D. Mayor/Chairperson
E. Council Members/Directors
F. Committee Meeting Minutes (for informational purposes only)
1. Personnel Committee Meeting – August 19, 2024 [CC] 78 XII. CLOSED SESSSION
XIII. CLOSED SESSION ANNOUNCEMENTS
XIV. ADJOURNMENT
The next regular joint meeting of the City Council, Successor Agency Board, Montclair Housing Corporation Board, Montclair Housing Authority Commission, and Montclair Community Foundation Board will be held on Monday, September 16, 2024, at 7:00 p.m.
Reports, backup materials, and additional materials related to any item on this Agenda distributed to the meeting bodies after publication of the Agenda packet are available for public inspection in the Office of the City Clerk between 7:00 a.m. and 6:00 p.m., Monday through Thursday. Please call the City Clerk’s Office at (909) 625–9416 or send an e–mail to [email protected] to request documents via e–mail.
If you need special assistance to participate in this meeting, call the City Clerk’s Office at (909) 625–9416 or e–mail [email protected]. Notification prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting. (28 CFR 35.102–35.104 ADA Title II) I, Andrea M. Myrick, City Clerk, hereby certify that I posted, or caused to be posted, a copy of this Agenda not less than 72 hours prior to this meeting on the City’s website at https://www.cityofmontclair.org/agendas/ and on the bulletin board adjacent to the north door of Montclair City Hall at 5111 Benito Street, Montclair, CA 91763 on Thursday, August 29, 2024.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 3 of 87
CITY COUNCIL
AGENDA REPORT
DATE: SEPTEMBER 3, 2024
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 1
FILE I.D.: FIN540
DEPT.: FINANCE
PREPARER: A. VONG/V. FLORES
SUBJECT: CONSIDER APPROVAL OF WARRANT REGISTER AND PAYROLL DOCUMENTATION REASON FOR CONSIDERATION: The City Council is requested to consider approval of the Warrant Register and Payroll Documentation.
BACKGROUND: Mayor Pro Tem Johnson has examined the Warrant Register dated September 3, 2024; and the Payroll Documentation dated August 25, 2024, and recommends their approval.
FISCAL IMPACT: The Warrant Register dated September 3, 2024, totals $2,382,227.16.
The Payroll Documentation dated August 25, 2024, totals $891,186.26 gross, with $624,871.29 net being the total cash disbursement.
RECOMMENDATION: Staff recommends the City Council approve the above–referenced Warrant Registers and Payroll Documentation.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 4 of 87
CITY COUNCIL
AGENDA REPORT
DATE: SEPTEMBER 3, 2024
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 2
FILE I.D.: VEH450/EQS230
DEPT.: PUBLIC WORKS
PREPARER: M. HEREDIA
SUBJECT: CONSIDER AUTHORIZING A $70,808.82 APPROPRIATION FROM THE EQUIPMENT REPLACEMENT FUND FOR THE PURCHASE OF A 2025 CASE 580EV ELECTRIC
BACKHOE LOADER FROM SONSRAY MACHINERY FOR THE PUBLIC WORKS
DEPARTMENT
CONSIDER DECLARING A 2005 CASE BACKHOE LOADER (UNIT 304) AS SURPLUS AND
AVAILABLE FOR SALE AT AUCTION
REASON FOR CONSIDERATION: The City Council is requested to consider authorizing the purchase of a 2025 CASE 580V Electric Backhoe Loader to replace Unit 304, a 2005 CASE Backhoe Loader, and to declare the latter as surplus so that it can be made available for auction.
BACKGROUND: On November 22, 2022, the California Air Resources Board (CARB) approved amendments to the In–Use Off–Road Diesel–Fueled Fleets Regulation bolstering existing requirements to further reduce emissions from off–road diesel equipment. The amendments include, but are not limited to the following:
Engine tier and model year phase–out requirements to accelerate the retirement of the oldest and dirtiest engines (Tier O through 2). Dates vary by fleet size. Restriction on adding vehicles with Tier 3 and 4i engines. Requirement starting January 1, 2024, to use R99 or R100 renewable diesel in off–road diesel vehicles.
Requirement starting January 1, 2024, for prime contractors and public works awarding bodies to obtain and retain a fleet's valid Certificate of Reported Compliance and to not enter into a contract with a fleet for which it does not have a valid Certificate of Reported Compliance.
Voluntary compliance flexibility options for fleets that adopt zero–emission technology.
The two pieces of equipment affected by this regulation are the 2005 CASE Backhoe Loader (Unit 304), the details of which are listed in the below table, and the 1995 CASE 570 LXT Skip Loader (Unit 305). Under the optional compliance schedule for off–road fleets with 500 horsepower or less, the City should be 50 percent compliant and achieve 100 percent compliance by January 1, 2029.
Make/Model VIN Number Unit Number Hours of
Operation
Estimated
Value
CASE Backhoe Loader N5C389308 304 2,467 $41,000
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 5 of 87 Unit 304 has been in service for nineteen years and must be replaced by January 1, 2029, for the City to be one hundred percent CARB compliant. Staff is currently looking into rebate programs and grants to replace the skip loader by January 1, 2026.
Staff received a quote from Sonsray Machinery (Sonsray) for a new backhoe loader to replace Unit 304. The company’s list price of the unit, a 2025 CASE 580EV Backhoe Loader, is $443,868, and a 30 percent Sourcewell discount reduced it $310,707.60. The total cost of the electric backhoe loader including taxes is $360,808.82. However, Sonsray is offering the City a Clean Off–Road Equipment (CORE) voucher incentive for $290,000.
Therefore, the total fiscal impact for the electric backhoe loader is $70,808.82. The Public Works Operations Assistant Manager and the Equipment Maintenance Manager determined that the quote from Sonsray is the best value for the City.
FISCAL IMPACT: Funds from the Equipment Replacement Fund in the amount of $70,808.82 will be used to purchase the 2025 CASE 580EV Backhoe Loader.
The estimated value of Unit 304 is $41,000, and if declared surplus, the proceeds from the auction of that equipment would be deposited in the Equipment Replacement Fund.
RECOMMENDATION: Staff recommends that the City Council take the following actions:
1. Authorize a $70,808.82 appropriation from the Equipment Replacement Fund for the purchase of a 2025 CASE 580EV Electric Backhoe Loader from Sonsray Machinery for the Public Works Department; and
2. Declare a 2005 CASE Backhoe Loader (Unit 304) as surplus and available for sale at auction.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 6 of 87
CITY COUNCIL
AGENDA REPORT
DATE: SEPTEMBER 3, 2024
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 3
FILE I.D.: VEH450/VEH120
DEPT.: POLICE
PREPARER: J. MICHEL
SUBJECT: CONSIDER AUTHORIZING A $160,561.38 APPROPRIATION FROM THE EQUIPMENT REPLACEMENT FUND FOR THE PURCHASE OF THREE 2025 FORD EXPLORER
INTERCEPTOR UTILITY VEHICLES FROM FRITTS FORD FOR THE POLICE DEPARTMENT
CONSIDER DECLARING ONE FORD POLICE INTERCEPTOR UTILITY VEHICLE (UNIT 411) AS SURPLUS AND AVAILABLE FOR PARTS OR FOR SALE AT AUCTION
CONSIDER AUTHORIZING THE REASSIGNMENT OF ONE FORD POLICE INTERCEPTOR UTILITY VEHICLE (UNIT 425) AS A CADET VEHICLE
REASON FOR CONSIDERATION: The City Council is requested to consider authorizing the purchase of three 2025 Ford Explorer Interceptor Utility vehicles to replace two vehicles currently being used by Police Department Patrol personnel and one totaled patrol vehicle that is no longer in the Department’s possession. The City Council is also requested to consider declaring one of the replaced vehicles as surplus and authorizing another to be repurposed for use by Police Cadets.
BACKGROUND: The City Council approved the purchase of three 2025 Ford Explorer Interceptor Utility vehicles for patrol use in the Police Department Fiscal Year 2024–25 Budget. The new vehicles would replace three Ford Police Interceptor Utility Vehicles (Units 411, 418, and 425) in the Police Department’s fleet.
Unit 411 is a 2015 Ford Interceptor Utility vehicle with high mileage and interior rips and tears near the driver’s seat and door panel. There are several small dents and scratches along the exterior of the vehicle along with tears in the exterior graphics. The sundamaged headlights make it difficult to see while driving at night. Throughout its service life, this vehicle has had several mechanical issues with the transmission support mounts and starter, which had to be replaced; issues with misfiring cylinders; and several electrical issues. Unit 411 is outside of its warranty and any further mechanical repairs could result in a significant cost to the City.
Unit 418, a 2018 Ford Interceptor Utility vehicle, was totaled in a traffic collision in 2023.
It was previously approved for sale at auction in May 2023, has not been replaced, and is no longer in the Department’s possession.
Unit 425 is a 2013 Ford Interceptor Utility vehicle with high mileage and the oldest unit in the fleet. This vehicle has a worn interior with a ripped seat. The exterior has several small dents and scratches along with sun-damaged headlights. The transfer case had to be replaced on this vehicle; the motor mounts are broken; and it has had evaporative emission control issues, wiring issues, and components of the A/C had to be replaced.
Unit 425 is also outside of its vehicle warranty.
Bid quotations for the purchase of three 2025 Ford Explorer Interceptor Utility vehicles with specifications were sent out to three vendors: Hemborg Ford, Sunrise Ford, and Fritts Ford. Of the three vendors, only Fritts Ford responded with a bid of $160,561.38.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 7 of 87 Fritts Ford has been the chosen vendor for Department vehicles for the past few fiscal years, and its pricing has been consistently the lowest for patrol black–and–white Police Interceptors. Due to concerns that the purchasing window could close, staff obtained a purchase order to secure the purchase of these three vehicles from Fritts Ford prior to City Council approval, as the vehicles were included in the approved FY 2024–25 Budget.
Additionally, Unit 411 is being proposed to be declared as surplus and made available for parts to support vehicles currently in service in the Police Department’s fleet or for sale at auction. The vehicle’s identification information is as follows:
Vehicle Unit Vehicle Estimated
Year and Model No. Identification Number Mileage Value
2015 Ford Interceptor Utility 411 1FM5K8AT6FGB03202 100,047 $5,000 FISCAL IMPACT: If authorized by the City Council, funding for the purchase of three black–and–white 2025 Ford Interceptor Utility vehicles for patrol use would result in an expenditure of $160,561.38 from the Police Department Fiscal Year 2024–25 Budget from Equipment Replacement Fund Account No. 1750–4426–62020–400–00000.
There is no fiscal impact to the City by declaring an existing vehicle in the patrol fleet as surplus and making it available for parts, or for sale at auction. However, the City could receive up to $5,000 from the auction of said vehicle. Proceeds from the sale would be credited to the Equipment Replacement Fund.
RECOMMENDATION: Staff recommends the City Council take the following actions:
1. Authorize a $160,561.38 appropriation from the Equipment Replacement Fund for the purchase of three 2025 Ford Explorer Interceptor Utility vehicles from Fritts Ford for the Police Department;
2. Declare one Ford Police Interceptor Utility vehicle (Unit 411) as surplus and available for parts or for sale at auction; and
3. Authorize the reassignment of one Ford Police Interceptor Utility vehicle (Unit 425) as a Cadet vehicle.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 8 of 87
CITY COUNCIL
AGENDA REPORT
DATE: SEPTEMBER 3, 2024
SECTION: CONSENT - ADMIN. REPORTS
ITEM NO.: 4
FILE I.D.: VEH120
DEPT.: HUMAN SVCS.
PREPARER: A. COLUNGA
SUBJECT: CONSIDER DECLARING A 1999 CHEVROLET BLAZER (UNIT 112) AS A SURPLUS
VEHICLE AVAILABLE FOR PARTS OR FOR SALE AT AUCTION
REASON FOR CONSIDERATION: The City Council is requested to consider declaring a 1999 Chevrolet Blazer (Unit 112) as a surplus vehicle available for parts or for sale at auction.
BACKGROUND: The 1999 Chevrolet Blazer (Unit 112) is out of commission due to the need of major repairs. Unit 112 has numerous engine and transmission oil leaks that would require costly engine and transmission removal and repair. In addition, the interior is deteriorated, dash is cracked, rear compartment is missing panels that are no longer available for purchase and the exterior paint has sun damage.
Year and Model Unit
No. Mileage VIN Estimated Value
1999 Chevrolet Blazer 112 82,475 1GNDT13W8X2138843 $2,000 FISCAL IMPACT: Staff estimates the City could receive up to $2,000 dollars for declaring Unit 112 as a surplus and auctioning the vehicle.
RECOMMENDATION: Staff recommends the City Council declare the 1999 Chevrolet Blazer (Unit 112) as a surplus vehicle available for parts or for sale at auction.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 9 of 87
CITY COUNCIL
AGENDA REPORT
DATE: SEPTEMBER 3, 2024
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 1
FILE I.D.: FRD220/GRT115
DEPT.: FIRE
PREPARER: D.POHL/A. COLUNGA
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 24–73 WITH THE DEPARTMENT OF
HOMELAND SECURITY, FEDERAL EMERGENCY MANAGEMENT AGENCY TO ACCEPT A
STAFFING FOR ADEQUATE FIRE AND EMERGENCY RESPONSE (SAFER) GRANT IN THE AMOUNT OF $691,129 TO HIRE TWO FULL–TIME FIREFIGHTER–PARAMEDICS
CONSIDER AUTHORIZING RECEPTIONIST/OFFICE SPECIALIST AMANDA ROMANO TO
ACCEPT THE GRANT AWARD AND TERMS IN THE FEMA ONLINE PORTAL REASON FOR CONSIDERATION: The City Council is requested to approve Agreement No. 24–73 with the Department of Homeland Security, Federal Emergency Management Agency (FEMA) to accept a Staffing for Adequate Fire and Emergency Response (SAFER) grant in the amount of $691,129 to hire two full–time Firefighter–Paramedics. In addition, consider authorizing Receptionist/Office Specialist Amanda Romano to accept the grant award and terms in the FEMA online portal.
BACKGROUND: The SAFER Grant Program, administered by FEMA, aims to enhance public and firefighter safety regarding fire and related hazards. It provides funding directly to fire departments to increase their firefighter staffing levels, helping communities meet industry minimum standards and achieve 24–hour staffing for adequate fire protection.
In 2013, budget cuts from the recession and personnel attrition led the Fire Department to eliminate the Medic Squad. Since then, efforts to reinstate it have been thwarted by budgetary constraints and the COVID–19 pandemic. The City has since been awarded a Fiscal Year 2023 SAFER Grant, allowing for the hiring of two full–time Firefighter– Paramedics. Under the City Manager's direction, the Department is now working to restore the Medic Squad with funding from the SAFER grant.
It should be noted that an error in the FEMA online portal incorrectly names the Montclair Community Foundation, Inc. as the grant recipient despite having the correct City of Montclair Recipient ID number, which staff is still trying to have corrected. The grant recipient is the City of Montclair.
FISCAL IMPACT: FEMA has approved a grant award of $691,129 for the City to hire two full–time Firefighter–Paramedics. The funding will cover the cost of personnel salaries and benefits. The period of performance for the SAFER grant is February 8, 2025, through February 7, 2028.
RECOMMENDATION: Staff recommends the City Council take the following actions:
1. Approve Agreement No. 24–73 with FEMA to accept a SAFER grant in the amount of $691,129 to hire two full–time Firefighter–Paramedics.
2. Authorize Receptionist/Office Specialist Amanda Romano to accept the grant award and terms in the FEMA online portal.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 10 of 87 Award Letter
U.S. Department of Homeland Security
Washington, D.C. 20472
Effective date: 08/12/2024
Amanda Romano
MONTCLAIR COMMUNITY FOUNDATION, INC.
5111 BENITO STREET HUMAN SERVICES DEPT
MONTCLAIR, CA 91763
EMW-2023-FF-01588
Dear Amanda Romano,
Congratulations on behalf of the Department of Homeland Security. Your application submitted for the Fiscal Year (FY) 2023 Staffing for Adequate Fire and Emergency Response (FF) Grant funding opportunity has been approved in the amount of $691,129.00 in Federal funding.
FEMA has waived, in part or in full, one or more requirements for this grant award. See the Summary Award Memo for additional information about Economic Hardship Waivers.
Before you request and receive any of the Federal funds awarded to you, you must establish acceptance of the award through the FEMA Grants Outcomes (FEMA GO) system. By accepting this award, you acknowledge that the terms of the following documents are incorporated into the terms of your award:
Summary Award Memo - included in this document
Agreement Articles - included in this document
Obligating Document - included in this document
2023 FF Notice of Funding Opportunity (NOFO) - incorporated by reference Please make sure you read, understand, and maintain a copy of these documents in your official file for this award.
Sincerely,
PAMELA WILLIAMS
Assistant Administrator, Grant Programs
Summary Award Memo
Agreement No. 24–73
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 11 of 87 Program: Fiscal Year 2023 Staffing for Adequate Fire and Emergency Response Recipient: MONTCLAIR COMMUNITY FOUNDATION, INC.
UEI-EFT: YM87HK81HED6
DUNS number: 084976919
Award number: EMW-2023-FF-01588
Summary description of award
The purpose of the SAFER Grant Program is to provide funding directly to fire departments and volunteer firefighter interest organizations to assist in increasing the number of firefighters to help communities meet industry minimum standards and attain 24-hour staffing to provide adequate protection from fire and fire-related hazards, and to fulfill traditional missions of fire departments.
After careful consideration, FEMA has determined that the recipient's project or projects submitted as part of the recipient's application and detailed in the project narrative as well as the request details section of the application ― including budget information ― was consistent with the SAFER Grant Program’s purpose and was worthy of award.
Except as otherwise approved as noted in this award, the information you provided in your application for Fiscal Year (FY) 2023 Staffing for Adequate Fire and Emergency Response (SAFER) Grant funding is incorporated into the terms and conditions of this award. This includes any documents submitted as part of the application.
Approved Economic Hardship Waivers
Position cost limit waiver
FEMA has waived the position cost limit requirement for this grant award. Costs are limited to the approved budget per position.
Cost share waiver
FEMA has waived the cost share requirement for this grant award. You are not required to contribute non-Federal funds for this grant award. The recipient is responsible for any costs that exceed the Federal funding provided for this grant award.
Minimum budget waiver
FEMA has waived the minimum budget requirement for this award.
Non-supplanting waiver
FEMA has waived the non-supplanting requirement for this award. SAFER grant funds may be used to replace funds that would be available from State or local sources or from the Bureau of Indian Affairs.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 12 of 87 Amount awarded
The amount of the award is detailed in the attached Obligating Document for Award. The cost share amounts described in this award letter are based on the approved total project cost; however, the Federal funding available is limited based on the applicable position cost limit and the applicable cost share as applied to actual costs.
The following are the total approved budgeted estimates for object classes for all funded firefighter positions for this award (including Federal share plus your cost share, if applicable, as applied to the estimated costs):
Program Income $0.00
Approved scope of work
After review of your application, FEMA has approved the below scope of work. Justifications are provided for any differences between the scope of work in the original application and the approved scope of work under this award. You must submit scope or budget revision requests for FEMA's Object Class First Year Second Year Third Year Total
Personnel $122,328.00 $171,240.00 $179,808.00 $473,376.00 Fringe benefits $56,271.00 $78,770.00 $82,712.00 $217,753.00 Travel $0.00 $0.00 $0.00 $0.00
Equipment $0.00 $0.00 $0.00 $0.00
Supplies $0.00 $0.00 $0.00 $0.00
Contractual $0.00 $0.00 $0.00 $0.00
Construction $0.00 $0.00 $0.00 $0.00
Other $0.00 $0.00 $0.00 $0.00
Indirect charges $0.00 $0.00 $0.00 $0.00
Federal $178,599.00 $250,010.00 $262,520.00 $691,129.00 Non-federal $0.00 $0.00 $0.00 $0.00
Total $178,599.00 $250,010.00 $262,520.00 $691,129.00
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 13 of 87 prior approval, via an amendment request, as appropriate per 2 C.F.R. § 200.308 and the FY2023 FF NOFO.
Approved request details:
Hiring of Firefighters
Agreement Articles
Program: Fiscal Year 2023 Staffing for Adequate Fire and Emergency Response Recipient: MONTCLAIR COMMUNITY FOUNDATION, INC.
UEI-EFT: YM87HK81HED6
DUNS number: 084976919
Award number: EMW-2023-FF-01588
New, Additional Firefighter(s)
BENEFITS FUNDED
Full-time firefighters are covered by the Public Employees' Retirement System (PERS) at a
2.7% @ 57 formula. The City contributes to medical, dental, and vision health plans for the employee with family coverage available. A term life insurance policy is paid by the City as well as a long-term disability plan (LTD). Benefits also include Medicare, workers comp, unemployment insurance, and a uniform allowance. Dollar amounts per hour for each benefit for each of the three years are as follows: PERS ($3.56, $4.07, $4.48); Medicare ($0.36, $0.41, $0.45); workers comp ($0.79, $0.89, $0.97); unemployment insurance ($0.06, $0.06, $0.06); life insurance ($0.06, $0.06. $0.06); long-term disability ($0.09, $0.09, $0.09), health care ($4.20, $4.20, $4.20); and uniform allowance ($0.15, $0.15, $0.15).
NUMBER OF FIREFIGHTERS
2 ANNUAL
SALARY
PRICE
ANNUAL
BENEFITS
TOTAL PER
FIREFIGHTER
Year 1 $61,164.00 $28,135.50 $89,299.50
Year 2 $85,620.00 $39,385.00 $125,005.00
Year 3 $89,904.00 $41,356.00 $131,260.00
3 Year Total $691,129.00
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 14 of 87 Table of contents
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 15 of 87 Article
1 Assurances, Administrative Requirements, Cost Principles, Representations, and Certifications
Article
2 General Acknowledgements and Assurances
Article
3 Acknowledgement of Federal Funding from DHS
Article
4 Activities Conducted Abroad
Article
5 Age Discrimination Act of 1975
Article
6 Americans with Disabilities Act of 1990
Article
7 Best Practices for Collection and Use of Personally Identifiable Information Article
8 Civil Rights Act of 1964 – Title VI
Article
9 Civil Rights Act of 1968
Article
10 Copyright
Article
11 Debarment and Suspension
Article
12 Drug-Free Workplace Regulations
Article
13 Duplicative Costs
Article
14 Education Amendments of 1972 (Equal Opportunity in Education Act) – Title IX Article
15 E.O. 14074 – Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety
Article
16 Energy Policy and Conservation Act
Article
17 False Claims Act and Program Fraud Civil Remedies
Article
18 Federal Debt Status
Article
19 Federal Leadership on Reducing Text Messaging while Driving Article
20 Fly America Act of 1974
Article
21 Hotel and Motel Fire Safety Act of 1990
Article
22 John S. McCain National Defense Authorization Act of Fiscal Year 2019 Article
23 Limited English Proficiency (Civil Rights Act of 1964, Title VI) Article
24 Lobbying Prohibitions
Article
25 National Environmental Policy Act
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 16 of 87 Article
26 Nondiscrimination in Matters Pertaining to Faith-Based Organizations Article
27 Non-Supplanting Requirement
Article
28 Notice of Funding Opportunity Requirements
Article
29 Patents and Intellectual Property Rights
Article
30 Procurement of Recovered Materials
Article
31 Rehabilitation Act of 1973
Article
32 Reporting of Matters Related to Recipient Integrity and Performance Article
33 Reporting Subawards and Executive Compensation
Article
34 Required Use of American Iron, Steel, Manufactured Products, and Construction Materials
Article
35 SAFECOM
Article
36 Terrorist Financing
Article
37 Trafficking Victims Protection Act of 2000 (TVPA)
Article
38 Universal Identifier and System of Award Management
Article
39 USA PATRIOT Act of 2001
Article
40 Use of DHS Seal, Logo and Flags
Article
41 Whistleblower Protection Act
Article
42 Environmental Planning and Historic Preservation (EHP) Review Article
43 Applicability of DHS Standard Terms and Conditions to Tribes Article
44 Acceptance of Post Award Changes
Article
45 Disposition of Equipment Acquired Under the Federal Award Article
46 Prior Approval for Modification of Approved Budget
Article
47 Indirect Cost Rate
Article
48 Award Performance Goals
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 17 of 87 Article 1 Assurances, Administrative Requirements, Cost Principles, Representations, and Certifications
I. Recipients must complete either the Office of Management and Budget (OMB) Standard Form 424B Assurances – Non- Construction Programs, or OMB Standard Form 424D Assurances – Construction Programs, as applicable. Certain assurances in these documents may not be applicable to your program and the DHS financial assistance office (DHS FAO) may require applicants to certify additional assurances. Applicants are required to fill out the assurances as instructed by the federal awarding agency.
Article 2 General Acknowledgements and Assurances
Recipients are required to follow the applicable provisions of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards in effect as of the federal award date and located at 2 C.F.R.
Part 200 and adopted by DHS at 2 C.F.R. § 3002.10. All recipients and subrecipients must acknowledge and agree to provide DHS access to records, accounts, documents, information, facilities, and staff pursuant to 2 C.F.R. § 200.337. I. Recipients must cooperate with any DHS compliance reviews or compliance investigations. II. Recipients must give DHS access to examine and copy records, accounts, and other documents and sources of information related to the federal financial assistance award and permit access to facilities and personnel. III. Recipients must submit timely, complete, and accurate reports to the appropriate DHS officials and maintain appropriate backup documentation to support the reports. IV. Recipients must comply with all other special reporting, data collection, and evaluation requirements required by law, federal regulation, Notice of Funding Opportunity, federal award specific terms and conditions, and/or federal awarding agency program guidance. V.
Recipients must complete the DHS Civil Rights Evaluation Tool within thirty (30) days of receiving the Notice of Award for the first award under which this term applies. Recipients of multiple federal awards from DHS should only submit one completed tool for their organization, not per federal award. After the initial submission, recipients are required to complete the tool once every two (2) years if they have an active federal award, not every time a federal award is made. Recipients must submit the completed tool, including supporting materials, to [email protected]. This tool clarifies the civil rights obligations and related reporting requirements contained in these DHS Standard Terms and Conditions. Subrecipients are not required to complete and submit this tool to DHS. The evaluation tool can be found at https://www.dhs.gov/publication/dhs- civil-rights-evaluation-tool. DHS Civil Rights Evaluation Tool | Homeland Security. The DHS Office for Civil Rights and Civil Liberties will consider, in its discretion, granting an extension to the 30-day deadline if the recipient identifies steps and a timeline for completing the tool. Recipients must request extensions by emailing the request to [email protected] prior to expiration of the 30-day deadline.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 18 of 87 Article 3 Acknowledgement of Federal Funding from DHS
Recipients must acknowledge their use of federal award funding when issuing statements, press releases, requests for proposal, bid invitations, and other documents describing projects or programs funded in whole or in part with federal award funds.
Article 4 Activities Conducted Abroad
Recipients must coordinate with appropriate government authorities when performing project activities outside the United States obtain all appropriate licenses, permits, or approvals.
Article 5 Age Discrimination Act of 1975
Recipients must comply with the requirements of the Age Discrimination Act of 1975, Pub. L. No. 94-135 (codified as amended at 42 U.S.C. § 6101 et seq.), which prohibits discrimination on the basis of age in any program or activity receiving federal financial assistance.
Article 6 Americans with Disabilities Act of 1990
Recipients must comply with the requirements of Titles I, II, and III of the Americans with Disabilities Act, Pub. L. No. 101-336 (1990) (codified as amended at 42 U.S.C. §§ 12101– 12213), which prohibits recipients from discriminating on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities.
Article 7 Best Practices for Collection and Use of Personally Identifiable Information
Recipients who collect personally identifiable information (PII) as part of carrying out the scope of work under a federal award are required to have a publicly available privacy policy that describes standards on the usage and maintenance of the PII they collect. DHS defines PII as any information that permits the identity of an individual to be directly or indirectly inferred, including any information that is linked or linkable to that individual. Recipients may also find the DHS Privacy Impact Assessments: Privacy Guidance and Privacy Template as useful resources respectively.
Article 8 Civil Rights Act of 1964 – Title VI
Recipients must comply with the requirements of Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352 (codified as amended at 42 U.S.C. § 2000d et seq.), which provides that no person in the United States will, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. DHS implementing regulations for the Act are found at 6 C.F.R. Part 21. Recipients of an award from the Federal Emergency Management Agency (FEMA) must also comply with FEMA’s implementing regulations at 44 C.F.R. Part 7.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 19 of 87 Article 9 Civil Rights Act of 1968
Recipients must comply with Title VIII of the Civil Rights Act of 1968, Pub. L.
No. 90-284 (codified as amended at 42 U.S.C. § 3601 et seq.) which prohibits recipients from discriminating in the sale, rental, financing, and advertising of dwellings, or in the provision of services in connection. therewith, on the basis of race, color, national origin, religion, disability, familial status, and sex, as implemented by the U.S. Department of Housing and Urban Development at 24 C.F.R. Part 100. The prohibition on disability discrimination includes the requirement that new multifamily housing with four or more dwelling units— i.e., the public and common use areas and individual apartment units (all units in buildings with elevators and ground-floor units in buildings without elevators) —be designed and constructed with certain accessible features. (See 24 C.F.R. Part 100, Subpart D.)
Article 10 Copyright
Recipients must affix the applicable copyright notices of 17 U.S.C. §§ 401 or 402 to any work first produced under federal awards and also include an acknowledgement that the work was produced under a federal award (including the federal award number and federal awarding agency). As detailed in 2 C.F.R. § 200.315, a federal awarding agency reserves a royalty-free, nonexclusive, and irrevocable right to reproduce, publish, or otherwise use the work for federal purposes and to authorize others to do so.
Article 11 Debarment and Suspension
Recipients must comply with the non-procurement debarment and suspension regulations implementing Executive Orders (E.O.) 12549 and 12689 set forth at 2 C.F.R. Part 180 as implemented by DHS at 2 C.F.R. Part 3000. These regulations prohibit recipients from entering into covered transactions (such as subawards and contracts) with certain parties that are debarred, suspended, or otherwise excluded from or ineligible for participation in federal assistance programs or activities.
Article 12 Drug-Free Workplace Regulations
Recipients must comply with drug-free workplace requirements in Subpart B (or Subpart C, if the recipient is an individual) of 2 C.F.R. Part 3001, which adopts the Government- wide implementation (2 C.F.R. Part 182) of the DrugFree Workplace Act of 1988 (41 U.S.C. §§ 8101-8106).
Article 13 Duplicative Costs
Recipients are prohibited from charging any cost to this federal award that will be included as a cost or used to meet cost sharing or matching requirements of any other federal award in either the current or a prior budget period. (See 2 C.F.R. § 200.403(f)). However, recipients may shift costs that are allowable under two or more federal awards where otherwise permitted by federal statutes, regulations, or the federal financial assistance award terms and conditions.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 20 of 87 Article 14 Education Amendments of 1972 (Equal Opportunity in Education Act) – Title IX
Recipients must comply with the requirements of Title IX of the Education Amendments of 1972, Pub. L. No. 92-318 (codified as amended at 20 U.S.C. § 1681 et seq.), which provide that no person in the United States will, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal financial assistance. DHS implementing regulations are codified at 6 C.F.R. Part 17. Recipients of an award from the Federal Emergency Management Agency (FEMA) must also comply with FEMA’s implementing regulations at 44 C.F.R. Part 19.
Article 15 E.O. 14074 – Advancing Effective, Accountable Policing and Criminal Justice Practices to Enhance Public Trust and Public Safety Recipient State, Tribal, local, or territorial law enforcement agencies must comply with the requirements of section 12(c) of E.O. 14074. Recipient State, Tribal, local, or territorial law enforcement agencies are also encouraged to adopt and enforce policies consistent with E.O. 14074 to support safe and effective policing.
Article 16 Energy Policy and Conservation Act
Recipients must comply with the requirements of the Energy Policy and Conservation Act, Pub. L. No. 94-163 (1975) (codified as amended at 42 U.S.C. § 6201 et seq.), which contain policies relating to energy efficiency that are defined in the state energy conservation plan issued in compliance with this Act.
Article 17 False Claims Act and Program Fraud Civil Remedies Recipients must comply with the requirements of the False Claims Act, 31 U.S.C. §§ 3729- 3733, which prohibit the submission of false or fraudulent claims for payment to the Federal Government. (See 31 U.S.C. §§ 3801-3812, which details the administrative remedies for false claims and statements made.)
Article 18 Federal Debt Status
All recipients are required to be non-delinquent in their repayment of any federal debt. Examples of relevant debt include delinquent payroll and other taxes, audit disallowances, and benefit overpayments. (See OMB Circular A129.) Article 19 Federal Leadership on Reducing Text Messaging while Driving Recipients are encouraged to adopt and enforce policies that ban text messaging while driving recipient-owned, recipient-rented, or privately owned vehicles when on official government business or when performing any work for or on behalf of the Federal Government. Recipients are also encouraged to conduct the initiatives of the type described in Section 3(a) of E.O. 13513.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 21 of 87 Article 20 Fly America Act of 1974
Recipients must comply with Preference for U.S. Flag Air Carriers (a list of certified air carriers can be found at: Certificated Air Carriers List | US Department of Transportation, https://www.transportation.gov/policy/aviationpolicy/certificated-air-carriers-list)for international air transportation of people and property to the extent that such service is available, in accordance with the International Air Transportation Fair Competitive Practices Act of 1974, 49 U.S.C. § 40118, and the interpretative guidelines issued by the Comptroller General of the United States in the March 31, 1981, amendment to Comptroller General Decision B-138942.
Article 21 Hotel and Motel Fire Safety Act of 1990
Recipients must ensure that all conference, meeting, convention, or training space funded entirely or in part by federal award funds complies with the fire prevention and control guidelines of Section 6 of the Hotel and Motel Fire Safety Act of 1990, 15 U.S.C. § 2225a.
Article 22 John S. McCain National Defense Authorization Act of Fiscal Year 2019 Recipients, subrecipients, and their contractors and subcontractors are subject to the prohibitions described in section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019, Pub. L. No. 115-232 (2018) and 2 C.F.R. §§ 200.216, 200.327, 200.471, and Appendix II to 2 C.F.R. Part 200. The statute – as it applies to DHS recipients, subrecipients, and their contractors and subcontractors – prohibits obligating or expending federal award funds on certain telecommunications and video surveillance products and contracting with certain entities for national security reasons.
Article 23 Limited English Proficiency (Civil Rights Act of 1964, Title VI) Recipients must comply with Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.) prohibition against discrimination on the basis of national origin, which requires that recipients of federal financial assistance take reasonable steps to provide meaningful access to persons with limited English proficiency (LEP) to their programs and services. For additional assistance and information regarding language access obligations, please refer to the DHS Recipient Guidance: https://www.dhs.gov/guidance-published-helpdepartment-supported-organizations-provide-meaningful-access-peoplelimited and additional resources on http://www.lep.gov.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 22 of 87 Article 24 Lobbying Prohibitions
Recipients must comply with 31 U.S.C. § 1352 and 6 C.F.R. Part 9, which provide that none of the funds provided under a federal award may be expended by the recipient to pay any person to influence, or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any federal action related to a federal award or contract, including any extension, continuation, renewal, amendment, or modification.
Per 6 C.F.R. Part 9, recipients must file a lobbying certification form as described in Appendix A to 6 C.F.R. Part 9 or available on Grants.gov as the Grants.gov Lobbying Form and file a lobbying disclosure form as described in Appendix B to 6 C.F.R. Part 9 or available on Grants.gov as the Disclosure of Lobbying Activities (SF-LLL).
Article 25 National Environmental Policy Act
Recipients must comply with the requirements of the National Environmental Policy Act of 1969, Pub. L. No. 91-190 (1970) (codified as amended at 42 U.S.C. § 4321 et seq.) (NEPA) and the Council on Environmental Quality (CEQ) Regulations for Implementing the Procedural Provisions of NEPA, which require recipients to use all practicable means within their authority, and consistent with other essential considerations of national policy, to create and maintain conditions under which people and nature can exist in productive harmony and fulfill the social, economic, and other needs of present and future generations of Americans.
Article 26 Nondiscrimination in Matters Pertaining to Faith-Based Organizations It is DHS policy to ensure the equal treatment of faith-based organizations in social service programs administered or supported by DHS or its component agencies, enabling those organizations to participate in providing important social services to beneficiaries. Recipients must comply with the equal treatment policies and requirements contained in 6 C.F.R. Part 19 and other applicable statues, regulations, and guidance governing the participations of faith- based organizations in individual DHS programs.
Article 27 Non-Supplanting Requirement
Recipients of federal awards under programs that prohibit supplanting by law must ensure that federal funds supplement but do not supplant non-federal funds that, in the absence of such federal funds, would otherwise have been made available for the same purpose.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 23 of 87 Article 28 Notice of Funding Opportunity Requirements
All the instructions, guidance, limitations, scope of work, and other conditions set forth in the Notice of Funding Opportunity (NOFO) for this federal award are incorporated by reference. All recipients must comply with any such requirements set forth in the NOFO. If a condition of the NOFO is inconsistent with these terms and conditions and any such terms of the Award, the condition in the NOFO shall be invalid to the extent of the inconsistency. The remainder of that condition and all other conditions set forth in the NOFO shall remain in effect.
Article 29 Patents and Intellectual Property Rights
Recipients are subject to the Bayh-Dole Act, 35 U.S.C. § 200 et seq. and applicable regulations governing inventions and patents, including the regulations issued by the Department of Commerce at 37 C.F.R. Part 401 (Rights to Inventions Made by Nonprofit Organizations and Small Business Firms under Government Awards, Contracts, and Cooperative Agreements) and the standard patent rights clause set forth at 37 C.F.R. § 401.14.
Article 30 Procurement of Recovered Materials
States, political subdivisions of states, and their contractors must comply with Section 6002 of the Solid Waste Disposal Act, Pub. L. No. 89-272 (1965) (codified as amended by the Resource Conservation and Recovery Act at 42 U.S.C. § 6962) and 2 C.F.R. § 200.323. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. Part 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a satisfactory level of competition.
Article 31 Rehabilitation Act of 1973
Recipients must comply with the requirements of Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112 (codified as amended at 29 U.S.C. § 794), which provides that no otherwise qualified handicapped individuals in the United States will, solely by reason of the handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.
Article 32 Reporting of Matters Related to Recipient Integrity and Performance If the total value of any currently active grants, cooperative agreements, and procurement contracts from all federal awarding agencies exceeds $10,000,000 for any period of time during the period of performance of the federal award, then the recipient must comply with the requirements set forth in the government-wide Award Term and Condition for Recipient Integrity and Performance Matters located at 2 C.F.R. Part 200, Appendix XII, the full text of which is incorporated by reference.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 24 of 87 Article 33 Reporting Subawards and Executive Compensation For federal awards that equal or exceed $30,000, recipients are required to comply with the requirements set forth in the government-wide award term on Reporting Subawards and Executive Compensation set forth at 2 C.F.R. Part 170, Appendix A, the full text of which is incorporated by reference.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 25 of 87 Article 34 Required Use of American Iron, Steel, Manufactured Products, and Construction Materials
Recipients of an award of Federal financial assistance from a program for infrastructure are hereby notified that none of the funds provided under this award may be used for a project for infrastructure unless: (1) all iron and steel used in the project are produced in the United States—this means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States; (2) all manufactured products used in the project are produced in the United States—this means the manufactured product was manufactured in the United States; and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and (3) all construction materials are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States. The Buy America preference only applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project. Waivers When necessary, recipients may apply for, and the agency may grant, a waiver from these requirements. The agency should notify the recipient for information on the process for requesting a waiver from these requirements. (a) When the Federal agency has determined that one of the following exceptions applies, the awarding official may waive the application of the domestic content procurement preference in any case in which the agency determines that: (1) applying the domestic content procurement preference would be inconsistent with the public interest; (2) the types of iron, steel, manufactured products, or construction materials are not produced in the United States in sufficient and reasonably available quantities or of a satisfactory quality; or (3) the inclusion of iron, steel, manufactured products, or construction materials produced in the United States will increase the cost of the overall project by more than 25 percent. A request to waive the application of the domestic content procurement preference must be in writing. The agency will provide instructions on the format, contents, and supporting materials required for any waiver request. Waiver requests are subject to public comment periods of no less than 15 days and must be reviewed by the Made in America Office. There may be instances where an award qualifies, in whole or in part, for an existing waiver described at “Buy America” Preference in FEMA Financial Assistance Programs for Infrastructure | FEMA.gov. Definitions The definitions applicable to this term are set forth at 2 C.F.R. § 184.3, the full text of which is incorporated by reference.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 26 of 87 Article 35 SAFECOM
Recipients receiving federal financial assistance awards made under programs that provide emergency communication equipment and its related activities must comply with the SAFECOM Guidance for Emergency Communication Grants, including provisions on technical standards that ensure and enhance interoperable communications. The SAFECOM Guidance is updated annually and can be found at Funding and Sustainment | CISA.
Article 36 Terrorist Financing
Recipients must comply with E.O. 13224 and applicable statutory prohibitions on transactions with, and the provisions of resources and support to, individuals and organizations associated with terrorism. Recipients are legally responsible for ensuring compliance with the E.O. and laws.
Article 37 Trafficking Victims Protection Act of 2000 (TVPA) Recipients must comply with the requirements of the government-wide financial assistance award term which implements Trafficking Victims Protection Act of 2000, Pub. L. No. 106-386, § 106 (codified as amended at 22 U.S.C. § 7104). The award term is located at 2 C.F.R. § 175.15, the full text of which is incorporated by reference.
Article 38 Universal Identifier and System of Award Management Recipients are required to comply with the requirements set forth in the government-wide financial assistance award term regarding the System for Award Management and Universal Identifier Requirements located at 2 C.F.R.
Part 25, Appendix A, the full text of which is incorporated reference.
Article 39 USA PATRIOT Act of 2001
Recipients must comply with requirements of Section 817 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), which amends 18 U.S.C. §§ 175–175c.
Article 40 Use of DHS Seal, Logo and Flags
Recipients must obtain written permission from DHS prior to using the DHS seals, logos, crests, or reproductions of flags, or likenesses of DHS agency officials. This includes use of DHS component (e.g., FEMA, CISA, etc.) seals, logos, crests, or reproductions of flags, or likenesses of component officials.
Article 41 Whistleblower Protection Act
Recipients must comply with the statutory requirements for whistleblower protections at 10 U.S.C § 470141 U.S.C. § 4712.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 27 of 87 Article 42 Environmental Planning and Historic Preservation (EHP) Review DHS/FEMA funded activities that may require an Environmental Planning and Historic Preservation (EHP) review are subject to the FEMA EHP review process. This review does not address all federal, state, and local requirements. Acceptance of federal funding requires the recipient to comply with all federal, state and local laws. DHS/FEMA is required to consider the potential impacts to natural and cultural resources of all projects funded by DHS/FEMA grant funds, through its EHP review process, as mandated by: the National Environmental Policy Act; National Historic Preservation Act of 1966, as amended; National Flood Insurance Program regulations; and any other applicable laws and executive orders. General guidance for FEMA’s EHP process is available on the DHS/FEMA Website at:
https://www.fema.gov/grants/guidance-tools/environmental-historic. Specific applicant guidance on how to submit information for EHP review depends on the individual grant program and applicants should contact their grant Program Officer to be put into contact with EHP staff responsible for assisting their specific grant program. The EHP review process must be completed before funds are released to carry out the proposed project; otherwise, DHS/FEMA may not be able to fund the project due to noncompliance with EHP laws, executive orders, regulations, and policies. If ground disturbing activities occur during construction, applicant will monitor ground disturbance, and if any potential archaeological resources are discovered the applicant will immediately cease work in that area and notify the pass-through entity, if applicable, and DHS/FEMA.
Article 43 Applicability of DHS Standard Terms and Conditions to Tribes The DHS Standard Terms and Conditions are a restatement of general requirements imposed upon recipients and flow down to sub-recipients as a matter of law, regulation, or executive order. If the requirement does not apply to Indian tribes or there is a federal law or regulation exempting its application to Indian tribes, then the acceptance by Tribes of, or acquiescence to, DHS Standard Terms and Conditions does not change or alter its inapplicability to an Indian tribe. The execution of grant documents is not intended to change, alter, amend, or impose additional liability or responsibility upon the Tribe where it does not already exist.
Article 44 Acceptance of Post Award Changes
In the event FEMA determines that an error in the award package has been made, or if an administrative change must be made to the award package, recipients will be notified of the change in writing. Once the notification has been made, any subsequent requests for funds will indicate recipient acceptance of the changes to the award. Please call FEMA Grant Management Operations at (866) 927-5646 or via e-mail to: ASK[email protected] if you have any questions.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 28 of 87 Article 45 Disposition of Equipment Acquired Under the Federal Award For purposes of original or replacement equipment acquired under this award by a non-state recipient or non-state sub-recipients, when that equipment is no longer needed for the original project or program or for other activities currently or previously supported by a federal awarding agency, you must request instructions from FEMA to make proper disposition of the equipment pursuant to 2 C.F.R. section 200.313. State recipients and state sub-recipients must follow the disposition requirements in accordance with state laws and procedures.
Article 46 Prior Approval for Modification of Approved Budget Before making any change to the FEMA approved budget for this award, you must request prior written approval from FEMA where required by 2 C.F.R. section 200.308. For purposes of non-construction projects, FEMA is utilizing its discretion to impose an additional restriction under 2 C.F.R. section 200.308(f) regarding the transfer of funds among direct cost categories, programs, functions, or activities. Therefore, for awards with an approved budget where the federal share is greater than the simplified acquisition threshold (currently $250,000), you may not transfer funds among direct cost categories, programs, functions, or activities without prior written approval from FEMA where the cumulative amount of such transfers exceeds or is expected to exceed ten percent (10%) of the total budget FEMA last approved.
For purposes of awards that support both construction and non-construction work, FEMA is utilizing its discretion under 2 C.F.R. section 200.308(h)(5) to require the recipient to obtain prior written approval from FEMA before making any fund or budget transfers between the two types of work. You must report any deviations from your FEMA approved budget in the first Federal Financial Report (SF-425) you submit following any budget deviation, regardless of whether the budget deviation requires prior written approval.
Article 47 Indirect Cost Rate
2 C.F.R. section 200.211(b)(15) requires the terms of the award to include the indirect cost rate for the federal award. If applicable, the indirect cost rate for this award is stated in the budget documents or other materials approved by FEMA and included in the award file.
Article 48 Award Performance Goals
FEMA will measure the recipient’s performance of the grant by comparing the firefighter hiring activities of new, additional firefighters, rehire laid off firefighters, or retain firefighters facing layoff OR recruitment and retention activities of volunteer firefighters who are involved with or trained in the operations of firefighting and emergency response as requested in its application. In order to measure performance, FEMA may request information throughout the period of performance. In its final performance report submitted at closeout, the recipient is required to report on the recipients increased compliance with the National standards described in the NOFO.
Obligating document
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 29 of 87
1. Agreement
No.
EMW-2023-FF01588
2. Amendment
No.
N/A
3. Recipient
No.
956005731
4. Type of
Action
AWARD
5. Control No.
WX03511N2024T
6. Recipient Name and
Address
MONTCLAIR COMMUNITY
FOUNDATION, INC.
5111 BENITO ST
MONTCLAIR, CA 91763
7. Issuing FEMA Office
and Address
Grant Programs
Directorate
500 C Street, S.W.
Washington DC, 20528-
7000
1-866-927-5646
8. Payment Office
and Address
FEMA, Financial
Services Branch
500 C Street, S.W.,
Room 723
Washington DC, 20742
9. Name of
Recipient Project
Officer
Amanda Romano
9a. Phone
No.
9094473546
10. Name of FEMA Project
Coordinator
Staffing for Adequate Fire and
Emergency Response (SAFER) Grant
Program
10a.
Phone
No.
1-866-
274-0960
11. Effective Date of
This Action
08/12/2024
12. Method of
Payment
OTHER - FEMA
GO
13. Assistance
Arrangement
COST SHARING
14. Performance
Period
02/08/2025 to
02/07/2028
Budget Period
02/08/2025 to
02/07/2028
15. Description of Action a. (Indicate funding data for awards or financial changes)
Program
Name
Abbreviation
Assistance
Listings
No.
Accounting
Data(ACCS
Code)
Prior
Total
Award
Amount
Awarded
This Action
+ or (-)
Current
Total
Award
Cumulative
Non-Federal
Commitment
FF 97.083
2024-F3-
GF01 -
P410-xxxx4101-D
$0.00 $691,129.00 $691,129.00 $0.00
Totals $0.00 $691,129.00 $691,129.00 $0.00
b. To describe changes other than funding data or financial changes, attach schedule and check here:
N/A
16.FOR NON-DISASTER PROGRAMS: RECIPIENT IS REQUIRED TO SIGN AND RETURN THREE (3) COPIES OF THIS DOCUMENT TO FEMA (See Block 7 for address)
This field is not applicable for digitally signed grant agreements MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 30 of 87
17. RECIPIENT SIGNATORY OFFICIAL (Name and Title) DATE
18. FEMA SIGNATORY OFFICIAL (Name and Title)
PAMELA WILLIAMS, Assistant Administrator, Grant Programs DATE
08/12/2024
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 31 of 87
CITY COUNCIL
AGENDA REPORT
DATE: SEPTEMBER 3, 2024
SECTION: CONSENT - AGREEMENTS
ITEM NO.: 2
FILE I.D.: LDA400/LDA450
DEPT.: ECONOMIC DEV.
PREPARER: M. FUENTES
SUBJECT: CONSIDER APPROVAL OF AGREEMENT NO. 24–74 WITH CRP/VP MONTCLAIR
VILLAGE OWNER LLC FOR THE PURCHASE OF REAL PROPERTY GENERALLY
LOCATED AT THE INTERSECTION OF ARROW HIGHWAY AND FREMONT AVENUE (APN NO. 1007–703–06–0000), SUBJECT TO ANY REVISIONS
DEEMED NECESSARY BY THE CITY ATTORNEY
CONSIDER AUTHORIZING CITY MANAGER EDWARD C. STARR TO SIGN AGREEMENT NO. 24–74 AND RELATED DOCUMENTS
REASON FOR CONSIDERATION: The City Council is requested to consider approval of Agreement No. 24–74 with CRP/VP Montclair Village Owner LLC for the purchase of real property generally located at the intersection of Arrow Highway and Freemont Street.
A copy of proposed Agreement No. 24–74 is attached for City Council review and consideration.
BACKGROUND: The North Montclair Downtown Specific Plan (NMDSP) was adopted by the City Council on May 16, 2006, and was amended in 2017. The NMDSP encourages development following urban–style design patterns focused around travel nodes within proximity to commercial shopping opportunities and public transit. The NMDSP provides for public spaces including neighborhood squares, parks, plazas, public parking structures, and other minor public monuments.
The Planning Commission and City Council approved the Village at Montclair mixed–use project in late 2020. The Village at Montclair is currently being constructed within the boundaries of the NMDSP at the intersection of Arrow Highway and Fremont Avenue in the area identified as the Station District. The mixed–use project will provide approximately 24,919 square feet of ground–level commercial lease space and 350 permanent apartment units in an urban–styled mixed–use community with onsite amenities, including walkable design features and a 0.22–acre neighborhood public square on 6.68 gross acres of land.
The Village at Montclair will also contain public streets throughout the development and the inclusion of a public promenade within the Village at Montclair will create a southern access point to the Montclair Transcenter. The promenade will provide public access to the existing underground tunnel that connects the eastbound and westbound Metrolink platforms, as well as the soon–to–be–constructed Metro Gold Line platforms. The public promenade will be gated and public access will be restricted to only the hours of operation of the trains.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 32 of 87 The NMDSP contemplates residential and a limited amount of retail development to occur within the existing footprint of the Montclair Transcenter. The Montclair Transcenter is located in the Station District of the NMDSP, which allows for the construction of buildings up to six stories tall. In order to accommodate future development of the Montclair Transcenter, the NMDSP calls for the development of two multi–level public parking structures located on both the north and south sides of the train tracks.
Dispersed in this manner, the public parking structures will not only provide parking from both sides of the Montclair Transcenter, but will also serve to buffer noise from the trains and allow for the even distribution of vehicular traffic to and from the Montclair Transcenter.
Purchase and Sale Agreement
In–lieu of requiring the developer of the Village at Montclair, CRP/VP Montclair Village Owner LLC to develop, construct, and operate a privately owned parking structure for use by the general public as required by the NMDSP, staff elected to enter into negotiations with the property owner for acquisition of land that would be used for future development of a public parking structure immediately to the south of the Montclair Transcenter.
Staff estimates that the land being acquired from CRP/VP Montclair Village could accommodate a public parking structure providing 300 to 400 parking spaces on four to five levels.
Proposed Agreement No. 24–74 with CRP/VP Montclair Village Owner LLC includes the full scope of the Purchase and Sale Agreement between the City of Montclair and CRP/VP Montclair. Additionally, it includes language that would allow CRP/VP Montclair Village Owner LLC to lease back a portion of the land being acquired by the City of Montclair for use as a temporary dog park.
Agreement No. 24–74 includes the following terms:
The area of land being acquired is 30,710 square feet and is generally located at the northeast portion of the Village at Montclair development with an APN of 1007–703–06–0000.
The purchase price for the land is One Million Seven hundred and Seventeen Thousand Dollars $1,717,000.00.
As part of the conditions of approval, CRP/VP Montclair will construct a 27–space surface parking lot and a fenced dog park on the area of land being purchased by the City of Montclair.
CRP/VP Montclair will enter into a lease agreement with the City of Montclair for the lease of roughly 1,200 square feet for use as a temporary dog park. The lease agreement will be for a term of three (3) years with the ability to extend the lease for an additional three (3) years.
FISCAL IMPACT: Approval of Agreement No. 24–74 would produce a fiscal impact to the City of Montclair of $1,717,000 and would be paid from Lease Revenue Bond funds.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 33 of 87 RECOMMENDATION: Staff recommends the City Council take the following actions:
1. Approve Agreement No. 24–74 with CRP/VP Montclair Village Owner LLC for the purchase of real property generally located at the intersection of Arrow Highway and Fremont Avenue (APN 1007–703–06–0000), subject to any revisions deemed necessary by the City Attorney.
2. Authorize City Manager Edward C. Starr to sign Agreement No. 24–74 and related documents.
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 34 of 87 Agreement No. 24–74
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
BETWEEN
CRP/VP MONTCLAIR VILLAGE OWNER, L.L.C.,
a Delaware limited liability company
(“SELLER”)
AND
CITY OF MONTCLAIR
a California municipal corporation
(“BUYER”)
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 35 of 87 Agreement No. 24–74
1 PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS (“Agreement”) is made this 3rd day of September, 2024 (“Effective Date”), by and between the CITY OF MONTCLAIR, a California municipal corporation (“Buyer” or “City”), and CRP/VP MONTCLAIR VILLAGE OWNER, L.L.C., a Delaware limited liability company and/or its assignee (“Seller”). Hereinafter, Buyer and Seller may be referred to individually as a “Party,” or jointly as the “Parties.”
RECITALS
A. Seller owns certain real property consisting of approximately 30,710 square feet within the corporate limits of the City of Montclair, County of San Bernardino (“County”), State of California (“State”), and legally described in Exhibit “A” attached hereto (the “Land”).
B. The Land is located within the boundaries of the North Montclair Downtown Specific Plan (“Specific Plan”), approved by the City Council of the City (the “City Council”) on May 15, 2006 by Resolution No. 06-2628 and amended by the City Council on March 20, 2017 by Resolution No. 17-3149, whereby certain revisions were made to the land use plan pertaining to development of a public parking structure thereon for use by Metrolink and Gold Line commuters (the “Project”).
C. Buyer desires to purchase the Land and related appurtenances and improvements from Seller, and Seller desires to sell the same to Buyer, upon the terms and conditions contained in this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals, which Recitals are incorporated herein by this reference, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and for the mutual covenants contained herein, the Parties hereby agree as follows:
ARTICLE 1
PURCHASE AND SALE
Subject to the terms and conditions set forth in this Agreement, Seller hereby agrees to sell, grant and convey to Buyer, and Buyer hereby agrees to purchase from Seller, the hereinafter collectively described Property:
1.1 Real Property. The Land, together with all privileges, rights, and easements appurtenant to the land (“Appurtenances”), and all structures, improvements, fixtures, systems, and equipment attached to the Land (“Improvements”) (the Land, Appurtenances and Improvements are collectively referred to herein as the “Real Property”).
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2 1.2 Intangible Property. Seller’s right, title and interest, in and to the following intangible personal property arising out of the Real Property: applications, reports, studies, permits, licenses, plans, maps, site plans, drawings, specifications, surveys, consultant work product, agreements, contracts, development agreements, utility rights, development rights, approvals, entitlements, government permits, certifications, licenses, variances, specific plan amendments, general plan amendments, maps, negative declarations, environmental impact reports, CEQA findings and determinations, will serve letters and all similar rights related to the Real Property, whether granted by governmental or quasi-governmental authorities or private persons or entities (collectively, the “Intangible Property”), reserving to Seller all claims, defenses, and other benefits under the Intangible Property, on a non-exclusive basis as are or desirable for Seller to defend or protect itself with respect to or to assert any rights relating to any matter for which Seller may continue to have liability from and after the date hereof. The Real Property and any Intangible Property are collectively referred to as the “Property.”
1.3 Incomplete Legal Description. To the extent that the legal description attached as Exhibit “A” is incomplete or is inaccurate, this Agreement shall not be invalidated; provided, however, that the legal description shall be completed or corrected by Seller prior to the Closing Date (defined in Section 3.3), at no additional cost to Buyer, to meet the requirements of a legal parcel in compliance with the California Subdivision Map Act.
ARTICLE 2
PURCHASE PRICE
The purchase price for the Property shall be One Million Seven Hundred and Seventeen Thousand and No/100 Dollars ($1,717,000.00) (the “Purchase Price”), and is payable in accordance with this Article 2. Buyer shall pay the Purchase Price to Seller through the Escrow (as defined in Section 3.1 below) in immediately-available federal funds to the Escrow Holder, which must be delivered to the Escrow Holder at least one (1) business day before the Closing Date (as defined in Section 3.3 below). The Parties agree that the Purchase Price is below market rate and the difference between the fair market value and the Purchase Price shall be known as the “Reduced Amount.”
ARTICLE 3
ESCROW; CLOSING
3.1 Escrow. Within five (5) business days after the mutual execution of this Agreement, Seller shall open an escrow (“Escrow”) with First American Title Insurance Company (“Escrow Holder”), by delivering a fully-executed copy of this Agreement to Escrow Holder at 3281 E. Guasti Road, Suite 440, Ontario, California 91761, Attn: Kelly Simoneau; Email:
[email protected].
3.2 Joint Escrow Instructions. This Agreement shall constitute joint escrow instructions to Escrow Holder. Upon request by Escrow Holder, the Parties shall execute such additional escrow instructions as may be reasonably required by Escrow Holder, including Escrow Holder’s standard printed conditions and stipulations with respect to escrows concerning the purchase and sale of real property; provided, however, that if there is any conflict between the MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 37 of 87 Agreement No. 24–74
3 provisions of this Agreement and the provisions of any such additional instructions, the provisions of this Agreement shall prevail.
3.3 Opening; Closing. As used herein, the term “Opening of Escrow” means the date Escrow Holder agrees to act in accordance with this Agreement. As used herein, the term “Close of Escrow” or “Closing” means the consummation of the purchase and sale transaction contemplated herein, evidenced by the recordation of the Grant Deed (defined in Article 4 below) in the Official Records of the County. As used herein, the term “Closing Date” means the date the Close of Escrow occurs. Close of Escrow shall occur on or before August 30, 2024; provided, however, that Seller shall have one (1) option to extend the Close of Escrow to September 26, 2024 by providing written notice to Buyer and Escrow Holder. The Closing shall occur at the offices of the Escrow Holder or such other location as the Parties may agree. The Closing date may be extended by mutual agreement in writing by the Parties.
Within two (2) days after the Opening of Escrow, Buyer shall deposit the sum of Five Hundred Dollars ($500.00) (the “Option Consideration”) as consideration for Seller to enter into this Agreement and remove the Land from the market, holding it for sale to Buyer under this Agreement. If the Closing occurs, the Option Consideration shall be applied toward the “Purchase Price”, as defined in Article 2, below.
3.4 Closing Costs. Seller shall pay: (a) one-half (1/2) of any Escrow fees and costs, (b) the portion of the premium for the Title Policy (defined in Section 6.1.3) relating to standard CLTA coverage, and (c) documentary transfer taxes, if any. Buyer shall pay: (i) one-half (1/2) of any Escrow fees and costs; and (ii) any document recording charges. Buyer and Seller shall each pay their own legal and professional fees.
ARTICLE 4
GRANT DEED
Upon the Close of Escrow, title to the Real Property shall be conveyed to Buyer by grant deed in the form attached hereto as Exhibit “B” (the “Grant Deed”). Seller has caused to be delivered to Buyer a preliminary title report by Fidelity National Title Company, dated as of January 3, 2024, Order No. 997-30111626-BB7 (the “Preliminary Title Report”). As a condition of Closing, Seller shall take such actions as are necessary to remove the following exceptions listed in the Preliminary Title Report: 9, 10, and 11. Seller shall in addition satisfy property tax obligations as referenced in Exceptions B and C of the Preliminary Title Report. The remaining exceptions listed in the Preliminary Title Report shall constitute “Permitted Exceptions.” Buyer shall take title to the Property subject to the Permitted Exceptions. Exceptions B, C, 9, 10 and 11 in the Preliminary Title Report are considered Disapproved Title Matters (as defined in Section
5.5.2 below).
ARTICLE 5
DUE DILIGENCE
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4 5.1 Due Diligence Period; Inspection and Access.
5.1.1 Due Diligence Period. The “Due Diligence Period” means the period beginning the later of (a) the Effective Date or (b) the date on which Buyer has received all of the Due Diligence Documents from Seller and ending at 5:00 p.m. on the date forty-five (45) days later.
5.1.2 Access to Information and the Property. After the Effective Date, Buyer and its agents, representatives, employees and consultants (collectively, “Buyer Representatives”) shall have the right to conduct its investigation of the Property during the Due Diligence Period at no cost to Seller. This investigation (“Due Diligence Investigation”) may include, at Buyer’s option: a physical inspection of the Property, including soil, geological and other tests, a Phase I Environmental Assessment, a Phase II Environmental Assessment, engineering evaluations of the mechanical, electrical, HVAC and other systems in the Improvements; review of all governmental matters affecting the Property, including zoning, environmental and building permit and occupancy matters; review and verification of all financial and other information previously provided by Seller relating to the operation of the Property; review of the condition of title to the Property, including the building, structural system and roof inspection; and review of such other matters pertaining to an investment in the Property as Buyer deems advisable. In addition to the Preliminary Documents delivered to Buyer pursuant to Section 5.2, Buyer and its representatives shall have the right of access during reasonable business hours to all files, books and records maintained by Seller or its agents (including, without limitation, all of the Additional Documents to be made available to Buyer at the Property pursuant to Section 5.3), wherever located, relating to the Property, including the right to copy the same.
Buyer and its representatives shall also have the right of access to the Property during reasonable business hours to conduct its investigation of the physical condition of the Property. Seller agrees that the rights granted to Buyer herein and the results of its Due Diligence Investigation shall not relieve Seller of any obligations Seller may have under any other provisions of this Agreement, or under other documents entered into concurrently herewith, or implied by law, nor shall they constitute a waiver by Buyer of the right to enforce any of the same. Seller shall cooperate with Buyer in its due diligence activities and provide access to the Property, its records, or provide information so long as it is within Seller’s control. Buyer agrees to indemnify, defend and hold Seller harmless against any and all claims for bodily injury, property damage and mechanics’ liens arising out of any actions of Buyer or its agents or representatives on the Property in the course of such activities excepting to the extent caused or contributed by Seller, any such indemnity and defense by Buyer will not include any claims or damages relating to the negligence or willful misconduct of Seller, any pre-existing conditions (except to the altered deleteriously by the conduct of Buyer or the Buyer’s Representatives), the effects of the discovery of the presence of any Hazardous Materials, any damages for economic loss, loss of profits, diminution in value or any other consequential damages. The indemnity contained herein shall survive the Closing hereunder or the termination of this Agreement, as the case may be, for a period of one (1) year.
The Lease shall control concerning indemnification, defense, and hold harmless as to damages or liens under the Lease for the period following the sale of the Property to Buyer.
5.2 Delivery of Preliminary Documents. Within five (5) business days after the Effective Date, Seller shall deliver to Buyer, at Seller’s expense, all of the documents described in MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 39 of 87 Agreement No. 24–74
5 the remaining subsections of this Section 5.2 (collectively, the “Preliminary Documents”) in Seller's possession or control.
5.2.1 Title Report and Survey. Buyer intends to obtain an ALTA owner’s extended coverage title policy as to the Property with such policy to be issued by First American Title Company (the “Title Company”). Buyer, at Buyer’s sole cost, may obtain an as-built survey of the Property (the “Survey”) prepared by a certified land surveyor in accordance with the most recent American Land Title Association standards, certified by such surveyor to Buyer and the Title Company in a form acceptable to the Title Company.
5.2.2 Soils Report. Any soils report on the Land prepared at Seller's request or in the possession or control of Seller, including (if available) a report on compliance with any soils work recommended to be done prior to construction of the Improvements;
5.2.3 Engineers’ Reports. Any structural, mechanical, environmental or geological reports concerning the Property which have been prepared at Seller's request or which are within Seller's possession or control;
5.2.4 Operating Statements; Tax Bills. Copies of operating statements for the Property certified by Seller including an itemization of income and expenses and copies of all real property tax bills for the Property for such periods;
5.2.5 Licenses, Etc. Copies of any licenses, permits or certificates required by governmental authorities in connection with construction or occupancy of the Improvements, including, without limitation, building permits, certificates of completion, certificates of occupancy and environmental permits and licenses;
5.2.6 Inspection Reports. Copies of all written reports received by Seller within three (3) years prior to the Effective Date from Seller’s insurance companies, any governmental agency or any other person or entity, which requires or demands correction of any condition, or requests modification in or termination of any uses of the Property, accompanied by Seller’s summary of (a) any oral reports from such insurance companies or governmental agencies, and (b) the present status of any matter noted in any oral or written report.
5.3 Additional Documents and Information. From the Effective Date through the Closing Date, Seller shall make available to Buyer the documents and information described in this Section 5.3 (collectively, the “Additional Documents” and together with the Preliminary Documents, the “Due Diligence Documents”):
5.3.1 Agreements. Copies of written, and written descriptions of oral, easements, covenants, restrictions, agreements, contracts and other documents, whether existing or, to the knowledge of Seller, proposed as of the Effective Date, including without limitation any agreements relating to the insurance, service, operation, repair, supply, advertising, promotion, sale, leasing or management of the Property, which (a) affect the Property, (b) are not disclosed by the Preliminary Title Report, and (c) have not been delivered to Buyer pursuant to Section 5.2.
If no such documents exist, Seller shall furnish its certification to that effect; MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 40 of 87 Agreement No. 24–74
6 5.3.2 Warranties/Roof Inspections/HVAC Inspections. Copies of any and all guarantees or warranties and other rights given to Seller in connection with the construction, maintenance, repair or remodeling of the Improvements, periodic inspections, or the purchase of any of the Personal Property. If no such documents exist, Seller shall furnish its certification to that effect;
5.3.3 Insurance Policies. Copies of certificates evidencing the insurance carried by Seller of the Property;
5.3.4 Other Documents. All data, correspondence, documents, agreements, waivers, notices, applications and other records with respect to the Property relating to transactions with taxing authorities, governmental agencies, utilities, vendors and others with whom Buyer may be dealing from and after the Closing Date; and
5.3.5 Requested Information. Such other documents and information concerning the Property as Buyer may reasonably request.
5.4 Approval/Disapproval of Due Diligence Investigations. Buyer shall approve or disapprove the results of Buyer’s Due Diligence Investigation, in the exercise of Buyer's sole discretion, by written notice delivered to Seller no later than the expiration of the Due Diligence Period. Buyer’s disapproval shall terminate this Agreement unless, at the time Buyer gives notice of its disapproval, Buyer also notifies Seller of Buyer's desire to enter into negotiations with Seller for the purpose of reaching an accommodation concerning the disapproval. If Buyer so notifies Seller and the parties have not reached a written agreement satisfactory to both of them regarding the disapproval within ten (10) days after the date of the disapproval notice, Buyer, at its option, may either (a) elect to terminate this Agreement by so notifying Seller or (b) elect to proceed with the transactions contemplated by this Agreement notwithstanding its earlier disapproval. If Buyer fails to deliver to Seller notice of its approval or disapproval of the results of its Due Diligence Investigation, Buyer shall be deemed to have disapproved such results. If Buyer elects to terminate the Agreement, Buyer shall return to Seller all of the Preliminary Documents and Additional Documents previously delivered by Seller to Buyer within five (5) business days of such termination.
5.5 Title Review.
5.5.1 Monetary Liens. At its expense, Seller shall remove all liens caused by Seller on the Property at or prior to the Closing (collectively, “Monetary Liens”): (i) all delinquent taxes, bonds and assessments and interest and penalties thereon (it being agreed that Seller shall not be required to remove any non-delinquent taxes and assessments imposed by any governmental agency that are paid with the property taxes for the Property); and (ii) all other monetary liens caused by Seller, including without limitation all those shown on the Preliminary Title Report (including judgment and mechanics’ liens caused by Seller, whether or not liquidated, and mortgages and deeds of trust caused by Seller, with Seller being fully responsible for any fees or penalties incurred in connection therewith).
5.5.2 Approval/Disapproval of Title Review. Buyer shall approve or disapprove of the Preliminary Title Report, the Survey and any exceptions to title shown thereon (other than MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 41 of 87 Agreement No. 24–74
7 the Monetary Liens) in the exercise of Buyer’s sole discretion, by the expiration of the Due Diligence Period. If Buyer disapproves, Buyer may either (a) terminate this Agreement by giving Seller written notice of termination or (b) give Seller a written notice (“Disapproval Notice”) identifying the disapproved title matters (“Disapproved Title Matters”). With respect to any Disapproved Title Matters, other than the Monetary Liens, Seller shall notify Buyer in writing within five (5) days after Seller’s receipt of the Disapproval Notice whether Seller will cause the Disapproved Title Matters to be removed or cured at or prior to Closing. If Seller elects not to remove or cure all Disapproved Title Matters, Buyer may, at its option: (i) subject to satisfaction of the other conditions to Closing, close the purchase of the Property and take title subject to the Disapproved Title Matters which Seller elects not to remove or cure; or (ii) terminate this Agreement in accordance with Article 14. Notwithstanding the foregoing, Buyer acknowledges that it reviewed the Preliminary Title Report prior to the Effective Date of this Agreement and hereby approves the Preliminary Title Report, except as expressly noted above in Section 4.
5.5.3 Buyer’s Options. If any Disapproved Title Matters (including the Monetary Liens), for which Seller has agreed to remove or cure, have not been removed or cured at least five (5) days prior to Closing or provision for their removal at the Closing has not been made to Buyer's satisfaction, Buyer may, at its option: (a) close the purchase of the Property and take title subject to the Disapproved Title Matters which have not been removed; (b) close the purchase of the Property and cure or remove the Disapproved Title Matters, for which Seller has agreed to remove or cure, which have not been removed; or (c) decline to purchase the Property until the Seller has cured or removed the Disapproved Title Matters. If Buyer closes notwithstanding the presence of one or more Disapproved Title Matters, for which Seller has agreed to remove or cure, Buyer may credit the costs of such cure or removal against the Purchase Price by reducing the amount of cash payable by Buyer at the Closing, but only to the extent such costs are expended to remove (i) Monetary Liens referred to in Section 5.5.1 or (ii) Disapproved Title Matters which Seller has agreed to remove or cure. If Buyer elects option (c) of this Section 5.5.3, Buyer may terminate this Agreement in accordance with Article 14.
5.5.4 Failure to Disapprove. If Buyer fails to notify Seller of its approval or disapproval of the Preliminary Title Report, the Survey or the exceptions shown thereon by the end of the Due Diligence Period, then Buyer shall be deemed to have approved the same.
ARTICLE 6
CONDITIONS PRECEDENT
6.1 Buyer’s Conditions. Buyer’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.1 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or in part by Buyer by written notice to Seller.
6.1.1 Due Diligence. Buyer having approved of the results of its Due Diligence Investigation pursuant to Section 5.4;
6.1.2 Title Review. Buyer having approved of the results of its review of title pursuant to Section 5.5.
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8 6.1.3 Title Policy. Seller having caused the Title Company to deliver to Buyer (a) a CLTA Owner’s policy of title insurance, provided that Buyer may require an ALTA Owner’s Policy if Buyer pays the incremental premium for ALTA coverage (“Title Policy”) (or at Buyers election a binder therefor) for the Property, or (b) the Title Company's irrevocable commitment to issue such policy of title insurance, (including such coinsurance, reinsurance and endorsements as Buyer shall require), with liability equal to the Purchase Price showing fee title to the Property vested in Buyer and subject only to: (i) the matters and exceptions which were approved by Buyer pursuant to Section 5.5 and the Permitted Exceptions; and (ii) the standard printed exceptions in the form of title policy called for (collectively, “Conditions of Title”).
6.1.4 Performance of Covenants. Seller performing and complying in all material respects with all of the terms of this Agreement to be performed and complied with by Seller prior to or at the Closing.
6.1.5 Representations and Warranties. The representations and warranties of Seller set forth in Article 7 being true and accurate on the Closing Date, as if made on such date.
6.2 Seller’s Conditions. Seller’s obligations under this Agreement are expressly subject to the timely fulfillment of the conditions set forth in this Section 6.2 on or before the Closing Date, or such earlier date as is set forth below. Each condition may be waived in whole or part by Seller by written notice to Buyer.
6.2.1 Covenants. Buyer performing and complying in all material respects with all of the terms of this Agreement to be performed and complied with by Buyer prior to or at the Closing.
6.2.2 Representations and Warranties. The representations of Buyer set forth in Article 8 being true and accurate on the Closing Date, as if made on such date.
ARTICLE 7
SELLER’S REPRESENTATIONS AND WARRANTIES
Seller hereby makes the following representations and warranties to Buyer with the understanding that each such representation and warranty is material and is being relied upon by Buyer:
7.1 Defects. To Seller’s actual knowledge, the Property is in good condition and repair and are free of any latent or patent design, construction, physical or mechanical defects and there is no actual or threatened settlement, earth movement, termite infestation or damage affecting the Property.
7.2 Compliance. To Seller’s actual knowledge, the Property, and the operation thereof, are in compliance with all applicable laws, ordinances, rules, regulations, judgments, orders, covenants, conditions, restrictions, whether federal, state, local, foreign or private. Seller has not received any request either formal or informal, oral or written, that Seller modify or terminate any use of the Property. To Seller’s actual knowledge, the zoning of the Property permits the current Improvements and use of the Property, and, there is no pending or contemplated rezoning. To MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 43 of 87 Agreement No. 24–74
9 Seller’s actual knowledge, the Property complies with all applicable subdivision laws and all local ordinances enacted thereunder and no subdivision or parcel map not already obtained is required to transfer the Property to Buyer.
7.3 Documents. Subject to Section 9.4, to Seller’s actual knowledge, all of the Due Diligence Documents which have been delivered or made available to Buyer pursuant to Article 5, and all other documents delivered to Buyer by or on behalf of Seller (a) are true, accurate and complete copies of what Seller has in its possession, and (b) have not been modified, except as set forth therein.
7.4 Taxes and Condemnation. To Seller’s actual knowledge, there are no presently pending or contemplated special taxes or assessments which will affect the Property. To Seller’s actual knowledge, there are no presently pending or contemplated proceedings to condemn or demolish the Property or any part of it.
7.5 Utilities. To Seller’s actual knowledge, all water, sewer, gas, electric, telephone and drainage facilities, and all other utilities required by law or by the normal operation of the Property, are (a) installed to the property lines of the Property, (b) connected to the Property, (c) adequate to service the Property in its present use and to permit full compliance with all requirements of law and normal usage by the occupants of the Property and (d) in good working order and repair. To Seller’s actual knowledge, all such utilities and storm and sanitary sewers required for the operation of the Property enter the Land through adjoining public streets or through adjoining private land in accordance with valid public or private easements that will inure to the benefit of Buyer.
7.6 Licenses. To Seller’s actual knowledge, Seller has all required licenses, permits (including, without limitation, all building permits and occupancy permits), easements and rightsof-way which are required in order to continue the present use of the Property. Seller has no knowledge of any law or regulation of any governmental authority having jurisdiction which might require the Property to be improved beyond its present state or which might restrict the use and enjoyment of the Property in the manner it is presently being used and enjoyed.
7.7 Litigation. To Seller’s actual knowledge, there are no actions, suits, proceedings, judgments, orders, decrees or governmental investigations pending or threatened against the Property or Seller which could affect the Property or the purchase, use or enjoyment thereof by Buyer.
7.7 Agreements with Governmental Authorities. To Seller’s actual knowledge, there are no agreements with governmental authorities, agencies, utilities or quasi-governmental entities which affect the Property except those agreements which are identified in the Preliminary Title Report and those matters which are disclosed by the Survey.
7.8 Hazardous Materials.
7.8.1 Definitions. For purposes of this Agreement:
(a) “Environmental Law(s)” means the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Sections 9601, et MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 44 of 87 Agreement No. 24–74
10 seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Sections 2601 et. seq., the Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seq., the Clean Water Act, 33 U.S.C. Sections 1251 et seq., [The Safe Drinking Water and Toxic Enforcement Act of 1986 (Cal. H&S Code Sections 25249.5- 25249.13), the Carpenter-Preseley-Tanner Hazardous Substance Account Act (Cal. H&S Code Sections 25300 et seq.), and the California Water Code Sections 1300, et seq.], as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance which regulates or proscribes the use, storage, disposal, presence, cleanup, transportation or Release or threatened Release into the environment of Hazardous Material.
(b) “Hazardous Materials” means any substance which is
(i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials or (viii) radioactive materials. (c) “Release” means any spilling, leaking, pumping, pouring, emitting, discharging, injecting, escaping, leaching, dumping or disposing into the environment of any Hazardous Material (including the abandonment or discarding of barrels, containers, and other receptacles containing any Hazardous Material).
7.8.2 Representations.
(a) To Seller’s actual knowledge, the Property and all existing uses and conditions of the Property are in compliance with all Environmental Laws, and Seller has not received any written notice of violation issued pursuant to any Environmental Law with respect to the Property or any use or condition thereof.
(b) To Seller’s actual knowledge, except as set forth in the Property Documents or as otherwise disclosed to Buyer in writing, neither Seller nor any other present or former owner of the Property has used, handled, stored, transported, released or disposed of any Hazardous Material on, under or from the Property in violation of any Environmental Law. (c) To Seller’s actual knowledge, except as set forth in the Property Documents or as otherwise disclosed to Buyer in writing, there is no Release of any Hazardous Material existing on, beneath or from or in the surface or ground water associated with the Property.
(d) To Seller’s actual knowledge, all required permits, licenses and other authorizations required by or issued pursuant to any Environmental Law for the ownership or operation of the Property by Seller have been obtained and are presently maintained in full force and effect.
(e) To Seller’s actual knowledge, except as set forth in the Property Documents or as otherwise disclosed to Buyer in writing, there exists no writ, injunction, decree, order or judgment outstanding, nor any lawsuit, claim, proceeding, citation, directive, summons or MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 45 of 87 Agreement No. 24–74
11 investigation pending or threatened pursuant to any Environmental Law relating to (i) the ownership, occupancy or use of any portion of the Property by Seller or occupant or user of any portion of the Property or any former owner of any portion of the Property, (ii) any alleged violation of any Environmental Law by Seller or occupant or user of any portion of the Property or any former owner of any portion of the Property or (iii) the suspected presence, Release or threatened Release of any Hazardous Material on, under, in or from any portion of the Property. (f) To Seller’s actual knowledge, except as set forth in the Property Documents or as otherwise disclosed to Buyer in writing,, no asbestos abatement or remediation work has been performed on the Property.
(g) To Seller’s actual knowledge, except as set forth in the Property Documents or as otherwise disclosed to Buyer in those writings provided in a correspondence dated as of May 1, 2024 to Buyer (including that certain (i) Phase 1 Environmental Site Assessment dated December 2, 2015 by CHJ Consultants, (ii) Geotechnical Investigate Report dated November 11 , 2016 by CHJ Consultants, (iii) Percolation Investigation dated October 25, 2016, and (iv) Geotechnical Investigation Report dated January 29, 2020 by Terracon), there is no PCBcontaining equipment or PCB-containing material located on or in the Property.
7.9 Title to the Property. Seller has good and marketable title to the Property, subject to the Conditions of Title. There are no outstanding rights of first refusal or first look, options to purchase, rights of reverter, or claim of right relating to the transfer or sale of the Property or any interest therein. To Seller’s actual knowledge, there are no unrecorded or undisclosed documents or other matters which affect title to the Property. No person holding a security interest in the Property or any part thereof has the right to consent or deny consent to the sale of the Property as contemplated herein, and Seller has the right to pay off such person and to remove all such liens as of the Closing Date. Seller has enjoyed the continuous and uninterrupted quiet possession, use and operation of the Property.
7.10 Seller’s Authority. Seller has the requisite power and authority to own and operate the Property. The execution, delivery and performance of this Agreement by Seller have been duly and validly authorized by all necessary action and proceedings, and no further action or authorization is necessary on the part of Seller (or its board of directors or shareholders) in order to consummate the transactions contemplated herein. This Agreement and the other documents executed by Seller in connection herewith are legal, valid and binding obligations of Seller, enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement by Seller, nor performance of any of its obligations hereunder, nor consummation of the transactions contemplated hereby, shall conflict with, result in a breach of, or constitute a default under, the terms and conditions of the organizational documents pursuant to which Seller was organized, or any indenture, mortgage, deed of trust, agreement, undertaking, instrument or document to which Seller or any affiliate thereof is a party or is bound, or any order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Seller.
7.11 Zoning. To Seller’s actual knowledge, Seller has received no written notice from any governmental agency that the Property is not in compliance with zoning requirements and laws.
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12 7.12 Misstatements and Omissions. To Seller’s actual knowledge, neither the representations and warranties made by Seller in this Article 7 nor elsewhere in this Agreement contain any untrue statement or any omission of a material fact.
7.13 For all purposes of this Agreement, including Seller’s representations and warranties contained in this Section 7, the phrase “to Seller’s actual knowledge” shall mean the current actual knowledge of Seller, such representation is made with the exclusion of any facts disclosed or otherwise known to Buyer, and is made solely on the basis of the current actual knowledge, as distinguished from implied, imputed and constructive knowledge, on the date that such representation or warranty is made, without inquiry, investigation or duty, solely of Seller’s Manager, Donald Henry, without attribution to such specific officer of facts and matters otherwise within the personal knowledge of any other officers or employees of Seller or third parties, including but not limited to other officers of Seller or property managers of the Property.
ARTICLE 8
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer makes the following representation and warranties to Seller with the understanding that each such representation and warranty is material and is being relied upon by Seller:
8.1 Buyer’s Authority. The execution, delivery and performance of this Agreement by Buyer have been duly and validly authorized by all necessary action and proceedings, and no further action or authorization is necessary on the part of Buyer in order to consummate the transactions contemplated herein.
8.2 No Conflict. Neither the execution nor delivery of this Agreement by Buyer, nor performance of any of its obligations hereunder, nor consummation of the transactions contemplated hereby, shall conflict with, result in a breach of, or constitute a default under, the terms and conditions of the organizational documents pursuant to which Buyer was organized, or any agreement to which Buyer is a party or is bound, or any order or regulation of any court, regulatory body, administrative agency or governmental body having jurisdiction over Buyer.
ARTICLE 9
SURVIVAL OF REPRESENTATIONS AND WARRANTIES, DISCLAIMER, AND AS-IS
9.1 Survival of Warranties. Buyer and Seller agree that the representations and warranties in Articles 7 and 8, respectively, shall survive the Closing Date for a period of three (3) years, and upon expiration thereof shall be of no further force or effect except to the extent that with respect to any particular alleged breach, the nonbreaching Party gives the breaching Party written notice prior to the expiration of said three (3) year period of such alleged breach with reasonable detail as to the nature of such breach.
9.2 Notice of Changed Circumstances. If either party becomes aware of any fact or circumstances which would render false or misleading a representation or warranty made by such party, then it shall immediately give notice of such fact or circumstance to the other party, but such MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 47 of 87 Agreement No. 24–74
13 notice shall not relieve any party of any liabilities or obligations with respect to any representation or warranty.
9.3 Disclaimer. Seller hereby disclaims and shall not be liable for any statements, conversations, representations (other than those expressly set forth in this Agreement) or information made or provided by Seller, Seller’s agents or employees, or any other party, to Buyer or Buyer’s agents or employees concerning the Property (including, without limitation, any statements or information relating to the Property’s value, condition, or compliance with laws, the Property’s soils and geology, the existence or availability of any permits or approvals from any governmental authorities, or the existence of any hazardous substances on the Property). All such statements, conversations, representations and information, if any, are merged into and superseded by this Agreement, and Buyer hereby agrees that Buyer shall not be entitled to rely upon any such statements, conversations, representations or information. Buyer hereby waives and relinquishes all rights and privileges arising out of or with respect to any representations (other than those expressly set forth in this Agreement), warranties or covenants, whether express or implied, which may have been made or given by Seller or its representatives.
9.4 Due Diligence Documents. Buyer acknowledges that the Due Diligence Documents were obtained from a variety of sources. Seller has not made any independent investigation or verification of the Due Diligence Documents and makes no representations as to the accuracy or completeness thereof, except as otherwise expressly provided in this Agreement.
9.5 AS IS. BUYER IS BUYING THE PROPERTY “AS IS,” “WHERE IS,” “WITH ALL FAULTS,” AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY, OF ANY KIND WHATSOEVER, BY SELLER, ITS AGENTS,
BROKERS, CONSULTANTS, COUNSEL, PARENTS, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, OR ANY OTHER PERSON. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, SELLER EXPRESSLY DISCLAIMS AND NEGATES, AS TO THE PROPERTY: (A) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY; (B) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS; AND (D) ANY IMPLIED OR EXPRESS WARRANTY WITH RESPECT TO (i) THE CONDITION OF THE PROPERTY, (ii)
THE COMPLETENESS OR ACCURACY OF ANY DOCUMENTS DELIVERED TO BUYER
BY SELLER, INCLUDING WITHOUT LIMITATION THE ACREAGE OF THE PROPERTY, OR (iii) THE PROPERTY’S COMPLIANCE WITH ANY ZONING OR OTHER APPLICABLE
RULES, REGULATIONS, LAWS OR STATUTES, OR THE USES PERMITTED ON, THE
DEVELOPMENT REQUIREMENTS FOR, OR ANY OTHER MATTER OR THING RELATING TO THE PROPERTY OR ANY PORTION THEREOF.
Buyer acknowledges that, to the extent required to be operative, the disclaimers of warranties contained in this Section 9.5 are “conspicuous” disclaimers for purposes of any applicable law, rule, regulation or order.
Seller’s Initials: _____________ Buyer’s Initials: _____________ MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 48 of 87 Agreement No. 24–74
14 Section 9.5 shall survive the termination of this Agreement and/or the Closing Date and shall not be deemed to have merged into any of the documents executed or delivered at the Close of Escrow.
ARTICLE 10
SELLER’S PRE-CLOSING COVENANTS
Seller shall comply with the covenants contained in this Article 10 from the Effective Date through the Closing Date unless Buyer consents otherwise in writing. Buyer may grant or withhold any such consent requested by Seller in Buyer’s sole discretion.
10.1 Contracts and Documents. Seller shall not, without Buyer’s approval, (a) amend or waive any right under any Preliminary Document or Additional Document, or (b) enter into any material agreement of any type affecting the Property that would survive the Closing Date.
10.2 Insurance. Seller shall maintain or cause to be maintained in full force and effect its present insurance policies for the Property.
10.3 No Transfers. Seller shall not sell, encumber or otherwise transfer any interest in all or any portion of the Property, or agree to do so.
10.4 Maintenance. At its sole cost and expense, Seller shall operate and maintain the Property such that on the Closing Date the Property shall be in at least as good a condition and repair as on the Effective Date, reasonable wear and tear excepted. Without limiting the generality of the foregoing, Seller shall, at a minimum, spend such amounts for repair and maintenance as are consistent with its prior practice. Seller shall promptly advise Buyer of any significant repair or improvement required to keep the Property in such condition. Seller shall not make any material alterations to the Property, or remove any of the Personal Property therefrom, without Buyer’s prior consent, unless such Personal Property so removed is simultaneously replaced with new Personal Property of similar quality and utility.
ARTICLE 11
CLOSING DELIVERABLES
11.1 Seller’s Closing Deliverables. At least one (1) business day prior to the Closing Date, Seller must deposit into Escrow the following: (a) one (1) original Grant Deed, duly executed and acknowledged by Seller; (b) two (2) counterpart originals of an assignment agreement, conveying to Buyer any Intangible Property (the “General Assignment”), duly executed by Seller; (c) an affidavit that Seller is not a “foreign person” within the meaning of Section 1445(f)(3) of the Internal Revenue Code, as amended; (d) a California Form 593-C; and (e) such additional documents as may be necessary to convey the Property to Buyer in accordance with this Agreement.
11.2 Buyer’s Closing Deliverables. At least one (1) business day prior to the Closing Date, Buyer must deposit into Escrow the following: (a) the Purchase Price, in accordance with Article 2; (b) one (1) original Certificate of Acceptance, duly executed and acknowledged by Buyer in the form attached hereto as Exhibit B to the Grant Deed (c) two (2) counterpart originals MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 49 of 87 Agreement No. 24–74
15 of the General Assignment, duly executed by Buyer; (d) any additional amounts determined by Escrow Holder to be due from Buyer in connection with the Closing; and (e) and any such additional documents as may be necessary to consummate the Closing in accordance with this Agreement.
ARTICLE 12
CLOSING PROCEDURES
Upon the Close of Escrow, Escrow Holder shall perform the following:
12.1 Disburse to Seller the Purchase Price, less all items chargeable to Seller’s account in connection with the Closing pursuant to this Agreement.
12.2 Cause the Grant Deed to be recorded in the Official Records of the County.
12.3 Cause any other documents that the Parties hereto may mutually direct to be recorded in the Official Records of the County.
12.4 Cause the Title Company to deliver the Title Policy to Buyer.
12.5 Deliver to Seller and Buyer conformed copies of all documents recorded at the Close of Escrow.
12.6 Deliver to Seller and Buyer any other documents or instruments to be delivered through Escrow pursuant to the terms hereof, including a settlement statement.
ARTICLE 13
DISCLOSURES
Within five (5) business days after the Effective Date, Seller shall deliver to Buyer a California Commercial Disclosure Report (the “Disclosure Report”). Buyer acknowledges that the Disclosure Report, once received, shall fully and completely discharges Seller from its disclosure obligations under the Natural Hazard Disclosure Act, California Government Code Sections 8589.3, 8589.4, and 51183.5, and California Public Resources Code Sections 2621.9, 2694, and 4136, and any successor statutes or laws (the “Act”), and, for the purpose of this Agreement, the provisions of Civil Code Section 1103.4 regarding the non-liability of Seller for errors or omissions not within its personal knowledge shall be deemed to apply. Buyer and Seller further acknowledge that the Disclosure Report shall identify special taxes, improvement bonds, assessments and Mello-Roos Community Facilities Districts (collectively, the “Special Taxes”) affecting the Property.
ARTICLE 14
DEFAULT, TERMINATION AND REMEDIES
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16 14.1 Buyer’s Termination. This Agreement shall automatically terminate without further notice or action by Buyer upon the occurrence of any of the following events, provided that Buyer is not then in material breach of this Agreement: (a) any condition to Closing contained in Section 6.1 has not been satisfied or waived by Buyer by the Closing Date; or (b) Buyer having exercised its right to terminate this Agreement pursuant to Section 5.4 (disapproval of Due Diligence Investigation) or Section 5.5 (disapproval of title). In such event, the parties shall have no further obligation to each other except for those obligations that specifically survive the termination of this Agreement. If this Agreement terminates as a result of Seller’s material breach of this Agreement, Buyer shall have all remedies it may have hereunder or at law as a result of such occurrence, including the remedy of specific performance.
14.2 Seller’s Termination. Provided that Seller is not then in material breach of this Agreement, this Agreement shall automatically terminate without further notice or action by Seller if any condition to Closing contained in Section 6.2 has not been satisfied or waived by Seller by the Closing Date.
14.3 Release from Escrow. Upon termination of this Agreement pursuant to Section
14.1 or 14.2, Escrow Holder shall promptly return to Buyer and Seller, respectively, all documents and monies deposited by them into escrow without prejudice to their rights and remedies hereunder, excepting that the Option Consideration will be released to Seller.
14.4 Remedies. If Seller or Buyer breaches this Agreement, Parties shall be entitled to pursue all remedies permitted herein and by law, including the remedy of specific performance.
No termination of the escrow by Parties following a breach by the other Party shall be deemed to waive such breach or any remedy otherwise available. Notwithstanding the forgoing, in the event that a breach of Seller’s representations and warranties is discovered by Buyer after the Closing (within the survival period set forth in Section 9.1 above), then Buyer’s sole remedy shall be limited to its actual damages in an amount not to exceed one hundred percent (100%) of the Purchase Price (except in the event of Seller’s fraud).
ARTICLE 15
MISCELLANEOUS
15.1 Notices. Any notice to be provided under this Agreement must be in writing and shall be delivered (a) personally, (b) via certified or registered mail, postage prepaid, or (c) via overnight courier (such as Federal Express). If sent via certified or registered mail, receipt shall be deemed effective forty-eight (48) hours after being deposited in the United States mail. If sent via overnight courier, receipt shall be deemed effective twenty-four (24) hours after the sending thereof. Any notices shall be given to the Parties at the following addresses:
If to Buyer: City of Montclair
Attention: Edward C. Starr
5111 Benito Street
Montclair, CA 91763
Email: [email protected]
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17 If to Seller: CRP/VP Montclair Village Owner, L.L.C.
Attention: Kaitlin Morris
4350 Von Karman Avenue, Suite 200
Newport Beach, CA 92660
Email: [email protected]
With a Copy to: FENNEMORE, LLP
Attention: Tait Viskovich, Esq.
550 East Hospitality Lane, Suite 350
San Bernardino, CA 92408
Email: [email protected]
Either Party may change its address by written notice to the other given in the manner set forth above.
15.2 Assignment. Buyer shall not assign or attempt to assign this Agreement, or any rights hereunder, to any other person or entity without the prior written consent of Seller, which consent may be withheld in Seller’s sole and absolute discretion.
15.3 Interpretation. Unless the context of this Agreement clearly requires otherwise, plural and singular numbers shall each be deemed to include the other; the masculine, feminine and neuter genders shall each be deemed to include the others; “or” is not exclusive; and “includes” and “including” are not limiting. This Agreement has been negotiated at arm’s length and between persons sophisticated and knowledgeable in the matters dealt with in this Agreement. In addition, each Party has been or has had the opportunity to be represented by experienced and knowledgeable counsel. Accordingly, any rule of law (including California Civil Code §1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the Party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purpose of the Parties and this Agreement. Section headings are included in this Agreement as a matter of convenience only; they are not a part of this Agreement and shall not be used in the interpretation of this Agreement. If a day for any performance or the last date of any period specified in this Agreement is a Saturday, Sunday or national bank holiday, such performance date or period end shall be extended to the next day that is not a Saturday, Sunday or national bank holiday.
15.4 Time. Time is of the essence for each and every term, condition, covenant, obligation and provision of this Agreement.
15.5 Incorporation of Exhibits; Recitals. Each and all of the exhibits attached to this Agreement and the Recitals set forth above are incorporated herein as if set forth in full in this Agreement.
15.6 Attorneys’ Fees. If either Party named herein brings an action or proceeding to enforce the terms hereof or declare rights hereunder, the prevailing Party in any such action (or proceeding), on trial or appeal, shall be entitled to its reasonable attorneys’ fees to be paid by the non-prevailing Party as fixed by the Court.
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18 15.7 Conflicts. In the event of a conflict between this Agreement and any other document(s) executed or purported to be executed between the Parties prior to the date hereof, the provisions contained in this Agreement shall in all instances govern and prevail.
15.8 Invalidity of Any Provision. If any provision (or any portion of any provision) of this Agreement is held to be illegal, invalid or unenforceable by a court of competent jurisdiction under present or future laws effective during the term of this Agreement, the legality, validity and enforceability of the remaining provisions (or the balance of such provision) shall not be affected thereby.
15.9 Binding Effect. Subject to Section 15.2, this Agreement shall bind and inure to the benefit of the successors and assigns of the respective Parties hereto.
15.10 Waiver. No waiver by any Party at any time of any breach of any provision of this Agreement shall be deemed a waiver or a breach of any other provision herein or consent to any subsequent breach of the same or another provision. If any action by any such Party shall require the consent or approval of another Party, such consent or approval of such action on any one occasion shall not be deemed a consent to, or approval of, such action on any subsequent occasion or consent to or approval of any other action.
15.11 Required Actions. Buyer and Seller shall execute all instruments and documents and take all actions (including the deposit of funds in addition to the funds specifically provided for herein) required to consummate the purchase and sale contemplated herein, and shall use their best efforts to accomplish the Close of Escrow in accordance with the provisions hereof.
15.12 Governing Law; Venue. This Agreement has been prepared, negotiated and executed in, and shall be construed in accordance with, the laws of the State of California. Any action or proceeding relating to or arising out of this Agreement shall be filed, if a State action, in the Superior Court of the State of California in a venue selected in accord with Code of Civil Procedure section 394, or if a federal action, in the United States District Court for the Central District of California.
15.13 Right to Transfer. From time-time-time, Seller shall have the right to transfer this Agreement and any or all of its rights and obligations hereunder, to any person or persons, in its sole and absolute discretion. From and after any such transfer, Seller shall be released from all liability regarding any transferred obligations.
15.14 No Third Party Beneficiary Rights. Subject to Sections 15.2 and 15.9, this Agreement is entered into for the sole benefit of Buyer and Seller and no other parties are intended to be direct or incidental beneficiaries of this Agreement and no third party shall have any right in, under or to this Agreement.
17.15 No Partnership. Each Party hereto will act as an independent contractor, and nothing contained in or arising out of this Agreement will be construed to imply or create any joint venture, partnership, agency or other relationship. The Parties agree that no fiduciary relationship is created by this Agreement.
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19 15.16 Entire Agreement. This Agreement constitutes the final, complete and exclusive statement of terms of the agreement between the Parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the Parties. No Party has been induced to enter into this Agreement by, nor is any Party relying on, any representation or warranty outside those expressly set forth in this Agreement.
15.17 Amendment. No amendment or modification of any term or provision of this Agreement shall be effective unless set forth in writing, signed by both Seller and Buyer.
15.18 Counterparts; Facsimile Signatures. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. The Parties hereto intend to be bound by the signatures on the facsimile or electronic document, and hereby waive any defenses to the enforcement of the terms of this Agreement based on the use of a facsimile or electronic signature; provided, however, that the Parties hereby agree to execute and provide to each other original signatures, upon the request made by either Party to the other.
15.19 Corporate Authority and Approval. Seller and Buyer each respectively represents and warrants that: (a) the person signing this Agreement is duly authorized to sign and deliver this Agreement on behalf of the subject corporation or entity; (b) this Agreement and the other documents to be executed by such entity hereunder upon execution and delivery will have been duly entered into and will constitute legal, valid and binding obligations of such entity; (c) all requisite action has been taken and all requisite consents have been obtained in connection with entering into this Agreement and consummating the transaction contemplated hereunder, and (d) such entity is validly existing and in good standing. The provisions of this Section 15.19 shall survive the Closing Date or the termination of this Agreement.
15.20 Limitation on Liability. No director, officer, employee, shareholder, representative, advisor or agent of Seller or Buyer or of any entity that has or acquires an interest in Seller or Buyer, shall have any personal liability, directly or indirectly, under or in connection with the transaction contemplated by this Agreement or any agreement made or entered into pursuant to this Agreement, or any amendments to any of the foregoing made at any time before or after the date hereof. Each of Seller and Buyer and their respective successors and assigns, and all other persons and entities, shall look solely to the other Party’s assets for the payment of any claim or for any performance, and each of Seller and Buyer, on behalf of itself and its successors and assigns, hereby waives any and all such personal liability. In no event shall Seller or Buyer be entitled to indirect, punitive, consequential or special damages against the other under this Agreement, and each of Seller and Buyer hereby waives any right to claim, pursue or collect same.
The foregoing shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of any waiver, relinquishment or release of any applicable rights or otherwise).
ARTICLE 16
INTENTIONALLY DELETED
ARTICLE 17
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20 LEASE AGREEMENT
As an essential inducement to Seller to enter into this Agreement for the below market Purchase Price, Buyer and Seller acknowledge and agree that upon Closing, Buyer and Seller shall execute a lease agreement (the “Lease”), in substantially the form attached hereto as Exhibit “C”, whereby the Buyer shall lease a portion of the Property to Seller for the construction, maintenance and operation of a temporary dog park, as more particularly set forth in the Lease. [SIGNATURES ON THE NEXT PAGE]
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21 IN WITNESS WHEREOF, Buyer and Seller have caused this Agreement to be executed as of the Effective Date.
“BUYER”
THE CITY OF MONTCLAIR,
a California municipal corporation
By:
Name: Edward C. Starr
Title: City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Name:
City Attorney
“SELLER”
CRP/VP MONTCLAIR VILLAGE
OWNER, L.L.C.,
a Delaware limited liability company
By:
Name:
Title:
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22 ACCEPTANCE BY ESCROW HOLDER:
___________________________hereby acknowledges that it has received originallyexecuted counterparts or a fully-executed original of the foregoing Purchase and Sale Agreement and Joint Escrow Instructions, and agrees to act as Escrow Holder thereunder, and to be bound by and perform the terms thereof as such terms apply to Escrow Holder. “ESCROW HOLDER”
___________________________, a
___________________________
By:
Name:
Title:
Dated:
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 57 of 87 Agreement No. 24–74
EXHIBIT “A” – Legal Description
EXHIBIT “A”
LEGAL DESCRIPTION
Certain real property situated in the City of Montclair, County of San Bernardino, State of California, described as follows:
Parcel 6 of Tract Map No. 20273, in the City of Montclair, County of San Bernardino, State of California, as shown by Map on file in Book 363, Pages 54 through 57, inclusive of maps, records of San Bernardino County, California.
APN 1007-703-06-0-000
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EXHIBIT “B” – Grant Deed
EXHIBIT “B”
FORM OF GRANT DEED
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Montclair
Department of Economic Development
5111 Benito Street
Montclair, CA 91763
APN(s): 1007-703-06-0-000 (SPACE ABOVE THIS LINE FOR RECORDER’S USE) THE UNDERSIGNED GRANTOR DECLARES DOCUMENTARY TRANSFER TAX is $______________________
[ ] Computed on full value of property conveyed, or
[ ] Computed on full value less value of liens or encumbrances remaining at time of sale, [ ] Unincorporated area: City of Montclair, and
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CRP/CP MONTCLAIR VILLAGE OWNER, L.L.C., a Delaware limited liability company (“Grantor”),
hereby GRANTS to
CITY OF MONTCLAIR, a California municipal corporation (“Grantee”), that certain real property located in the City of Montclair, County of San Bernardino, State of California, described on Exhibit ”A” attached hereto and incorporated herein by reference (the “Land”).
[SIGNATURE NEXT PAGE]
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EXHIBIT “B” – Grant Deed
IN WITNESS WHEREOF, the undersigned has caused this Grant Deed to be executed as of the date written below.
CRP/VP MONTCLAIR VILLAGE
OWNER, L.L.C.,
a Delaware limited liability company
By:
Name:
Title:
Date:
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EXHIBIT “B” – Grant Deed
This Notary Acknowledgement is attached to a document entitled GRANT DEED by CRP/VP MONTCLAIR VILLAGE OWNER, LLC to City of Montclair dated __________________, 2024.
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
STATE OF )
)
COUNTY OF )
On __________________, 20__ before me, _________________________________, personally appeared ___________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY of PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ___________________________________ (Seal)
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 61 of 87 Agreement No. 24–74
EXHIBIT “B” – Grant Deed
Certificate of Acceptance
This is to certify that the interest in real property conveyed by the within instrument to the City of Montclair, California, a general law city and municipal corporation, is hereby accepted by order of the City Council, and grantee consents to the recordation thereof by its duly authorized officer.
CITY OF MONTCLAIR
By:
City Clerk
Date:
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 62 of 87 Agreement No. 24–74
EXHIBIT “B” – Grant Deed
EXHIBIT “A”
LEGAL DESCRIPTION
Certain real property situated in the City of Montclair, County of San Bernardino, State of California, described as follows:
Parcel 6 of Tract Map No. 20273, in the City of Montclair, County of San Bernardino, State of California, as shown by Map on file in Book 363, Pages 54 through 57, inclusive of maps, records of San Bernardino County, California.
APN 1007-703-06-0-000
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 63 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
EXHIBIT “C”
FORM OF LEASE AGREEMENT
[Attached]
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 64 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
LEASE AGREEMENT
This LEASE AGREEMENT (“Lease”) is entered into this 3rd day of September, 2024, by and between CITY OF MONTCLAIR, a California municipal corporation (“City”) and CRP/VP MONTCLAIR VILLAGE OWNER, L.L.C., a Delaware limited liability company or its assignee (“Lessee”). Hereinafter, City and Lessee may each be referred to as a “Party,” or jointly as “Parties.
RECITALS
This Lease is predicated upon the following facts, which the Parties agree are true and correct:
A. Lessee is developing a commercial center located in the City of Montclair (“City”), County of San Bernardino (“County”), State of California, commonly known as 5040-5050 East Arrow Highway, and in accordance with Tentative Tract No.______ (the “Development”).
B. City and Lessee have previously entered into that certain Purchase and Sale Agreement dated September 3, 2024 (the “Purchase Agreement”), with City as buyer, and Lessee as seller, concerning certain real property consisting of approximately 30,710 square feet, and particularly described on Exhibit “1” attached hereto (the “Property”).
C. Pursuant to the terms of the Purchase Agreement and grant deed recorded on even date hereof, Lessee conveyed to City the Property for the purpose of constructing a public parking structure thereupon in accordance with the North Montclair Downtown Specific Plan (“Specific Plan”), approved by the City Council on May 15, 2006 by Resolution No. 06-2628 as amended by the City Council on March 20, 2017 by Resolution No. 17-3149 (the “Project”).
D. City adopted Resolution No. 20-3285 on or about December 7, 2020, which, among other things, provided the conditions of approval (“Conditions of Approval”) for Lessee’s project (“Lessee’s Project”).
E. Item 1.d. of the Conditions of Approval provides that Lessee shall construct a paved surface parking area with 27 spaces (“Temporary Surface Lot”), a fenced dog park area (“Temporary Dog Park”) and certain landscaping improvements for Lot 6 (“Lot 6 Landscaping”) over portions of the Property as depicted on the site plan (“Site Plan”) approved by the City at the Montclair City Council Meeting on December 7, 2020 at which Resolution No. 20-3285 was adopted.
F. Lessee desires to lease an approximate 1,217 square foot area of the Property (the “Leased Premises”) as depicted in red on Exhibit “2”, attached hereto, for the construction, maintenance and operation of the Temporary Dog Park. City desires to lease to Lessee the Leased Premises on the terms and conditions set forth in this Lease.
TERMS
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 65 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
which is hereby acknowledged, the Parties agree as follows:
1. Lease of Property. Beginning on September 3, 2024 (“Effective Date”) and continuing through the Term, as defined in Section 1.1, City shall lease to Lessee and Lessee shall lease from City the Leased Premises under the following terms:
1.1 Term. The term of this Lease shall commence on the Effective Date and shall continue until the third anniversary thereof (which resulting three year period constitutes the “Term”), unless sooner terminated in accordance with Section 4. Lessee shall have three (3) options (each and “Option”) to extend the Term for one (1) year. Lessee may exercise each option by providing written notice of the same to City no less than sixty (60) days prior to the expiration of the then current Term.
1.2 Permitted Use. During the Term, Lessee is permitted to use the Leased Premises for the construction and operation of a dog park and related uses. Additionally, Lessee may also use the Property for the storage and operation of a leasing trailer, at a location reasonably approved by City.
1.3 Rent. Beginning on the Effective Date, Lessee shall pay to the order of the City, at the address set forth in Section 8.1 of this Lease, the rental amount of No/100 Dollars ($0.00) per month (“Rent”). The Reduced Amount (as defined in the Purchase Agreement) is full compensation to Lessor as purchaser of the Property as reduced based upon the use of the Property provided to Lessee hereunder.
1.4 Laws, Rules and Regulations. Lessee shall at all times comply with, and shall pay all costs and expenses which may be incurred or required to be paid in order to comply with, any and all laws, statutes, ordinances, rules and regulations (“Laws”) which apply to the operation and use of the Leased Premises on a nondiscriminatory basis by Lessee, including those requiring alterations or additions to be made to, or safety appliances and devices to be maintained or installed in, on or about the Leased Premises on a nondiscriminatory basis under any Laws now or hereafter adopted, enacted or made and applicable to the Leased Premises, and payment of any fees, charges or assessments arising out of or in any way related to the Leased Premises on a nondiscriminatory basis as a source of adverse environmental impacts or effects.
1.5 Indemnification. Lessee shall defend, indemnify and hold City, its elected officials, officers, employees, agents and volunteers free and harmless from and against any and all claims, demands, causes of action, costs (including, without limitation, litigation costs and attorneys’ fees), expenses, loss, damage, injury or liability, in law or equity, to property or persons, including wrongful death, in any manner arising out of or in any way connected with Lessee’s operation and use of the Leased Premises from City pursuant to this Lease or Lessee’s use of the Property (solely with respect to Lessee’s use of the Right of Entry defined in Section 1.8 below), including claims made by third-parties using Lessee’s Leased Premises as a result of this Lease, except to the extent attributable to City’s willful misconduct or negligence. The provisions of this Section shall survive the termination of this Lease for a period of one (1) year.
1.6 Assumption of Risk, Waiver, and City’s Non-liability. To the maximum extent allowed by law, except to the extent attributable to City’s willful misconduct or negligence, Lessee MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 66 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
assumes any and all risk of loss, damage or injury of any kind to any person or property that is on or about the Leased Premises or the Property (solely with respect to Lessee’s use of the Right of Entry defined in Section 1.8 below), as a result of or in connection with this Lease. Lessee’s assumption of risk shall include, without limitation, personal injury of Lessee or Lessee’s guests or invitees, including wrongful death, and loss or damage to Lessee or Lessee’s guest or invitees’ vehicles or personal property caused by any reason, including, without limitation, third-party vandalism or theft, any condition of the Leased Premises or the Property (solely with respect to Lessee’s use of the Right of Entry defined in Section 1.8 below), accident, fire or other casualty on or about the Leased Premises or the Property (solely with respect to Lessee’s use of the Right of Entry defined in Section 1.8 below), except to the extent attributable to City’s willful misconduct or negligence. To the maximum extent allowed by law, except to extent attributable to City’s willful misconduct or negligence, Lessee hereby waives all claims and demands against City, its elected officials, officers, employees, agents and volunteers arising from or in connection with any of the foregoing and any other occurrence on or about the Leased Premises or the Property (solely with respect to Lessee’s use of the Right of Entry defined in Section 1.8 below).
1.7 Use Obligations. There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, age, handicaps, sex, marital status, sexual orientation, ancestry or national origin in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Leased Premises or the improvements thereon, or any part thereof, and Lessee itself, or any person claiming under or through it, shall not establish or permit any such practice of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, subtenants or vendees of the Leased Premises or the improvements thereon, or any part thereof.
1.8 Right of Entry. City hereby grants Lessee and its employees, agents, invitees, guests and contractors a nonexclusive right to enter the Property in order to access the Leased Premises and construct and operate the Temporary Dog Park. This right of entry shall automatically terminate on expiration or termination of this Lease.
2. Acceptance of Leased Premises As-Is. Lessee acknowledges that it is accepting the Leased Premises in its AS-IS condition, as of the Effective Date. Lessee acknowledges and agrees that City has made absolutely no representations, guarantees or warranties regarding the condition of the Leased Premises, nor has City made representations, guarantees or warranties regarding whether the Leased Premises and improvements thereon comply with applicable covenants and restrictions of record, building codes, ordinances or statutes in effect at the commencement of this Lease.
3. Damage or Destruction of Leased Premises. If during the Term of this Lease, any portion of the Leased Premises is damaged by fire or other catastrophic cause, so as to render such portion of the Leased Premises untenable, the obligations under this Lease may be suspended while such portion of the Leased Premises remains untenable. In the event of such damage, Lessee shall give City notice of such untenable condition and City shall elect in its sole discretion, whether to repair the Leased Premises or to cancel this Lease with respect thereto. City shall notify Lessee in writing of its election within thirty (30) days after service of notice by Lessee. In the event that City elects not to repair the Leased Premises or portion thereof, this Lease shall be deemed cancelled as of the date the damage occurred with respect to the untenable portion(s) of the Leased Premises. If this MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 67 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
Lease is cancelled pursuant to this section, City shall not be liable to Lessee for any reason or under any theory and Lessee shall not be entitled to recover damages of any kind or nature from City. Additionally, if during the Term, any portion of the Leased Premises is damaged by fire or other catastrophic cause, so as to render such portion of the Leased Premises untenable, then Lessee can elect in writing to cancel this Lease with respect to the untenable portion(s) of the Leased Premises by providing written notice of its election to City within thirty (30) days of the damage.
4. Termination. In the event that either Party is in default under any of the material terms of this Lease, the non-defaulting Party may provide written notice thereof to the defaulting Party and the defaulting Party shall have thirty (30) days to cure. If the defaulting Party fails to cure the default within said period, the non-defaulting Party may terminate this Lease upon an additional thirty (30) days written notice. Notwithstanding the forgoing, City may also terminate this Lease, at any time, upon thirty (30) days written notice.
4.1 Return Of Leased Premises. Lessee agrees that it will, upon any termination of this Lease, return the Leased Premises in as good condition and repair as the Leased Premises now is or shall hereafter be put. City agrees that Lessee shall not be obligated to remove the Temporary Dog Park upon surrender of the Leased Premises and that City shall take title to the Temporary Dog Park upon the termination or early expiration this Lease.
4.2 No Relocation Assistance. Lessee acknowledges that Lessee shall not be entitled to relocation assistance or any other benefits under the Uniform Relocation Assistance Act or any other applicable provision of law upon City’s termination of this Lease.
5. Taxes and Assessments.
5.1 Personal Leased Premises Taxes. Lessee shall pay before delinquency all taxes, assessments, license fees and other charges that are levied and assessed against Lessee’s personal property installed or located in or on the Leased Premises which become payable during the term.
On demand by City, Lessee shall furnish City with satisfactory evidence of these payments.
5.2 Real Property Taxes. Lessee shall pay all real property taxes (including, if applicable, any possessory interest taxes and personal property taxes), general and special taxes and assessments (“Real Property Taxes”) levied and assessed against the Leased Premises, the Improvements, and Lessee’s alterations on the Leased Premises. Lessee shall pay the Real Property Taxes not later than the taxing authority's delinquency date.
5.3 Lessee’s Tax Liability Prorated. Lessee’s liability to pay Real Property Taxes and new assessments shall be prorated on the basis of a 365-day year to account for any fractional portion of a fiscal tax year included in the Term at its inception and expiration or earlier termination in accordance with this Lease.
5.4 Revenue & Taxation Code Section 107.6 Possessory Interest Tax. Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxes and that, in the event that a possessory interest is created, Lessee shall be responsible for payment of any taxes levied against such possessory interest relating to the Leased Premises.
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EXHIBIT “C” – Lease Agreement
6. Insurance.
6.1 General. Without limiting Lessee’s indemnification of City, Lessee shall provide and maintain at its own expense during the Term the following programs of insurance covering its operations under the Lease. Such insurance shall be provided by insurer(s) reasonably satisfactory to City and evidence of such programs satisfactory to City shall be delivered to City on or before the Effective Date of this Lease. Such evidence shall specifically identify this Lease and shall contain express conditions that City is to be given written notice at least thirty (30) days in advance of any material modification or termination of any program of insurance. (a) Comprehensive General Liability Insurance endorsed for propertyoperations, products/completed operations and contractual liability, in the amount of at least $1,000,000 for any occurrence, $2,000,000 annual aggregate and $1,000,000 property damage. (b) Comprehensive Auto Liability Insurance endorsed for all owned and nonowned vehicles with a combined single limit of at least One Million Dollars ($1,000,000) per occurrence.
(c) Worker’s Compensation Insurance in an amount and form to meet all applicable requirements of the Labor Code of the State of California and which specifically covers all persons providing services on behalf of Lessee under this Lease and all risks to such persons and employer's liability insurance with a limit of no less than $1,000,000 per employee and $1,000,000 per occurrence.
6.2 Proof of Coverage. All policies required hereunder shall be with companies having a Best's A/VIII rating (and if Best's no longer exists, an equivalent rating). Executed copies of all policies of insurance or certificates thereof shall be delivered to City. All insurance policies required by this Article 6 shall name City as an additional insured. As often as any such policies shall expire or terminate, renewal or additional policies shall be procured and maintained in like manner and to like extent. All policies of insurance must contain a provision that the company writing such policy will give all parties thirty (30) days advance written notice of any cancellation or lapse of the effective date or any reduction in the amounts of insurance.
6.3 Nothing in this Article 6 shall prevent Lessee from carrying insurance of the kind required of Lessee under a blanket insurance policy or policies which cover other properties owned or operated by Lessee. Lessee shall provide City with certificates of insurance naming City as an additional insured and setting forth the required coverage.
7. Environmental Indemnity.
7.1 Indemnity. Lessee agrees, from and after the Effective Date, to defend, indemnify, protect and hold harmless City and its officers, beneficiaries, public officials, volunteers, employees, agents, attorneys, representatives, legal successors and assigns (“Indemnitees"”) from, regarding and against any and all liabilities, obligations, orders, decrees, judgments, liens, demands, actions, Environmental Response Actions (as defined herein), claims, losses, damages, fines, penalties, expenses, Environmental Response Costs (as defined herein) or costs of any kind or nature whatsoever, together with fees (including, without limitation, reasonable attorneys' fees and experts' and consultants' fees), resulting from or in connection with the actual or claimed MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 69 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
generation, storage, handling, transportation, use, presence, placement, migration and/or release of Hazardous Materials (as defined herein) by Lessee or its agents, employees or contractors, at, on, in, beneath or from the Leased Premises during the term of this Lease (sometimes herein collectively referred to as “Contamination”), except to the extent caused by the City or its agents, contractors or employees. Lessee’s defense, indemnification, protection and hold harmless obligations herein shall include, without limitation, the duty to respond to any governmental inquiry, investigation, claim or demand regarding the Contamination, at Lessee’s sole cost.
7.2 Release and Waiver. Lessee hereby releases and waives all rights, causes of action and claims Lessee has or may have in the future against the Indemnitees arising out of or in connection with any Hazardous Materials (as defined herein), at, on, in, beneath or from the Leased Premises, except to the extent caused or permitted by City or its contractors, agents, or employees.
7.3 Definitions.
(a) As used in this Lease, the term “Environmental Response Actions” means any and all activities, data compilations, preparation of studies or reports, interaction with environmental regulatory agencies, obligations and undertakings associated with environmental investigations, removal activities, remediation activities or responses to inquiries and notice letters, as may be sought, initiated or required in connection with any local, state or federal governmental or private party claims, including any claims by Lessee. (b) As used in this Lease, the term “Environmental Response Costs” means any and all costs associated with Environmental Response Actions including, without limitation, any and all fines, penalties and damages.
(c) As used in this Lease, the term “Hazardous Materials” means any substance, material or waste which is (1) defined as a “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” or “restricted hazardous waste” under any provision of California law; (2) petroleum or petroleum products; (3) asbestos; (4) polychlorinated biphenyls; (5) radioactive materials; (6) designated as a “hazardous substance” pursuant to Section 311 of the Clean Water Act, 33 U.S.C. section 1251 et seq. (33 U.S.C.§ 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. § 1317); (7) defined as a "hazardous substance" pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. section 6901 et seq. (42 U.S.C. § 6903) or its implementing regulations; (8) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. section 9601 et seq. (42 U.S.C. § 9601); or (9) determined by California, federal or local governmental authority to be capable of posing a risk of injury to health, safety or property.
7.4 Materiality. Lessee acknowledges and agrees that the defense, indemnification, protection and hold harmless obligations of Lessee for the benefit of City set forth in this Lease are a material element of the consideration to City for the performance of its obligations under this Lease, and that City would not have entered this Lease unless Lessee’s obligations were as provided for herein.
8. Miscellaneous Terms.
8.1 Notices. All notices and other communications required or permitted to be given MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 70 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
hereunder shall be in writing and shall be sent by: (i) certified or registered mail, postage prepaid, return receipt requested, (ii) personal delivery, or (iii) a recognized overnight carrier that provides proof of delivery, and shall be addressed as follows:
If to City: City of Montclair
Attention: Edward C. Starr
5111 Benito Street
Montclair, CA 91763
Email: [email protected]
If to Lessee: CRP/VP Montclair Village Owner, LLC
Attention: Kaitlin Morris
4350 Von Karman Avenue, Suite 200
Newport Beach, CA 92660
Email: [email protected]
With a Copy to: FENNEMORE, LLP
Attention: Tait Viskovich, Esq.
550 East Hospitality Lane, Suite 350
San Bernardino, CA 92408
Email: [email protected]
Notices shall be deemed effective upon receipt or rejection only. Either Party may change its address by written notice to the other given in the manner set forth above.
8.2 Prevailing Wage. If required by applicable laws, Lessee shall and shall cause its contractors and subcontractors to: pay prevailing wages for any construction on the Leased Premises as those wages are determined pursuant to Labor Code Sections 1720 et seq.; employ apprentices as required by Labor Code Sections 1777.5 et seq.; and comply with the other applicable provisions of Labor Code Sections 1720 et seq., 1725.5, 1771, 1771.1, 1771.4, 1776, 1777.5 et seq., 1810-1815 and the implementing regulations of the Department of Industrial Relations (the “DIR”) for all such Labor Code sections. Notwithstanding the foregoing, nothing in this Lease shall be interpreted as a finding by Lessor that the Project is a public work, or shall otherwise be interpreted to cause the Project to be determined to be a Public Work within the scope of California Labor Code Section 1720, et seq.
8.3 Attorney’s Fees. If either Party commences an action against the other Party arising out of or in connection with this Lease, the prevailing Party in such litigation shall be entitled to have and recover from the other Party reasonable attorneys’ fees and all other costs of such action.
8.4 Force Majeure. Except as to the payment of rent, neither of the parties hereto shall be chargeable with, liable for, or responsible to, the other for anything or in any amount for any delay caused by pandemic, epidemic, fire, earthquake, explosion, flood, hurricane, the elements, acts of God or the public enemy, action, inaction or interference of governmental authorities or agents, including a City referendum or initiative, war, invasion, insurrection, rebellion, riots, strikes or lockouts or any other cause whether similar or dissimilar to the foregoing which is MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 71 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
beyond the reasonable control of such parties and any delay due to said causes or any of them shall not be deemed a breach of or default in the performance of this Lease.
8.5 Governing Law. This Lease shall be construed and interpreted in accordance with the laws of the State of California.
8.6 Amendments and Modification. This Lease may only be modified or amended by a written document signed by both Parties.
8.7 Assignment. Lessee shall not assign any of its rights or obligations under this Lease without the prior express written consent of City, which may be given or withheld in City’s sole and absolute discretion.
8.8 Successors and Assigns. This Lease shall be binding on and inure to the benefit of the Parties’ successors and assigns.
8.9 Waiver. No waiver of any default under this Lease shall constitute a waiver of any other default or breach, whether of the same or other covenant or condition. No waiver, benefit, privilege or service voluntarily given or performed by a Party shall give the other Party any contractual rights by custom, estoppel, or otherwise.
8.10 No Third-Party Beneficiaries. This Lease is expressly declared to be for the sole benefit of the Parties hereto. No other person or entity not a signatory to this Lease shall have any rights or causes of actions against any Party to this Lease because of that Party’s entry into this Lease.
8.11 Time of Essence. Time of the essence in the performance of the Parties’ obligations under this Lease.
8.12 Entire Lease. This Lease represents the entire agreement between the Parties with respect to the subject matter herein, and supersedes all prior and contemporaneous communications, negotiations, understandings, promises, and agreements, whether oral or written.
8.13 Counterparts. This Lease may be executed in counterparts, each of which shall be deemed to be an original, but, all of which, when taken together, shall constitute one and the same instrument.
8.14 Authority to Execute. Each Party warrants that the individuals who have signed this Lease have the legal power, right, and authority to make this Lease and bind each respective Party.
8.15 No Indirect, Punitive, Consequential or Special Damages. In no event shall City or Lessee be entitled to indirect, punitive, consequential or special damages against the other under this Lease, and each of City and Lessee hereby waives any right to claim, pursue or collect same.
The foregoing shall be in addition to, and not in limitation of, any further limitation of liability that might otherwise apply (whether by reason of any waiver, relinquishment or release of any applicable rights or otherwise).
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EXHIBIT “C” – Lease Agreement
9. Acknowledgement; Satisfaction; Temporary Construction License.
9.1 Acknowledgement of Benefit; No Rent. City acknowledges that Lessee’s construction and maintenance of the Temporary Dog Park is a benefit to City and that Lessee will not be charged rent for Lessee’s occupancy/use of the Leased Premises as set forth above in Section
1.2. 9.2 Satisfaction of Conditions of Approval. City agrees that Lessee’s construction of the Temporary Dog Park shall have satisfied Lessee’s obligations under item 1.d. of the Conditions of Approval with respect to the dog park. This section 9 shall survive the termination or expiration of this Lease.
9.3 Temporary Construction License. After the Effect Date, City and Lessee shall, in good faith, enter into a mutually acceptable temporary construction license for the construction on the Property of the Temporary Surface Lot and the Lot 6 Landscaping in accordance with the Site Plan, as further depicted on Exhibit “3” attached hereto. [Signatures on following page]
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 73 of 87 Agreement No. 24–74
EXHIBIT “C” – Lease Agreement
SIGNATURE PAGE TO LEASE AGREEMENT
IN WITNESS WHEREOF, the Parties have executed this Lease on the day and year first written above.
“CITY”
THE CITY OF MONTCLAIR,
a California municipal corporation
By:
Name: Edward C. Starr
Title: City Manager
ATTEST:
City Clerk
APPROVED AS TO FORM:
Name:
1. City Attorney
“LESSEE”
CRP/VP MONTCLAIR VILLAGE
OWNER, L.L.C.,
a Delaware limited liability company
By:
Name:
Title:
Date:
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 74 of 87 Agreement No. 24–74
EXHIBIT “1”
LEGAL DESCRIPTION
Certain real property situated in the City of Montclair, County of San Bernardino, State of California, described as follows:
Parcel 6 of Tract Map No. 20273, in the City of Montclair, County of San Bernardino, State of California, as shown by Map on file in Book 363, Pages 54 through 57, inclusive of maps, records of San Bernardino County, California.
APN 1007-703-06-0-000
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 75 of 87 Agreement No. 24–74
EXHIBIT “2”
DEPICTION OF THE LEASED PREMISES
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 76 of 87 Agreement No. 24–74
EXHIBIT “3”
DEPICTION OF THE TEMPORARY SURFACE LOT
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 77 of 87 Personnel Committee Minutes – August 19, 2024 Page 1 of 1
MINUTES OF THE MEETING OF THE MONTCLAIR
PERSONNEL COMMITTEE HELD ON MONDAY,
AUGUST 19, 2024, AT 6:05 P.M. IN THE CITY
ADMINISTRATIVE OFFICES, 5111 BENITO STREET,
MONTCLAIR, CALIFORNIA
I. CALL TO ORDER
Mayor Pro Tem Johnson called the meeting to order at 6:05 p.m.
II. ROLL CALL
Present: Mayor Pro Tem Johnson, Council Member Ruh, City Manager Starr, and Assistant City Manager/Director of
Human Services Richter
III. APPROVAL OF MINUTES
A. Minutes of the Regular Personnel Committee Meeting of July 15, 2024.
Moved by Council Member Ruh, seconded by Mayor Pro Tem
Johnson, and carried unanimously to approve the minutes of the Personnel Committee meeting on July 15, 2024.
IV. PUBLIC COMMENT – None
V. CLOSED SESSION
At 6:06 p.m., the Personnel Committee went into Closed Session regarding personnel matters related to appointments, resignations/ terminations, and evaluations of employee performance.
At 6:30 p.m., the Personnel Committee returned from Closed Session.
Mayor Pro Tem Johnson stated that no announcements would be made at this time.
VI. ADJOURNMENT
At 6:30 p.m., Mayor Pro Tem Johnson adjourned the Personnel Committee.
Submitted for Personnel Committee approval,
Edward C. Starr
City Manager
MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 78 of 87
PENDING
APPROVAL
Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes — August 19, 2024 Page 1 of 9
MINUTES OF THE REGULAR JOINT MEETING OF THE MONTCLAIR
CITY COUNCIL, SUCCESSOR AGENCY AND MONTCLAIR HOUSING
CORPORATION BOARDS, MONTCLAIR HOUSING AUTHORITY
COMMISSION, AND MONTCLAIR COMMUNITY FOUNDATION
BOARD HELD ON MONDAY, AUGUST 19, 2024 AT 7:01 P.M. IN
THE CITY COUNCIL CHAMBERS, 5111 BENITO STREET,
MONTCLAIR, CALIFORNIA
I. CALL TO ORDER
Mayor/Chair Dutrey called the meeting to order at 7:01 p.m.
II. INVOCATION
Pastor Jaime Saravia, Truth Church, gave the invocation.
III. PLEDGE OF ALLEGIANCE
Council Member/Director Lopez led meeting participants in the Pledge.
IV. ROLL CALL
Present: Mayor/Chair Dutrey; Mayor Pro Tem/Vice Chair Johnson; Council Members/Directors Ruh, Martinez, and Lopez
City Manager/Executive Director Starr; Assistant City Manager/ Director of Human Services Richter; Director of Community Development Diaz; Director of Finance Kulbeck; Director of Public Works/City Engineer Heredia; Police Chief Reed; Fire Chief Pohl; City Attorney Robbins; City Clerk Myrick
V. PRESENTATIONS
A. Presentation by Monte Vista Water District (MVWD): “Making Conservation a Way of Life”
Justin Scott–Coe, General Manager, introduced Kelly Donaldson, Community Affairs Manager, who presented on the state’s new water conservation regulations established by AB 1572. These regulations prohibit the use of potable water for the irrigation of non–functional turf on commercial, industrial, and public properties, as well as in common areas of homeowners’ associations. She also highlighted resources and rebates available to residents aimed at improving water efficiency. In response to inquiries from the City Council, she discussed a collaborative grant the City received from the Inland Empire Utilities Agency, in partnership with MVWD, to install water–efficient landscaping at Fire Station No. 151. The discussion also included details about available rebates and programs, as well as the potential expansion of the law to apply to residential properties in the future.
VI. PUBLIC COMMENT
Susan Elias, resident, expressed dissatisfaction with the Police Department’s response to her reporting of a hit–and–run incident by her neighbor that resulted in damage to her vehicle, which was captured by her home security camera.
Xavier Mendez, resident, shared condolences for a former City employee, Steve Stanton, and his family, for the recent tragic passing of his son, Ryan Stanton, in a motorcycle accident.
VII. PUBLIC HEARINGS
A. Consider Adoption of Resolution No. 24–3453 Establishing a Five–Year Schedule of Maximum Monthly Rate Caps for Refuse and Sewer Program Services in Compliance with Proposition 218 Mayor Dutrey opened the public hearing and invited comments from the public.
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Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes — August 19, 2024 Page 2 of 9 Aaron Adams, resident, raised concerns about the proposed rate increases for Burrtec and emphasized the importance of soliciting bids from other trash haulers to secure more competitive rates.
Xavier Mendez, resident, expressed concerns regarding the high increase in rates compared to surrounding Cities and questioned the addition of a new Part 4 “Effluent/Contamination maintenance” fee which he feels should be covered by the existing Part 2 “Sewer maintenance” fee.
There being no one else in the audience wishing to comment, Mayor Dutrey closed the public hearing and returned the matter to the City Council for discussion and consideration.
In response to questions raised by Council Members and concerns from speakers, City Manager Starr clarified that a majority of the increases are pass–through charges established by external parties rather than by the City or Burrtec, and the new sewer maintenance fee addresses an increase in items like “flushable” wipes being flushed, which clog the main sewer lines and require additional repairs. He advised the projected future increases indicated represent maximum rates that the City is legally obligated to report under the Proposition 218 process; however, the City has historically not raised rates to the maximum allowable limits. He noted that the City Council will still need to set and approve each individual future rate increase, but another Proposition 218 process will not be necessary for each of those instances over the next five years.
Mike Arreguin, Burrtec Vice President, also provided clarification about cost increases related to wages and recycling costs, and implementation of SB 1383 requirements for food waste.
Council Member Ruh indicated he would not endorse rate increases unless discounted pricing is made available for low income families.
ACTION – Public Hearings – Item A
ACTING: City Council
MOTION: Adopt Resolution No. 24–3453 establishing a five–year schedule of maximum monthly rate caps for refuse and
sewer program services in compliance with Proposition
218.
MADE BY:
SECOND BY:
Mayor Dutrey
Mayor Pro Tem Johnson
AYES:
NOES:
ABSTAIN:
ABSENT:
Lopez, Martinez, Johnson, Dutrey
Ruh
None
None
RESULT: Motion carried 4–1.
VIII. CONSENT CALENDAR
ACTION – Consent Calendar
ACTING: City Council
Successor Agency Board
Montclair Housing Corporation Board
Montclair Housing Authority Commissioners
Montclair Community Foundation Board
DISCUSSION: Items B–10, B–13, C–1, and C–8
MOTION: Pull item C–6 and approve the remainder of the Consent Calendar as presented.
MADE BY:
SECOND BY:
Council Member/Director Ruh
Council Member/Director Lopez
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AYES:
NOES:
ABSTAIN:
ABSENT:
Lopez, Martinez, Ruh, Johnson, Dutrey
None
None
None
RESULT: Motion carried 5–0.
A. Approval of Minutes
1. Regular Joint Meeting — July 15, 2024
ACTION – Consent Calendar – Item A–1
ACTING: City Council
Successor Agency Board
Montclair Housing Corporation Board
Montclair Housing Authority Commissioners
Montclair Community Foundation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.
B. Administrative Reports
1. Consider Receiving and Filing City Treasurer's Report — July 2024
ACTION – Consent Calendar – Item B–1
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
2. Consider Approval of Warrant Register and Payroll
Documentation
ACTION – Consent Calendar – Item B–2
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
3. Consider Receiving and Filing of SA Treasurer’s Report — July 2024
ACTION – Consent Calendar – Item B–3
ACTING: Successor Agency Board
RESULT: Approved on Consent Calendar; motion carried 5–0.
4. Consider Approval of SA Warrant Register — July 2024 ACTION – Consent Calendar – Item B–4
ACTING: Successor Agency Board
RESULT: Approved on Consent Calendar; motion carried 5–0.
5. Consider Receiving and Filing MHC Treasurer's Report July 2024
ACTION – Consent Calendar – Item B–5
ACTING: Montclair Housing Corporation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.
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6. Consider Approval of MHC Warrant Register — July 2024 ACTION – Consent Calendar – Item B–6
ACTING: Montclair Housing Corporation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.
7. Consider Receiving and Filing of MHA Treasurer's Report — July 2024
ACTION – Consent Calendar – Item B–7
ACTING: Montclair Housing Authority Commissioners
RESULT: Approved on Consent Calendar; motion carried 5–0.
8. Consider Approval of MHA Warrant Register — July 2024 ACTION – Consent Calendar – Item B–8
ACTING: Montclair Housing Authority Commissioners
RESULT: Approved on Consent Calendar; motion carried 5–0.
9. Consider Designating Mayor Dutrey as Voting Delegate for the Annual Business Meeting of the General Assembly at the
League of California Cities Annual Conference on October 18, 2024
ACTION – Consent Calendar – Item B–9
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
10. Consider Authorizing the Purchase of a 2024 Ford F–450 Medic Squad from Fire Apparatus Solutions in the Total
Amount of $246,137.55
Consider Authorizing a $246,137.55 Appropriation from the Equipment Replacement Fund for the Purchase of a 2024
Ford F–450 Medic Squad from Fire Apparatus Solutions
Councilmember Lopez expressed satisfaction with the Medic Squad returning after being out of service for over 20 years.
ACTION – Consent Calendar – Item B–10
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
11. Consider Authorizing a $47,565.75 Appropriation from the Equipment Replacement Fund for the Purchase of a 2024
Chevrolet Silverado 2500 Pickup Truck from Mark
Christopher Chevrolet, and $9,851.25 for the Installation of Safety Lights, Strobes, and a Cross–Body Tool Box for the Vehicle
Consider Declaring a 2000 Chevrolet 2500 Bi–Fuel Pickup Truck (Unit 220) as Surplus and Available for Sale at Auction ACTION – Consent Calendar – Item B–11
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
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12. Consider Authorizing a $37,606.78 Appropriation from the Equipment Replacement Fund for the Purchase of a 2024
Chevrolet Colorado Pickup Truck from Rotolo Chevrolet for the Code Enforcement Division
ACTION – Consent Calendar – Item B–12
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
13. Consider Declaring Two Noncompliant Vehicles as Surplus and Available for Donation to the City of Huatabampo,
Sonora in Mexico
Xavier Mendez, resident, recommended the City purchase
replacement work vehicles and proposed that in–house staff continue to handle tree trimming and removal.
City Manager Starr advised both vehicles have been replaced.
ACTION – Consent Calendar – Item B–13
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
C. Agreements
1. Consider Approval of Agreement No. 24–43–I–111, an
Irrevocable Annexation Agreement with 2A LLC, for a 2.42 Acre Site at the Southwest Corner of Mission Boulevard and Benson Avenue, Ontario, CA 91762 (APNs 1011–351–04 and
1011–351–05) (Case No. 2024–27), Subject to Any Revisions Deemed Necessary by the City Attorney
In response to City Council questions regarding the timeframe of annexation, City Manager Starr advised that there is currently no plan to annex the property; however, should the City decide to annex in the future, the agreement will require the owner to support annexation of the property.
ACTION – Consent Calendar – Item C–1
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
2. Consider Approval of Agreement No. 24–62 with Lifestyle Management Solutions to Provide Nutrition Education Services for the City’s Senior Citizen Nutrition Program, Subject to Any Revisions Deemed Necessary by the City Attorney
ACTION – Consent Calendar – Item C–2
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
3. Consider Approval of Agreement No. 24–63 with Rymax
Electrical, Inc., for the Installation of the Emergency Generator and Electrical Conductors at the Civic Center, Subject to Any Revisions Deemed Necessary by the City Attorney
ACTION – Consent Calendar – Item C–3
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
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4. Consider Approval of Agreement No. 24–64 with Kendry II Apartments Owner, LLC, an Operations and Management
Regulatory Agreement Regarding Property Generally
Located at the Southwest Corner of Arrow Highway and
Monte Vista Avenue, Subject to Any Revisions Deemed
Necessary by the City Attorney
ACTION – Consent Calendar – Item C–4
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
5. Consider Approval of Agreement No. 24–66 with Liebert Cassidy Whitmore for Participation in the East Inland Empire Employment Relations Consortium and Premium Liebert
Library Subscription, Subject to Any Revisions Deemed
Necessary by the City Attorney
ACTION – Consent Calendar – Item C–5
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
7. Consider Approval of Agreement Nos. 24–68, 24–69, and 24– 70 with Montclair Little League and Golden Girls Softball League for Use of Ball Field Facilities
ACTION – Consent Calendar – Item C–7
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
8. Consider Approval of Agreement No. 24–71 with Chaplain of the Streets for the Lease of a City–Owned Property, Subject to Any Revisions Deemed Necessary by the City Attorney
ACTION – Consent Calendar – Item C–8
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
9. Consider Approval of Agreement No. 24–72 with Kaiser Foundation Hospitals to Accept a Grant Award in the
Amount of $15,000 to Support Montclair the Montclair to College Program
Consider Authorizing the Executive Director Edward C. Starr to Sign Agreement No. 24–72
ACTION – Consent Calendar – Item C–9
ACTING: Montclair Community Foundation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.
D. Resolutions
1. Consider Adoption of Resolution No. 24–3439 Approving Agreement No. 24–65, an Affordable Housing Agreement
with the Montclair Housing Authority and the Montclair
Housing Corporation; Authorizing the Transfer of 9603 Mills Avenue, Montclair, to the Montclair Housing Authority for use as Affordable Housing; and Declaring such Real
Property to be Exempt Surplus Land
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Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes — August 19, 2024 Page 7 of 9 Consider Authorizing a $35,000 Appropriation from the
Economic Development Assets Fund for Rehabilitation of
the Property Located at 9603 Mills Avenue, Montclair
ACTION – Consent Calendar – Item D–1
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
Consider Adoption of MHA Resolution No. 24–02 Approving Agreement No. 24–65, an Affordable Housing Agreement
with the City of Montclair and the Montclair Housing
Corporation, and Accepting the Transfer of Certain Real Property from the City of Montclair
ACTION – Consent Calendar – Item D–1
ACTING: Montclair Housing Authority Commissioners
RESULT: Approved on Consent Calendar; motion carried 5–0.
Consider Adoption of MHC Resolution No. 24–03 Approving Agreement No. 24–65, an Affordable Housing Agreement with the City of Montclair and the Montclair Housing Corporation ACTION – Consent Calendar – Item D–1
ACTING: Montclair Housing Corporation Board
RESULT: Approved on Consent Calendar; motion carried 5–0.
2. Consider Adoption of Resolution No. 24–3450 Authorizing Placement of Assessments on Certain Properties for
Delinquent Sewer and Trash Accounts
ACTION – Consent Calendar – Item D–2
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
3. Consider Adoption of Resolution No. 24–3451 Adopting the Measure I Five–Year Capital Project needs Analysis for Fiscal Years 2025–26 through 2029–30
Consider Adoption of Resolution No. 24–3452 Adopting the Measure I Five–Year Local Street Capital Improvement
Program for Fiscal Years 2025–26 through 2029–30
ACTION – Consent Calendar – Item D–3
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
4. Consider Adoption of Resolution No. 24–3454 Designating Authorized Agents of the City of Montclair for California Office of Emergency Services (Cal OES) Public Assistance Grants Consider Approving for Submittal the Cal OES Form 130
Updating the City’s Authorized Agents
ACTION – Consent Calendar – Item D–4
ACTING: City Council
RESULT: Approved on Consent Calendar; motion carried 5–0.
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C. Agreements
6. Consider Approval of Agreement No. 24–67 with Blais & Associates, Inc. for Grant Writing Services, Subject to any Revisions Deemed Necessary by the City Attorney
Consider Authorizing a $100,000 Appropriation from the
Contingency Reserve Fund for Costs Related to Agreement No. 24–67
Council Member Lopez recused himself due to holding a
position with a competitor of Blais & Associates, Inc.
ACTION – Consent Calendar – Item C–6
ACTING: City Council
MOTION: Approve Agreement No. 24–59 with Blais &
Associates, Inc. for grant writing services and
Consider Authorizing a $100,000 appropriation
from the Contingency Reserve for Costs Related to
Agreement 24–67.
MADE BY:
SECOND BY:
Mayor/Chair Dutrey
Council Member/Director Ruh
AYES:
NOES:
ABSTAIN:
ABSENT:
Martinez, Ruh, Johnson, Dutrey
None
Lopez
None
RESULT: Motion carried 4–0–1.
X. COMMUNICATIONS
A. Department Reports — None
B. City Attorney
City Attorney Robbins requested the City Council meet in closed session concerning the following:
1. Request for City Council to Meet in Closed Session Pursuant to Government Code §54956.8 Regarding Real Property
Negotiations
Property: APN: 1007–703–06–0000
Negotiating Parties: City of Montclair and CRP/VP Montclair Village Owner, LLC
City Negotiator: Edward C. Starr, City Manager
Under Negotiation: Recommendations Regarding Purchase Price
2. Request for City Council to Meet in Closed Session Pursuant to Government Code §54956.8 Regarding Real Property
Negotiations
Property: APN: 1010–295–03–0000
Negotiating Parties: City of Montclair and Tessier, Daniel & Carlotta Living Trust
City Negotiator: Edward C. Starr, City Manager
Under Negotiation: Recommendations Regarding Purchase Price C. City Manager/Executive Director — No comments
D. Mayor/Chair
Mayor/Chair Dutrey expressed his heartfelt condolences to the families of Lynnette Kievit, a retired employee who worked in the Human Services and Administrative Services Departments; former Community Action Committee member and Planning Commissioner Luis Flores; and Ryan Stanton, son of retired Engineering Division MONTCLAIR CITY COUNCIL MEETING – 09/03/2024 Page 86 of 87
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Joint City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority Commission/ Montclair Community Foundation Board Meeting Minutes — August 19, 2024 Page 9 of 9 Manager Steve Stanton. He congratulated all candidates who qualified for the ballot for two City Council seats in City of Montclair’s upcoming election, and invited the community to Montclair High School’s first football game this Friday.
E. Council Members/Directors
1. Council Member/Director Ruh recounted memories serving on the Planning Commission alongside Luis Flores and acknowledged the passing of Sandra Ham, a Montclair resident from 1965 to 2022 who was very involved with the family business Ham’s Electric, established in 1986, with her husband Larry Ham. He reported on the great outcome of the Police Department's National Night Out event.
2. Council Member/Director Lopez extended his sympathies for the family of Luis Vazquez, a longtime resident, and narrated the story of his “American Dream” as an immigrant from Colombia.
He noted he believes Luis Flores was the first Latino Planning Commissioner; expressed his deepest sympathies to the Stanton and Flores families; and shared a personal anecdote from his childhood about Sandra Ham. He encouraged the community to come out to support the MHS Cavaliers’ first game of the season.
3. Mayor Pro Tem/Vice Chair Johnson urged the community to drive safely and maintain awareness of their surroundings as children return to school. She invited everyone to attend the Montclair Chamber of Commerce’s Night in the Garden event on Thursday, August 29, at 6:00 p.m. at the Chino Basin Water Conservation District, and promoted a raffle to win two tickets.
4. Council Member/Director Martinez extended her condolences to the families of those being honored this evening who have recently passed away.
F. Committee Meeting Minutes
The following committee minutes were received and filed for informational purposes:
1. Public Works Committee — April 18, 2024
2. Personnel Committee — July 15, 2024
XI. CLOSED SESSION
At 9:03 p.m., the City Council went into closed session to discuss real property negotiations.
XII. CLOSED SESSION ANNOUNCEMENTS
At 9:40 p.m., the City Council returned from closed session. Mayor Dutrey announced that the City Council discussed real property negotiations; information was received and direction given to staff on both parcels; and no further announcements would be made at this time.
XIII. ADJOURNMENT
At 9:40 p.m., the City Council, Successor Agency Board, Montclair Housing Corporation Board, Montclair Housing Authority Commission, and Montclair Community Foundation Board were adjourned.
Submitted for City Council/Successor Agency Board/Montclair Housing Corporation Board/Montclair Housing Authority
Commission/Montclair Community Foundation Board approval,
Andrea Myrick,
City Clerk
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