FISCAL YEAR 2022-23
AMERICAN RESCUE PLAN ACT (ARPA) GRANT FUNDING AGREEMENT BETWEEN
THE CITY OF SALINAS AND
EDEN HOUSING INC.
This is an official document.
Do not make any changes to this document EXCEPT to modify your signature block on the last page as needed.
FISCAL YEAR 2022-23
AMERICAN RESCUE PLAN ACT (ARPA) GRANT FUNDING AGREEMENT
BETWEEN
CITY OF SALINAS AND EDEN HOUSING INC.
FOR THE DEVELOPMENT OF AN
100% AFFORDABLE MULTIFAMILY RENTAL HOUSING PROJECT
855 E. LAUREL DRIVE, SALINAS, CA 93905
(APN # 003-851-027-000)
Agreement Number: 2023-ARPA-02
Table of Contents
PART I - AGREEMENT 2
Section 1. Definitions (as used in this Agreement) 2
Section 2. Term 2
Section 3. Scope of Service 2
Section 4. Funding 3
Section 4A. Other Program Requirements 5
Section 5. Records and Reports 6
Section 6: Insurance 6
Section 7. Subcontracts 9
Section 8. Amendment 9
Section 9. Assignment 9
Section 10. Suspension and Termination 10
Section 11. Terms and Conditions 10
PART II - SUPPLEMENTAL GENERAL CONDITIONS 11
Section 1. Program Income 11
Section 2. Uniform Administrative Requirements 11
Section 3. Title VI of the Civil Rights Act of 1964 11
Section 4. Nondiscrimination 12
Section 5. Conflict of Interest 14
Section 6. Lobbying Prohibited 15
Section 7. Audits and Inspections 15
Section 8. ARPA Requirements 16
Section 9. Prohibition Against Payment of Bonus or Commissions 16 Section 10. Copyrights 16
Section 11. Political Activity Prohibited 16
Section 12. Board of Directors 16
Section 13. Notices 16
Section 14. Legal Representation 17
Section 15. Joint Representation 17
Section 16. Warranty of Authority 17
Section 17. No Waiver of Rights 17
Section 18. No Third-Party Rights 17
Section 19. Modification 17
Section 20. Severability 18
Section 21. Further Assurances 18
Section 22. Entire Agreement 18
Section 23. Rights and Obligations 18
Section 24. Attorney Fees 18
Section 26. Compliance with Laws 18
EXHIBIT A PROJECT SCOPE OF WORK 21
EXHIBIT B PROJECT BUDGET 22
EXHIBIT C PROJECT TIMELINE 23
FISCAL YEAR 2022-23
AMERICAN RESCUE PLAN ACT (ARPA) GRANT FUNDING AGREEMENT
BETWEEN
CITY OF SALINAS AND EDEN HOUSING INC.
FOR THE DEVELOPMENT OF AN
100% AFFORDABLE MULTIFAMILY RENTAL HOUSING PROJECT
855 E. LAUREL DRIVE, SALINAS, CA 93905
(APN # 003851027000)
Agreement Number: 22ARPA07
This American Rescue Plan Act (ARPA) Grant Funding Agreement ("Agreement"), made and entered into this _____ day of March 2023, by and between the City of Salinas, a charter city and municipal corporation, ("City"), and Eden Housing, Inc., a California Limited Liability Company (hereinafter referred to as "Grantee").
RECITALS
WHEREAS, the City of Salinas will receive a total of $51,567,313, in American Rescue Plan Act (ARPA) funding, in two payments; and WHEREAS, ARPA funds must be obligated by the City Council by December 31, 2024, and expended by December 31, 2026, with ongoing Finance Department reporting requirements; and WHEREAS, City Staff met with the Finance Committee on August 2, 2021, to discuss the ARPA funds and recommendations to the City Council; and WHEREAS, the City Council has reviewed Government Service categories that qualify for receipt of this money and upcoming expenditures in the areas of Public Facilities, Public Infrastructure, Investments in Water and Sewer, and Homelessness, all as described in the August 24, 2021 Staff Report to Council; and WHEREAS, on March 20, 2018, the City Council and Board of Supervisors (BOS) directed staff to proceed with an agreement to establishing responsibilities between the two jurisdictions on the development of the permanent supportive/transitional housing project at 1220 Natividad Road and permanent Homeless Shelter at 845 East Laurel Drive; and WHEREAS, on June 22, 2021, the City and County amended the prior MOU and agreed that the vacant County-owned site at 845 E. Laurel Drive is a preferred location for a future affordable housing project due to the prior completion of site preparation and utility work that would help facilitate future development; and WHEREAS, on May 6, 2022, the City and County jointly released a Request for Qualifications seeking a highly qualified developer for the design and development of a 100% Affordable Multifamily Rental Housing Project for 855 E. Laurel Drive; and WHEREAS, on October 4, 2022, the City and County jointly announced to the City Council and Board of Supervisors, the selection of Eden Housing Inc. as the most qualified and experienced Developer to pursue the 100% Affordable Multifamily Rental Housing Project at 855 E. Laurel Drive; and WHEREAS, on February 7, 2023, the Monterey County Board of Supervisors approved the execution of an Exclusive Negotiating Agreement (ENA) between the County and the Developer; and WHEREAS, on March 7, 2023, the Grantee was awarded $500,000 ARPA funding by the City of Salinas to reimburse the cost pre-development for the design and development of an 100% Affordable Multifamily Rental Housing Project located at 855 E. Laurel Drive, Salinas, CA 93905 (APN #: 003851027000) to provide affordable housing to the community under this Agreement; and WHEREAS, the City wishes to engage the Grantee and assist in utilizing such funds; and NOW, THEREFORE, in consideration of mutual covenants and agreements contained herein, the parties hereto agree as follows:
PART I - AGREEMENT
Section 1. Definitions (as used in this Agreement)
Except to the extent modified or supplemented by this Agreement, any term defined in the Final Rule in 31 CFR Part 35 RIN 1505-AC77 established under the American Rescue Plan Act, shall have the same meaning when used herein. "HUD" means the U.S. Department of Housing and Urban Development, or a person authorized to act on behalf of the Department. “ARPA” means the American Rescue Plan Act
Section 2. Term
This Agreement shall commence on March __, 2023, and shall expire on July 31, 2026, unless City grants a written extension of term set forth in this Section.
Grantee shall submit a Final Report due on July 10 of 2023, 2024, 2025 and 2026. The Final Report will include pre-development accomplishments, expenditures, programmatic, and outcomes in City Data Services (CDS) www.citydataservices.net . The City will review submitted Final Report and collaborate with Grantee to cure any deficiency by July 10 of 2023, 2024, 2025 and 2026.
Section 3. Scope of Service
This Agreement, including attached, Exhibit A, Project Scope of Work, Exhibit B, Project Budget, and Exhibit C, Project Timeline, herein made part of this Agreement, is to be performed in accordance with Grantee's FY 2022-23 Grant Funding Agreement, and incorporated herein by this reference.
Activities
The Grantee will be responsible for administering and expending ARPA Fiscal Year (FY) 2022-23 funds for the predevelopment of an 100% Affordable Multifamily Rental Housing Project located at 855 E. Laurel Drive, Salinas, CA 93905 in a manner satisfactory to the City and consistent with any standards required as a condition of providing these funds. Such program will include activities that meet the ARPA eligible activities described in the Interim Final Rule 31 CFR Part 35 RIN 1505-AC77.
Levels of Accomplishment - Goals and Performance Measures The levels of accomplishment are referenced in Exhibit B, Project Timeline, and herein made part of this agreement.
Performance Monitoring
The City will monitor the performance of the Grantee against the goals and performance standards as stated above. Substandard performance as determined by the City will constitute noncompliance with this Agreement. If action to correct such substandard performance is not taken by the Grantee within a reasonable period of time after being notified by the City, contract suspension or termination procedures will be initiated, and the City may be required to request the Grantee to reimburse funds mismanaged or misspent.
In addition to HUD performance standards, some examples of substandard performance include: a pattern of inadequate staffing levels; inadequate progress towards outcome achievement, deficiency in timeliness of overall reporting, including both activity and expense reporting. More than (2) two late reports results in a deficiency, with exception for transitions to new reporting tools/system, the consequence of which will be a demerit of points counted against future funding applications; deficiencies in spending down grant funds timely; substandard performance also includes leaving any grant funds unspent at end of grant term.
Section 4. Funding
Purpose:
The funds shall be use used for the pre-development and design of an 100% Affordable Multifamily Rental Housing Project to be located at 855 E. Laurel Drive, Salinas, CA 93905 (APN # 003851027000). The pre-development activities to be undertaken with the ARPA funds may include, but are not limited to architectural design, landscape architecture, engineering and environmental consulting and technical studies indicated under Exhibit A.
The funds to be used by the City for the payments to the Grantee hereunder are ARPA funds received under a grant from the U.S. Department of the Treasury.
Maximum Compensation: It is expressly understood that the total compensation to be paid to Grantee under this Agreement for services rendered shall not exceed $500,000.
Funding Availability: The availability of said funds is subject to the control of the U.S. Department of the Treasury and, should said funds be encumbered, withdrawn, or otherwise made unavailable to City, whether earned by or promised to Grantee, Grantee shall not be paid said funds until they are available for payment. No other funds owned or controlled by City shall be paid under this Agreement unless specifically permitted by the Council of the City of Salinas.
It is specifically understood and agreed by Grantee that the funds herein authorized for the programs, projects, and services to be undertaken and performed pursuant to this Agreement constitute all of the money presently available for the purpose of this Agreement; that future additional funding of any such programs, projects, or services beyond the term of this Agreement, by any new Agreement or amendment or extension of this Agreement, will depend not only upon the satisfactory performance of this Agreement by Grantee, but also upon the availability to City of grant funds allocated for such purposes; that neither City, nor any employee of City, has made any promise or commitment, expressed or implied, that any additional funds will be paid or made available to Grantee for the purpose of this Agreement over and above the funds expressly allocated thereto under the terms herein.
Grantee is advised that because additional funding may not be available beyond the term of this Agreement for the completion of any unfinished project or the continuation of any ongoing program or service, Grantee is expected to structure and conduct each project and program in such manner that it may be readily completed or terminated with the minimum of waste or loss in the event no further funding thereof is available.
Use of ARPA Funds: The Grantee shall administer its program in conformance with the policies and requirements of 31 CFR Part 35 RIN 1505-AC77 and the Uniform Administrative Requirements 2 CFR Part 200, as applicable. These principles shall be applied for all costs incurred whether charged on a direct or indirect basis.
Method of Payment: City will provide payment for program costs covered by this Agreement on a monthly basis upon successful electronic submission of “Expense Report” and “Contract Expenditure Request” through the City’s online data management system City Data Services (CDS) (www.citydataservices.net) by Grantee indicating the amount of payment requested and a breakdown of expenditures consistent with Grantee’s project budget included in Exhibit B. All costs shall be supported by properly executed invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible upon request by City and the U.S. Department of Treasury, or designated agents thereof.
Financial Management and Accounting Standards
Grantee shall request funds only for authorized budget item(s) and the request shall be approved by City's Planning Manager (Housing Division) or designee prior to payment. Payment requests are due on the tenth (10th) day of each month. Payments shall be reimbursed based upon the prior month's expenditures and appropriate documentation must be submitted electronically. “Expense Report” submitted incorrectly or without the “Activity Report” shall be returned to Grantee by the City. Funding shall only be provided for expenses incurred or services provided during the period commencing March __, 2023, and ending July 31, 2026. Payment requests received by City after July 31, 2026, need not be considered for payment.
If any portion of the approved funding is neither expended nor encumbered by July 31, 2026, the allocation shall be correspondingly reduced, and the funds made available for other eligible ARPA activities as approved by City Council and any amendment thereto. In order to ensure compliance with the regulations concerning timely expenditure the above-mentioned project shall be completed within the timeframes specified in the Section 2 - Term.
The Grantee may request an extension for the completion of the proposed scope of work (Exhibit A). The Extension Request may only be approved on a case-by-case basis and only upon written request by submittal of a Request for Extension Form provided by the City of Salinas. Such form shall be completed on the CDS website at www.citydataservices.net. Upon written request by Subrecipient, the Planning Manager may authorize such extension request, provided all ARPA and City requirements are met.
Budget Modifications: Upon electronic submission of a “Budget Modification Request” by Grantee, City's Planning Manager (Housing Division) may authorize a budget revision. Any budget revision executed shall not authorize the total compensation to be paid under this Agreement, as so modified, to exceed the amount shown above in Section 4, paragraph b. Such budget modifications shall be completed on the City Data Services (CDS) website at www.citydataservices.net.
Unexpended Funds: When a portion of the approved budget amount is not expended or encumbered, as per the approved budget within the Proposal (Exhibit B), the maximum compensation shall be automatically reduced by any unexpended portion unless otherwise indicated, in writing, by City's Planning Manager (Housing Division). Should an agency be at risk to not complete the obligation of expenditure, the City reserves the right to reassess the grant and possibly de-obligate funding to another agency in order to meet the spending requirements.
Improperly Expended Funds: If City has reason to believe that any funds disbursed to Grantee under this Agreement were not expended in accordance with the terms and conditions hereof, City shall notify Grantee, in writing, of the facts, and shall provide Grantee reasonable opportunity to demonstrate or achieve compliance with the terms of this Agreement. If Grantee fails to demonstrate such compliance to the satisfaction of City within the time specified, upon request by City, Grantee shall immediately refund to City the amount determined to be improperly expended.
Section 4A. Other Program Requirements
Grantee shall carry out each activity in compliance with all applicable federal laws and regulations as described below:
Monitoring: City will monitor Grantee to ensure that the ARPA funds granted through this Agreement are used in accordance with all program requirements (2 CFR 200.332). Substandard performance as determined by City will constitute non-compliance with this Agreement. If action to correct such substandard performance is not taken by Grantee within a specified period of time after being notified by City, contract suspension or termination procedures will be initiated.
Evaluation: The City reserves the right to survey Grantee’s clients/consultants. If the City elects to survey Grantee’s clients/consultants, the City will deliver questionnaires to the Grantee and the Grantee will distribute those questionnaires to Grantee’s clients/consultants. Grantee’s clients/consultants may then remit completed questionnaires directly to the City. The method of return to the City would be clarified during the evaluation process. To maintain Grantee’s protection of client confidentiality, City agrees that client surveys will not contain questions requiring the survey-taker to reveal any personally identifying client data. Following receipt of clients’ completed questionnaires, the City shall forward a summary of the results to the Grantee.
Disclosure of Confidential Client Information: City and Grantee will protect the confidentiality of all records pertaining to any individual served under this Agreement and will protect the disclosure of such documents, except as otherwise required under state or federal law or unless written consent is obtained from such person receiving service and, in the case of a minor, that of a responsible parent/guardian. Grantee expressly acknowledges that City is subject to the California Public Records Act and may, therefore, be obligated to disclose records pertaining to Grantee and its activities and services provided pursuant to this Agreement.
Depending on the nature or timing of the request, or future court decisions, records received by City pursuant to this agreement may not remain private and may be publicly disclosed. Given the nature of the applicable law under the California Public Records Act, City cannot guarantee or warrant that it will be able to keep submitted records confidential. Grantee therefore agrees to defend and indemnify City against any suit brought under the California Public Records act to obtain the records; otherwise, City shall not be obligated to defend such suit and may release the records.
Section 5. Records and Reports
Grantee shall provide to City's Planning Manager (Housing Division) or his/her designee, a Monthly Activity Report, in a form determined by City, so that City may meet its record keeping and reporting requirements to the U.S. Department of the Treasury. These reports shall be due by the tenth day of each month and will reflect the prior month's activities. Such Activity Reports shall be completed on the CDS website at www.citydataservices.net. As required by City and by U.S. Department of the Treasury, Grantee shall maintain adequate records to support the reported statistics regarding beneficiary characteristics and services provided. Such records shall be made available for inspection by the City, U.S. Department of the Treasury, or designated agents thereof upon request as specified in 2 CFR 200.1. Grantee shall maintain all records required by the regulations specified in 2 CFR Part 200 Subpart F, and that are pertinent to the activities funded under this agreement; including but not limited to:
records demonstrating that funded activities meet one of the ARPA Objectives program; and records required to determine the eligibility of activities; and financial records as required by 2 CFR 200.1 and 2 CFR 200.307 agreeing to adhere to the accounting principles and procedures required therein; and the Annual Program Narrative Report due on July 10 of 2023, 2024, 2025, and 2026 in CDS (incorporating data on prior year's activities).
Grantee shall retain all records specified under this Agreement for a period of five (5) years after the termination of the Agreement.
Section 6: Insurance
Grantee shall indemnify, defend and hold City and its officers, employees, agents, and volunteers harmless from and against any and all liability, claims, suits, actions, damages, and causes of action arising out of any personal injury, bodily injury, loss of life, or damage to any property, or any violation of any federal, state, or municipal law or ordinance, or other cause in connection with the negligent or intentional acts or omission of Subrecipient, its employees, subcontractors, or agents, or on account of the performance or character of the work, or any other matter arising out of or related to this Agreement, except for any claim arising out of the active negligence or willful misconduct of City, its officers, employees, agents or volunteers. It is understood that the duty of Grantee to indemnify and hold harmless includes the duty to defend as set forth in Section 2778 of the California Civil Code, and that Grantee shall at its own expense, upon written request of City, defend any such suit or action brought against City, its officers, agents, or employees. Acceptance of insurance certificates and endorsements required under this Agreement does not relieve Grantee from liability under this indemnification and hold harmless clause. This indemnification and hold harmless clause shall apply whether or not such insurance policies shall have been determined to be applicable to any such damages or claims for damages.
Grantee shall reimburse City for all costs and expenses (including, but not limited to, fees and charges of architects, engineers, attorneys, and other professionals and court costs) incurred by City in enforcing the provisions of this Section.
Grantee shall maintain comprehensive general liability and property damage insurance or commercial general liability insurance, covering all operations of the Subrecipient, its agents and employees, performed in connection with the activities conducted under this Agreement, including but not limited to premises and automobiles.
MINIMUM SCOPE AND LIMIT OF INSURANCE
Coverage shall be at least as broad as:
1. Commercial General Liability (“CGL”): Insurance Services Office (“ISO”) Form CG 00 01 covering CGL on an occurrence basis, including products and completed operations, property damage, bodily injury, and personal & advertising injury with limits no less than $2,000,000 per occurrence. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location (ISO Form CG 25 03 or 25 04) or the general aggregate limit shall be twice the required occurrence limit.
2. Automobile Liability: ISO Form CA 0001 covering Code 1 (any auto), with limits no less than $1,000,000 per accident for bodily injury and property damage.
3. Workers’ Compensation: as required by the State of California, with Statutory Limits, and Employers’ Liability insurance with a limit of no less than $1,000,000 per accident for bodily injury or disease.
4. Grantee and their Contractors’ Pollution Legal Liability and/or Asbestos Legal Liability and/or Errors and Omissions (if project involves environmental hazards): with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate, on an annual basis.
If the Grantee or their Contractor maintains broader coverage and/or higher limits than the minimums shown above, the Grantee or Contractor requires and shall be entitled to the broader coverage and/or higher limits maintained by the Contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.
Self-Insured Retentions
Self-insured retentions must be declared to and approved by the City. At the option of the City, either: the Grantee or their Contractor shall cause the insurer shall reduce or eliminate such self-insured retentions as respects the City, its officers, officials, employees, and volunteers; or the Contractor shall provide a financial guarantee satisfactory to the City guaranteeing payment of losses and related investigations, claim administration, and defense expenses. The policy language shall provide, or be endorsed to provide, that the self-insured retention may be satisfied by either the named insured or City.
Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:
1. The City, its officers, officials, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Grantee including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired, or borrowed by or on behalf of the Grantee or Contractor. General liability coverage can be provided in the form of an endorsement to the Grantee or Contractor’s insurance (at least as broad as ISO Form CG 20 10, CG 11 85 or both CG 20 10, CG 20 26, CG 20 33, or CG 20 38; and CG 20 37 forms if later revisions used).
2. For any claims related to this project, the Grantee or Contractor’s insurance coverage shall be primary insurance coverage at least as broad as ISO CG 20 01 04 13 as respects the City, its officers, officials, employees, and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees, or volunteers shall be excess of the Contractor’s insurance and shall not contribute with it.
3. Each insurance policy required by this clause shall provide that coverage shall not be canceled, except with notice to the City.
4. A copy of the claims reporting requirements must be submitted by Grantee or Contractor to the City.
5. If the services involve lead-based paint or asbestos identification/remediation, the Contractor’s Pollution Liability policy shall not contain lead-based paint or asbestos exclusions. If the services involve mold identification/remediation, the Contractor’s Pollution Liability policy shall not contain a mold exclusion, and the definition of Pollution shall include microbial matter, including mold.
Acceptability of Insurers
Insurance is to be placed with insurers authorized to conduct business in the state with a current A.M. Best rating of no less than A: VII, unless otherwise acceptable to the City.
Waiver of Subrogation
Grantee or their Contractor hereby agrees to waive rights of subrogation which any insurer of Contractor may acquire from Contractor by virtue of the payment of any loss. Grantee agrees to obtain any endorsement that may be necessary to affect this waiver of subrogation. The Workers’ Compensation policy shall be endorsed with a waiver of subrogation in favor of the City for all work performed by the Subrecipient, its employees, agents, and subcontractors.
Grantee shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to City's Senior Human Resources Analyst, by certified mail to the City of Salinas Administration Department, 200 Lincoln Avenue, Salinas, CA 93901 and by Grantee uploading the Certificate of Insurance into the CDS website at www.citydataservices.net on behalf of the City of Salinas, concurrently with the submittal of this Agreement. A statement on the insurance certificate which states that the insurance company "will endeavor" to notify the certificate holder, "but failure to mail such notice shall impose no obligation or liability to any kind upon the company, its agents or representatives" does not satisfy the requirement of subsection (e) herein. Grantee shall ensure that the authorized representative of the insurance company strikes the above quoted language from the certificate. The insurance certificate shall also state the unpaid limits of the policy.
Grantee shall provide a substitute certificate of insurance no later than ten (10) days prior to the policy expiration date. Failure by Grantee to provide such substitution and extend the policy expiration date shall be considered a default. In the event Grantee is unable to provide a substitute certificate of insurance within the time prescribed in this subsection, Grantee shall provide written confirmation of renewal, in a form satisfactory to the City, to act as proof of insurance only until such time as a certificate of insurance has been received by the City.
Maintenance of insurance by Grantee as specified in this Agreement shall in no way be interpreted as relieving Grantee of any responsibility whatever, and Grantee may carry, at its own expense, such additional insurance as Grantee deems necessary.
In lieu of providing proof of insurance as required by Section 9(A) through (G) herein above, Grantee may provide a letter of insurance to City which represents and warrants to City that Grantee is lawfully self-insured with respect to the liabilities which it may incur in the performance of this Agreement and that, to the best of Grantee’s knowledge, Grantee will be in a financial position to meet such potential liabilities when they occur.
Section 7. Subcontracts
Grantee may contract with one or more third parties (subcontractors) to carry out a portion of the services and program described in the Proposal, insofar as Grantee deems such to be proper and efficient.
Prior to Grantee entering into any agreement for any person or organization to render said services, the Grantee shall obtain written approval from City's Planning Manager (Housing Division). Such subcontracts, together with all other activities by or on behalf of Subrecipient, shall not require payment in excess of City's portion of the total project budget as stated in Part I, Exhibit A of this Agreement. The subcontractor shall be subject to the same terms and conditions that Grantee is subject to under this Agreement and Grantee shall ensure the terms of this Agreement are expressly set forth in any agreements in it may have with any such subcontractors. City shall in no event be liable to any subcontractor or any other creditor of Grantee and shall be liable to Grantee only in accordance with the terms and conditions of this Agreement.
Section 8. Amendment
Where it is determined by the Planning Manager (Housing Division) that there is a need to make any change in the project, fiscal procedures, or the terms and conditions of this Agreement (including any changes necessary to comply with changes in Federal, State or local laws or regulations), such change shall be incorporated by written amendment to this Agreement and approved by the Salinas City Council and by Grantee, provided that adjustments in line items within the total approved budget, and minor changes in the nature and scope of services specified in the Agreement, may be approved by the Planning Manager (Housing Division) - any such changes shall be documented in writing.
Section 9. Assignment
There shall be no assignment of rights or obligations under this Agreement without written approval of the Planning Manager (Housing Division). This Agreement restricts the right of the Grantee to assign rights and responsibilities and restricts the right to modify this Agreement. Written notification requesting reassignment of modifications to effectuate the assignment and the modification of the rights and responsibilities under the Agreement must be requested along with a current copy of the IRS letter regarding tax status on any possible merges. Any changes of this agreement must be signed by the Board of Directors of the Grantee, if a corporation, or the management if not a corporation, and by the City of Salinas.
Section 10. Suspension and Termination
If Grantee materially fails to comply with any term of this Agreement, City may suspend or terminate the Agreement in whole or in part. City may terminate the Agreement for convenience with the mutual written agreement of Subrecipient. Grantee may terminate the Agreement upon no less than thirty (30) days of receipt of written notice, setting forth the reasons for such termination and the effective date of such termination.
In such event, all finished or unfinished documents, data, studies, surveys, drawings, maps, models, photographs, and reports of the Grantee, become the property of City and Grantee shall be entitled to receive just and equitable compensation for any work satisfactorily completed hereunder, to the date of termination.
In no event shall any payment by City hereunder constitute a waiver by City of any breach of this Agreement or any default, which may then exist on the part of Subrecipient, nor shall such payment impair or prejudice any remedy available to City with respect to the breach or default. City expressly reserves the right to demand of Grantee the repayment to the City of any funds disbursed to Grantee under this Agreement, which were not expended in accordance with the terms of this Agreement, and Grantee agrees to promptly refund any such funds upon demand.
Notwithstanding the above, Grantee shall not be relieved of liability to City for damages sustained by City or others by virtue of any breach of the Agreement by Grantee, and City may withhold any payments to the Grantee for the purpose of set off until such time as the exact amount of damages due City from Grantee is determined.
If Grantee does not move forward with the development of the Property, City will have the right to take over the work product of the design professionals, engineers and other consultants funded by the ARPA Grant Agreement.
Section 11. Terms and Conditions
This Agreement is subject to and incorporates the provisions attached hereto, and by this reference made a part hereof, which provisions constitute Part II, "Supplemental General Conditions," attached to this Agreement; and/or any written amendment(s) to this Agreement mutually agreed upon by the parties hereto. To the extent that any of the term and conditions of Part I of this Agreement are inconsistent or otherwise in conflict with any of the terms of Part II of this Agreement, the terms and conditions of Part II shall take precedence and apply.
This Agreement and all performance hereunder are subject to the Treasury’s final rule regulations pertaining to the American Rescue Plan Act, and Grantee agrees to comply with all such regulations, which are incorporated herein by reference and made a part hereof, and which are available for inspection at the Housing and Community Development Division.
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PART II - SUPPLEMENTAL GENERAL CONDITIONS
The following conditions take precedence over any conflicting conditions in the Agreement:
Section 1. Program Income
Any income generated by Grantee from the use of ARPA funds must be immediately reported as earned and returned to City.
Section 2. Uniform Administrative Requirements
Establishment and Maintenance of Records: Grantee shall comply with the policies, requirements, and standards of the Uniform Administrative Requirements 2 CFR Part 200. 2 CFR Part 200 set forth standards for use by recipients in establishing procedures for the procurement of supplies and other expendable property, equipment, real property, and other services with Federal funds. These standards are furnished to ensure that such materials and services are obtained in an effective manner and in compliance with the provisions of applicable Federal statutes and Executive Orders. No additional procurement standards or requirements shall be imposed upon recipients, unless specifically required by Federal statute or Executive Order or approved by Office of Management and Budget.
Records shall be maintained in accordance with any other requirements prescribed by U.S. Department of the Treasury or City with respect to all matters covered by this Agreement. Except as otherwise authorized by U.S. Department of the Treasury or City, such records shall be maintained for a period of five years after receipt of the final payment under this Agreement.
Documentation of Costs: All costs shall be supported by properly executed payrolls, time records, invoices, contracts, or vouchers, or other official documentation evidencing in proper detail the nature and propriety of the charges. All checks, payrolls, invoices, contracts, vouchers, orders, or other accounting documents pertaining in whole or in part to this Agreement shall be clearly identified and readily accessible to City upon reasonable request.
Procurement Standards: Unless specified otherwise within this agreement, the Grantee shall ensure consistency with the standards set forth in the Uniform Guide at of 2 CFR parts 200.317 – 327 as applicable.
Section 3. Title VI of the Civil Rights Act of 1964
No person shall on the grounds of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under the performance of this Agreement.
Compliance: The Grantee agrees to comply with 24 CFR Part 570.600 – 615, Title VI of the Civil Rights Act of 1964 as amended, Title VIII of the Civil Rights Act of 1968 as amended, Section 104(b) and Section 109 of Title I of the Housing and Community Development Act of 1974 as amended, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Executive Order 11063, and Executive Order 11246 as amended by Executive Orders 11375, 11478, 12107, and 12086.
Grantee shall take reasonable steps to ensure meaningful access to their development and activities by Limited English Proficient (LEP) persons while not imposing undue burdens on the Grantee. Persons who do not speak English as their primary language and who have a limited ability to read, write, speak, or understand English can be "limited English proficient," or "LEP." Grantee shall assess its extent of its obligation to provide specialized LEP services using the following four factors:
The number or proportion of LEP persons eligible to be served or likely to be encountered by the development/project or Grantee; The frequency with which LEP persons come in contact with the development/project; The nature and importance of the development/project or activity provided by the Grantee to people's lives; and The resources available to Grantee and costs of modifying existing procedures.
After performing the four-factor analysis, Grantee is encouraged to document the analysis and outcome and to develop a Language Access Plan (LAP). The LAP identifies Grantee’s immediate and longer-term plans for providing language services, which might include identifying LEP individuals who need language assistance, measures by which Grantee’s staff will provide language services, how Grantee will train its staff to implement the LAP, providing public notice of the language services Grantee provides, and self-assessment and monitoring by Grantee of its LAP.
Section 4. Nondiscrimination
No person in the United States shall, on the grounds of race, color, sex, national origin, or religion be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement. Additionally, discrimination on the basis of age, under the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.] or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794] and the Americans with Disabilities Act of 1990, shall be prohibited under the performance of this Agreement. Grantee shall comply with regulations found at Title 24, Code of Federal Regulations and Part 8 that complement Section 504 of the Rehabilitation Act of 1973.
The Grantee agrees to comply with the non-discrimination in employment and contracting opportunities, laws, regulations, and executive orders referenced in 24 CFR 570.607, as revised by Executive Order 13279. The applicable non-discrimination provisions in Section 109 of the HCDA are still applicable.
Fair Housing Act [42 U.S.C. 3601 et seq.]. No person shall, on the grounds of race or color, religion, sex, national origin, familial status, or disability be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement.
Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.]. No person shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity made possible by or resulting from this Agreement.
Section 504 of the Rehabilitation Act of 1973, as amended [29 U.S.C. 794]. No otherwise qualified individual with a disability shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity under this Agreement.
A Grantee that employs less than fifteen (15) persons shall:
Take appropriate steps to ensure effective communication with applicants, determine auxiliary aids necessary, adopt and implement procedures to ensure that interested person can obtain information concerning the existence and location of accessible services, activities, and facilities. [24 CFR 8.6] Evaluate its current policies and practices to determine whether, in whole or in part, they do not or may not meet the requirements of Section 504 and the implementing federal regulations; modify any policies and practices that do not meet the requirements; take appropriate corrective steps to remedy the discrimination revealed by the self-evaluation; maintain on file for at least three years following completion of the evaluation, make available for public inspection and provide to the responsible civil rights official a list of the interested persons consulted, a description of areas examined and any problems identified, and a description of any modifications made and of any remedial steps taken. [24 CFR 8.51] A Grantee that employees fifteen (15) persons or more shall implement (i)(a) and (i)(b) above and in addition:
Designate at least one person to coordinate its efforts to comply with the obligations imposed by Section 504 and the implementing federal regulations. [24 CFR 8.53(a)] Adopt grievance procedures that incorporate due process standards that provide for the prompt and equitable resolution of complaints alleging any action prohibited by the obligations imposed by Section 504 and the implementing federal regulations. [24 CFR 8.53(b)] Take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, and employees that the Grantee does not discriminate in admission or access to, or treatment or employment in, its federally assisted programs and activities. [24 CFR 8.54] Subtitle A of Title II of the Americans with Disabilities Act of 1990 [42 U.S.C. 12131]. No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity under this Agreement.
A public entity that employs less than fifty (50) persons shall:
Evaluate its current services, policies, and practices, and the effects thereof, and to the extent that such do not or may not meet the requirements of Subtitle A and the implementing federal regulations, shall proceed to make the necessary modifications. [28 CFR 35.105] Make available to applicants, participants, beneficiaries, and other interested persons information regarding the provisions of Part 35 and its applicability to the services, programs, or activities of the public entity, and make such information available to them in such a manner as the head of the entity finds necessary to apprise such persons of the protections against discrimination assured them by the Americans with Disabilities Act and Part 35. [28 CFR 35.106] TDD's (telecommunication devices for the deaf) or equally effective telecommunication systems shall be used to communicate by telephone with individuals with impaired hearing or speech. [28 CFR 35.161] A public entity that employees fifty (50) persons or more shall implement (i)(a), (i)(b) and (i)(c) above and in addition:
Designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities including any investigation of any complaint alleging noncompliance or any actions prohibited by ADA, make information about designated person available to all interested individuals, adopt and publish grievance procedures providing prompt and equitable resolution of complaints alleging any prohibited action. [28 CFR 35.107] Take appropriate steps to ensure communication with applicants, participants, and members of the public with disabilities are as effective as communications with others, furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, enjoy the benefits of, a service, program or activity, determine what type of auxiliary aid and service is necessary, give primary consideration to the requests of individuals with disabilities. [28 CFR 35.160] Section 5. Conflict of Interest
Interest of Certain Federal Officials: No member of or Delegate to the Congress of the United States, and no resident Commissioner, shall be admitted to any share or part of this Agreement or to any benefit to arise from the same.
Interest of Members, Officers, or Employees of City, Members of Local Governing Body, or Other Officials: No member, officer, or employee of the City, or its designees or agents, no member of the governing body of the locality in which the program is situated, and no other public official of such locality or localities who exercises any functions or responsibilities with respect to the program during his tenure or for one year thereafter, shall have any interest, direct or indirect, in any contract or subcontract, or the proceeds thereof, for work to be performed in connection with the program assisted under the Agreement. Grantee shall incorporate, or cause to be incorporated, in all such contracts or subcontracts a provision prohibiting such interest pursuant to the purpose of this subparagraph.
Interest of Members, Officers, or Employees of Grantee and Subcontractors/consultants: No employees, officer or agent of Grantee or any Grantee shall participate in the selection, award or administration of a contract in which Federal funds are used, where, to his knowledge, he or his immediate family, partners, or organization in which he or his immediate family or partner has a financial interest or with whom he is negotiating or has any arrangement concerning prospective employment. The recipients' officers, employees or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from contractors or potential contractors. Any interest on the part of Grantee or his employees must be immediately disclosed to U.S. Department of the Treasury and to City.
Section 6. Lobbying Prohibited
No Federal appropriated funds have been paid or will be paid, by or on behalf of the Subrecipient, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Agreement.
If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Agreement, Grantee shall complete and submit Standard Form LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
Grantee shall require that this Section be included in the award documents for all sub-awards at all tiers in connection with this Agreement and that all Subrecipients shall certify and disclose accordingly.
Section 7. Audits and Inspections
Grantee will, at any time during normal business hours and as often as City, or U.S. Department of the Treasury, may deem necessary, make available in accordance with the state, federal, and local law, and to the examination of all of Grantee’s records with respect to all matters covered by this Agreement, excepting in all circumstances any and all records or materials subject to protection pursuant to California Evidence Code §950 et seq. Grantee shall provide citizens with reasonable access to records regarding the past use of ARPA funds, consistent with applicable State and local laws regarding privacy, including the attorney-client privilege set forth in California Evidence Code §950 et seq. of confidentiality) and representatives of the Comptroller General to audit, examine and make excerpts, copies or transcripts from such records, and to make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters covered by this Agreement in accordance with local, state, and federal laws, but at all times no information otherwise protected from disclosure pursuant to California Evidence Code §950 et seq.
Subrecipients receiving less than $750,000 a year in Federal Grants is exempt from Federal audit requirements, but Subrecipients' records, as may be covered by the attorney client privilege, must be available for review upon request by City, U.S. Department of the Treasury, or representatives of the Comptroller General for examination. Subrecipients receiving $750,000 or more in Federal grants within a fiscal year shall have an audit made in accordance with 2 CFR Part 200.501 Audit Requirements. Subrecipients that expend $750,000 or more during the City’s fiscal year in Federal awards must have a single audit conducted in accordance with §200.514 Scope of audit, except when it elects to have a program-specific audit conducted in accordance with 2 CFR Part 200.501 (d).
Grantee further represents to City that Grantee, as a non-profit 501(c) (3) law firm, represents clients in confidential attorney-client relationships, and therefore neither Subrecipient, nor any of its employees, legal or administrative, are mandatory reporters as described in Welfare & Institutions Code Section 15630 and/or are exempted from reporting pursuant to Welfare and Institutions Code Section 15632(b) and shall maintain at all times the confidentiality of Grantee’s clients.
Section 8. ARPA Requirements
Unearned or other payments under this Agreement may be suspended or terminated upon refusal to accept any additional conditions that may be imposed by the U.S. Department of the Treasury or City at any time, or if the grant to City under Title I of the Housing and Community Development Act of 1974, as amended from time to time, is suspended or terminated.
Section 9. Prohibition Against Payment of Bonus or Commissions The assistance provided under this Agreement shall not be used in the payment of any bonus or commission for the purpose of obtaining City’s approval of the application for such assistance, or any other approval or concurrence of U.S. Department of the Treasury regulations with respect thereto; provided, however, that reasonable fees for bona fide technical, consultant, managerial or other such services, other than actual solicitation, are not hereby prohibited if otherwise eligible as program costs.
Section 10. Copyrights
If this Agreement or its performance results in a book or other copyrightable material, the author is free to copyright the work, but the U. S. Department of the Treasury and City each reserve a royalty free, nonexclusive, and irrevocable license to reproduce, publish, or otherwise use, (and to authorize others to use) all copyrighted material and all material which can be copyrighted.
Section 11. Political Activity Prohibited
None of the funds, materials, property, or services provided directly or indirectly under this Agreement shall be used for any partisan political activity, or to further the election or defeat of any candidate for public office. Grantee shall comply with provisions of the Hatch Act, which limits political activities of employees.
Section 12. Board of Directors
Grantee shall provide City with information regarding any changes in the Board of Directors or the management of Grantee no later than ten (10) days from the official change.
Section 13. Notices
Any notices under this Agreement shall be sent to the parties by personal delivery, by facsimile, or by certified mail, return receipt requested, postage prepared in the United States Postal Service at the addresses set forth below. Notice shall be deemed effective upon delivery or transmission if delivered or sent by facsimile and on the third (3rd) day after mailing. The parties designate the following names, titles, addresses, and telephone numbers:
City:
Planning Manager
City of Salinas
Community Development Department – Housing and Community Development Division 65 W. Alisal Street, 2nd Floor
Salinas, California 93901
Telephone: 831-758-7334
Grantee:
Eden Housing Inc.
Andrea Osgood, Senior Vice President of Real Estate Development 22645 Grand Street, Hayward, CA 94541
(510) 247-8103
Section 14. Legal Representation
Each party affirms that it has been represented by legal counsel of its own choosing regarding the preparation and the negotiation of this Agreement and the matters and claims set forth herein, and that each of them has read this Agreement and is fully aware of its contents and its legal effect. Neither party is relying on any statement of the other party outside the terms set forth in this Agreement as an inducement to enter into this Agreement.
Section 15. Joint Representation
The language of all parts of this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any party. No presumptions or rules of interpretation based upon the identity of the party preparing or drafting the Agreement, or any part thereof, shall be applicable or invoked.
Section 16. Warranty of Authority
Each party represents and warrants that it has the right, power, and authority to enter into this Agreement. Each party further represents and warrants that it has given any and all notices, and obtained any and all consents, powers, and authorities, necessary to permit it, and the persons entering into this Agreement for it, to enter into this Agreement.
Section 17. No Waiver of Rights
Waiver of a breach or default under this Agreement shall not constitute a continuing waiver or a waiver of a subsequent breach of the same or any other provision of this Agreement. The failure to provide notice of any breach of this Agreement or failure to comply with any terms of this Agreement shall not constitute a waiver there of. Failure on the part of either party to enforce any provision of this Agreement shall not be construed as a waiver of the right to compel enforcement of such provision or of any other promise. A wavier by City of any one or more of the conditions of performance within this Agreement shall not be construed as a waiver(s) of any other condition of performance under this Agreement.
Section 18. No Third-Party Rights
The parties do not intend for any third party to obtain a right by virtue of this Agreement.
Section 19. Modification
No amendments to or changes to this Agreement may be made, except by a writing expressly authorized and signed by City and Subrecipient.
Section 20. Severability
It is the intent of the parties that in the event that any provision herein is held to be invalid, the remaining provisions shall continue in full force and effect unless enforcement of the Agreement so modified would frustrate the purpose of this Agreement.
Section 21. Further Assurances
Each party agrees to do such further acts and things and do and execute and deliver such additional agreements and instruments as the other may reasonably require consummating, evidence, or confirm the agreements contained herein in a manner contemplated hereby.
Section 22. Entire Agreement
This Agreement constitutes the entire agreement between City and Grantee and is the final expression of City and Grantee with respect to the included terms and conditions, and as a complete and exclusive statement of the terms and conditions of the agreement. City and Grantee acknowledge that any prior agreements, promises, negotiations or representations not expressly set forth in this Agreement are of no force and effect. Any amendment to this Agreement shall be of no force and effect unless it is in writing and signed by City and Grantee.
Section 23. Rights and Obligations
By entering into this Agreement, the parties do not intend to create any obligations express or implied other than those set out herein; further, this Agreement shall not create any rights in any party not a signatory hereto.
Section 24. Attorney Fees
In case suit shall be brought to interpret or enforce this Agreement, or because of the breach of any other covenant or provision herein contained, the prevailing party in such action shall be entitled to recover their reasonable attorney fees in addition to such costs as may be allowed by the court. If awarded, City's attorneys' fees shall be calculated at the market rate.
Section 26. Compliance with Laws
Grantee’s performance under this Agreement shall be in accordance and full compliance with all applicable federal, state, and local laws and any rules or regulations promulgated thereunder.
EXHIBIT A – Project Scope of Work
EXHIBIT B – Project Budget
EXHIBIT C – Project Timeline
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, as authorized representatives of the CITY OF SALINAS and EDEN HOUSING INC. , a California Limited Liability Company, have executed this Agreement.
City of Salinas
Subrecipient:
By:
By:
Steven S. Carrigan, City Manager
Andrea Osgood, Senior Vice President of Real Estate Development APPROVED AS TO FORM:
By:
By:
Christopher A. Callihan, City Attorney
[Name], [Title]
EXHIBIT A
PROJECT SCOPE OF WORK
Uses of Funds
Predevelopment Period Expenses
Land & Improvements
Legal Acquisition
$30,000
Design and Consulting
Architect/Landscape Architect*
$1,425,500
Engineering (Civil, Joint Trench, Geotech) *
$84,450
Construction Management Services
$40,000
Environmental Consulting*
$100,000
Indirect Costs
Permit Fees
$148,800
Borrower Legal Fees – Organization
$6,000
Appraisal
$10,000
Market Study
$5,500
Soft Costs Contingency
$35,000
Finance and Carrying Costs
Predevelopment Loan Interest
$233,743
Tax Credits / Syndication Expenses
TCAC Application Fee
$2,000
TCAC Allocation / Reservation Fee
$21,940
CDLAC Application Fee
$600
CDLAC Performance Deposit
$100,000
Total
$2,243,533
* ARPA funds will be utilized in these pre-development costs.
EXHIBIT B
PROJECT BUDGET
Funding Entity
Funding Source
Funding Amount
City of Salinas
ARPA*
$500,000
County of Monterey (Fee Waiver)
N/A
$26,024
Eden Housing Inc. (Line of Credit)
Bank/Financial Entity
$1,717,509
Total
$2,243,533
*ARPA funds are anticipated to cover the cost of the following scope of work: architectural design, landscape architecture, engineering, and environmental consulting and technical studies.
EXHIBIT C
PROJECT TIMELINE
Task
Start Date
End Date
Due Diligence
February 2023
April 2023
Community Outreach
April 2023
July 2023
Preliminary Design
February 2023
April 2023
Schematic Design
July 2023
September 23
Zoning + Environmental Approvals
April 2023
July 2024
Design Development + Contract Documents
August 2025
July 2026
Soft Debt Financing Applications
July 2024
July 2025
Tax Credit Application
February 2026
July 2026
Construction Loan Closing (First Phase)
July 2026
January 2027
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