2. Approve the FY 2023/24 budget amendment in the City Affordable Housing Capital Fund to increase the Civic Center Drive - Low Income Housing Project appropriation by $3,344,484 and reduce the unrestricted ending fund balance by $3,344,484 (five affirmative Council votes required for the use of unused balances).
3. Direct the County of Santa Clara (PLHA fund administrator) to allocate up to $455,516 from the City’s Permanent Local Housing Allocation (PLHA) allocation to further support the construction of affordable housing at 1601 Civic Center Drive. This funding commitment shall be contingent upon National Environmental Policy Act (NEPA) clearance from HUD.
Reviewed by: Andrew Crabtree, Director, Community Development Department Approved by: Jovan Grogan, City Manager
ATTACHMENT
1. County Board of Supervisors Board Report from May 16, 2023
2. Construction and Permanent Loan Term Sheet DRAFT - 1601 Civic Center Drive
3. Land Indenture Documents
4. Resolution Approving Authority to enter into Loan Agreement and to Release Indenture City of Santa Clara Printed on 11/9/2023Page 6 of 6
powered by Legistar™
County of Santa Clara
Office of the County Executive
Office of Supportive Housing
Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian Page 1 of 6 County Executive: Jeffrey V. Smith
114296
DATE: May 16, 2023
TO: Board of Supervisors
FROM: Consuelo Hernandez, Director, Office of Supportive Housing SUBJECT: Civic Center Multifamily Affordable Housing Development
RECOMMENDED ACTION
Consider recommendations relating to real property located at 1601 Civic Center Drive, Santa Clara. (Office of Supportive Housing) (LA-1)
Possible action:
a. Approve delegation of authority to the County Executive, or designee, to negotiate, execute, amend, or terminate all legal documents, including but not limited to contracts, loan agreements, deeds of trust, promissory notes, subordination agreements, assignment agreements, option to acquire, and estoppels relating to one or more loans with Charities Housing Development Corporation of Santa Clara County or affiliate, in an amount not to exceed $12,100,000 for the development of 106 new affordable housing units, plus two manager's units referred to as Civic Center to be located at 1601 Civic Center Multifamily Affordable Housing Development, Santa Clara, following approval by County Counsel as to form and legality, and approval by the Office of the County Executive, and subject to Administration review of related due diligence matters and other standard requirements set forth in the final documentation. Delegation of authority shall expire on December 31, 2026.
b. Adopt Resolution as a responsible agency for the Civic Center Multifamily Affordable Housing Development confirming that the Board has independently reviewed and considered the information contained in the environmental record for the project, and making required California Environmental Quality Act findings.
FISCAL IMPLICATIONS
If approved, the County’s capital investment of up to $12,100,000 would be drawn from the 2016 Measure A Affordable Housing Bond (Housing Bond). However, the Administration may use other funding sources (e.g., No Place Like Home) if they become available and would better meet the needs of the project and the County. The earliest the County would Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian Page 2 of 6 County Executive: Jeffrey V. Smith
Agenda Date: May 16, 2023
expect to fund a portion of the loan(s) for Civic Center Multifamily Affordable Housing Development would be spring 2023.
REASONS FOR RECOMMENDATION
Approval of the recommended action would facilitate the creation of 106 new affordable housing units (plus two manager’s units) in Santa Clara County. The recommended action would also authorize the Administration to enter into the agreements necessary to provide loan(s) to Charities Housing Development Corporation of Santa Clara County or its affiliate (Charities). Charities is a California nonprofit public benefit corporation that provides affordable housing for low-income families throughout Santa Clara County.
If approved, the County’s investment would contribute to the construction of 27 rapid rehousing (RRH) units to help homeless individuals and families with special needs, 26 units for households earning up to 30% Area Median Income (AMI) and 53 units for households earning up to 50% AMI. The County’s contribution towards this development would average approximately $112,037 per newly constructed unit.
Charities will be requesting an allocation of 27 Section 8 Project-Based Vouchers (PBVs) from the Santa Clara County Housing Authority for this project.
The proposed development consists of two five-story residential buildings connected by a walkway bridge. The building will include on-site resident services, a community room, and a second floor courtyard with synthetic turf, ping pong tables, a dining court, and a barbeque area. The project has an estimated total development cost of $107,716,198, a per unit cost of $997,372, and a per-bedroom cost of $561,022. The per bedroom costs are within the range of other housing projects previously funded with the Housing Bond.
Approval of the County’s funding reservation affords Charities the ability to move forward with their planning process and to better respond to other funding opportunities. The final terms of the County’s loan(s) will be contingent upon the final tax credit award but will not exceed a total of $12,100,000. The County’s loan(s) will be subject to all conditions and requirements set forth in the Supportive Housing Development Fund Notice of Funding Availability (NOFA). The development is still subject to the Administration’s review and approval of all due diligence matters.
The County intends to use its $12,100,000 commitment to acquire the fee interest in the property and ground lease the property back to Charities. Acquiring a fee interest further ensures that the housing remains affordable. The County’s acquisition is subject to Board approval and the Administration’s review and approval of due diligence matters.
Reason for Request of Delegation of Authority
Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian Page 3 of 6 County Executive: Jeffrey V. Smith
Agenda Date: May 16, 2023
Although delegations of authority are discouraged except under certain circumstances, this delegation of authority is necessary. The County’s funding commitment is a necessary step, but not the final action, to enable this development to secure necessary project financing.
While maintaining compliance with the Housing Bond Guidelines established by the Board on August 15, 2017 (Item No. 27) and amended on November 16, 2021 (Item No. 22), the Administration also needs the flexibility to negotiate terms and modify related documents.
Some of the initial terms may have to be adjusted based on various factors, including, but not limited to, uncertainty in the Low Income Housing Tax Credit (LIHTC) investor market, the developer’s success in obtaining other financing that may reduce the County’s commitment, and timing issues such as delays in construction loan closings. In the event that there are changes to the sources of funds, for example, the Administration would need to take actions to allow the developer to quickly submit funding applications.
A delegation of authority is also needed because the Administration will continue to work with the developer to reduce costs, optimize funding sources, and maximize supportive housing units. The Administration will continue to work with the developer to refine construction estimates, seek fee waivers, reduce administrative expenses, and eliminate unnecessary reserves.
Loan Terms
The County’s funding commitment would enable Charities to apply for 4% low-income housing tax credits in fall 2023 with an anticipated construction financing closing in spring 2024. While the Administration will continue to negotiate the final acquisition and loan terms, the following summarizes the current expected terms of the loan(s):
a. The principal under the permanent loan(s) will bear simple interest at a rate of 3% per year, subject to final underwriting;
b. The principal and interest due under the loan(s) will be paid 55 years from the post- construction conversion of the loan to a permanent loan. Annual payments will be made upon the availability of residual receipts and will be proportionally split among the subordinate “soft-loan” lenders;
c. Prior to making the 55-year loan, the County may use a portion of the funding commitment to provide Charities with a short-term predevelopment and/or acquisition loan, subject to guidelines set forth in the NOFA; this short-term loan would be rolled over into the 55-year loan upon the closing of the construction financing; and d. The term of the County’s regulatory agreement will be recorded upon the closing of the first loan from the County and will expire no earlier than 55 years from the date of the post-construction conversion of the loan to a permanent loan. The regulatory agreement will ensure that the entire property remains affordable for a minimum of 55 Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian Page 4 of 6 County Executive: Jeffrey V. Smith
Agenda Date: May 16, 2023
years.
Leveraging
The developer is requesting a funding commitment of approximately $43,611,068 in LIHTC equity, $29,500,000 in State of California Affordable Housing and Sustainable Communities (AHSC) program funds, and $5,000,000 from the Apple Affordable Housing Fund. Charities will be applying for approximately $5,300,000 from the City of Santa Clara (City), including $1,163,531 in Permanent Local Housing Allocation (PLHA) funds from the PLHA Consortium managed by the County. While the developer’s request for County funding is a maximum of $12,100,000, the developer intends to reduce the County loan amount by applying for additional financing opportunities as they become available.
Environmental Review and Land Use Approval Status
The proposed project is located at 1601 Civic Center Drive in the City of Santa Clara. The site is 1.4 acres and is situated west of Santa Clara City Hall and north of El Camino Real.
The site has a General Plan Land Use designation of High Density Residential (37-50 du/ac) with a zoning designation of Plan Development (PD). On November 15, 2022, the Santa Clara City Council adopted Resolution No. 22-9163 to adopt the Mitigated Negative Declaration and related Mitigation Monitoring and Reporting Program (MMRP). The City concurrently approved a Density Bonus and these entitlements collectively allow the demolition of the existing improvements and construction of the project.
Because the County is contributing funding to the project, the County is a responsible agency under the California Environmental Quality Act (CEQA). In connection with the County’s duties as a responsible agency, the Administration has reviewed the Initial Study/Mitigated Negative Declaration and related MMRP and determined that it is adequate for the County’s environmental review of the project. If the Board adopts the recommended Resolution, the County will have made findings required by a responsible agency under CEQA.
Community Engagement
Charities’ community engagement strategy has included meeting with surrounding community groups, advocacy organizations, immediate neighbors, interested individuals and elected representatives. This information is summarized in the attached Community Engagement Report (Attachment A).
Supportive Services
The development would include 27 RRH units. The County would be responsible for coordinating ongoing on-site supportive services for the residents of these units. OSH estimates that the supportive services costs for the 27 units would be approximately $202,500 per year for the first two years of operations. Supportive services costs for the RRH units Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian Page 5 of 6 County Executive: Jeffrey V. Smith
Agenda Date: May 16, 2023
would decrease significantly in the third year unless there was significant turnover in the 27 RRH units. If the development is approved, the Administration would assess the funding needed for the supportive services and recommend appropriations for the Board’s consideration as part of the Fiscal Year 2025-2026 budget process.
CHILD IMPACT
The recommended action would have a positive impact to children and youth through the Safe and Stable Families indicator by creating 106 new affordable units. A total of 27 of these apartments are expected to be set aside as RRH for eligible individuals and their family members. The remaining 79 apartments would be affordable and available to lower income households, including those with children.
SENIOR IMPACT
The recommended action would create 106 new affordable apartments. While the units are not age restricted for seniors, the apartments would be affordable and available to lower income households, which can include seniors.
SUSTAINABILITY IMPLICATIONS
This action balances public policy and program interests, and enhances the Board’s sustainability goal of social equity by improving homeless and low-income persons’ access to permanent affordable housing.
BACKGROUND
On November 16, 2021 (Item No. 22), the Board approved updated guidelines for the Supportive Housing Development Program. On December 7, 2021, OSH released an updated NOFA. Unlike traditional procurement processes that have narrow windows for submission, review and selection, the NOFA has served as a call for projects with rolling submission deadlines. The Administration intends to recommend funding developments in cohorts, although individual developments may also be brought forward as needed. Civic Center Multifamily Affordable Housing Development is presented to the Board as part of the 11th cohort of developments requesting Housing Bond funds.
CONSEQUENCES OF NEGATIVE ACTION
If the funding commitment is not approved, the developer would not be able to apply for tax credits and/or other funding sources. If the Board does not approve the recommended capital funding, Charities will be unable to proceed with Civic Center Multifamily Affordable Housing Development until Charities identifies additional funding.
STEPS FOLLOWING APPROVAL
Upon approval, the Clerk of the Board is requested to notify Consuelo Hernandez, Natalie Monk, and Stephan Jackson in the Office of Supportive Housing.
Board of Supervisors: Sylvia Arenas, Cindy Chavez, Otto Lee, Susan Ellenberg, S. Joseph Simitian Page 6 of 6 County Executive: Jeffrey V. Smith
Agenda Date: May 16, 2023
LINKS:
• References: 114838 : Receive report relating to the implementation of the 2016 Measure A Affordable Housing Bond. (Office of Supportive Housing) ATTACHMENTS:
• Attachment A - Resolution (PDF)
• Attachment B - CEQA Documents (PDF)
• Attachment C - Community Engagement Report (PDF)
1500 Warburton Avenue ● Santa Clara, CA 95050 ● Phone: 408-615-2210 ● Fax: 408-241-6771 ● www.SantaClaraCA.gov Housing and Community
Development
CITY OF SANTA CLARA TERM SHEET (DRAFT)
1601 CIVIC CENTER DRIVE FAMILY APARTMENTS
CONSTRUCTION AND PERMANENT LOAN
Date:
1. Property Description: Civic Center Drive Family Apartments is a proposed brand-new construction development, 5-stories high consisting of 108 residential rental units to be available to twenty-seven (27) homeless individuals and families with special needs earning up to 30% of Area Median Income (“AMI”), twenty-six (26) households earning up to 30% of AMI, 53 households earning up to 50% of AMI and two (2) unrestricted managers’ units (collectively, the “Project” or “Improvements”) located at 1601 Civic Center Drive in Santa Clara identified as Assessor’s Parcel Number 224-49-006 (the “Property”). The Property is owned by Civic Center, L.P., a California limited partnership, an affiliate of Charities Housing Development Corporation of Santa Clara County. The project includes a total of 82 on-site parking space.
2. Borrower: Civic Center, L.P., a California limited partnership.
3. Sponsor/Developer: Charities Housing Development Corporation of Santa Clara County.
4. Guarantor: Charities Housing Development Corporation of Santa Clara County.
5. Amount of City Loan: Up to Four Million, Nine Hundred Forty-Four Thousand, Five Hundred Dollars ($4,944,500).
6. Loan Funding Source: City Affordable Housing CIP Fund
7. Purpose of Loan: Construction and Permanent financing.
8. Loan Term: Three (3) years during Construction Phase; Fifty-five (55) years from Conversion date to Permanent Phase (“Maturity Date”).
9. Interest Rate: 3% simple, fixed throughout the Loan Term. Interest shall accrue on the outstanding principal Loan balance beginning on the disbursement date.
10. Loan Payments: Payments shall be made from share of Residual Receipts and shall be due beginning on the year following the Conversion Date, 120 days from Borrower’s end of fiscal year and every year thereafter . The share shall be City’s pro-rata share of the City of
Santa Clara
The Center of What's Possible
Term Sheet -City of Santa Clara
Civic Center Drive Family Apartments
November 9, 2023
total original outstanding principal amount due under the soft loans. Principal and interest are due in full upon the Maturity Date.
11. Property Ownership: The Property which is currently owned by the Borrower will be sold to the County of Santa Clara and leased back to the Borrower. The ground lease will be subject to City review and approval.
12. Loan Security and Documentation: The Loan shall be secured by a Deed of Trust on the Property and the Improvements. In addition to the Deed of Trust, the Loan shall be evidenced by a Loan Agreement, Affordab le Housing Agreement , Promissory Note, Hazardous Materials Agreement , Security Agreement, Assignment of Construction Contract and Contractor ’s Consent to the Assignment, Assignment of Architect’s Agreement, Plans and Specifications and Architect’s Consent to the Assignment, Payment Guaranty, and any other documents that the City may require in connection with the Loan.
The City Deed of Trust may be junior to a senior deed of trust, subject to a subordination agreement in a form and content acceptable to the City . The City’s Affordable Housing Agreement shall be recorded against the Property and shall not be subordinate to any senior lien or financing.
13. Affordability Restriction : The City’s Affordability Restriction (“Af fordable Housing Agreement”) shall restrict twenty-seven (27) units rented to homeless households and families with special needs with income levels at or below 30% of AMI, twenty-six (26) units rented to households with income levels at or below 30% of AMI, fifty-three (53) units rented to households with income levels at or below 50% AMI and two (2) unrestricted manager’s units. The Affordable Housing Agreement will terminate fifty -five (55) years from the date the Project receives its first certificate of occupancy.
14. Developer Fee: Pursuant to the California Code of Regulations Section 10327(c)(2)(B) (TCAC regulations) on developer fees, the maximum developer fee shall be 15% of the Project’s unadjusted eligible basis, with the maximum cash portion of the development fee equal to or less than $2,500,000 plus $10,000 per unit for each Tax Credit unit in excess of 100 units (the “Developer Fee”). Any portion of the Developer Fee in excess of $2,500,000 plus $10,000 per unit for each Tax Credit unit in exce ss of 100 shall be deferred, repayable out of the Borrower’s share of the residual receipts of the Project, with a maximum pay-off period of 15 years from the closing of the Permanent Loan (“Deferred Developer Fee”). No interest is allowed on the Deferred Developer Fee.
15. Project Pro Forma: Borrower shall submit to City a pro forma budget reflecting Borrower’s projections of the construction and permanent budget, sources and uses of funds and income and operating expense cash flow for the Project. Borrower will sign a legible final version prior to closing of the Loan as an exhibit to the Loan Agreement.
16. Organization Agreements: Borrower shall submit to City a certified copy of certificate of limited partnership, partnership agreement, certificate of LLC/articles of organization, operating agreement, articles of incorporation, b y-laws, borrowing resolutions and incumbency certificate with all exhibits and amendments thereto and related filings or Term Sheet -City of Santa Clara
Civic Center Drive Family Apartments
November 9, 2023
recorded documents, a current good status certificate and such related documentation as City may request.
17. Property Management Agreement: The management agreement between the Borrower and a property management company, ancillary management documents, and management plan providing for the management or operation of the Project or Improvements shall be subject to City’s approval prior to execution and shall be received as a condition to Conversion to Permanent Loan. Prior to the issuance of the Certificate of Occupancy, the Borrower shall prepare and submit to the City for review and approval a program (the “Maintenance Program”) for the exterior and interior maintenance of the Property and the Improvements. The Maintenance Program may be included within its Management Plan.
18. Other Financing Requirements : As a condition to closing of the Construction Loan Borrower shall procure and deliver to City evidence satisfactory to City that Borrower has obtained all the necessary co nstruction and permanent financing. Construction and permanent financing may include tax-exempt bond financed construction and permanent loans, low-income housing tax credit investment , loans from the County of Santa Clara, loans from the State of California and other financing available for the Project.
19. Plans and Specifications: Final plans and specifications for the Improvements shall be subject to City's approval prior to close of the Construction Loan. City's review and approval may include wi thout limitation review of the following items: architectural plans and details, exterior elevations, interior finish schedule, structural plans and details, plumbing plans, HVAC plans, electrical plans, contractor's cost breakdown, grading plans, drainage, sewer, water, street, electrical and gas plans, plot plans, offsite, and landscaping plans. There shall be no change in the plans and specifications that are approved by City nor any material deviation in construction of the Improvements without City's prior written consent.
20. Prevailing Wage Requirements: Borrower will comply with labor and wage requirements if such are required by any of the financing in the Project.
21. Construction Contract: The construction contract ("Contract") and the general contractor ("Contractor"), to be retained by Borrower to construct the Improvements, shall all be subject to City's approval.
22. Construction Completion Bond : Performance and payment bonds for the construction contract naming the City as co -oblige may be require d for the general contractor, acceptable to the City. Any surety for purposes of bonding, including, but not limited to, performance or completion bonds, must be a corporation duly authorized and admitted to transact business and issue surety bonds in the State of California. City may approve, at the request of the Borrower, bonding of the major subcontractors in lieu of bonding of the general contractor.
Term Sheet -City of Santa Clara
Civic Center Drive Family Apartments
November 9, 2023
23. Start of Construction : Start of construction, as evidenced by a notice to proceed, shall occur within 30 days of the financing closing event followed by continuing construction progress. The construction work is expected to be completed pursuant to the attached Exhibit A from the closing date of the construction financing.
24. Construction Consultant: The City will engage a construction consultant (“Construction Inspector”) for the purposes of reviewing construction documents, monitoring construction draws, reporting on construction progress and inspecting Improvements. The cost of the Construction Inspector shall be invoiced to and paid by the Project. The City shall approve all construction draws.
25. Disbursement: City’s written approval is required for all disbursements during Construction Phase, no matter the source of funds. City shall require that Borrower provide documentation supporting the request for each disbursement of construction sources.
26. Project Cost Savings : Estimated p roject cost savings shall be calculated befor e the permanent loan closing based on a third-party development cost audit. Cost savings shall arise when all construction sources - including final senior loan amounts, final equity pay- ins, net operating income less operating expenses (during constructi on, lease-up and stabilization), and refunds from development deposits - are more than total hard and soft construction costs, including the payment of allowable Developer Fee. All Project Cost Savings, if any, at the issuance of 8609 shall be used to redu ce the amount of the City Loan. If required, the City may share project cost savings with other lenders on a pro-rata basis.
27. Due Diligence: As a condition to closing of the Construction Loan Borrower shall provide all reports, studies, approvals, plans, drawings and other due diligence documents, in form and content acceptable to City, as reasonably requested by the City, including without limitation, an appraisal, a Phase I report, an ALTA survey, and preliminary title reports for the Site.
28. Public Liability, Hazard & Property Damage Insurance : As a condition to closing of the Construction Loan Borrower shall procure and maintain public liability, hazard, course of construction/builder’s risk and property damage insurance, and other insurance as required by the City. Borrower shall also procure and maintain workers' compensation and all other insurance required under applicable law, which insurance shall be in a form and amount approved by the City.
29. Title Insurance: As a condition to closing of the Construction Loan Borrower shall procure and deliver to the City an ALTA Extended Policy of Title Insurance, together with such endorsements as City may require, in an amount equal to the principal amount of the City Loan, insuring that City Deed of Trust constitutes a second lien or charge upon the Project subject only to such items as shall have been approved by City. There shall be no exceptions permitted for mechanics’ liens. Such policy shall b e issued by a title insurer approved by the City.
Term Sheet -City of Santa Clara
Civic Center Drive Family Apartments
November 9, 2023
30. Hazardous Materials : Borrower shall represent and warrant, and provide evidence satisfactory to City, that hazardous materials are not being, and will not be stored or used on the Project or Improvements, and that the Project and Improvements are in compliance with all environmental laws, ordinances, and regulations. Borrower shall be solely responsible for any loss, cost, expense, or liability in connection with hazardous materials.
31. Financial Information: During the term of the Permanent Loan, Borrower shall deliver to City within 120 days of the end of each fiscal year, Borrower’s audited income and expense statement, balance sheet, and statement of all changes in financial position signed by authorized officers of the Borrower. In some circumstances, Borrower may request up to 60 additional days for submitting the above documents if unforeseen challenges arise. Prior to close of the Construction and Permanent Loans and during the term thereof, Borrower promptly shall deliver to City such additional financial information as may be requested by City. City reserves the right to review and approve financial statements and other credit information and references prior to closing.
Borrower will submit annual operating and capital budgets to City to demonstrate the ongoing viability of the Project
32. Annual Budget and Quarterly Report: Borrower shall submit on or before the first day of each fiscal year after Completion of construction for the entire Loan Term and Affordable Housing Agreement Term, an estimated annual budget for management of the Property (the “Annual Project Budget”) in accordance with the Management Plan. Borrower shall also submit on a quarterly basis a quarterly report for the management of the Property (the “Quarterly Report”) in a form that is reasonably acceptable to the City. The Quarterly Report shall include a profit and loss statement, budget to date figures, and occupancy report. The City, in its sole discretion may waive the requirement of the Quarterly Report for one or more quarterly reporting periods.
33. Reserves: Consistent with any senior lender or investor limited partner review and approval requirements, withdrawals from Operating Reserves, Social Services Reserves, Replacement Reserves, or any type of reserves are subject to the prior written consent of the City.
34. Lease Requirements: Prior to rental of any of the affordable units, Borrower shall submit a standard lease form to the City for the City’s approval, which approval shall not unreasonably be withheld, conditioned, or delayed. The standard lease agreement shall not be amended in any material respects (except as required by applicable laws) without prior written City approval. Borrower shall enter a lease in the form approved by the City, and containing those provisions required by the City Regulatory Agreement, with each Qualified Tenant of an Affordable Unit. Borrower shall comply with City’s Local Preference Policy.
35. Unit Monitoring Fees : On or before July 1 of each year, commencing on the July 1 following Conversion until the expiration of the Affordable Housing Agreement, Borrower covenants and agrees to pay to the City the monitoring fee for the immediately preceding Term Sheet -City of Santa Clara
Civic Center Drive Family Apartments
November 9, 2023
calendar year or portion thereof, prorated for the number of months in the partial year. The current monitoring fee per unit is $127. The monitoring fee is updated annually in the City’s Municipal Fee Schedule.
36. City Cost Recovery Fee: As defined in the City’s current fees a nd charges approved for the 2023-2024 fiscal year, Borrower agrees to pay the City the sum of $58,686 due at closing of the City Loan for Multi- Family Loan Origination fee. Borrower agrees to also pay City’s costs including attorney’s fees which shall also be due at closing of the City Loan.
37. Compliance: Prior to closing, the Borrower must be in compliance on all of its projects with the City including, but not limited to, rent and income compliance and document submissions.
38. Conversion: The Borrower will notify the City 90 days prior to the expected date of recording of the Notice of Completion for the construction and will work cooperatively with the City to convene conversion calls starting no less than 75 days from the target conversion date.
39. Conflict: This Term Sheet is not intended to set all of the terms, conditions and documents required by the City for this tra nsaction, which shall include customary provisions and documents to be approved by City (including, but not limited to, all such documents mentioned in this Term Sheet and all City documents evidencing, securing or related to City documents related to thi s Project, shall in all respects be satisfactory to City (collectively, “City Documents”). If a conflict arises between terms herein and terms in the City documents, the City documents shall prevail.
40. City Approval: The terms set forth herein are subject to approval by the City Council.
41. Expiration: Please execute and return a copy of this Term Sheet to the City no later than September XX, 2023.
EXHIBIT A attached
Accepted by:
Civic Center, L.P., a California limited partnership
By: Civic Center Charities LLC, a California limited liability company, its general partner
By: Charities Housing Development Corporation of Santa Clara County, a California nonprofit public benefit corporation,
its sole member/manager
Term Sheet -City of Santa Clara
Civic Center Drive Family Apartments
November 9, 2023
By:
Mark J. Mikl
Executive Director
Attachment: Exhibit A – Project Milestone
Project Milestone Schedule:
Milestone Date of Completion
1. Site Control January 2020
2. Community Engagement (continuous and ongoing) May 2020
3. Land Use Approval November 2022
4. Submit 4% Tax Credit Application September 2024
5. Begin Construction June 2025
6. Start of Lease‐Up Activities November 2026
7. Complete Construction April 2027
8. 100% Occupancy October 2027
9. Permanent Loan Conversion February 2028
City of
Santa Clara
The Center of What's Possible
10/24/2019
Kathy Robinson
Director of Development
Charities Housing
Sobrato Center for Non-Profits
1400 Parkmoor Ave., Suite 190
San Jose, CA 95126
Dear Kathy:
City Manager's Office
This letter is in response to your inquiry regarding the status of a recorded Indenture on property located at 1601 Civic Center Drive in Santa Clara (Property). The City acknowledges that approximately one-third of the Property is subject to a recorded Indenture for the benefit of the City which restricts its use to landscape gardening and uncovered vehicular parking. This Indenture, recorded by the City in 1964, was intended to restrict the use of the land to be consistent with the City's Civic Center plan.
City staff concurs that removal of this Indenture could increase the development potential of the property and staff would support and recommend to the City Council the removal of this Indenture for the purpose of developing a 100% affordable, housing development project provided terms and conditions are acceptable. Removal of the Indenture and the terms and conditions of the agreement are subject to the discretionary approval of the City Council.
In addition to removal of the Indenture, staff is willing to explore financial participation in the project with the expectation that Charities -would include Measure A funding in the development which will ensure a minimum of 33 % of the homes be set aside as permanent supportive housing to serve homeless families with on site services provided for all the residents.
We look forward to further discussion with Charities about the project. If you have any questions, please do not hesitate to contact me or Jonathan Veach at (408) 615-2297 or via email at [email protected].
~~
Ruth Shikada
Assistant City Manager
1500 Warburton Avenue • Santa Clara, CA 95050 • Phone: (408) 615-2210 • Fax: ( 408) 241-6771 • www.santaclaraca .gov t; ~lb t1 !H;
" . BOOr.6540 fAci537 eoor, 65 4 0 fAGf 537
Ci ty __ gf .. !?.~t.s-... C.:J..c.w~ ................................................ . 1500 W3.rburton Ave.
Sanf~::¢1-~a.:;:::¢~\;(f~:::::::::::::::::::::::::::::::···················
ABOVE SPACE SOLELY FOR RECORDER'S USE
• THIS DEED Of TRUST, maJe this ............. . Dth.... . .... Jay of ........... ........... !P:r.il .. •·-~ •·····• 19e>J.t BFT\VFEN. COJVmWNI.TY. ME.THOP..I.ST ... CRURGH. .. OF .. S.AN.TA. .. CLARA,-.. .a ... cor.pora.tion ..................... . ·- ..... .
\X'hose··~,!dic~~·~s?. (-;°..j!Jc,x"·::::7~:i:: .... ::::::::;$_~;;71"1··e~~~·~. . .. c?,~~/.£.ci.~:/.V//.J. ( Number and Street) (City) (State)
herein called Trustor. CITY TITLE INSURANCE COMPANY, a California corporation. herein called Trustee, and ................................... . ... GITY ... OF ... SANTA ... CLARA, ... .a ... munic.ipaL .. cor.por.at.ion ............................................................................................. . .. . . .. .. ............ .. . .......... . .. . ................... :................ ..... ............. ......... . ........... .. . ..... herein called Beneficiary, WITNESSETH: That Trustor irrevocably GRANTS, TRANSFERS AND ASSIGNS to TRL!?TEE IN TRUST, WITH POWER OF SALE, that property in .... Cj.ty .... o.f ... Santa. ... Clar.a ............................. County of.Santa .... Clar.a ................................. , California, described as . ..__ ______ _;;_ ____________ ,=··~·.,~----"··~·--·••-·•-----· ··-··-~"'··------------ PORTION of that certain 12.163 acre tract' ot land conveyed to the City of Santa Clara by Deed recorded in the office of ~ho County RocorJ3r, Santa Clara County, California, in Book 4081 of Official Rccorcisg page 693 therein, more particularly described .as follows:
BEGINNING at a point of intersection of the Westerly boundary of scid lnnds of the City of Sant~-Clara with the Northerly line of Civic Center Drtve (70 feet wide); thence ~long suid Northerly line of Civic Center Drive North 89° 37' 40" East 90.21 ct to a point of tangency with a 30 foot radius cuTvo to tho le ; thenc0 along the arc of said curve through a ·central a:r.glc of 112° 23' 04" o.;-i arc distance of 5l:LS4 feet;, thence tangent to said curve No:c-::.h 22'" 45' 24 11 West 137,,83 fQet ·to .. a point of tangency ,·Jith a curve~ to the right having a radius of 843.74 feet; thence along the arc of L::st said curve through a central angle of 25° SO' 11n ·an arc distance of 360947 feet to a .point of compound curvature; thence alon~ the arc of a tangent curve to the right having a ~~dius of 535 feet through a central angle of 18° 17' 48" an ,:.re distance of 186.81 feet to a point in the Easterly prolongation of the North boundary of those certain l3nds conveyed to the Comnunity Methodist Church of Santa Clara, a.corporation, by Dcc<l recorded in Book 5417 of Official Records, gage 596 therein; thence following said Ensterly prolong:ition South 89 49' SO" \IJe~t 43.99 feet to the Non:heast co;.~ner of s a i J lands conveyed ·to'" s•ai<l Commu.ni ty i,1ethod i st Church; thence along the common boundary of said 12,163 acie tract of land and said .lands of the ·community Methodist Church South 0° 22' 20" E.::.st 202. 70 feet to the Northeast corner of that certain parcel of land conveyed to said Community ~~thodist Church by Deed filed for record in Book 5142 of Official RecorJs, page 19~~therein; thence along the common boundary line of said 12.163 acre tract of land and last said parcel of land South 0° 22' 22" East 519.98 feet to the point of beginning. 80or.654Q PAG£538
TOGETHER WITH the rents. issues and profits thereof, SUBJECT, HOWEVER, to the right. power and authority given to and conferred upon Beneficiary by Pa·ragr.,ph 5 of Part B of the provisions incorporated herein by reference to collect and apply such rents, issues and profits, For the Purpose of Securing payment of the indebtedness evidenced by a promissory note, of even date .hJ:f /~6t)cuted by Trustor in the sum of WENTY:-:-_ONE .... THOUSAND" ..... N.INE. ... HUND.RED ... SEVENT.Y.~SEVEN .... & ........ .Doltars, (s .. 2.l.,,.9.77. •. 17 ... :-::.::-.:-::.-::.'.'." .. -::.), any additional sums and interest thereon which may hereafter be loaned to the Trustor or his successors or assigns by the Beneficiary, and the per• formance of eJch agreement herein contained. Additional loans hereafter made and interest thereon shall be secured by this Deed of Trust only if made to the Trustor while he is the owner of record of his present interest in said property, or to his successors or assigns while they are the owners- • of record thereof, and shall be evidenced by a promissory note reciting that it is secured by this Deed of Trust.
BY THE EXECUTION AND DELIVERY OF THIS DEED OF TRUST and the note secureJ hereby the parties hereto agree that there are adopted and included herein for any and all purposes by reference as though the same were written in full herein the provisions of Section A, including paragraphs l through 6 thereof, and of Section B, including paragraphs I through 10 thereof, of that certain fictitious Deed of Trust recorded in the official records in the offices of the County Recorders of the following counties on January 20, 1958, unless otherwise indicated by *, in the books and at the pages designated after the name of each county:
t:OUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUN1Y BOOK PAGE COUNn' ROOK PAGE Alameda 8573 236 Imperial 983 545 Modoc 154 324 San Diego 6914 262 Sonoma 1568 44 Alpine "H" 170 Inyo 130 514 Mono 39 237 * San Francisco 7216 79 Stanislaus 1463 210 Amador 74 387 Kern 2896 205 Monterey 1842 388 San Joaquin 2034 538 Sutter 482 503 Butte 907 571 Kings 699 108 Napa 561 140 San Luis Obispo 924 192 Tehama 322 277 Calaveras 113 472 Lake 288 97 Nevada 241 417 *San Mateo 3334 275 Trinity 72 135 Colusa 250 407 Lassen 136 495 Orange 4169 334 Santa Barbara 1497 161 Tulare 2032 664 Contra Costa ']()~ •f83 Los Angeles T.21 502 Placer 752 219 * Santa Clara 3976 408 Tuolumne 86 421 Del Norte 42 251 Madera 709 374 Plumas 111 49 Santa Cruz 1167 362 Ventura 1583 84 El Dorado 424 117 Marin 1166 337 *Riverside 2209 560 Shasta 555 290 Yolo 532 16 Fresno 4017 268 MaripQsa, 61 12 Sacramento 3437 263 Sierra 18 194 Yuba 252 19 Gknn 364 428 Mendocino 476 425 San Benito 237 358 Siskiyou 398 325 flumhnldt -175 .111 Merred 1350 139 San Bernardino 4417 170 Solano 913 IOI, •Hiv,·1,11le, /.,11111.rry JI. l',J\H; ~San F11rnm1,o, _/;11111~,y l}, 1•nA; "'Sijn Mateo, J~ou~ry lfi, J•J~H; •SrntJ Clam, J;1nmiry 7, l'J~-i.• A "'I'\! ,,I ,,11d 1>111v"1011~ ~" ,1dn111c•,l ,111,[ if1t.ltid1•d lw1'1,/n hy td,·tt·n(r• ,, ~vi f1111li ntt ttw 1rvr1~,, lw1rll( , ill, 1111,l,,,11>111,I l111sl111 1•·q111.qlq 11,,,t ,, ,111•~ "' ,111v llt,li,1 ,., ,1,r,1111111i1d "' ,1111 11 .. 11,.,,,r.,.t, !11!!1111,t .. , It,, lfhtil,dt11htmll! his,1ddrr•q-/v1•11~!1111w t 6:t,:···:•:f1;,f ~;;'ii~,~~ }~1E:z~:
100
?E'l~~,u~•.t !
ST~ ~E. ~F --~ALI::::,::1 01 ....... ~.all~·~···Q~~.'1 ............ -.... -··•· .. } ss On this.. ........................ 13'!:!h . ...................... day of .... . .... A. nrj.1........ 1964 b I er: -·--···- ..... . ..... e ore me . ..... ::. l~~~--R~8 ~i~~s··-·--·····,u1ci" a N~,Ku~: ~!11:f~--·-- - ...... County, perwna!!y appeared known to me to be the person(s) whose name(s) ... S. ........ ~~ ..... subscribed to the within instrument, and acknowledged to me that .. executed the same,
lf?ITNESS my hand and official seal.
(SEAL) ..
My Comminion Expires..
. FORM 12
..... ~ - -
Notary for said Cota
JK J. BARCELL
·Mv ·c;mmiis~i<if!;~hliW~ ~*;·Ii
Application No, .. 439 .... JE .. , .....
;fl
CITY TITLE INSURANCE COMPANJ ,_,/
d s (!. --.tt /1,,.Gn
~01.na::uwux_:__~·· ,.;
cHuu::a ..... ~.~·-,i•&=~~-: ·
ftt~~liCSlll::·a:w:·~;.::~·-·. ,.
' '
.CX:H,lfMl;HJ-Lt ~-· J,,ItTl!ll:IJ:lrff.
CHllHH· .. 11ti=-=.iKfill.l:::.t·.r~ .
._,clH<. ft:.4-JZ::d:.L~l.12
.Q@/
I o
~
Ret• to Gi ty o:t ::ianta 1. 1ra
1500 \·,'arbu...rrtc.c, AVe.
S2I1ta Clara,
aoor.65_40 PAG!530
INDE:NTURE (
THIS INDEr.1TURE, rnade and
i
7{
entered into this /? day of
g ·-✓,-- .o
~v_;~~ , 1963, between the CITY OF SANTA CLARA, a muni- cipal corporation. of the State of California, herein called the Party of the First Part, and THE CUMMUNITY METHODIST CHURCH OF SAlfTA CLARA, a corporation, herein called the Party of the Second Part,
WITNESS ETH:
THAT, WHEREAS, the Party of the First Part has purchased a substantial acreage of land to insure proper development of a Ci vie Center, and ·
WHEREAS, to effectuate its plan for a Civic Center it is necessary t:ha.t a considerable area be kept open and free from structures and properly landscaped with shrubbery, and
W'iIEREAS, the Party of the Second Part is thE~ owner of prop erty contiguous to the property owned and reservt::d for Civic Center development by the Party of the First Part, and
WHEREAS, the Party of the Second ~art intends J:o plac:e a substantial church and parsonage on its property and lacks ade qua,te space for uncovered parking and proper landscape ga1:~dening on said property, and
WHEREAS, the Party of the Second Part desires to acquire an° estate in a segment of the Party of the First Pm:t:s Civic Center property hereinafter. described and agrees that the estate would meet its requirements if so limited as to last only so long as the use to which such property is put is limited to uncovered parking and landscape gardening, and
WHEREAS, the Party of the First Part 1 s Civic Center plan calls for the area desired by Party of the Second Part to be landscaped and remain structureless, it was to be to the advantage / of the Party of the First Part to sell such an estate providing the use of the property transferred would be so limited, and ' j
- 1 -
) )
.BDOr 65 { Q PAGE 531
WHEREAS, the Party of the First Part, pursuant to the pro visions of Section 714 of the Charter of the City of Santa Clara, bas .taken all necessary proceedings thereUi.7.der to sell such a limited fee- simple determinable estate in said real property, and
"WHERE..~, in said proceedings the Party of the First Part duly gave notice by publication as required by said Charter of the City of Santa Clara that a sale of said estate in said pro perty would be consummated and that said interest in said pro perty would.be sold to the highest bidder, (said limited estate in said property being no longer needed by the Ci.ty of Santa Clara for municipal purpose_s); and
WHEREAS, at the hearing had pursuant to said notice, the City Council accepted the offer of the Party of t:he Second Part to purchase the fee simple determinable estate in said property from said Party of the First Part, said Party of the Second Part being the highest and best bidder for the purchase of said estate in said property,
Now~· THEREFORE~ THESE PRESENTS WIT:NESSETH:
SECTION 1: The Party of the First Part, for and in consider ation of the sum of Twenty Four Thousand Three Hundred Thirty One and 30/100 Dollars ($24,331.30}, the receipt of which is hereby acknowledged, does hereby sell, convey, confirm, and grant unto the Party of the Second Part that certain real property hereinafter described, so long as it isoot used for other than landscape gar dening and uncovered vehicular parking (excluding vehicular storage), and said real property above referenced in which said estate is conveyed is all that real property located within the City of Santa Clara, County of Santa Clara, State of California, more particularly described as follows:
A portion of that certain 12s163 acre t:ract of land
conveyed to the City of Santa Clara by deed recorded in the Office of the County Recorder, Santa Clara County,
California, in Book 4081 of Official Records commencing at page 693 therein, particularly described as follows:
- 2 -
(
Beginning at a point of intersection of the westerly
boundary of said lands of the Cit/J. of Santa Clara --with the northerly line of Civic Center Drive (70 feet wide);
Thence along said northerly line of Civic Center Drive
N 89° 37' 40
11 E, 90.21. et to a point of tangency with a
30 foot radius curve to the left;
Thence along the arc of said curve through a central
angle of 112° 23 1 04n an arc distance of 58.84 feet;
Thence tangent to said curve N 22 ° 45' 24n W ,. 137 .83 feet to a point of tangency --with a curve to the right hav ing a radius of 843.74 feet;
Thence along the arc of last said curve~ through a
central angle of 25° 50 1 11 11 an arc distance of 360.47 feet to a point of compound curvature;
Thence along the arc of a tangent curve to the right
having a radi:tis of .:.5 85 feet through a central angle of 18° 17' 48!1 an arc distance of 186.81 feet t:o a point in the easterly prolongation of the north boundary of those certain lands conveyed to the Community Methodist Church of Santa Clara, a corporation, by deed recorded in Book 5417 of said Official Records at page 596 therein;
Thence following said easterly ~rolongation S 89°
-49' 50
11 W, 43. 99 feet to the northeast corneir of said
lands conveyed to said Community Methodist Church;
Thence along the common boundary of said 12.153 acre
tract of land and said lands of the Community Methodist Chuch S 0° 22 1 2011 E, 202. 70 feet to the no:ctheast corner of that certain parcel of land conveyed to said Community Methodist Churcy by deed filed for record in Book-5142 of said Official Records at page 192 therein;
Thence along the common boundary line of said 12.163
acre tract of land and last said parcel of land S 0° 22' 22 11 E, 519.98 feet to the point of begiil.t.7.ing;
Containing 0.820 acre of land more or less.
SECTION 2: The property of the Party of the Second Part on which the aforementioned church and parsonage is planned to be constructed and which required the additional landscape garden-- ing and parking area to support such planned development is all that land in the City of Santa Clara, County of Santa Clara:, State of California., described as follows:
Beginning at the point of intersection of the westerly
line of that certain 12.163 acre tract of land described in the Deed from Jesse J. Inrnan et ux, to the City of Santa Clara, a municipal corporation, dated May 6 ,, 1958, recorded May 26, 1958 in Book 4081 Official Records, page 694, Santa Clara County Records, with the easterly prolongation of the southerly line of that certain 0.918 acre tract of land des cribed as Parcel Two in deed from Jesse J. ITu."'Tlan et ux, to Lou.is J. Isaia et ux, dated October 15, 1959 ;, recorded - 3 -
)
October 16, 1959 in Book 4577 Official Records, page 308, Santa Clara County Records; thence from said point of be ginning South 89° 49t 50
11 West along said prolongation
and southerly line of said 0.918 acre tract for a distance of 402.17 feet to the southwesterly corner thereof; thence south 0° 18 1 50 11 east along the southerly prolongation ·of the westerly line of said 0.918 acre tract: for a distance of 202.70 feet; thence north 89° 40' 5011 east 402.406 feet to_a point in the said westerly line of the 12.163 acre tract above referred to; thence north 0° 22 1 zon west along said last mentioned line 202.70 feet to the point of be ginning, and
Beginning at a point in the westerly line of that cer
tain 12.163 acre tract of land described in the deed from Jesse J. Inman et ux, to the City of Santa Clara, a muni- _ cipal corporation, dated May 6, 1958, recorded May 26, 1958 in Book 4081 Official Records, page 694, Santa Clara County Records, distant thereon north 0° 22' 2ou we.st 30.00 feet from the southwesterly corner thereof in the northerly line of that certain 3.134 acre tract of land described in. the Deed from Jesse J. Inman et ux, to J.B. Kerley, dated
April 8, 1959, recorded April 19, 1959 in Book 4380 Official Records, page 526, Santa Clara County Records; .- thence from . said point of beginning south 89° 37' 40n west 191.38 feet; c·~~~'.::: thence north 0° 22' 20n west and parallel wj_th the said · westerly line of the 12.163 acre tract for a distance of 525.66 feet; thence north 89° 49' son east 191.47 feet to a point in the said westerly line of the 12 ,, 163 acre traet; thence south 0° 22' zou east along said last mentioned line 524. 98 feet to the point of beginning.. · ·
SECTION 3: The Party of the Second Part agrees and coven ants for itself and its successors as a part of the consideration for this conveyance that the property in which the estate is here in conveyed shall be landscape gardened and the landscape_garden ing shall be so ·restricted and maintained as to be compatible with and complimentary to the landscaping of the City of Santa Clara's Civic Center property,a.nd vehicles shall not be stored on said property .. It is intended that the burdens of these coven ants and restrictions run wi.tb the land described in SECTION 1 and SECTION 2 hereof, and that they are for the direct benefit of said City's Civic Center property so that the benefits of the covenants and restrictions herein contained run with that portion of said City's Civic Center property located in the City of Santa Clara 3 County of Santa Clara, State of California and more partic ularly described as follows:
All of the lands conveyed to the City of Santa Clara
by those deeds recorded in the Office of the County Recorder, Santa Clara County, California in Book. 4081 of Official - 4 -
i
(
I
Records at page 694, in pook 4196 of Official Records
at pages 122 and 124, and in/Book 5358 of Official Records at page 331; excepting therefrom that 1.00 acre tract of land conveyed to the County of Santa Clara, California by the City of Santa Clara as described in that Deed filed for record in said County Recorder's Office in Book 5659 of Official Records at page 287 therein.
The gross area of the City lands is 15.802 acres of
land, more or less.
SECTION 4: The term successors as used herein includes
heirs, devisees, assigns, and transferees.
SECTION 5: ·A certified copy of the motion and resolutions of the City Council of the City of Santa Clara duly passed and adopted on the 16th day of July, 1963 is hereto attached, referred to and made a part of this instrument.
IN WITNESS WHEREOF, the parties hereto have caused
these presents to be executed by its duly authorized officers, the day and year first above written.
City; tttorney
V
- 5 -
. "\
,)
<'fit~ e4 al sc;p~ e~ BOOr.654:0 f~Gr5J6
CHerry ·3~7010
TO WHOM IT MAY CONCER.i.~:
EXTRACT OF CITY COUNCIL MI:NuTES OF Tiffi CITY OF SA1'.1TA CLARA FOR MEETING HELD ON J"OLY 16~ 1963 •
Reply To
., ., o ",. .. .., "This being the time and date previously set for the ·sale of certain City-mtned land located on the west side of Lincoln Street, between Civ-ic Center Drive and Warburton Avenue, the Council proceeded to consider this ~,atter. Notice of Intended Sale was published as required by applicable provisions of the City Charter .. An offer, dated March 13, 1963~ was submitted by the Community :Viethodist Church to purchase said above irregularly s1:1aped parcel in the amount of $24,33L,30, including payment for street paving and curbing, and set forth basis of payments, rate of interest on outstanding balance, agreement to use property only for landscaping and vehicular parking unless alternate use is authorized by the City, etc,. The Mayor called for additional bids, proposals and/or offers from the Audience .. No further bids, proposals and/or offers were submitted or received. It was moved by Councilman Fargher, seconded by Councilman Kelle:r, that the time for submission of further bids concerning above proposed sale of City-owned land be closed,. Motion was approved by the Council .. Motion was then made by Councilman Keller, seconded by Councilman Fargher, that the Council accept the above-mentioned offer, ~ubmitted by the Community Methodist Church, and sell said above City-owned land to above organization subject to pro- ·visions contained in the Notice of Intended Sale of City-own;ed Lands: (6/24/63); and, this matter be submitted to the Staff :for preparation of appropriate documents to consummate abgve-saLe ..
Also, the Mayor and City Clerk be authorized to sign and execute necessary documents concerning above sale of City-owned land ..
Motion was approved by the Council., 11 ............................... ,. .... ., .... 0 I, A. S. BEl.!CK, City Clerk of the City
of Santa Clara do hereby certify that the above
and' fore9oin9: is •-i_l_jl'.l,lt ::e~nd._ (;~Ji'r~C.l cop·;, c;{ ~n o-cerpl ,if th~.:~;pu!~s..of·.1:':'°eelmg of tne City
Council .ok .tb~~ City" d ».Ma ·-.Ciar..i, held en
MJYYE';.;f~)t. Ll.
; ·.<~~j~~~~
/_,,. City Clerk
\
40 I . '--1, r
City_. oz .:::a.Dta. .. C:;l.2..P<:1, .............................................. ::.\lJi' 15 0 Q .. \!ciy,p1:1~q;;_ .... AY?.P .............. ·········· ........... ······· ..... .
S2n!c1_ .. C:lc:.;:c1, .. 9i:JJ.f.L .............................................. . \~;~~:~·~j~·;~~~··i~·;{:2f;g-;i;:::::::.z~:i::::::::::::::;:;;;~~i;;·.·.·.e-;.;;;.;.·-;;.·.··.·.·.·:.··.-·.-:.-.·.·.·.•.·.·_-_-.2.~·-;,__·.~·-;;;:·~;;;.-;;;_-_-.·.·:
( Number and Srreer l ( Cicy > f Sme;
herein olld Tr 11s:or. CITY TITLE INSL"RAXCE COMPANY. a California corporation. herein calb:: Trustee, and .. ·-----····-··-··········-···-············ ... C.ITY ... OF ... Si,.N.TA ... CLARA-, .... .a ... mu..rii.c i pal ... .cor.por.at.ion ......................................... _______ ········--- ·•····································································································•.o••·········•··•···· ·······•····•···································•····························-···herein called Beneficiary, WIT;.\;ESSETH: That Trustor irrevocably GRANTS, TR.AJ."'JSFERS A.(\D ASSIG:SS to TRuSTEE I); TRUST, WITH POWER OF SAU:, that ;,roperty in .... Ci tJL.O.f. ... Santa ... Clar=-----·······county of.Santa ... Clar.<;;:...------..Califomfa. describd as PORTION of that certain 12.163 acre tract· o1 !2nd conveyed to the City of Santa Cla?a by Deed recoTd8d in the office of the County Rcccrdar, Santa Clara County, California, in Book 4081 of Official Records, page 693 therein, more particularly described.as follows! BEGINNING at·a point of intersection of the Westerly bound~~y of • ' • ' t: · h C. . ~ S · Ci .... h ~' ,. . l . .. ~ s2:..G .1£r1a.s 01: 'C;.e ity ot "2.n-cc.,~ ... 21,.,a 1.~11t.~ t:ne- .~o·:rtner y 1:Lne c-r ,.. • . ·- ... D ~. ( 7 0 ,.. .,. . • ) ... ' ~ • ' .. ~ • • L.lVJ.C L.e.i .. e;r rive ree1.. \·nG·e ; l.ne:r.ce 2.1cr:g s,2.1.c. 1'!0Z'l..-~er1.y . line of Civic Cente:r Drive North 89° 37e 40° E~st 90 .. 21 feet t.o a point of tangency with a 30 foot radius cu?vc t~ the left; thencs al on iz the a:rc of said curve th :rcu.2:h. a. central ,-;,., a 1 e of , ! ? 0 7;5 1 n L:.0 - _. -;o.· O - - - - - W •
an. arc distance of sa-.;·_34 -feet;, thance tangent to said c:.1:cve North 22° 45 i z4u West. 1370,83_ fE:et ·to--._·n. ·point of tangency with a curve .. to the right having a radiui of 343o74'feet; th~nce along the £re of 12.st said curve through a central angle of 2S
O
SQ_' 11n ·an arc
distance of 360.47 feet to a .poi~t of compound curvature; thence along the arc of a tangent curva to the right having 2 redius of 585 feet through a central angle of 18° 17 1 43° an 2.rc distance of 186.81 feet to a point in the Easterly prolongation of the North boundary of those certain lands conveyed to the Community Methodist Church of Santa Clara, a,corporatibn, by Deed recorded in:Book 5417 of Official_ Records 3 fiage 596 therein; thence fol loi.zing said Easterly pro iong3.t ion South 8 9 49 '- S 0° tfos t. 43. 99 feet to the Northeast ccl"ner of said lands conveyed ·to" s·aid Conmunity Methodist Church; thence along the comm·on boundary of said 12.163 acre tra.i:t of land and said . _lands of the ·community Methoaist Church South D
O
:22' zou East 20 2 .. 70
fact to the No-rtheast corner of that certain pz.rci~l of land c.onvayed to said Community Methodist Church by Deed_filed for record in Bock 5142 of Official Recor<ls, page .. 1.9 2., .. t.herein; thenc<, a long the comfilon boundarv line of said 12.163 acre tract of land and last said payee! of land· South 0° 22 1 22" East 519.98· feet·to the point of beginning,.
Resolution/Charities Housing – 1601 Civic Center Drive Page 1 of 4 Rev: 7/27/2023
RESOLUTION NO. _____
A RESOLUTION OF THE CITY OF SANTA CLARA, CALIFORNIA APPROVING AN
AGREEMENT BETWEEN THE CITY OF SANTA CLARA AND CHARITIES HOUSING
DEVELPOMENT CORPORTATION AND AFFILIATES FOR THE CIVIC CENTER AFFORDABLE HOUSING PROJECT LOCATED AT 1601 CIVIC CENTER DRIVE, SANTA CLARA (APN: 224-49-006)
BE IT RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:
WHEREAS, in 1964, the City sold this site to the Community Methodist Church of Santa Clara and recorded an indenture limiting the use of approximately one third of the site as a setback for landscaping, gardening, and uncovered parking to be consistent with the City’s Civic Center plan;
WHEREAS, removing the indenture will increase the development potential of the property and make affordable housing more feasible on this site;
WHEREAS, on September 2, 2021, Charities Housing Development Corporation of Santa Clara County filed an application to redevelop the property at 1601 Civic Center Drive from office use to residential as a 100% affordable housing project. The proposed development would include 106 income restricted units and two manager units for a total of 108 units; WHEREAS, on November 15, 2022, the City Council adopted resolutions to adopt the Mitigated Negative Declaration (MND) and the Mitigati on Monitoring and Reporting Program (MMRP) for the Civic Center Family Housing Project, to approve a General Plan Amendment from Community Commercial to High Density Residential, to approve a Rezone from General Office (OG) to Planned Development (PD) to allow a five-story affordable housing development, and to authorize the City Manager to negotiate and execute a density bonus agreement in a form approved by the City Attorney;
Resolution/Charities Housing – 1601 Civic Center Drive Page 2 of 4 Rev: 7/27/2023
WHEREAS, on May 16, 2023, the County of Santa Clara Board of Supervisors approved delegation of authority to the County Executive, or designee, to negotiate, execute, amend, or terminate all legal documents relating to one or more loans with Charities Housing Development Corporation of Santa Clara County or affiliate, in an amount not to exceed $12,100,000 for the development of 106 new affordable housing units, plus two manager's units for a housing project to be located at 1601 Civic Center drive in Santa Clara; WHEREAS, on May 16, 2023, the County of Santa Clara Board of Supervisors adopted a Resolution as a responsible agency for the Civic Center Multifamily Affordable Housing Development confirming that the Board has independently reviewed and considered the information contained in the environmental record for the project, and making required California Environmental Quality Act findings. adopted a resolution making California Environmental Quality Act findings for the Civic Center Project at 1600 Civic Center Drive, Santa Clara; WHEREAS, on June 27, 2023, the City Council approved a budget revision to reallocate $1,600,000 in Santana West Development Project Settlement funds from the 1601 Civic Center Drive project to the proposed Benton/Lawrence Family Interim housing project and replaced these funds by allocating $1,600,000 from housing impact fees collected in the City Affordable Housing Capital Fund;
WHEREAS, on October 10, 2023, the City Council conducted a duly noticed public meeting, at which time all interested persons were invited to provide testimony and evidence, both in support of and in opposition to the proposed delegation of authority to enter into a Loan Agreement and release the land indenture;
WHEREAS, the Project Documents, including the Loan Agreement, will help address the City’s housing needs at a broad range of income levels by providing the City with 108 housing units, of Resolution/Charities Housing – 1601 Civic Center Drive Page 3 of 4 Rev: 7/27/2023
which 106 will be affordable to households with Area Median Income (AMI) levels ranging from 30% to 50% AMI; and,
WHEREAS, implementation of the Project will require myriad permits, approvals, entitlements agreements, permits to enter, utility services, subdivision maps, building permits, and other authorizations in order to implement the Project, including but not limited to a Loan Agreement, Deed of Trust, Promissory Note, Affordable Housing Agreement and Regulatory Agreement (together, the “Project Documents”).
NOW THEREFORE, BE IT FURTHER RESOLVED BY THE CITY OF SANTA CLARA AS FOLLOWS:
1. That the City Council hereby finds that the above Recitals are true and correct and by this reference makes them a part hereof;
2. That the City Council hereby approves and authorizes the City Manager to negotiate and execute a Loan Agreement with Charities Housing Development Corporation of Santa Clara County for a loan of up to $4,944,484 to support the construction of 106 affordable housing units and 2 manager units located at 1601 Civic Center Drive; to make modifications to the Loan Agreement and attachments consistent with the attached Term Sheet and as reviewed by the City Attorney for form and consistency; to execute all documents necessary (including Deeds of Trust, Promissory Notes, and Affordable Housing Agreements) to implement the Loan Agreement and close escrow and that this funding commitment shall be contingent upon National Environmental Policy Act (NEPA) clearance from HUD;
3. That the City Council hereby approves and authorizes the City Manager to execute documents that will release a recorded indenture that currently limits the site’s developable area;
4. Effective date. This resolution shall become effective immediately.
Resolution/Charities Housing – 1601 Civic Center Drive Page 4 of 4 Rev: 7/27/2023
I HEREBY CERTIFY THE FOREGOING TO BE A TRUE COPY OF A RESOLUTION PASSED
AND ADOPTED BY THE CITY OF SANTA CLARA, CALIFORNIA, AT A REGULAR MEETING THEREOF HELD ON THE ___ DAY OF _________, 2023, BY THE FOLLOWING VOTE:
AYES: COUNCILORS:
NOES: COUNCILORS:
ABSENT: COUNCILORS:
ABSTAINED: COUNCILORS:
ATTEST: ______________________________
NORA PIMENTEL, MMC
ASSISTANT CITY CLERK
CITY OF SANTA CLARA
Attachments incorporated by reference:
1. Construction and Permanent Loan Term Sheet DRAFT - 1601 Civic Center Drive
2. Land Indenture Documents
City of Santa Clara
Agenda Report
1500 Warburton Avenue
Santa Clara, CA 95050
santaclaraca.gov
@SantaClaraCity
23-1234 Agenda Date: 11/14/2023
REPORT TO COUNCIL
SUBJECT
Action on Award of Five Purchase Orders Greater than $250,000, with an Aggregate Amount of $30,164,272 for Finance Department Central Warehouse Purchases to Replenish Silicon Valley Power Inventory Funded by Electric Utility Funds
COUNCIL PILLAR
Deliver and Enhance High Quality Efficient Services and Infrastructure
BACKGROUND
The City’s Purchasing Division which resides in the City’s Finance Department, maintains a “centralized purchasing system” responsible for all purchasing and contracting activities for supplies, materials, equipment, and general and professional services. Additionally, the Division manages a central warehouse and is responsible for maintaining stock for over 3,000 inventory items to support the operations of both Silicon Valley Power (SVP) and the Water & Sewer Utilities Department. The inventory items are kept in stock to ensure their availability for maintenance and construction needs and to manage vendor delivery times, keeping critical utility systems operational 24/7, 365 days a year. Parts from the inventory are installed when older equipment needs replacement, during system modifications for new developments, and when current equipment fails to operate.
In Fall 2022, changes to the Procurement Code were brought to the City Council to bring best practices across the City for various procurement processes. The new Code introduced a consistent process for goods and services, aligned procurement thresholds to best practice, and raised the City Manager authorization to $250,000 for all procurements (goods, materials, and services). The recommendations included in this report are required to replenish warehouse inventory for SVP and ensure critical equipment is available for construction needs and to keep utility systems operational.
DISCUSSION
Approval of the recommendations to issue purchase orders as discussed below will allow the central warehouse to purchase the required quantities in advance to meet the needs of SVP. It will also allow staff to be proactive in obtaining cost savings through volume purchasing or securing the units at discounted prices, without the risk of overstocking which involves higher cost for the City. The risks associated with delayed procurement includes adverse impact on operations, delays for construction needed by SVP customers, and impacts to SVP’s ability to provide reliable service.
Award of Purchase Orders to Trayer Engineering Corporation (Trayer) for Five-Position Padmount Switches Used in 12 KV Distribution Systems
The Purchasing Division Manager has determined that this recommendation meets the single/sole source criteria in Section 2.105.280(b)(2) of the City Code of the City of Santa Clara, (City Code).
This section provides “[w]hen required to ensure operation or function to match other products with City of Santa Clara Printed on 11/9/2023Page 1 of 7
powered by Legistar™
23-1234 Agenda Date: 11/14/2023
respect to repair, expansion, or completion of a system, existing structure or program currently in use by the City, including, but not limited to, utility and technology purchases required to achieve interoperability with existing systems or programs.”
SVP requires five-position padmount switches that are designed to fit on the vault substructures located throughout the City. SVP has used the switches manufactured by Trayer for over 30 years.
Due to volatility of raw materials prices including copper and steel, Trayer is unable to enter into a fixed-price, multi-year contract. Prices for the switches have increased by approximately 75% between 2018 and 2023. As a result, Purchasing staff has pursued various delivery/pricing options to mitigate price increases, including determining the percentage of copper and steel in the assembled switch. However, both parties have concluded that it is difficult to account for all market conditions to calculate future prices.
Based on historical usage and anticipated growth, staff requests authorization to issue purchase orders for padmount switches between the date of this authorization through December 31, 2025.
Table 1 below lists the estimated required quantities per year and assumes a 5% price increase in 2024 and 2025. While increases over the past five years have exceeded 5%, the average increase from 2006 to 2023 has been about 4% annually. Staff will conduct analysis to ensure that price increases are reasonable and supported by relevant market indices.
Table 1 - Five-Position Padmount Switches
Year Quantity Per Year Unit Price Extended Total
2023 35 $61,849 $2,164,715
2024 75 $64,941 $4,870,575
2025 75 $71,436 $5,357,700
Total 185 N/A $12,392,990
Estimated Sales Tax $1,131,480
Contingency (10%) $1,352,447
Grand Total $14,876,917
For the immediate purchase of 35 switches, Trayer initially quoted a unit price of $67,865. However, Purchasing staff negotiated a 9% discount resulting in a lower per unit price of $61,849 for a total cost savings of $210,560. The lead time is 34-38 weeks after receipt of order.
In addition to issuing a purchase order, Trayer requires a specified set of conditions. Staff recommends authorizing the City Manager to execute those terms and conditions subject to approval by City Attorney as to form.
Award of Purchase Orders to The Okonite Company (Okonite) for Cables Used in 12 KV Distribution Systems
The Purchasing Division Manager has determined that this recommendation meets the single/sole source criteria in Section 2.105.280(b)(2) of the City Code. This section provides “[w]hen required to ensure operation or function to match other products with respect to repair, expansion, or completion of a system, existing structure or program currently in use by the City, including, but not limited to, City of Santa Clara Printed on 11/9/2023Page 2 of 7
powered by Legistar™
23-1234 Agenda Date: 11/14/2023
utility and technology purchases required to achieve interoperability with existing systems or programs.”
SVP uses Okonite cables to connect switchgears and transformers in SVP’s distribution system.
Okonite has been the original manufacturer for SVP’s medium voltage cables for the past 15 years.
SVP purchases two types of cables from Okonite - 1100 KCMil and 1/0 MCM cables.
Based on historical usage and anticipated growth, staff requests approval to issue purchase orders for 1100 KCMil and 1/0 MCM cables, as listed in Table 2. The prices below assume a 5% increase in 2024 and 2025. Staff will conduct analysis to ensure price increases are reasonable and supported by relevant market indices.
Table 2 - Okonite Cables
Year Quantity Per
Year
Price Per Foot Extended Total
1100 KCMil Cables
2023 50,400 ft $28.61 $1,441,944
2024 50,400 ft $30.04 $1,514,016
2025 50,400 ft $31.55 $1,590,120
1100 KCMil Cables Total 151,200 ft N/A $4,546,080
1/0 MCM Cables
2023 40,000 ft $11.94 $477,520
2024 40,000 ft $12.54 $501,400
2025 40,000 ft $13.16 $526,480
1/0 MCM Cables Total 120,000 ft N/A $1,505,400
Total $6,051,480
Estimated Sales Tax $552,500
Contingency (10%) $660,398
Grand Total $7,264,378
Award of Purchase Orders to Fleming Electric, Inc. (Fleming Electric) for the Purchase of 18 Three-Phase Padmount Transformers
Pursuant to Section 2.105.140(d) of the City Code, a formal Request for Bids (RFB) to procure three- phase padmount transformers was conducted, with the award recommendation based on lowest responsible and responsive bid. The RFB, which was published on the City’s e-procurement system, requested vendors to submit pricing for 14 different types of padmount transformers. Three bids were received, but only the partial bid from Fleming Electric was deemed responsible and responsive.
Based on historical usage and anticipated growth, staff requests authorization to issue purchase orders to Fleming Electric for the purchase of 18 transformers, as listed in Table 3 below. Out of City of Santa Clara Printed on 11/9/2023Page 3 of 7
powered by Legistar™
23-1234 Agenda Date: 11/14/2023
these, 12 will be ordered immediately, and two of each transformer type will be ordered within 12 months of receipt of final delivery of the initial order, with pricing for future orders pursuant to United States Bureau of Labor Statistics Producer Price Index WPU101704. The lead time is 42 weeks after receipt of order.
Table 3 - Three-phase Padmount Transformers (Fleming Electric) Row Item Quantity Unit Price Extended Total
1 1500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $84,446 $337,784
2 2000KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $125,989 $503,956
3 2500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $158,838 $635,352
Additional Quantities (Estimated; if ordered within 12 months of final delivery) 4 1500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $97,113 $194,226
5 2000KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $144,887 $289,774
6 2500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $182,664 $365,328
Total 18 N/A $2,326,420
Estimated Sales Tax $212,402
Contingency (10%) $253,882
Grand Total $2,792,704
All of the amounts listed in Table 3 include core and winding losses. The additional quantities assume a 5% increase per year. Staff will conduct analysis to ensure price increases are reasonable and supported by relevant market indices.
Award of Purchase Orders to the Vendor Selected Pursuant to the Procurement Process Described in this Report for the Purchase of 66 Three-Phase Padmount Transformers As stated above, only the partial bid from Fleming Electric for the purchase of three-phase padmount transformers was deemed responsible and responsive. Purchasing staff is negotiating directly with a vendor for the purchase of the 11 remaining transformer types. If an agreement cannot be reached, staff will reissue the RFB for the remaining line items in the original RFB.
Due to the extensive lead time, staff requests approval to issue purchase orders to the vendor selected pursuant to the process described in the preceding paragraph for the purchase of 66 transformers, as listed in Table 4 below. Forty-four will be ordered immediately and an additional 12 transformers will be ordered within 12 months of receipt of final delivery from the initial order. Staff will conduct analysis to ensure that price increases are reasonable and supported by relevant market indices.
City of Santa Clara Printed on 11/9/2023Page 4 of 7
powered by Legistar™
23-1234 Agenda Date: 11/14/2023
Table 4 -Three-phase Padmount Transformers
Row Item Quantity Unit Price
(Estimate)
Extended Total
1 112KVA, 12KV-120/208 Volts,
with 2-1/2% taps with FR3 Fluid
4 $32,000 $128,000
2 225KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $44,000 $176,000
3 300KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $46,000 $184,000
4 500KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $59,000 $236,000
5 750KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $79,000 $316,000
6 112KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $31,000 $124,000
7 225KVA, 12KV-480/277 volts,
with 2-1/2% taps with FR3 Fluid
4 $39,000 $156,000
8 300KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $44,000 $176,000
9 1000KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $87,000 $348,000
10 500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $58,000 $232,000
11 750KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $68,000 $272,000
Additional Quantities (Estimated; if ordered
within 12 months of final delivery)
12 112KVA, 12KV-120/208 Volts,
with 2-1/2% taps with FR3 Fluid
2 $37,000 $74,000
13 225KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $50,000 $100,000
14 300KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $53,000 $106,000
15 500KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $68,000 $136,000
16 750KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $91,000 $182,000
17 112KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $36,000 $72,000
18 225KVA, 12KV-480/277 volts,
with 2-1/2% taps with FR3 Fluid
2 $45,000 $90,000
19 300KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $51,000 $102,000
20 1000KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $100,000 $200,000
21 500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $67,000 $134,000
22 750KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $78,000 $156,000
Total 66 N/A $3,700,000
Estimated Sales Tax $337,810
Contingency (10%) $403,781
Grand Total $4,441,591
City of Santa Clara Printed on 11/9/2023Page 5 of 7
powered by Legistar™
23-1234 Agenda Date: 11/14/2023
Row Item Quantity Unit Price
(Estimate)
Extended Total
1 112KVA, 12KV-120/208 Volts,
with 2-1/2% taps with FR3 Fluid
4 $32,000 $128,000
2 225KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $44,000 $176,000
3 300KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $46,000 $184,000
4 500KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $59,000 $236,000
5 750KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
4 $79,000 $316,000
6 112KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $31,000 $124,000
7 225KVA, 12KV-480/277 volts,
with 2-1/2% taps with FR3 Fluid
4 $39,000 $156,000
8 300KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $44,000 $176,000
9 1000KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $87,000 $348,000
10 500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $58,000 $232,000
11 750KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
4 $68,000 $272,000
Additional Quantities (Estimated; if ordered
within 12 months of final delivery)
12 112KVA, 12KV-120/208 Volts,
with 2-1/2% taps with FR3 Fluid
2 $37,000 $74,000
13 225KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $50,000 $100,000
14 300KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $53,000 $106,000
15 500KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $68,000 $136,000
16 750KVA, 12KV-120/208 volts,
with 2-1/2% taps with FR3 Fluid
2 $91,000 $182,000
17 112KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $36,000 $72,000
18 225KVA, 12KV-480/277 volts,
with 2-1/2% taps with FR3 Fluid
2 $45,000 $90,000
19 300KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $51,000 $102,000
20 1000KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $100,000 $200,000
21 500KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $67,000 $134,000
22 750KVA, 12KV-480/277 volts,
with 2-1/2% taps, with FR3 Fluid
2 $78,000 $156,000
Total 66 N/A $3,700,000
Estimated Sales Tax $337,810
Contingency (10%) $403,781
Grand Total $4,441,591
All of the amounts listed in Table 4 above are estimated and include core and winding losses per watt. The additional quantities assume a 5% increase per year. Staff will conduct analysis to ensure price increases are reasonable and supported by relevant market indices.
Award of Purchase Orders to the Lowest Responsible and Responsive Bidder for Capacitor Banks
The Purchasing Division will issue a formal Request for Bids (RFB) for capacitor banks pursuant to Section 2.105.140(d) of the City Code. The RFB for will be published on the City’s e-procurement system. The award will be to the lowest responsible and responsive bidder and the anticipated lead time is 36 weeks after receipt of order.
Based on historical usage, anticipated growth, and potential long lead times, staff requests authorization to issue purchase orders for a quantity of 14 capacitor banks upon receipt of competitive bids with award to the lowest responsible and responsive bidder in a total cumulative amount not-to-exceed $788,682. The initial order will be for a quantity of 10 with the option to purchase an additional quantity of four within 12 months of receipt of final delivery of the initial order.
Staff will conduct analysis to ensure that pricing is reasonable and supported by relevant market indices.
ENVIRONMENTAL REVIEW
The actions being considered do not constitute a “project” within the meaning of the California Environmental Quality Act (“CEQA”) pursuant to section 15378(b)(2) of Title 14 of the California Code of Regulations as the proposed actions only authorize the purchase of supplies.
FISCAL IMPACT
Funding for the purchase orders for padmount switches, cables, padmount transformers, and capacitor banks is budgeted in the Electric Operating Fund or Electric Utility Capital Fund for specific capital projects where applicable.
Funding for future years will be included in future proposed budgets through the regular budget process.
COORDINATION
This report has been coordinated with the City Attorney’s Office.
City of Santa Clara Printed on 11/9/2023Page 6 of 7
powered by Legistar™
23-1234 Agenda Date: 11/14/2023
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City’s official-notice bulletin board outside City Hall Council Chambers. A complete agenda packet is available on the City’s website and in the City Clerk’s Office at least 72 hours prior to a Regular Meeting and 24 hours prior to a Special Meeting. A hard copy of any agenda report may be requested by contacting the City Clerk’s Office at (408) 615-2220, email [email protected] <mailto:[email protected]> or at the
public information desk at any City of Santa Clara public library.
RECOMMENDATION
1. Authorize the City Manager to negotiate and execute the attached Trayer Standard Conditions of Sale (Conditions of Sale) and issue purchase orders to Trayer Engineering Corporation for the purchase of five-position padmount switches with a cumulative total amount of $14,876,917 for the time period beginning on the date of this authorization through December 31, 2025, subject to the annual appropriation of funds and review and approval of the Conditions of Sale by the City Attorney;
2. Authorize the City Manager to issue purchase orders to The Okonite Company for the purchase of 1100 KCMil and 1/0 MCM cables with a cumulative total amount of $7,264,378 for the time period beginning on the date of this authorization through December 31, 2025, subject to the annual appropriation of funds;
3. Authorize the City Manager to negotiate and issue purchase orders to Fleming Electric, Inc. for the purchase of three-phase padmount transformers with a cumulative total amount of $2,792,704 for the time period beginning on the date of this authorization through December 31, 2028, subject to the annual appropriation of funds and the review and approval as to form by City Attorney;
4. Authorize the City Manager to negotiate and issue purchase orders with a vendor or vendors selected pursuant to the Chapter 2.105 of the City Code for the purchase of three-phase padmount transformers with a cumulative total amount of $4,441,591 for the time period beginning on the date of this authorization through December 31, 2028, subject to the annual appropriation of funds and the review and approval as to form by City Attorney;
5. Authorize the City Manager to negotiate and issue purchase orders with a vendor or vendors selected pursuant to the Chapter 2.105 of the City Code for the purchase of capacitor banks with a cumulative total amount of $788,682 for the time period beginning on the date of this authorization through December 31, 2028, subject to the appropriation of funds; and
6. Authorize the City Manager to (a) take any actions as necessary to implement and administer the Conditions of Sale and purchase orders, and (b) negotiate and execute amendments to the Conditions of Sale and purchase orders, subject to the cumulative total amounts set forth above and the review and approval as to form by the City Attorney.
Reviewed by: Kenn Lee, Director of Finance
Reviewed by: Manuel Pineda, Chief Electric Utility Officer Approved by: Jovan D. Grogan, City Manager
ATTACHMENTS
1. Trayer Standard Conditions of Sale
City of Santa Clara Printed on 11/9/2023Page 7 of 7
powered by Legistar™
Standard Terms and Conditions of Sale - Domestic
TRAYERDOC STC001, Rev A
03/2018
1 of 5
1.0 DEFINITIONS
Capitalized terms used and not otherwise defined herein shall have the following meanings:
1.1 “Buyer” means the Party identified in the Purchase Order as the purchaser of Deliverable Items.
1.2 “Deliverable Item(s)”, means any of the equipment and/or services identified in Article 3.0, SCOPE, for delivery or provision to Buyer by Seller under the Purchase Order. Deliverable Items of Service are also referred to as “ Deliverable Services” or “Services”.
1.3 “Effective Date” or “Effective Date of Purchase Order” means the date that the Purchase Order is entered into and becomes binding between the Buyer and Seller, and is the date that the Seller has acknowledged acceptance of the Pur chase Order from the Buyer.
1.4 “Equipment” means the Deliverable Items of hardware to be delivered under the Purchase Order.
1.5 “Intellectual Property” means all designs, methods, concepts, layouts, software, inventions (whether or not patented or patentable), processes, technical data and documentation, confidential information, technical information and drawings, and any matter in which an In tellectual Property Right exists.
1.6 “Intellectual Property Right(s) ” means any legally enforceable rights, worldwide, un der statute or common law, in respect to inventive subject matter or original works of authorship, including, but not limited to patents and inventions, copyrights, mask works, designs , trademarks, trade secrets, confidential information, data, technology, technical information and other information, regardless of when conceived.
1.7 “Party” means either the Buyer or the Seller, and who collectively are referred to herein as the “Parties”.
1.8 “Price” means, as to a Deliverable Item, the corresponding price set for th in the Price Schedule.
1.9 “Price Schedule” means that portion of the Seller acknowledged Purchase Order that sets out the Deliverable Items and the associated agreed- to Price(s).
1.10 “Purchase Order” or “P.O.” means the contracting instrument by which the Buye r procures the Deliverable Items from Seller and consists of the ordering document issued by Buyer to committing to the purchase of the identified Deliverable Items ( hereinafter referred to the “P.O. Ordering Schedule”), these Standard Terms and Conditions of Sale, the Specification, delivery schedule (which may be included in the P.O. Ordering Schedule or may be a separate attachment) and any other attachments identified in the Purchase Order as forming a part of the Purchase Order and which Seller has agreed in writing to include in the Purchase Order.
1.11 “Quotation” means the offer for sale of the Deliverable Items issued by Seller to Buyer and is the basis upon which the Buyer has issue d the Purchase Order.
1.12 “Seller” means Trayer Electronics Corporation.
1.13 “Specification” means the statement of technical and/or performance requirements for a Deliverable Items incorporated into the Purchase Ord er.
1.14 “Standard Terms and Conditions of Sale ” means the terms and conditions contained in this document number STC001.
1.15 “Warranty” shall have the meaning set forth in Article 8.0, LIMITED WARRANTY, hereof.
2.0 ACCEPTANCE OF TERMS AND CONDITIONS
2.1 Quotations and Purchase Orders . All Quotations made by Seller and Purchase Orders received by Seller are expressly conditioned on Buyer’s acceptance of these Standard Terms and Conditions of Sale, which form a binding part of all Quotations and continue to form a binding part of any Purchase Order issued pursuant to such Quotations. Any acceptance by Buyer of a Quotation, or issuance of a Purchase Order in response to any Quotation, is expressly limited to acceptance of these Standard Terms and Conditions of Sale. Any additional or differing terms and conditions proposed by Buyer in its acceptance or issuance of a Purchase Order resulting from any Quotation shall not affect the validity of acceptance, but shall be deemed as proposals for modification of these Standard terms and Condit ions of Sale, which shall be deem rejected and of no effect unless expressly agreed -to in writing by an authorized representative of Seller in Seller’s written acknowledgment of the Purchase Order. In no even t shall the sale and/or provision of Deliverabl e Items hereunder be subject to any affirmation of fact or promise which relates to the application, performance, or description of the goods unless such affirmation or promise is expressly incorporated into the Purchase Order in writing. In the event of any conflict with any other document, term or condition forming part of the Purchase Order, these Standard Terms and Conditio ns of Sale shall prevail and take precedence.
2.2 Acceptance/Acknowledgment of Purchase Orders . All Purchase Orders for Deliverable Items from Buyer are subject to Seller’s acceptance which shall consist of a written acknowledgment (notification by electronic means such as e -mail shall satisfy the requirement for written acknowledgment) by Seller and delivered to Buyer. The Effective Date of the Purchase Order shall be the date of Seller’s written acknowledgment.
3.0 SCOPE
Subject to the terms and conditions of the Purchase Order, the Deliverable Items to be delivered under the Purchase Order and the corresponding Prices, delivery schedules and delivery locations as are stated in the Purchase Order as acknowledged and accepted in writing by Seller.
4.0 DELIVERY, TITLE TRANSFER AND TRANSFER OF RISK OF LOSS
4.1 Delivery Terms. Delivery terms for Deliverable Items of Equipment are FOB Seller’s Dock. a. Seller shall:
(i) package and prepare the Deliverable Item(s) of Equipment for shipment in accordance with Seller’s standard commercial practic es; (ii) notify the Buyer in writing that the Deliverable Item(s) of Equipment are ready for delivery (notification by electronic means such as e - mail shall satisfy the requirement for written notification); and (iii) make the Deliverable Item(s) of Equipment available for pick -up by Buyer’s selected carrier. b. Delivery as to each Deliverable Item of Equipment shall occur at the time that Seller completes actions (i) through (iii) described immediately above for each such Deliverable Item of Equipment. Deliverable Services are deemed delivered at the time Seller renders the Service. c. Buyer shall be responsible, at Buyer’s expense, for promptly arranging shipment and shipping each of the Deliverable Items(s) , and for the cost of insurance covering loss or damage to the Deliverable Item (s) while in transit. d. In the event that Buyer desires Seller to arrange for shipping, transportation and/or in -transit insurance covering loss or damage of the Deliverable Item(s) (the forgoing, the “Transportation Services”), unless such Transportation Services have been incorporated into the Grid SmatL Grid Tough .
Standard Terms and Conditions of Sale - Domestic
TRAYERDOC STC001, Rev A
03/2018
2 of 5
Purchase Order by written agreement of the Parties, the provision of Transportation Services shall be handled as a change to the Purchase Order and the provisions of Article 7.0, CHANGES, shall apply.
4.2 Risk of loss of Deliverable Items, or any part thereof shall pass to the Buyer upon delivery.
4.3 Title Transfer. Title to each Deliverable Item of Equipment shall transfer to Buyer upon receipt by Seller of payment in full of the Price set forth in the Purchase Order for such Deliverable Item of Equipment. Rights in Seller’s data and Intellectual Property, including all associated Intellectual Property Rights, are set-forth in Article 9.0, INTELLECTUAL PROPERTY, herein.
5.0 ACCEPTANCE
5.1 Acceptance of Deliverable Items of Equipment . Deliverable Items of Equipment are deemed to be finally and irrevocably accepted fifteen (15) days after delivery (the Acceptance Period”), unless before the end of the Acceptance Period, Buyer provides a written notice of non-conformance to Seller advising Seller that a Deliverable Item of Equipment does not conform to the applicable requirements of the Specifi cation (with reference to the specific provision(s) of the Specification deemed not met). In the event that Buyer provides a notice of non-conformance prior to the end of the Acceptance period, Seller shall correct or repair such non -conformance and resubmit the Deliverable Item for acceptance in accordance with the provisions of this Article 5.0, ACCEPTANCE. Non- conformances identified after the Acceptance Period are subject to the terms of the Warranty during the Warranty Period pursuant to Article 8.0, LIMITED WARRANTY, herein.
5.2 Acceptance of Deliverable Services. Deliverable Services are deemed to be finally and irrevocably accepted at the time Seller renders the Service.
Non-conformances in Deliverable Services identified after acceptance are subject to the terms of the Warranty during the Warranty Period pursuant to Article 8.0, LIMITED WARRANTY, herein.
6.0 PRICE AND PAYMENT
6.1 Price. The Price to be paid by Buyer to Seller for the Deliverable Items shall be as set forth in the Price Schedule. Prices for Deliverable Items are exclusive of shipping/transportation costs, costs of transit insurance, sales , use or other taxes. In the event that Seller is required to pay shipping/transportation and/or transit insurance and/or pay/collect sales, use, or other taxes, the corresponding amount will be invoiced to Buyer as a separately identified item.
6.2 Payment. Payment terms are NET 30 DAYS from the date of issuance of the corresponding invoice.
6.3 Late Payment. In the event that any payment due under the Purchase Order is not made when due, without prejudice to its other rights and remedies, Seller shall be entitled to interest on unpaid invoices to accrue at the compound interest rate of 1 -1/2 percent per month (or fraction thereof), or the maximum rate allowed by applicable law, whichever is lower, beginning on the 31 st day following the date of invoic e and continuing until such time as payment in full is received. These terms are an integral part of the Price of the Deliverable Items, which Price sha ll be deemed modified as required under the Purchase Order in the corresponding amount of accrued interest if necessary to accommodate this provision. a. Stop Work. In addition to the right to collect late payment interest as provided above, if any payment is not made by Buyer by the date fifteen (15) days after the date due then, upon a five (5) day written notice provided to Buyer, and without prejudice to Seller’s other rights and remedies, Seller may elect to either: (i) require full or partial payment in advance for all Deliverable Items remaining to b e delivered as a condition of continued performance under the Purchase Order, or any other then existing Purchase Order between Buyer and Seller; or (ii) cease performance of its obligations under the Purchase Order, without prejudice or penalty. If Seller subsequently resumes performance, the Price, delivery schedule, and other affected terms of the Purchase Order shall be equitably adjusted to compensate Seller for all impac ts on Seller associated with such work stoppage, including a reasonable profit. b. Personal Property and Security Interest. Seller retains title to the each Deliverable Item of Equipment until receipt in full of the Price set forth in the Price Schedule for each such Deliverable Item of Equipment. If any payment is not made in full when due, without prejudice to Seller’s other rights and remedies, Seller is entitled to recover possession of the Deliverable Items of Equipment shipped and subject to the delinquent payment, and if they are in Buyer’s possession or control, the Buyer shall assemble them at a place to be designated by Seller. In addition to retaining title to such Deliverable Items of Equipment as set forth immediately above in this sub -Section b, Buyer hereby pledges and grants to Seller, and Seller shall have, a valid, binding, enforceable and perfected first priori ty lien on, and security interest in (collectively, the “Security Interest”), all of the rights, title and interest in, to and under such Deliverable Items, whether now existing or hereafter coming into existence (collectively, the “Collateral) in the poss ession of Buyer and for which Seller has not received full payment of the Price therefor from Buyer, and Buyer shall cooperate with Seller in doing whatever is reasonably required to perfect such security interest.
7.0 CHANGES
7.1 Change Process. Buyer may, in writing, request a change within the general scope of the Purchase Order, including Buyer requested changes to the delivery schedule of a Deliverable Item or postponement of w ork. Seller shall not be obligated to proceed with any change, but will respond to Buyer’s request indicating whether and under what conditions Seller is willing to accept such change. If such requested change causes an increase or decrease in the cost or the time required for completion of the work to be provided herein, or otherwise affects any other provision of the Purchase Order, Buyer and Seller shall negotiate and agree in a timely manner to equitable adjustments in the Prices, delivery schedul es and other affected provisions of the Purchase Order, and the Purchase Order shall be modified in writing accordingly. In no event shall Seller be obligated to proceed with the requested change until the Parties have agreed upon such changes and entered into a written amendment to the Purchas e Order.
7.2 Buyer Caused Delays. Delivery dates are based upon Buyer’s prompt performance of its obligations hereunder, including timely provision to Seller of all necessary information. If the performance of all or any part of the work required of Seller under the Purchase Order is delayed or interrupted by Buyer’s failure to perform its obligations within the time specified in the Purchase Order or within a reasonable time if no time is specified, Seller shall be entitled to an equitable adjustment in the Prices, delivery schedules, and a ny other terms of the Purchase Order affected by such delay.
8.0 LIMITED WARRANTY
8.1 General.
Grid SmatL Grid Tough .
Standard Terms and Conditions of Sale - Domestic
TRAYERDOC STC001, Rev A
03/2018
3 of 5
a. Deliverable Items of Equipment. Seller warrants that for a period of one (1) year from the date of delivery pursuant to Article 4.0, DELIVERY, TITLE TRANSFER AND TRANSFER OF RISK OF LOSS, herein (the “Warranty Period for Equipment”), a Deliverable Item of Equipment will meet the requirements of the Specification and shall be free of defects in material and workmanship (the “Warranty”). S hould any Deliverable Item of Equipment not meet the Warranty provided above during the Warranty Period for Equipment, upon prompt notification thereof by Buyer and confirmation that the Deliverable Item has been stored, installed, operated and maintained in accordance with the manuals, operating instructions and/or recommendation of the Seller, Seller shall correct any such defect either by repair or replacement, at Seller’s option. The foregoing shall constitute Buyer’s sole and exclusive remedy, and shall fulfill and discharge all of Seller’s obligations and liabilities with respect to the Warranty for Deliverable Items of Hardware. b. Deliverable Services. For a period of one (1) year after delivery of a Deliverable Service (the “Warranty Period for Service s”), in the event that any such Service provided hereunder fails to meet the applicable requirements of the Specification at the time of delivery pursuant to Article 4.0, DELIVERY, TITLE TRANSFER AND TRANSFER OF RISK OF LOSS, Seller shall re -perform such Service. The foregoing shall constitute Buyer’s sole and exclusive remedy, and shall fulfill and discharge all of Seller’s obligations and liabiliti es with respect to the Warranty for Deliverable Services.
8.2 Return Material Authorization . Deliverable Items of Equipment m ay not be returned by Buyer for repair or replacement under this Warranty without first securing a Return Material Authorization (“RMA”) number from Seller. Where Seller authorizes Buyer to return D eliverable Items of Equipment for repair or replacement via an RMA, Seller shall also provide Buyer with any information necessary to ensure that the Deliverable Item of Equipment is properly received and accounted for by Seller. Unless otherwise notified by Seller in writing, all auth orized returns shall be sent to the following address:
Trayer Engineering Corporation
898 Pennsylvania Avenue
San Francisco, California 94107
8.3 Exclusions. the Warranty provided under this Article 8.0, LIMITED WARRANTY, shall not apply if adjustment, repair or replacement is required as a result, directly or indirectly, of Buyer’s operating, using and/or maintaining the Deliverable Item in a manner not in accordance with the manuals, operating instructions or recommendations provided by Seller, accident, unusual physical or electrical stress beyond the Deliverable Item’s design tolerances, negligence, misuse, failure of environmental controls prescribed in operations and maintenance manuals, repair or alterations by any party other than Seller, or by causes other than normal and ordinary use. The Warranty provided pursuant to this Article 8.0, LIMITED WARRANTY is conditioned upon Seller being given access, if required, to Deliverable Items at Buyer’s facility in order to effect any repair or replacement thereof. The Warranty does not apply to any items not supplied by Seller and does not include installa tion, de-installation or re-installation of the Delive rable Item, all of which are at the sole expense, and are the sole responsibility of the Buyer. If the defect repaired or remedied by Seller is not covered by the Warranty provided pursuant to this Article 8.0, LIMITED WARRANTY, Buyer and Seller s hall negotiate an equitable adjustment to the Purchase Order for such repair/remedy. In addition, Buyer shall maintain accurate and up -to-date records of all use, maintenance, repairs, incident reports and analysis and handling of the Deliverable Items, which reco rds shall be made available to Seller upon request.
8.4 DISCLAIMER. EXCEPT AND TO THE EXTENT EXPRESSLY PROVIDED IN SECTION 8.1 HEREOF, SELLER HAS NOT MADE NOR
DOES IT HEREBY MAKE ANY REPRESENTATION OR WARRANTY, WHETHER OR ORAL OR WRITTEN, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR USE OR FITNESS FOR PURPOSE WITH REGARD TO ANY DELIVERABLE ITEM, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
8.5 Voidance of Warranty. Any modification or unauthorized repair of Deliverable Item shall void warranty of such Deliverable Item. Buyer agrees to keep accurate and up to date records of Deliverable Item installation and maintenance and furnish to Seller with said reco rds in the event of a dispute upon request.
9.0 INTELLECTUAL PROPERTY
Title to all Intellectual Property incorporated in or associated with Deliverable Items or any element thereof, and the Intellectual Property Rights contained therein, shall remain in Seller or its licensor (“Seller’s Intellectua l Property”). Subject to the terms of the Purchase Order, Buyer shall have a non- exclusive, non-transferrable. non-sublicensable, world-wide, irrevocable (except in the event of Buyer’s breach of the Purchase Order), paid-up, royalty- free license and right to use the Seller’s Intellectual Property for the sole purpose of testing, operating and maintaining Deliverable Items of E quipment and for no other purpose or use. Buyer’s officers, directors, employees, consultants and representatives shall not disclo se Seller’s Intellectual Property to other companies, organizations or persons without the express prior written consent of Seller. Buyer shall have no rights in or to Seller’s Intellectual Property other than as expressly stated in the Purchase Order, and title to Seller’s Intellectual Property shall not pass to Buyer or any other entity pursuant to the terms of the Purchase Order.
10.0 PATENT CLAIMS/THIRD PARTY CLAIMS
10.1 Third Party Claims. Buyer shall not be entitled to, and may not claim, any recovery against Seller for any damages or other liabilities claimed or adjudicated (or provided in settlement of the matter) to be owing to a third party claimant including any costs , expenses and attorneys’ fees (collectively “Losses”) for any injury to, or damage to the property of, such third party, except: (i) to the extent caused by a negligent act, omission or willful misconduct of Seller or its employees or representatives; and (ii) Buyer’s strict compliance with Section 10.3 bel ow.
10.2 Intellectual Property Claims . Subject to Section 10.2 below, Seller shall defend any third party suit or preceding brought against Buyer so far as based on a claim that any Deliverable Item, or any part thereof, delivered under the Purchase Order constitutes and infringement of any United States patent (a “Claim”). Seller shall pay all damages and costs ultimately awarded or provided in settlement thereof to a third party. In case the Deliverable Item, or any part thereof, furnished hereunder is in such suit held t o constitute infringement and its use is enjoined, Seller shall, at its own expense and at its option, either (1) procure for the Buyer the right to continue using said Deliverable Item or part the reof; or (2) replace the same with a non-infringing item; or (3) modify it so that it becomes non-infringing; or (4) remove said Deliverable Item and refund Price thereof.
Grid SmatL Grid Tough .
Standard Terms and Conditions of Sale - Domestic
TRAYERDOC STC001, Rev A
03/2018
4 of 5
The foregoing states the Buyer’s sole and exclusive remedies, and shall fulfill and discharge all of Seller’s obligations and liabilities with respect to a Claim and/or patent infringement by a Deliverable item or any part thereof. a. Exclusions. Seller shall have no liability, and Buyer shall have no rights or remedies under Section 10.2 hereof as to any Cl aim or alleged infringement arising from: (i) any Deliverable Item, or any part thereof, manufactured to Buyer’s design; (ii) the manufacture, use, or sale of said Deliverable Item or any part of parts thereof, in combination with equipment, apparatus or things not furnished by the S eller; (iii) a process or a product thereof; and/or (iv) modifications of any Deliverable Item after delivery by a person or entity other than Seller.
10.3 Conditions. Buyer’s rights and remedies set forth in Section 10.1 and Section 10.2 are expressly conditioned on (i) Buyer promptly notifying Seller, in writing, of any Claim, including a third party claim under Section 10.1, and giving Seller the authority, information, and assistance for the defense of same, and further, that Buyer not make any admission nor reach a compromise or settlement without the prior written approval of the Seller; and (ii) Buyer obtaining a waiver of subrogation and release of any right of recovery against the Seller and its affiliates, contractors and subcontractors at any tier (including suppliers of any kind) and their respective directors, officers, employees, shareholders and agents, that are involved in the performance of the Purchase Order, from any insurer providing coverage for the risks subject to the rights an d remedies of Section
10.1 and Section 10.2 hereof.
11.0 CONFIDENTIAL INFORMATION
All Seller’s confidential information is subject to Article 9.0, INTELLECTUAL PROPERTY, hereof. Unless Buyer and Seller have entered into a separate confidentiality agreement for the protectio n of Buyer’s confidential information, and the terms of which are incorporated into the Purchase Order, Buyer agrees that it has not provided Seller with any Buyer confidential information and that Seller has no confidentiality obligations in regard to Buyer’s information.
12.0 DISPUTES
The Parties shall attempt in good faith to resolve any dispute(s) arising under the Purchase Order by negotiations between re presentatives of the Parties authorized to resolve such dispute(s), prior to submitting such dis pute(s) for resolution by a court of competent jurisdiction or other resolution process.
All negotiations pursuant to this Section 12 shall be confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence, and not as evidence or admission of liability.
13.0 TERMINATION
13.1 Sellers Rights to Terminate. Seller may terminate the Purchase Order for Buyer’s breach, including Buyer’s insolvency, or failure to give adequate assurances of payment within five (5) days of a written request by Seller, and Seller shall be entitled to payment for all Deliverable Items Delivered to Buyer prior to the termination and for partially completed items or Service s and work-in-process that is subject to such ter mination: (i) at the actual cost incurred by Seller, including normal overheads and burdens; plus: (ii) for the cost of settling and paying termin ation settlement proposals under terminated subcontracts that are properly chargeable to the terminated portion of the Purchase Order (excluding any actual costs of materials already included sub -Section (i) immediately above); plus (iii) and other costs incurred, reasonably necessary for the preservation, protection, or disposition of the termination inventory; plus (iv) a markup of twenty percent (20%) of such costs calculated pursuant to sub- Sections (i) through (iii) immediately above. In the event of default for non-payment by Buyer, Seller shall also have the remedy of repossession of the Deliverable Items subject to such termination, and shall also be entitled to recover from Buyer the difference in fair market value between the Price of the Deliverable Item repossessed and its then fair market value plus costs of repossession, shipping and handlin g.
13.2 Buyer’s Rights to Terminate . Buyer may terminate the Purchase Order as to any Deliverable Item only if Seller has failed to correct a material breach thereof within forty -five (45) days after receipt of Buyer’s written notice specifying the cause of the Br each. As Buyer’s sole remedy in the event of such termination, Seller shall refund the Price or any portion thereof paid or received from Buyer for the termi nated Deliverable Item(s).
13.3 Other Termination Rights. Except as provided in Sections 13.1 and 13.2 above, neither the Purchase Order nor any portion thereof is cancellable or terminable for any reason except with the written agreement of Parties, which agreement shall include an agreement on the compensation due to Seller in the event of such a m utually agreed termination. In the event that Buyer attempts to terminate this Agreement in violation of this Section 13.3, it shall be deemed a breach by Buyer and Seller shall be entitled to the rights and remedies contained in Section 13.1 hereof; provided that, in no event shall Seller’s recovery against Buyer be less than fifteen percent (15%) of the Price of the terminated Del iverable Items.
14.0 ASSIGNMENT
The Purchase Order may not be assigned by Buyer without the express written consent of the Se ller, which consent will not be unreasonably withheld.
15.0 LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER SHALL NOT BE LIABLE DIRECTLY OR INDIRECTLY TO THE
BUYER, TO ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS AT ANY TIER (INCLUDING SUPPLIERS
OF ANY KIND), AGENTS OR CUSTOMERS, TO I TS PERMITTED ASSIGNEES OR SUCCESSORS IN INTEREST OR ANY SUBSEQUENT
OWNERS OF ANY DELIVERABLE ITEM OR TO ANY OTHER PERSON CLAIMING BY OR THROUGH BUYER, FOR ANY AMOUNTS
REPRESENTING LOSS OF PROFITS, LOSS OF BUSINESS, LOST REVENUES, OR INDIRECT, SPECIAL, INCI DENTAL, EXEMPLARY,
CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION COSTS OF EFFECTING COVER, ARISING FROM OR
RELATING TO THE PERFORMANCE OR NONPERFORMANCE OF THE PURCHASE ORDER OR ANY ACTS OR OMISSIONS ASSOCIATED
THEREWITH OR RELATED TO THE USE OF ANY ITEMS DELIVERED OR SERVICES FURNISHED UNDER THE PURCHASE ORDER,
WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OF ANY TYPE AND STRICT LIABILITY), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY. IN NO EVENT SH ALL SELLER’S MAXIMUM CUMULATIVE
LIABILITY UNDER OR IN CONNECTION WITH THE PURCHASE ORDER EXCEED THE REFUND OF AMOUNTS PAID TO SELLER
THEREUNDER, WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OF ANY Grid SmatL Grid Tough .
Standard Terms and Conditions of Sale - Domestic
TRAYERDOC STC001, Rev A
03/2018
5 of 5
TYPE AND STRICT LI ABILITY), STATUTE OR OTHER LEGAL OR EQUITABLE THEORY. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTIONS ACCURES. THIS ARTICLE 15.0, LIMITATION OF LIABILITY, SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THE PU RCHASE ORDER FOR WHATEVER CAUSE.
16.0 GENERAL
16.1 Remedies. Except as otherwise expressly set forth in the Purchase Order, the remedies provided herein are the sole and exclusive remedies and will be deemed to be an election of remedies exclusive or any other remedy at law or equity or otherwise.
16.2 Applicable Law . All Quotations and the Purchase Order shall be interpreted, construed and governed, and the rights of the Parties shall be determined, in all respects, according to the laws of the State of California, USA, without reference to its conflict of laws provisions. The State and Federal courts of competent jurisdiction of California shall have sole jurisdiction over any suit resulting from the Purchase Order, with venue in the County of San Francisco, CA. Buyer and Seller hereby consent to the exclusive jurisdiction of the aforesaid courts and the venue.
16.3 Entire Agreement. The Purchase Order, including all its exhibits, attachments and referenced and/or incorporated documents represents the entire understanding and complete agreement between the Parties with respect to the subject matter of the Purchase Order and superse des all prior and contemporaneous negotiations, agreements, communications and understandings (both oral and written) with respect to the subj ect matter of the Purchase Order.
16.4 Force Majeure . Seller shall not be liable for any loss, damage or delay arising out of its failure (or that of its suppliers) to perform under the Purchase Order due to causes beyond its reasonable control, including, without limitation, acts of God, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation or transportation embargoes. In the event of a delay caused by a force majeure event, the delivery schedule of the Purchase Order shall be extended for such length of time as may be reasonably necessary to compensate for the delay.
16.5 Counterparts. The Purchase Order may be signed in any number of counterparts with the same effect as if the signature(s) on each counte rpart were upon the same instrument.
16.6 Use of the Term “Including”. Whenever the word, “including” is used in the Purchase Order, it shall not be interpreted as a term of limitation, but shall be deemed to include the phrase, “but not limited to”.
16.7 Waiver and Amendment. Quotations, including all documents attached, incorporated or referenced therein, may not be modified except by a written instrument signed by an authorized representative of Seller. The Purchase Order, including any and all of its exhibits, atta chments and referenced and/or incorporated documents may only be m odified by a written instrument of subsequent date signed by authorized representatives of both the Seller and Buyer. Failure by either Party to enforce any provision of the Purchase Order will not be deemed a waiver of futu re enforcement of that or any other provision.
16.8 Interpretation. Whenever the Purchase Order provides for a decision to be made by either Party (including, without limitation, any consent , approval, acceptance, instruction, notice, opinion or direction), both Parties undertake that such decisions shall not be unreasonably made, withheld or delayed. Both Parties agree that when making any claim against the other, they will use all reasonable endeavors to mitigate losses arising from the same.
16.9 Survival. Termination or expiration of the Purchase Order for any r eason shall not release either Party from any liability or obligations: (i) that the Parties have expressly agreed shall survive such termination or expiration; (ii) which remain to be performed; or (iii) by their nature would be intended to be applicable following any such termination or expiration.
Trayer Engineering Corporation
898 Pennsylvania Avenue
San Francisco, CA 94107
415-285-7770
www.trayer.com
Grid SmatL Grid Tough .